SM

IWMI is a Future Harvest Centersupported by the CGIAR

A Method to Identify andEvaluate the Legal and InstitutionalFramework for the Managementof Water and Land in Asia

The Outcome of a Study in Southeast Asiaand the People's Republic of China

RESEARCH

73

Water ManagementI n t e r n a t i o n a l

I n s t i t u t e

Ian Hannam

R E P O R T

SM

IWMI is a Future Harvest Centersupported by the CGIAR

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ISSN 1026-0862ISBN 92-9090-528-X

Water ManagementI n t e r n a t i o n a l

I n s t i t u t e

Research Reports

IWMI’s mission is to improve water and land resources management for food,livelihoods and nature. In serving this mission, IWMI concentrates on the integrationof policies, technologies and management systems to achieve workable solutions toreal problems—practical, relevant results in the field of irrigation and water and landresources.

The publications in this series cover a wide range of subjects—from computermodeling to experience with water user associations—and vary in content fromdirectly applicable research to more basic studies, on which applied work ultimatelydepends. Some research reports are narrowly focused, analytical and detailedempirical studies; others are wide-ranging and synthetic overviews of genericproblems.

Although most of the reports are published by IWMI staff and their collaborators,we welcome contributions from others. Each report is reviewed internally by IWMI’sown staff and Fellows, and by external reviewers. The reports are published anddistributed both in hard copy and electronically (www.iwmi.org) and where possible alldata and analyses will be available as separate downloadable files. Reports may becopied freely and cited with due acknowledgment.

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Introduction

The International Water Management Institute(IWMI) accepts that the development of aframework to identify and better understand thelegal and institutional issues of water and landmanagement is an essential part of this process(Dialogue on Water, Food and Environment2001; Penning de Vries et al. 2002). Such aframework would make a substantial contributionto achieving the common concerns and agreedpriorities for action on water, and sustainableland development outlined in the joint statementof ten Asian nations of May 2002 (JointStatement by the Ministerial Delegations of TenAsian Nations 2002).

Law reform, through the introduction of newframeworks or upgrading the existing ones isseen as a priority for water and landmanagement for the upcoming years (Dialogueon Water, Food and Environment 2001). The lawis perceived as a fundamental tool for achievingintegrated resources management, guaranteeinga participatory process, and tackling issues suchas pricing of commodities, building partnerships,protecting the environment and achievingsustainable development (Penning de Vries et al.2002). Areas of intensive agricultural land usetend to experience water and soil degradation,resulting variously in water and soil salinization,decline of water quality and degradation of the

A Method to Identify and Evaluate the Legal andInstitutional Framework for the Management of Waterand Land in Asia

Achieving the sustainable use of water and landresources is a major challenge for the world inthe twenty-first century. Despite the emergingrecognition of their central role in humansurvival, water and land ecosystems are beingdegraded at an alarming rate. Of significantconcern is the sustainable production of food,maintenance of livelihoods of rural land usersand improving the quality and biodiversity ofnatural resources (World Resources Institute2000; WSSD 2002a, b, c). The creation of anenabling environment for farmers and agenciesto adopt management practices that reducewater and land degradation and improve foodsecurity is crucial. It is important to create alegal framework to define what activities areallowed in a particular area and who isresponsible for them and for the state of theresources. In particular, rural land users shouldhave the benefit of securing tenure or long-termaccess to land and assured rights of access tothe water resource (Penning de Vries et al.2002). The benefits of capacity building inenvironmental, legal and institutional systems tothe Asian region in general are widelyrecognized, especially to the knowledge,understanding and capability of environmentallaw to improve the quality of the naturalenvironment (Boer et al. 1998; Craig et al. 2002).

The Outcome of a Study in Southeast Asia and the People'sRepublic of China

Ian Hannam

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terrestrial and aquatic ecosystems. It isestablished that these problems hit first andhardest the people in the region who alreadylead the poorest livelihoods as well asthreatening the resource base on which foodproduction depends (Molden et al. 2002; IWMI2000, 2002).

This report outlines the approach taken toidentify and evaluate the features of the legaland institutional framework for themanagement of water and land of fourcountries in the Asian region. It describes themethod used to achieve this, outlines some ofthe key findings and raises some importantchallenges for the future. It is based on astudy carried out in the region in 2002 byIWMI, to review the capacity of the legal andinstitutional system of the People’s Republic ofBangladesh, Lao PDR, the Republic of the

Philippines and the PRC (these four countriesare hereafter referred to as “the region” in thisreport) to manage water- and land-use issues(Hannam 2002a, b). It identifies the capacity ofrelevant national, regional and internationallegislation to manage water and land-useissues of the region. It also raisesopportunities for reform and capacity buildingin the legal and institutional system in theregion. It highlights the relationships andinterdependence between the three principallevels of legislative instruments applicable inthe region—the international environmental law,regional environmental law and nationalenvironmental law. In this regard, this reportmakes a significant contribution as a generalprocedure to better understand the capacity ofthe legal and institutional system for integratedwater- and land-resources management.

Establishing a Direction for a Legal and Institutional Frameworkfor Water and Land Management

Generic Terms Central to theDiscussion

One of the difficulties in discussing water- andland-management issues is the question ofconsistency in understanding particularinterrelationships between the water, land,legislative and human factors. For this reason, anumber of generic terms have been formulatedto ensure consistency in interpretation in thisreport.

Sustainable use of water and land

• This is the utilization of water and land in amanner that preserves the balance betweenthe processes of soil formation and soildegradation, and the maintenance or

improvement in the quantity and quality ofwater, while maintaining the ecologicalfunctions and needs of water and land. Inthis context, the term “the use of water andland” means the role of water and land in theconservation of biodiversity and themaintenance of human life.

Sustainable water and land management

• This is managing the water and landresources for livelihoods and nature byidentifying the necessary tasks, policy tools,organizational designs, and institutionalframeworks to achieve and sustain highproductivity of water and land for agricultureand to improve people’s lives.

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Integrated resources management

• This is a process that promotes thecoordinated development and managementof water, land and related resources, tomaximize the resultant economic and socialwelfare in an equitable manner withoutcompromising the sustainability of vitalecosystems (see Global Water Partnership2000).

There are many competing issues withinthese definitions but an important role of anatural-resources legal and institutional system isto provide a range of administrative andprocedural mechanisms that enable suchcompeting issues to be reconciled whileproviding for the primary interests of humans andnatural resources.

Meaning and Scope of EnvironmentalLaw

In a general sense, any rules or regulations thatgovern conduct that are likely to affect thesustainable use of water and land may fall withinthe definition of environmental law as applied inthis report. One approach in identifying theparameters of environmental law is through thedefinition of “environment,” where the scope ofthe legal discipline of environmental law flowslogically from that definition. Many variations ofthe definitions of “environment” exist but theycommonly provide for all aspects of the livingcommunity of earth and the natural, human-madeand social surroundings of that community. Itoften appears in a more comprehensive format,making reference to ecosystems, all natural andphysical resources, qualities and characteristicsof an area, and social, economic and culturalconditions. The different facets of the“environment” are not mutually exclusive andmany of the boundaries overlap, bringing themwithin the scope of a legal and institutional

framework for the sustainable use of water andland (Rodgers 1994; Williams 1997). This reportputs forward a way of discussing the legal andinstitutional system for the environment of waterand land and determining its capacity to managethese resources. In this report, a reference to“law” means a body of law enacted by alegislature, e.g., an act, decree, regulation, orother formal legal instrument that is legallyenforceable. It can also include agreements orcovenants, which are expressed to be legallybinding.

Two Key Definitions

A legal and institutional system

A legal and institutional system is theorganizational and operational regime togetherwith a legal and institutional framework that isused to manage water and land. It comprises theorganization itself and its administrative andlegislative structures (see Boer and Hannam2003).

The capacity of a legal and institutionalframework for water and land management

The capacity of a legal and institutionalframework for water and land management canbe measured by the ability of a legislative andinstitutional system to achieve sustainable use ofwater and land. The “capacity” is determined bythe number and type of essential legal andinstitutional elements present in a legalinstrument in a format that enables the keyissues of the sustainable use of water and landto be identified, and with the legal, administrativeand technical capability in the particularinstrument to take some form of effective action.In some jurisdictions, the capacity will be directand obvious. In other places, it will exist in aformat that enables some form of indirect action.Capacity is also represented in the form of legal

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rights, the type of legal mechanisms, andimportantly, the number and comprehensivenessof the essential elements and their functionalcapabilities.

Most primary water- and land-managementissues in the region are multifactorial, i.e., theyinclude a sociological, a legal and a technicalcomponent. Therefore, it is obvious that,generally, more than one piece of environmentallegislation, along with detailed regulations, will beneeded in a particular nation to effectivelymanage individual issues (Hannam 2002a). Avariety of types of legal and institutionalelements and mechanisms may also be required.This reinforces the necessity to analyze therelevant environmental legislation at each level inthe region in order to ascertain currentmanagement regimes. The information generatedby such an analysis may also be used as aguide to the type of legislative and institutionalelements that may be necessary to includewithin any new legislative regime that may bedrafted for each level of resources management(see Boer and Hannam 2003).

Legal and Institutional Frameworks

The general concept of a legal and institutionalframework is to provide law and policymakerswith the practical information and guidance tounderstand, or to develop or strengthen the legaland institutional capacity for a specificenvironmental-management issue. A frameworkcan be applicable at either the international,regional or national level or a combination ofthese levels. Some nations have improved thecapability of their domestic legislative systems toinclude references to the regional andinternational laws (see Shine and de Klemm1999; Hannam and Boer 2002). An importantaspect of a framework can be the need forcooperation and coordination between variouscountries in the region to effectively address their

environmental problems (Boer et al. 1998). Theactivity around the world over the last decade tocreate or modify legal and institutionalframeworks to implement the objectives ofmultilateral treaties and conventions hasproduced lessons that can benefit national andregional environmental law reform procedures(e.g., Glowka et al. 1998; Shine and de Klemm1999). The outcomes of the 1992 United NationsConference on Environment and Developmenthave been particularly beneficial, and theprinciples of the 1992 Rio Declaration onEnvironment and Development (United Nations1992) have been incorporated into variouslegislative structures for the future managementof the environment in the Asia-Pacific region(Boer at al. 1998). More recently, the Report ofthe World Summit on Sustainable Development(United Nations 2000), the World Summit onEnvironment and Development Plan ofImplementation (WSSD 2002a) and theoutcomes of the Kyoto Water Forum 2003,provide additional substantial mandates forenvironmental law and policy reform forwater- and land-resources management in theregion.

Many legal and institutional frameworks toemerge over the last decade demonstratedifferent ways to approach international, regionaland national environmental law analysis, andreform and the development of ways to approachthis task (Robinson 1997). These frameworksillustrate the impact of various pressures on thenatural environment and demonstrate how lawsand institutions can mutually link between thescientific approaches and legal tools (e.g., Shineet al. 2000). While none of them alone wasconsidered to be readily adaptable as aframework to examine water- and land-management issues in the region, variousaspects of these frameworks provided a valuableguide to the approach taken to develop a legaland institutional framework for the region(Hannam 2002a). In general, a legal and

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institutional framework for natural-resourcesmanagement should feature:

• An overview of the current international legalregime, outlining the key legal approaches,principles and tools in the international lawthat could be considered in shaping regionaland national frameworks.

• The structure of a national framework shouldhave the ability to consider complex scientificissues in a legal context.

• A discussion of the role of legal principles,tools and other elements in the design ofnational legal measures and procedures toprevent or minimize environmental degradation.

• An indication of elements that could befeatured in regulatory regimes.

• The mechanisms for compliance,accountability and responsibility inenvironmental management (e.g., see Shineet al. 2000).

Methodological Steps in the Legal and Institutional Framework

There are basic steps to the development of alegal and institutional framework for water andland management in the region (Hannam 2002a).These steps are applied at the international,regional and national levels of law, but in doingso, the different objectives, roles andresponsibilities of each level of law within theregion are carefully evaluated. Individual statesin the region have the freedom to change theirlaws to more effectively manage water and land.However, changes to international laws can onlybe brought if states, usually as a group, applypressure on treaty Secretariats, InternationalCouncils, etc., for existing treaties and strategiesto be amended, or new ones to be formulated.Where a state in the region is a party to a treaty,this may impose certain obligations or duties onthat state to implement the provisions of thetreaty. On the other hand, states are not boundto implement the provisions of the internationalenvironmental strategies and can use them as aguide for national decision making (see Boer etal. 1998; Mottershead 2002).

In the main study, the primary aim was todetermine the capacity of the existing legal andinstitutional system for effective water and land

management and look for opportunities forimprovement, rather than whether individualnations were actually following their obligationsunder international, regional or national law(Hannam 2002a).

Step 1. Preliminary

• The first task identifies the primary water-and land-management issues in the region.An issue is defined as an expressed point orarea of concern, which may includereference to the knowledge and actionneeded to achieve the sustainablemanagement of water and land. It may alsoinclude a matter that requires furtherinvestigation to determine or justify aparticular course of action (e.g., see Penningde Vries et al. 2002).

• The second task identifies the operationalenvironment for water and land management.This includes the principal methods,processes and procedures used tounderstand, implement and solve water- and

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land-management issues (e.g., see theoperational environment outlined in Dialogueon Water, Food and Environment 2001, 10).

The third task identifies the environmental

laws and instruments relevant to water andland management in the region at eachlevel—international, regional and national. Inthe study, searches were conducted onvarious environmental law databases (i.e.,Australasian Legal Information Institutedatabase, Asia-Pacific Environmental Lawdatabase; Mekong Region Law Centredatabase),1 in addition to canvassing relevantliterature (e.g., Craig et al. 2002) to preparethe list of relevant legislation and instrumentsfor each level.

A law or instrument was selected forexamination on the basis of its assessed director indirect role in the sustainable management ofwater and land.

Step 2. Analysis

` The first task examines, analyzes and

interprets the selected environmental lawsand instruments against a legal andinstitutional standard. In this case, the“standard” is the basic legal and institutionalelements considered as essential within anindividual law or instrument to enable itseffective implementation within thegeographic and institutional jurisdiction toachieve the sustainable use of water andland.

The second task is, for the relevant laws and

instruments at each level:

To “isolate” the articles, principles or

clauses relevant to water and landmanagement.

To categorize the relevant articles,

principles, or clauses according to whichof the “essential elements” they satisfy.

The third task is the preparation of the legal

and institutional profiles for each of the threelevels, where each profile consists of:

The relative occurrence of each essential

element.

Delineating the most-represented and the

least-represented elements.

The same procedure was applied to eachlaw and instrument identified at each level.

Step 3. Discussion, Results, Outcomes

The first task summarizes the legal and

institutional profiles.

The second task documents the principal

characteristics, strengths and weaknesses ofindividual laws and instruments at each level.

The third task determines the capacity of the

legal and institutional system to achievesustainable water and land.

The final task discusses opportunities for

legislative and institutional improvement, andsuggests areas of legal and institutionalreform to improve water and landmanagement.

1Including, IUCN ECOLEX, www.ecolex.org; UN FAOLEX, www.faolex.fao.org; Australian Legal Information Institute, www.austlii.edu.au; theAsia-Pacific Environmental Law database <sunsite.nus.edu.sg/apcel/dbase>; and the Mekong Region Law Centre database<www.mekonglawcentre.org>.

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Water- and Land-Management Issues

1. General Issues

• To improve water- and land-resourcesmanagement by bridging the gap betweenthe food and environmental sectors.

• To encourage more equitable policy anddecision-making processes.

• To maintain land-use sustainability in theface of increasing water and landdegradation (increasing the productivity ofwater and land in agriculture with increasingcompetition for water and land from othersectors).

• To improve the processes for resolvingdisputes over water and land use,particularly more effective ways to settleconflicts between resources use andconservation.

• To develop a knowledge base that reflectsregional, national and local differences inland use and environmental interests.

• To change attitudes and values insustainable water and land managementthrough increased public awareness andcapacity building.

• To identify institutional barriers, participationand consultation processes andstakeholders.

• To ensure an open and inclusive approach tothe management of water and land.

• ` To improve the knowledge-sharing processes.

The primary water- and land-management issuesin the region were identified from key strategicwater- and land-management materials for theregion, paying particular attention to theirobjectives, recommendations and conclusions(e.g., see Penning de Vries et al. 2002, 47–60in particular; Dialogue on Water, Food andEnvironment 2001; WSSD 2002a, b; IWMI2002; World Bank 2001). In the main study,these issues, which are regarded as primarypoints or matters of public importance, wereused to:

• Establish “benchmarks” of important water-and land-management problems facing theregion.

• Establish indicators of the type of legaland institutional elements required at eachlevel of law to effectively manage theissues.

• Make comparisons between the legal andinstitutional profiles of each national law andinstrument examined.

• Identify potential areas for legal andinstitutional research.

The primary issues were also used inconjunction with the findings of the detailedanalyses of the legal materials for each level asa basis to recommend change and reform. Someexamples of generic water- and land-management issues taken from the main study(Hannam 2002a) are given below.

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2. Legislative, Policy and Institutional Issues

Issues identified at the regional and internationallevel include:

• The level of interest expressed in theinternational treaties and strategies towardnational environmental-management issuesof the region.

• The mechanisms for enforcement of regionaland international laws and strategies.

Issues expressed at the national levelinclude concerns to:

• Undertake a detailed study of laws and rulemaking, policy and institutional arrangementsin developing countries, ranging from thecommunity to the national level.

• Produce knowledge-based guidelines, bestpractices and policies that enable institutionsto deal with specific water- and land-management problems.

• Develop strategic tools for enhancing theproductivity of water and land at the local,river-basin and national levels.

• Identify poverty and gender concernsassociated with the use of water andland, and how to properly cater for thesein national law and policymakingsystems.

• Develop institutional arrangements and policyframeworks with the highest potential toimprove the productivity of water and landmanagement, assist poor people and achieveenvironmental sustainability.

The Issues in an Environmental Law Context

In the main study, the primary water- and land-management issues were used to determine theadequacy of the legislative and institutionalelements at the international, regional andnational levels. They were also used as a guidefor the most appropriate legal and institutionalframework that can best represent the primaryland- and water-management issues confrontedin the region. The sequence is:

• Making a list of the elements considerednecessary to deal with each separatecomponent of a particular issue.

• Noting the number of times each particularelement is considered necessary.

• Using the above information to estimate therelative importance of a particular element tothe management of water- and land-management problems.

It is important to note that most water- andland-management issues are multifactorial, i.e.,they many include a sociological, a legal and atechnical component. Understandably, morethan one piece of national environmental law,with the necessary legislative support tools, isneeded to effectively manage each individualissue. Also, many different types of legal andinstitutional elements and mechanisms arerequired. The experience and knowledge gainedform the study point to the necessity to analyzea wide range of environmental law at each levelfor any region. Further, internationalenvironmental organizations and states can usethe information stemming from this process as aguide to the type of legislative and institutionalelements necessary to include within newlegislative materials for improved natural-resources management.

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Water- and land-management functions

The water- and land-management issuesthemselves were found to be indicative of thetypes of environmental law relevant to theregion. The analysis of all the issues assembledin the study (some listed above) indicated thatmany administrative, scientific and statutoryfunctions and procedures are involved in waterand land management in the region (Hannam2002a). For example, at the international level,various duties, principles, and obligations are setout in relation to:

• Establishing linkages between differentcountries.

• Preparing strategies and policies for waterand land management (e.g., the content ofNational Action Programs under Article 8 ofthe Convention to Combat Desertification).

• Establishing strategies to prevent and reducepoverty.

• Preventing and controlling water- and land-pollution activities (environmental health).

• Balancing water and land use and managingecosystems for future generations.

• Achieving sustainable use of naturalresources.

• Undertaking public participation andcommunity-awareness programs.

• Establishing guidelines and standards tomanage environmental hazards.

• Developing and implementing effectivenational environmental laws.

• Developing guidelines and strategies forriver-basin management.

At the national level these include:

• Establishing linkages between differentsectoral agencies.

• Preparing and implementing nationalstrategies and policies for water and landmanagement.

• Taking action to overcome and reduce ruralpoverty.

• Control of water- and land-pollution activities(environmental health).

• Balancing water and land use and managingecosystems for future generations.

• Deriving sound ecological and technicalpractices for water and landmanagement.

• Establishing effective communication,capacity building and community-awarenessprograms.

• Establishing performance reporting andmonitoring the effectiveness of land- andwater-management schemes.

• Designing and implementing practical water-and land-management schemes.

• Developing and implementing effectiveenvironmental laws.

• Developing guidelines and strategies forlocal- and national-land management,including river-basin management.

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Water- and land-management activities

The water- and land-management functions areclassified into functional activities. The activities,summarized below, provide a reasonabledirection to the specific types of law needed foreffective water and land management.

• Natural-resources activities, e.g., soil-management activities (cultivation, fertilizerapplication, land rehabilitation, sustainableland use, managing contaminated sites);water-management activities (water retention,irrigation systems, river-basin management,wetland management, control of waterpollution); vegetation-management activities(biodiversity, burning, cutting, rehabilitation);ecosystem management (water and soilinteractions, ecosystem functioning,ecosystem diversity).

• Administrative activities, e.g., land-administration activities, water administration,role of committees, departmental structuresand responsibilities, duty of care, activities ofspecial councils, advisory bodies, and inter-

responsibility for protection of the globalenvironment, cooperation between states indealing with these environmental problems,and the need for an ecosystem approachtowards environmental protection. These legaldevelopments have placed state responsibilityfor protecting the local, regional and globalenvironment high on the international agenda(IUCN 2000; WSSD 2002a,b,c). In the Asianregion, there has been a varied response tothese international issues (Boer et al. 1998;Mottershead 2002).

governmental and intra-governmentalfunctions.

• Technical-based activities, e.g., activitiesrelated to land planning, water allocation,land zoning, establishing water- and land-quality standards, land survey, and landclassification and water classification.

• Knowledge-based activities, e.g., activitiesrelated to research, investigation, andcommunity participation, education andextension activities.

• Social-based activities, e.g., women’s rightsin agricultural land use, special educationand assistance for disadvantaged groups,and poverty-alleviation programs.

• Legal-based activities, e.g., statutory rules,legal obligations (organizations, individuals,groups), land-use rights, water-use rights,limits of use, regulatory responsibilities, legalstandards, enforcement (monetary andnonmonetary), and dispute resolution (courts,mediation, counseling, arbitration).

Laws Relevant to Water and Land Management

International Treaties and OtherAgreements

The serious nature of water and landdegradation around the world has motivatedenvironmental lawyers and scientists intoseeking better international legal instruments tomanage these resources (Bridges et al. 2001;de Sadeleer 2002). With the growth ininternational law focusing on the resolution ofglobal and regional environmental problems,new principles have emerged concerning state

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The Nature of International andRegional Instruments: Binding andNonbinding Legal Instruments

The two principal categories of internationalenvironmental law are represented in theregion, i.e., binding and nonbinding instruments(see United Nations 1999). It is important to beaware of the objectives, roles andresponsibilities of each type in relation to itsapplication to the sustainable use of water andland in the region. This applies particularly withregard to the effectiveness of each instrumentto deal with the ecological complexities ofwater and land and the technical ability ofdeveloping nations to implement internationalinstruments to achieve sustainable water andland management.

Many multilateral environmental treaties,protocols and agreements introduced in the pastthree decades have environmentalresponsibilities that are in some way related tothe management of water and land in the region(UNEP 1996; IUCN 2000). They include, forexample, flora and fauna conservation, protectionof coasts, pollution management, regionalconservation protection, settling disputes, liabilityin relation to environmental damage, protectionof world cultural and natural heritage,endangered species, and landscape protection.Many related instruments contain legal andinstitutional elements that assist in theachievement of a regional goal of sustainableuse of water and land, including those that havean established interest in the activities that leadto improved management of water and land(Boer et al. 1998).

The following international instruments wereidentified as relevant to sustainable water andland management in the region.

International

Conventions

• 1971 Convention on Wetlands ofInternational Significance Especially asWaterfowl Habitat.

• 1972 Convention Concerning the Protectionof the World Cultural and Natural Heritage.

• 1972 Convention on the Prevention ofMarine Pollution by Dumping of Waste andOther Matter.

• 1973 Convention on International Trade inEndangered Species of Wild Flora andFauna.

• 1982 United Nations Convention on the Lawof the Sea.

• 1985 Vienna Convention for the Protection ofthe Ozone Layer.

• 1989 Basel Convention on the Control onTransboundary Movements of Wastes andTheir Disposal.

• 1992 Convention on Biological Diversity.

• 1992 Framework Convention on ClimateChange.

• 1992 Convention on the Protection and Useof Transboundary Watercourses andInternational Lakes.

• 1994 United Nations Convention to CombatDesertification.

• 1997 United Nations Convention on the Lawof Non-Navigational (Uses of InternationalWatercourses).

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Protocols

• 1989 Montreal Protocol on Substances ThatDeplete the Ozone Layer.

• Protocol on Water Health to the 1992Convention on the Protection and Use ofTransboundary Watercourses andInternational Lakes.

• 1997 Kyoto Protocol to the United NationsFramework Convention on Climate Change.

Declarations

• 1966 Helsinki Rules on the Use of Waters ofInternational Rivers.

• 1972 Stockholm Declaration on the HumanEnvironment.

• 1992 Rio Declaration on Environment andDevelopment.

• 1995 Washington Declaration on theProtection of the Marine Environment fromLand-Based Activities.

Other Types

• 1994 International Tropical TimberAgreement.

• 1992 Forest Principles.

Regional

• 1985 ASEAN Agreement on theConservation of Nature and NaturalResources.

• 1995 Agreement on the Cooperation forSustainable Development of the MekongRiver.

• 1989 Langkawi Declaration on theEnvironment.

• 1994 Action Plan for the East Asian Seas.

National Legislation

The actual legal and institutional elementsessential to implement the functions andactivities of water and land management in theregion are far too broad and complex to befound within one single type of nationalenvironmental law or even within one regime ofenvironmental law within a country.2 In fact, theyexist across a very wide range of law associatedwith the management of the natural environmentof the region (Craig et al. 2002; Mottershead2002). This system of law contains the legalelements, legal mechanisms, and ecological andscientific concepts, definitions and standards thatare required to manage the multifunctional andmultidisciplinary water and land issues. Somenations in the region already have a substantialbody of supplementary law, statutory decisions,

2A “regime” is a group of legislation that focuses on one specific area of the environment, e.g., soil conservation and environmental protec-tion. Because of the many ecological, administrative and scientific aspects associated with the management of the environment per se, it isnow common within the discipline of environmental law to link a group of laws by an enabling law so as to give maximum protection to thataspect of the environment.

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legal codes, orders and rules to support theimplementation of the individual primary laws(e.g., the PRC) whereas others are still evolvingan adequate environmental law base (e.g.,People’s Republic of Bangladesh). In summary,the following areas of national environmental laware applicable (see Hannam 2002a, for the fulllist of national laws examined):

• Constitutional law (e.g., sets out basic legaland human rights).

• Environmental planning law (e.g.,environmental policy, land zoning and landallocation).

• Pollution control law (e.g., water quality andpollution standards).

• Forestry law (e.g., planning and managementof forestland and watershed management).

• Plantation and reafforestation laws (e.g., landrehabilitation methods).

• Soil conservation law (e.g., soil erosioncontrol and managing soil erosion hazards).

• Water conservation law (e.g., watershedprotection and water classification).

• Water use law (e.g., water allocation, watersupply and irrigation schemes).

• Environmental protection law (e.g.,environmental impact assessment andenvironmental standards).

• Mining law (e.g., environmental controlover mining activities and landrehabilitation).

• Indigenous people’s and customary law (e.g.,traditional land-use rights and preservation oftraditional knowledge).

• Agriculture land-use law (e.g., controls overcrop and livestock, pesticide and chemicalapplications).

• Agriculture reform (e.g., distribution ofagricultural land, irrigation schemes andresettlement schemes).

• Protected area law (e.g., protection of naturaland sensitive landscapes).

• Protection of the marine environment (e.g.,controlling land-based activities that affectthe marine environment).

• Land administration and tenure law (e.g.,land allocation, land-use rights, leaseholderagreements and conditions of land use).

• Legislation that provides for women’s rights,poverty alleviation and financialmanagement.

• Criminal law and various laws that deal withthe law courts (e.g., dispute settlement,pecuniary actions, statutory notice powersand prosecution).

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Basis for Analysis, Interpretation and Comparison of EnvironmentalLaw and Institutional Characteristics

through its executive and administrativestructure, to achieve sustainable use of waterand land. It is also possible that these elementsmay be distributed among a number of individuallaws within a national legal and institutionalsystem. The “essential elements” outlined in thisreport were derived through an evaluation oflegal and ecological principles where, incombination, they are aimed at achieving adesired level or standard of performance insustainable water and land management. Thelegal and institutional elements that follow areused in two roles:

• To assist in the evaluation of an existing lawor legal instrument to determine its capacityto meet certain prescribed standards ofperformance for the sustainable use of waterand land.

• To guide the reform of an existing law or todevelop a new environmental law to manageboth water and land. Each legal andinstitutional element must have the capacityto achieve a desired or prescribed level ofecological management for water and land.

Application

The manner and degree in which an “essentialelement” is applied at the international, regional,or national level of law, vary according to theparticular type of legal mechanism and itsjurisdictional role. For example, an internationallegal instrument may have a provision for disputeresolution but the actual implementation of thisprovision within a state may not rely on, or beinfluenced by, the existence of similar provisionswithin a law of the state. The following “essential

The Essential Elements of Legal andInstitutional Frameworks

Various “legal and institutional elements” ornorms are regarded as essential to have within alegal and institutional framework to enable astate to achieve the sustainable use of naturalresources (Bodansky 1995; Hannam and Boer2002). These norms are the basis upon whicheach level of environmental law is examined.The elements outlined in this report derive froma review of a substantial body of national andinternational environmental law on sustainableland management, ecosystem management, andthe law concerning “ecologically sustainabledevelopment” in a number of regions of theworld (Hannam and Boer 2002). These elementswere evaluated to ensure their applicability towater- and land-management issues (Hannam2002a) and with the recognition that similarecological principles apply to the separatemanagement of water and land.

Explanation of an “Essential Element”

An “essential element” is a basic, essentialcomponent part of a legal and institutionalsystem. An element is a principle or suggestedrule or direction of conduct that may be used inits existing form or modified to perform the roleof a legal mechanism (which is a direct statutoryor administrative function), or as a legal principle(a rule of conduct) in legislation. An element canalso be used singularly, or in combination withother legal mechanisms or principles, to enableor invoke some form of legally based action toachieve the sustainable use of water and land.An individual law can include a number of legalmechanisms in a well-thought-out structure thatgives an organization the power it needs,

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elements,” or norms, were compared against theprimary water and land issues identified for theregion to determine the capacity of theenvironmental law in the region to manage theseissues. An interpretation of each individualelement was made against each principle,article, clause or provision of around 60individual national environmental laws andinstruments, 4 regional instruments and the21 international laws and instruments (Hannam2002a).

The Essential Elements of Water andLand Management

1. General intent. Includes a clearly identifiablestatement of the intended purpose or directintent of a law or a legal instrument, whichhas a direct relationship to the general goaland objective of water and landmanagement. It may be expressed as asingle or multifunctional statement, but mayalso be a series of independent statementsthat collectively convey the intent andpurpose of the legal instrument.

2. Jurisdiction. Includes various statements orfunctions in a law or legal instrument thatgives it an interest over water and land in ageographical and legal sense. This includesa state jurisdiction, or the power orauthority of a specific organization, ororganizations, which creates a legal right toengage in some aspect of water and landmanagement. It is often expressed as a

sphere of authority and the territorial rangeof authority, and is synonymous with power,authority or control.3

3. Responsibility. Includes the various functionsin a law or legal instrument that establishesor enables a commitment to an objective ofsustainable use of water and land, andincludes an obligation, or obligations, whichestablish a level of accountability to particularstated functions. There may be a division ofresponsibility in the law or instrument, andstated responsibilities may often directlyexpress, create or invoke circumstances of“use rights” or “user rights.”4

4. Goals and objectives. Include a group ofstatements that express a policy position,attitude or strategic position in a law or legalinstrument. Together, they express adetermination to engage in and achieve thesustainable use of water and land at ageneral or technically specified level. Thegoals and objectives may be expressed in asingle or multifunctional statement, but maycomprise a number of multifunctionalstatements.

5. Definitions. Include the presence ofstatements or terminology that defines ordescribes key words, phrases or terms in aform that directly relate to the operation ofthe respective law or legal instrument. Thismay also convey intent to engage in aprescribed level of action or achieve aparticular standard for the sustainable use of

3It can also refer to “jurisdiction” exercised by a court, or system of courts in relation to the extent of legal authority conferred by thelegislation.4This may be in the form of communal tenure, communal rights or individual property and use rights. Common property rights regimesinclude access to communal property, private property and state property. Property rights regimes include both property rights (entitlementsdefining rights and duties in the use of natural resources) and property rules (the rules under which those rights and duties are exercised);see Oglethorpe 1998; Burns et al. 2000; and Boelens and Hoogendam 2002.

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water and land. Definitions are used to assistwith the interpretation of the law, in either ageneral sense of understanding andapplication, or to be applied in a directoperational role in the implementation of thelaw or a legal instrument.

6. Duty of care. Includes the presence ofterminology, functions, activities, policies andstrategic materials that specify or convey alegal and ethical responsibility, attitude, orcommitment to take reasonable and practicalsteps, to engage in, and achieve water andland management. They create a duty on thepart of a person, a number of persons, acorporation or levels of administration, orstatutory entity, to comply with the law, in aprescribed manner, and can be in the form ofa general duty of care or a statutory duty ofcare.5

7. Hierarchy of responsibility. Includes, within alaw or legal instrument, the terminology andfunctions that create a responsibility andcommitment to achieve sustainable use ofwater and land through a number of differentadministrative levels, and with a variety ofadministrative functions, or through ahierarchy of organizations with definedresponsibilities. Through the structure of anorganizational or institutional “hierarchy,”particular “rights” and “obligations” may beestablished at respective levels ofadministration for individuals or for a specificclass, or classes of people, and importantlyfor water and land management.

8. Institutional. Includes the presence offunctions, statements, objectives and goals,in a law or legal instrument that give aparticular organization or organizations, orrelated administrative bodies, a directcommitment and responsibility to thesustainable use of water and land. Thisusually occurs via a number of mechanismsincluding the organization itself, its policiesand objectives, the rules and regulations,incentive mechanisms, accountabilitymechanisms, norms, traditions, operationalplans and procedures, practices andcustoms.6

9. Policy. Includes statements of an intendedcourse of action, and may include statementsof an attitudinal, principled or strategicnature, and/or the existence of any functionor activity that enables the development ofmaterials for these purposes, to achievesustainable use of water and land. It alsoincludes statements referring to the need fora review, or reform of legislation, including acommitment to the preparation of particulartypes of legal instruments and the timing ofsuch actions.

10. Education. Includes functions, activities,policies or statements that set out or conveya role in educational activities or processesaimed at achieving sustainable use of waterand land. These would include a commitmentto specific technical-training courses, skills-development programs, the preparation and

5A duty of care could require individuals who influence a risk of harm to the environment to take “reasonable and practical steps” to preventsuch harm; a statutory duty of care could apply to harm that may be caused, harm to both living entities and those yet unborn (this reflectsthe principle of intergenerational equity). A duty of care may also be subject to an express set of principles or rules laid out in the legislation;see Bates 2001.6An “organization” is a positive entity designed by their creators to maximize wealth, income, or other objectives defined by the opportunitiesafforded by the institutional structure of the society” (see North 1990; Bandaragoda 2000).

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dissemination of materials for thesepurposes, and the facility to undertake aneducational activity.

11. Research and investigation. Includefunctions, activities and programs in a law orlegal instrument that encourage a specificcommitment to the systematic inquiry orinvestigation into activities that produceinformation and knowledge of a scientific,technical, sociological, economic or culturalnature aimed at the sustainable use of waterand land.

12. Community participation. Refers to thepresence of functions, activities andprograms in a law or legal instrument thatenables interaction with a community ofpeople, to engage in, usually in a jointarrangement, the undertaking of variousparticipatory activities that relate tosustainable use of water and land. It includesreferences to the general capacity building,improving awareness, knowledge and skills,problem identification, or some form oftechnical, or practical activity related to thesustainable use of water and land. It mayalso include an administrative provision orfacility for the community, either asindividuals or through a representative body,to have formal communication with anorganization on problem identification,problem solving or some form of decisionmaking or consultative process aimed at thesustainable use of water and land.

13. Water and land planning. Includes thepresence of statements, functions, activitiesor programs that enable a role in planningthe sustainable use of water and land. Itincludes references to technical survey,database development, assemblingknowledge on the status and the

environmental and ecological conditions ofwater and land, preparing standards for useof water and land, guidelines, natural-resources evaluation, land zoning, water andland (including watersheds) classification,environmental assessment, plandevelopment, references to planimplementation and monitoring of plans andactions and the preparation of explanatorymaterials.

14. Water and land management. Includes thepresence of statements, functions, activitiesand programs that enable the preparationand direct implementation of water- and land-management programs. It also includesreferences to specific types of water- andland-conservation works, projects and designcriteria, the construction and implementationof the works and projects, and monitoring theoutcome of implementation. This elementalso considers processes for thedevelopment of environmental standards,limits of use, including the criteria andmatters of concern for their development,and specifies the implementation process.

15. Financing. Includes the presence ofstatements, functions, activities or programsthat provide for the financing of projects oractivities, or raising money for thesustainable use of water and land. It mayalso include reference to budgetaryprocedures, specific appropriation funds andenvironmental funds.

16. Enforcement. Includes the presence ofstatements, functions, or mechanisms in alaw or legal instrument that must beobserved, or complied with at a defined levelor standard, or in the form of a directobligation, or a prescribed standard ofbehavior. It is often referred to as regulation,

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or a regulatory role. It may be through alegal notice or direction from a regulator orthrough a court order. It also includes theprocedure to carry out this role, and toregulate certain activities that are directlybeneficial to the sustainable use of waterand land. Enforcement functions may includeresponsibilities to identify particular types ofoffences, investigate certain matters, gatherevidence, take direct remedial actions,confiscate certain items, and initiateproceedings for prosecution (in a specifiedjurisdiction). The legislation may set out therange and limits of monetary penalties forspecified offences, and provisions for appeal.

represented elements include those ofgeneral intent, jurisdiction, responsibility,hierarchy of responsibility, duty of care,policy, and water and land planning. Theleast represented elements are those ofgoals and objectives, institutional, researchand investigation, education, definitions,financial, community participation, landmanagement, dispute resolution andenforcement.

• An indication of the relative strengths andweaknesses of specific laws andinstruments. This indicates whereimprovements could be made to achieve thesustainable use of water and land. Forexample, around half the internationalenvironmental laws and instrumentsexamined have ten or more of the principalessential elements considered necessary toexpress a capacity for water and landmanagement at this level. The laws andinstruments with the highest number ofelements represented include:

17. Dispute resolution. Includes the presence ofstatements, functions, activities or programsin a law or legal instrument that enables thesettlement of a conflict situation, ordisagreement between parties, generally overthe access to, or perceived right of accessto, water and land, or the use of water andland. Various processes and facilities can beavailable for dispute resolution includingconciliatory processes, mediation processes,arbitration and the courts that enable theresolution of a conflicting situation, and isdirectly beneficial to the sustainable use ofwater and land. Usually, it also includesprovisions for appeal.

Discussion

This section discusses the results and outcomesof the analysis of the international, regional andnational environmental law in relation to waterand land management in the region.

International Aspects

The international laws and instruments listedabove were examined within the framework ofthe essential elements and a profile of thedistribution of the elements for each law wasassembled. The profiles are set out in Hannam(2002a) and are too detailed to include in thisreport. However, they provide the followinggeneral information:

• An outline of the capacity of the internationallaw for sustainable water and landmanagement. The study found that allseventeen essential elements arerepresented but that there is a substantialvariation in the way they occur between theparticular instruments. The most well-

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• The Convention to Combat Desertification.

• The 1992 Biological DiversityConvention.

• The 1992 Framework Convention forClimate Change.

• The 1982 Convention on the Law of theSea.

• The 1972 Convention Concerning theProtection of World Cultural and NaturalHeritage.

• The 1972 Stockholm Declaration on theHuman Environment.

• The 1992 Rio Declaration onEnvironment and Development.

Further, a comparison of particular elementsin the international environmental law gave agood understanding of the focus of particularlaws, including elements that are specific to awater environment7 and elements that primarilyfocus on land.8 Other instruments have elementsthat establish a broader interest in theenvironment, for example, natural-heritageinterests (water and land),9 and to protectbiological diversity and ecology in general.10 Afurther group of instruments have an indirectresponsibility for water and land management,e.g., protection of the climate, atmosphericquality and biotic quality of the oceans and thecoastal environment.11

An examination of the internationalenvironmental law indicates that it has areasonable capability to recognize water- andland-management issues relevant to the region.However, no single international environmentallaw instrument adequately caters to both water-and land-management issues. This role isdiversely spread across the range of lawsexamined. Moreover, it is possible to assemblefrom the body of international law a list ofguiding principles for “water and landmanagement” for the region but, as the existinginstruments do not provide for all aspects ofwater and land management consideredessential, specifically water management, such alist would not cover all important eclogicalcriteria and principles required to achievesustainable water and land management.

Regional Aspects

The four regional environmental law instrumentsexamined have less than half of the desiredelements considered necessary for an effectivecapacity in water and land management in theregion. When viewed together, twelve of theseventeen elements occur between theinstruments. The most well-represented elementsare those of general intent, jurisdiction, goalsand objectives, institutional, and responsibilitywhile the least represented elements are thosefor land planning, land management, financialarrangement, hierarchy of responsibility,research, duty of care, policy, community

7Article 1 of the 1971 Convention on Wetlands relates to “wetlands” as areas of “water.”8Article 3 of the 1994 Convention to Combat Desertification includes many principles aimed at protecting the land area.9Article 2 of the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage considers physical and biologicalformations and ecological and physiographical formations.10Article 1 of the 1992 Convention on Biological Diversity; also, various principles of the 1992 Rio Declaration on Environment and Develop-ment.11Article 1 of the 1982 Convention on the Law of the Sea; Article 1, 1985 Convention for the Protection of the Ozone Layer; 1992 UnitedNations Framework Convention on Climate Change.

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participation, enforcement, and disputeresolution. The Mekong River Basin Agreementand the East Asian Seas Action Plan have themost elements represented and the ASEANAgreement and the Langkawi Declaration havefewer elements present. This profile indicates alimited capacity of these instruments to representthe complexities of water- and land-managementissues in the region (as depicted in the followingtable from Hannam 2002a).

National Aspects

The specialized legal databases referencedabove were also used to identify relevantlegislative materials of the People’s Republic ofBangladesh, Lao PDR, the Republic of the

Philippines, and the PRC. The selection of eachlaw or instrument was guided by the key themeshighlighted in the water- and land-managementissues described earlier in this report. Theextensive amount of legislative materialexamined for these four countries is set out inHannam 2002a. However, as this is avoluminous amount of material, only summariesof the analysis of the Lao PDR and the PRC arediscussed in this report as examples.

Lao PDR

The hierarchy of legislative material relevant tosustainable water and land management in LaoPDR consists of its Constitution, and variouslaws adopted by the People’s Supreme

TABLE 1.Regional environmental law relevant to water and land management: Presence/absence of essential elements forspecific instruments.

Instrument/ ASEAN Mekong River-Basin Langkawi East Asian TotalElement Agreement Declaration Seas Action

Plan

General intent a a a a 4

Jurisdiction r a a a 3

Responsibility a a r r 2

Objectives r a r a 2

Definitions r a r r 1

Duty of care r r r r 0

Hierarchy of

responsibility r r r a 1

Institutional a a r a 3

Policy r r r r 0

Education a r r r 1

Research a r r r 1

Community

participation r r r r 0

Land planning a a r a 3

Land management a r r a 2

Finance r a r a 2

Enforcement r r r r 0

Dispute resolution r r r r 0

Total (max=17) 7 8 2 8

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• The 1998 Agriculture Law and the 1999Environmental Protection Law, eachcontaining fourteen of the seventeenelements considered essential for effectivewater and land management.

• The 1998 Agriculture Law, the 1996 ForestryLaw, the 1999 Environmental Protection Law,the 1997 Law on Land, and the 1996 Waterand Water Resources Law together provide agood “framework” of natural-resourcesmanagement law.

• The 1990 Property Law creates rights towater and land, and has procedures toclassify property. It also has procedures todeal with violations of rights and to protectproperty.

• The 1996 Forestry Law provides a goodlegislative basis for the management offorests and forestland and hascomprehensive provisions for land,vegetation and water-management planning.It creates rights and obligations of the use offorestlands and has procedures to classifythe forestlands for protection andconservation purposes, including water andsoil conservation. The 1991 Decree of thePrime Minister on the Organization andActivities of the Ministry of Agriculture andForestry supports the 1996 Forestry Law inplanning and masnagement of agriculture,forestry and water resources.

• The 1998 Law on Agriculture establishesprinciples, rules and measures to organizeagricultural production and guarantees foodsupply. It creates rights and duties for anyperson engaged in agriculture, and it creates

12See www.austlii.edu.au/links/210.html and < … /50620.html>

Assembly, Decrees issued by the PrimeMinister, Decrees issued by the Council ofMinisters or by individual Ministers, and theRecommendations issued by Ministers toimplement the Decrees.12 The areas oflegislation considered most important to thesustainable use of water and land include thoserelating to land, property, environmentalprotection, water and water resources, andagriculture, forests and mining.

Summary

The legal and institutional profile established forLao PDR indicates a reasonable capacity tomanage water and land issues. The most well-represented elements include those of generalintent, jurisdiction, statements of responsibility,hierarchy of responsibility, and duty of care andrecognition of obligations, mechanisms for waterand land planning and enforcement. The weakestareas are in water and land management,financial arrangements, goals and objectives,and commitments to research, education andcommunity participation. Four of the laws have arelatively high number of essential elementsrepresented: the 1999 Environmental ProtectionLaw, the 1998 Agriculture Law, the 1996 Water andWater Resources Law, and the 1996 Forestry Law.These laws contain most of the basic elementsneeded for effective decision making and thedevelopment of water- and land-managementprograms. An absence of procedures forpolicymaking and a low capacity for disputeresolution, education, research and communityparticipation in the Forestry Law and Water andWater Resources Law, are major weaknesses.

Some of the more specific aspects of theLao PDR profile include:

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rights over land used for irrigation. This lawis supported by the 1991 Decree of thePrime Minister on the Organization andActivities of the Ministry of Agriculture andForestry, which provides a role for theDepartment of Agriculture and AgriculturalExtension to study, guide, plan, monitor,organize and administer the development ofagriculture. The 1993 Regulation on theManagement and Use of Irrigation Systemslays down rules for water user groups, setsout the rights and obligations of water userassociations and the principles andregulations for the use of water.

• The 1999 Environment Protection Lawspecifies rules, principles and measures forthe protection of the environment againstdegradation and exploitation, including waterand soil pollution. It sets out the rights andduties for environmental management,including the role and responsibility forenvironmental mitigation and restoration. It issupported by the 1993 Decree of the PrimeMinister on the Organisation of the Science,Technology and Environment Office, whichoutlines the responsibilities of thegovernment to research, management,development and use of science, technologyand environmental management.

The PRC

The environmental protection of the PRC wasdeclared an important national policy goal in theearly 1980s and a comprehensive framework ofenvironmental legislation, policy and institutionssoon followed. The rapid growth of the economyin an environmentally unsustainable way and thetransition from a centrally planned economy tothe market economy have intensified thecontradiction between the need for economicdevelopment and sustainable water and land

management (Wang Xi 1996). The Ministry ofWater Resources has the primary responsibilityfor water and land management. Otherorganizations with an involvement in sustainablewater and land management include the StateForest Administration, Ministry of Agriculture,Ministry of Land Resources, State EnvironmentalProtection Agency, State Development PlanningCommission, and organizations for State FloodControl and Drought Relief. The existing legaland institutional framework is structured in fourlevels:

Level 1 The Constitution and laws promulgatedby the National People’s Congress(includes the Administrative, Civil andCriminal laws).

Level 2 The laws promulgated by the StandingCommittee of the National People’sCongress and international conventionsand agreements to which PRC hasbecome party.

Level 3 The regulations, orders, decisions andother documents with a binding forceof law promulgated by the StateCouncil and its subordinate Ministriesand Commissions.

Level 4 The regulations, decisions and orderspromulgated by the People’s Congressof provinces, autonomous regions andmunicipalities directly under the CentralGovernment and the municipalities withlocal legislative power.

Summary

Around 40 separate legislative instruments wereexamined for the PRC (Hannam 2002a) and theyare separated into two categories for theconvenience of discussion in this report. The firstcategory considers a group of laws directlyrelevant to water and land management and thesecond group includes a number of relatedenvironmental laws.

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Group 1: Water and soil conservation law regime

The water and soil conservation law regimecomprises four areas of legislation:

• The 1991 Law of the People’s Republic ofChina on Water and Soil Conservation.

• The 1993 State Measures for Implementationof the 1991 Water and Soil ConservationLaw.

• The various measures for implementation ofthe provinces and autonomous regions.

• Various regulations, orders and decisions.

When these different areas of legislation areviewed collectively, all seventeen essential legaland institutional elements are represented andthere is a wide range of basic legislativemechanisms necessary to manage water andland. However, the detailed examination of eachindividual law reveals a very substantial variationin the way that the elements occur within thelaws, and there is also a substantial variation intheir capacity to manage water and land issues(Hannam 2002b).

The legal and institutional framework for soiland water conservation is featured by a relativelystandard distribution of responsibilities (Hannam2002b). This legislation does not recognize thevery diverse physiographical characteristics andregional ecological differences of the PRC. Manyof the elements of the 1991 Water and SoilConservation Law are directed toward soil-erosion control (wind and water erosion), asdistinct from the wider characteristics of soildegradation. This law also lacks capability toimplement its stated intent, which includes themandate to consider ecological aspects of theenvironment (Article 1). Other weaknesses in thisprimary law include:

• ` An absence of community participationprocedures.

• An absence of definitions.

• A duty of care that does not extend to the“whole environment.”

• An absence of a process for policymaking,implementation and review.

• A lack of commitment to education, capacitybuilding, including “whole of environment”education and sustainable water and landmanagement.

• Narrowly defined research interests.

• An absence of procedures to determine theecological condition of soil resources and toprioritize soil degradation control.

• A poor relationship between land-useactivities and land-management measures,guidelines and monitoring.

Likewise, the examination of the 1993 StateMeasures for Implementation of the 1991 Soiland Water Conservation Law exposed severalweaknesses. The Measures have less “essentialelements” represented than that of the main1991 Law. In particular, there are no goals orobjectives, definitions, or directions forpolicymaking and it lacks provisions to engage incommunity participation. The Measures raisesome important soil-conservation issues for theprovinces and autonomous regions to consider,but there is no procedure for the design ofspecific land-management standards andmeasures. It also lacks rules for implementationand does not make reference to the differencesin physical geography of the PRC, or does notalert provinces and autonomous regions to the

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need to develop their local laws to recognize thespecific environmental characteristics unique totheir particular localities.

Provincial and autonomous region level

Seven provincial laws and one autonomousregion law were examined (out of 34) as arepresentative sample of this level of law. Overall,this level of law is generally absent in manyimportant functions to sustainable water and landmanagement including those for communityparticipation, establishing goals and objectives,resolving disputes, developing natural-resourcesmanagement policy, undertaking research andinvestigation, and educational responsibilities andany procedures to prepare provincial water- andsoil-conservation strategies. On the other hand,there is a reasonable presence of functions forwater and land planning, land management andenforcement.

Group 2: The related laws to water and landmanagement

The examination of a group of eight primaryenvironmental laws of the PRC reveals asubstantial legislative interest and capacity forwater and land management, particularly in thelaws for forests, environment protection,grassland management, and desertificationcontrol and prevention. Although the generalpurpose of the primary law covers a wide rangeof environmental-management responsibilities, inpractical terms there are many overlapping roles,activities and functions as well as conflictinglegislative priorities and objectives (Hannam2002a). There is also an absence of cooperative,cross-linking mechanisms. Some specificobservations include:

• The basic responsibility of the 2002 WaterLaw is similar to that of the 1991 Water andSoil Conservation Law.

• The 1984 Forestry Law has overlapping soil-conservation responsibilities with the 1991Water and Soil Conservation Law.

• The 2002 Agriculture Law focuses onproduction but has power to make decisionson resource utilization that conflict with theobjectives of the 1991 Water and SoilConservation Law and the 2002 GrasslandLaw.

• The 2002 Grassland Law focuses on grazingactivities and animal production but hassubstantial procedures for planning andprotecting ecological aspects of grasslandsincluding the establishment of ecologicalreserves. This law has several areas ofoverlap with the 2001 Desertification Law.

• The determination and application of “BasicFarmland” under the 1986 LandAdministration Law constitute an importantfunction necessary for the success of waterand land management as this law decidesthe location and quality of land used foragriculture.

• The sensitive relationship between land typeand potential for land degradation in the PRCsuggests that there should be formal linksbetween the 1986 Land Administration Lawand the 1991 Water and Soil ConservationLaw regime, especially in land-selection andland-evaluation activities.

• Various responsibilities of the 1984 WaterPollution Law overlap with the 1991 Waterand Soil Conservation Law. This situationmainly arises from the definitions of “apollutant” and the process associated with“water pollution” where each creates a legalresponsibility for soil-degradation management.

• The 2001 Desertification Law is regarded asa more comprehensive and completeenvironmental law than any other law. It haswell-developed goals and objectives,

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specific water instrument. In this regard, variousoptions exist for the development of a bindinginstrument, including:

• A specific sustainable water-managementtreaty.

• A framework treaty for sustainable watermanagement that consists of specific rulesfor sustainable water management, and linksto the Biological Diversity Convention;Framework Convention for Climate Changeand the Convention to Combat Desertification.

• A protocol to an existing treaty (e.g.,Biological Diversity Convention).

Options for nonbinding instruments include:

• An international charter for sustainable watermanagement.

• A declaration for sustainable management ofwater.

Moreover, before any move is taken towardthe preparation of a new multilateral treaty orinstrument for sustainable water management,

comprehensive definitions, clearerstatements of duty of care, andresponsibilities for policy development,education, research and investigation, andland planning and enforcement. Under thislaw “desertification” means “landdegradation” and it could be considered ahighly specialized form of water- and soil-conservation law. It has a greater capability

to deal with many areas of responsibility thatfall within the bounds of the 1991 Water andSoil Conservation Law. A drawback of the2001 Desertification Law is that responsibilityfor its administration is divided between threeagencies, one with conservation interestsand two with agricultural-developmentinterests; this opens the way for conflictinginterests in implementation.

Future Frameworks

The following section raises various options forfuture action to improve the legal and institutionalsystem for sustainable management of water andland at the three levels.

International

The examination of international law relevant towater and land management in the regionindicates that it presents a reasonably goodbasis for the sustainable management of waterand land issues at this level. On balance,attention is favored more toward land-relatedissues than water-related issues. In thecircumstances, with the current severe globalsituation with water and land degradation, and itsimpact on poverty and food security (Bridges etal. 2001; Penning de Vries et al. 2002), it seemsreasonable that action be taken to improve thelinks between many of the internationalinstruments. This could be done with theobjective of improving the obligations to thesustainable management of water and landresources. However, recognizing the currentless-favorable international legislative situationfor sustainable water management, the activitycould be directed toward the preparation of a

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other short-term and perhaps politically morefavorable actions could be considered. One suchaction is to make better use of the InternationalLaw Association’s international law rules forwater resources, and these could be applied atboth the regional and national level (InternationalLaw Association 2003).

Regional

The regional level of environmental law isconsidered inadequate to effectively deal with thecomplexities of water and land managementissues experienced at the regional level. Theexisting instruments do not provide for allaspects of water- and land-managementgenerally, but only for water managementspecifically. Important ecological criteria andmanagement principles are omitted. Similar tothe international law situation, there is areasonable argument for the preparation of aspecific regional legislative instrument for watermanagement, including the linkage of such aninstrument to other key regional and variousinternational and multilateral instruments. Theexistence of two “regional water instruments” forthe European region, i.e, the Convention on theProtection and Use of TransboundaryWatercourses and International Lakes 1992, andthe Protocol on Water and Health 1999 could beconsidered a precedent for such action. Thevarious options for a regional binding instrumentinclude:

• A specific regional, sustainable water-management treaty (e.g., akin to theConvention on the Protection and Use ofTransboundary Watercourses andInternational Lakes 1992).

• A framework treaty for sustainable watermanagement in the Asian region (withspecific rules for sustainable watermanagement but with links to the Biological

Diversity Convention; Framework Conventionfor Climate Change; and the Convention toCombat Desertification).

• A protocol to an existing treaty (e.g.,Biological Diversity Convention) that isdirected at the Asian region.

With regard to nonbinding instruments, someoptions include:

• A regional charter for sustainable watermanagement.

• A regional declaration for sustainablemanagement of water.

• Amending the ASEAN Agreement, to expandits role in water and land management.

National

The examination of the national laws ofBangladesh, Lao PDR, the Philippines and thePRC indicates that they are lacking in manyimportant legal and institutional elementsconsidered necessary for effectively managementof water and land problems in these respectivestates (Hannam 2002a). However, it isemphasized that not all of the laws examined areinadequate. Some of the laws estimated to havea good capacity include the PRC 2002Desertification Law, the 1997 Agriculture andFisheries Modernization Law of the Republic ofthe Philippines, and the 1996 Water and WaterResources Law of Lao PDR. It is apparent thatkey international laws and strategies from the1992 UNCED process have influenced somelaws, but the extent to which these laws couldpractically implement key internationalenvironmental principles requires furtherinvestigation. However, in general, the bulk ofthe national laws created since 1992 have arelatively low presence of the key environmental

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principles advocated in the 1992 UNCEDprocess. Reasons for this may include:

• A general unwillingness on the part of statesto adopt the principles from UNCED.

• Lack of effective guidelines to properlyunderstand and implement the principles.

• Insufficient capacity-building and assistanceprograms for the region.

• Inadequate financial assistance fordeveloping states for environmental lawreform.

This situation represents an importantchallenge and reinforces the need forcooperation and capacity-building programsaimed at improving the legal and institutionalsystems for water and land management inindividual countries of the region, includingcountries in addition to those covered in thisreport (see Wilson et al. 1996).

Some Key Areas for Attention

This study has raised a number of areas andpossible opportunities for legal and institutionalreform for sustainable water and landmanagement in the region and these should beconsidered within the context of any broaderplans for improvement in the sustainable use ofwater and land use in the region (see JointStatement by the Ministerial Delegations of TenAsian Nations 2002; Vermillion 2002). However,the following key issues emerged from the studythat warrants further attention.

Basic human needs and rights associated withwater and land

There are a variety of mechanisms in the law ofthe region that recognize basic human needs

and rights to water and land resources. At theinternational and regional level, basic humanrights regarding the use of water and land occur,e.g., in the 1996 Covenant on Economic, Socialand Cultural Rights, the 1993 Vienna Declarationon Human Rights, and the 1985 ASEANAgreement on the Conservation of Nature andNatural Resources. However, within the nationallaw system, basic human needs and rights towater and land are treated variously. Forexample, the fundamental aim of the 1972Constitution of the People’s Republic ofBangladesh (see Preamble) is to “realize throughthe democratic process to a socialist society,free from exploitation—a society in which therule of law, fundamental human rights andfreedom, equality and justice, political, economicand social, will be secured for all citizens.”Further, Article 17 of the 1991Constitution of LaoPDR provides for organizations and citizens toprotect the environment and natural resources,including the land, subterranean area, forests,fauna, water sources and the atmosphere. Article26 of the 1982 Constitution of the People’sRepublic of China provides for the state toprotect and improve the living environment andthe ecological environment, and prevent andcontrol pollution and other public hazards. ThisArticle establishes environmental protection as afunction and responsibility of the state.

The domestic laws create and allocatehuman and natural resources rights in a varietyof ways. In general, there is a reasonableexpression of intent for “rights,” in the law, butapart from a few exceptions, in general the lawof the region does not clearly express or explainresource rights, land-use rights and land-userrights. Under the 1996 Water and WaterResources Law of Lao PDR, water resources arethe property of the people. The government actson behalf of the people to manage and evenlyand equitably share the use of water. Individualsand organizations have the right to use the waterfor specific purposes under an authorization and

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there are provisions that give natural rights ofway, legal rights of way, and rights to landownersand governments. In Lao PDR, land can beacquired on assignment from the state, transfer,or inheritance, and the holder of a use right hasa land-protection right, a land-use right, a land-usufruct right, a right to transfer the land, and aright of inheritance (see Articles 52–58).

Because of the substantial variation acrossthe region in cultural and sociologicalcharacteristics, and the way that differentsocieties understand, interpret and apply “rights,”it is prudent that this matter be thoroughlyinvestigated in relation to water and landmanagement in the region. While this study hashighlighted areas within the law where “humanrights” and “natural-resource rights” occur, muchmore investigation needs to be done tothoroughly investigate these issues, especiallythe most effective ways and means toincorporate “rights” into the law and whatmechanisms and processes are needed toensure that individuals (especially the poorerpeople), actually receive the benefit of theirrights (Oglethorpe 1998).

Legislative and institutional systems to benefitdisadvantaged people (the minorities, andpoverty-stricken and to improve livelihoods)

In the region, there are many people engaged in,or who rely on, agriculture and who, for variousreasons, may be deprived of a reasonablestandard of living, information, knowledge,health, education, opportunities, access tomarkets, and other services and benefits, byvirtue of their socioeconomic, cultural or ethniccircumstances. Disadvantaged people thusrequire special consideration and action bygovernments to ensure that they have a fair andequitable right to basic human necessities andneeds including access to land of a qualitysuitable for, or potentially suitable for, farming,access to water of a quality suitable for drinking,and security of land tenure to engage in

agriculture as legal owners or legal occupiers ofland. The Constitution of each country in thisreview, in general, makes reference to equalityfor all humans and in resources usage. However,the environmental law examined does notcontain specific legislative mechanisms thatrecognize the special needs of disadvantagedpeoples for water and land use. Two exceptionsare the 1989 Rangamati Hill Tract Districts Lawof Bangladesh and the 1997 Indigenous People’sRights Law of the Philippines, which give specialrecognition to particular societal groups but theprocedures in these laws differ substantially (thelatter is more comprehensive than the former).The region is culturally very diverse, and manyethnic and minority groups and sociallydisadvantaged people are not specificallyrecognized by the law in regard to agriculturalland use. In some instances, there is a generalcoincidence between the location of a particularethnic group and the occurrence of severe waterand land degradation (see various papers inHussain and Biltonen 2001).

Special issues that need to be taken intoconsideration in the national legislation of theregion, include:

• The security of water and land resources.

• Identification, evaluation and integration ofinnovative land-use systems in national land-use systems.

• Adaptability and transferability of water andland-management practices to assist poorpeople.

• Ability to develop tools and technologies tohelp poor people farm small area-holdingsprofitably and in a sustainable manner.

• Provision for a multidisciplinary approach toidentify and evaluate low-cost technologiesand devices for water and landmanagement.

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• Mechanisms to increase institutional capacityto deal with water- and land-managementissues of disadvantaged groups.

Such an investigation could also specifysuitable legislative mechanisms to establish andprotect their rights, including legal access toresources to improve their livelihood. Specialissues for consideration include:

• Improving security of tenure for smallholderpoverty farmers (owners, occupiers,permanent or temporary settlement).

• Recognizing, in legislation, the culturalaspects of land management.

• Access to finances for housing, equipmentand materials.

• Access to local, regional and statemarkets.

• Availability of basic rural services, roadaccess, domestic water supply and utilityservices.

• Rural education, extension and advisoryservices.

• Involvement in rural land planning and ruraldevelopment.

• Special provisions for rural women.

Dispute Resolution

There is a substantial variation in the types ofmechanisms used in the legislative and

institutional system of the region to resolvedisputes and conflicts over the use of water andland. Very few of the international instrumentshave mechanisms to identify and resolvedisputes, or give guidance to states on howdisputes should be settled over access, or thestandards and limits of use of environmentalresources. The Rio Declaration advocates thatstates should resolve their environmentaldisputes peacefully and by appropriate means inaccordance with the 1945 Charter of the UnitedNations. The 1985 Vienna Convention for theProtection of the Ozone Layer Convention, the1992 Convention on Biological Diversity (seeArticle 27) and the 1994 Convention to CombatDesertification include dispute resolutionmechanisms. The regional instruments lack anycomprehensive functions, or mechanisms toresolve conflict situations, disputed situations,disagreements over the access to, or perceivedright of access to, and use of land or waterresources. Provisions exist at the national levelfor dispute resolution, including the right ofappeal and there are instances where a law hasprovision for enforcement but no dispute-resolution procedures.

The main challenge is to properly identify theexisting capability of respective nations tomanage disputes over access to, and limits ofuse of, water and land resources and todetermine the most appropriate mechanisms fordispute resolution (see various papers in Craig etal. 2002, chap. 11, Judicial Decisions andAlternative Dispute Resolution). An investigationshould consider the rights and obligations ofdisadvantaged people and the most appropriatemechanisms for their cultural and sociologicalcircumstances.

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Conclusions

The method outlined in this report has evolvedover a number of years, where the legal andinstitutional aspects of a wide variety ofresources-management situations have beenexamined in a number of countries in differentregions of the world. In early 2002, it wascomprehensively applied to the Asian region togenerate knowledge on legal and institutionalaspects of water and land management.

The principal features of this method include:

• Its ability to determine the capacity of alegislative and institutional system toaccomplish sustainable water and landmanagement.

• Its ability to be applied at variouslevels—to assess the capacity ofinternational, multilateral instrumentswithin a particular geographic region; toassess the capacity of regionalinstruments; and to assess the capacityof individual laws and other legislativeinstruments (decrees, codes, regulations,etc.) within a particular country orbetween two or more countries.

• Its role as a comparative environmental lawtool to highlight the capacity of variousinstruments within a particular level(international, regional and national) orbetween different levels.

• Its capability to identify areas of strengths,weaknesses, omissions, or duplicationwithin a legal and institutional system, andbetween particular legal and institutionalsystems, and to use this information as abasis to make recommendations forinternational, regional and national, legaland institutional reform.

This report also gives an insight into the waysthat various nations in the Asian region havetaken to the management of water- and land-useissues. Of particular importance, is the applicationof the data from the comparative analysis of thelegal frameworks to practical-based environmentalmanagement. In the wider sense, a framework ofthis form can provide planners, legislative draftersand policymakers with a source book ofcontextual information and examples to draw uponto tailor a legal and institutional approach for aparticular region or nation.

Considerable ground has been made to datewith the development and application of thislegal and institutional method. Moreover, it isessential that it continues to be applied to manymore legal and institutional systems to ensure itsrigor and reliability as an effective comparativeenvironmental law research tool for the reviewand understanding of water and landmanagement in particular, but with theenvironment in general.

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A Method to Identify andEvaluate the Legal and InstitutionalFramework for the Managementof Water and Land in Asia

The Outcome of a Study in Southeast Asiaand the People's Republic of China

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