-Module 7-

International law and protected areas

EXERCISE2

Domestic Compliance with International Law

OBJECTIVES AND INSTRUCTIONS

Nature of the Exercise

  • This exercise is based upon contested interpretation of concepts and principles derived from international legal instruments.
  • It is organized as an exercise for multiple groups to examine and analyze specific issues in a hypothetical context, and then come together to discuss their respective interpretations.
  • A discussion exercise will allow students to sharpen their skills at building arguments based on treaties.

Purpose of the Exercise

  • To enhance understanding of selected international agreements relevant to protected areas.
  • To promote awareness of the relationship between international law and domestic protected areas law.
  • To develop critical legal analytical skills for evaluating the translation of international law into domestic legislation.
  • To encourage understanding of implementation arrangements in creating an effective protected areas regime.
  • To familiarize Learners with on-line resources relating to international conventions.

Methodology/Procedure

  • Divide participants into five groups corresponding to:
  • The Parks Management Branch of the Ministry of Lands (twice as many as other groups)
  • The Ministry of Municipal Governments
  • The Transport Ministry
  • The Association of Community Fishers
  • Parents Against Alligator Attacks
  • The Instructor will introduce a fictional case study (Annex A) of a country that is facing significant resistance to its efforts to comply with principles and obligations derived from the following Conventions to which it is a signatory. For convenience excerpts from these Conventions are included in Annex B:
  • Convention on Wetlands of International Importance especially as Waterfowl Habitats (Ramsar).
  • UN Convention on the Non-navigational Uses of Watercourses (UN Watercourses Convention).
  • Convention on Migratory Species
  • With reference to the specific challenge(s) it has been asked to address, each group will prepare an analysis, commentary and response. Participants should:
  • identify relevant obligations contained in the Conventions;
  • explore alternative approaches to interpreting the contested principles or terminology;
  • consider potential compliance mechanisms contained in the Conventions or within a domestic legal regime,
  • The Learners will then come back together as a group and the Educator will facilitate a discussion about the above issues, drawing from the Learners’ contributions.
  • Additional Notes to the Educator
  • In the case of Learner groups who might be sufficiently familiar with international law to pursue a more in-depth analytical discussion of issues arising from the case study, a set of possible questions to guide discussion is provided below:
  1. What is meant by the concepts of compliance and enforcement in relation to international law?
  2. What mechanisms or procedures are available to promote compliance with international conventions affecting protected areas?
  3. What advantages or limitations might be associated with each?
  4. What parties, groups or organizations are entitled to invoke or participate in these mechanisms?
  5. What intersections or overlaps might exist between promoting compliance with international law affecting protected areas and the supporting domestic legal regime?
  6. What procedures are available to assist in reconciling or resolving differences between international and domestic law regarding such terminology as wetland, sustainable use, habitat and so on?

RESOURCES

  • Introductory Presentation
  • ANNEX A:Case study (Narrative and Questions)
  • ANNEX B:Excerpts from Conventions

ANNEX A - CASE STUDY

THE CONTEXT

A number of wetlands in your country have come under increased pressure from a range of factors, including climate change. Many have already been lost. Officials in the Parks Management Branch of the Ministry of Lands have been trying to imagine successful ways of safeguarding remaining wetlands, but at least four worrisome challenges have been made by other government departments and community organizations.

  1. The Transport Ministry is proposing a significant new highway development through a major wetland area and anticipates draining a large swath that the Transport planners have identified as having no commercial value. Transport Ministry officials have described the highway proposal as the “highest and best use” of the area that would be affected.
  2. The Ministry of Municipal Governments has been working hard to make progress on the UN Millennium Development Goals for water and sanitation. Financing has just been arranged for a new and badly-needed sewage system in the national capital. The effluent will be discharged into a river which forms part of the international boundary with a neighbouring country before it drains into an estuary area that is a popular destination for colorful migratory birds. In response to growing criticism from the neighbouring country, officials of the Ministry of Municipal Governments have insisted that the sewage facility and discharge plan represent a very reasonable use of the waterway. The Ministry supports its argument that the proposed sewage facility is reasonable with the undeniable observation that other cities in the country already operate similar facilities.
  3. Community fishing interests in several parts of the country have expressed concern about declining harvests but they have always resisted any type of initiative or interference from the Parks Management Branch as a threat to their livelihoods and the sustainability of their communities. In their opinion, sustainable use means economic development that meets the needs of their communities whose populations continue to expand.
  4. Widespread fears have been raised across the country by front page newspaper stories about the disappearance of several schoolchildren in the vicinity of “alligator management zones” (AMZs) along the international boundary. A prominent Non-Governmental Organization advocating for children’s health and safety, Parents Against Alligator Attacks, is now actively campaigning to get the AMZ areas closed and abolished.

To address these challenges, the Ministry of Lands has decided to host a public meeting with representatives from the Transport Ministry, the Ministry of Municipal Governments, the Association of Community Fishers, and Parents Against Alligator Attacks. The purpose of the meeting is to discuss the proposed challenges in the context of national commitments under international law, with an immediate focus on the Ramsar Convention, the UN Watercourses Convention and the CMS. The Parks Management Branch is determined to strengthen protections for wetlands and other protected habitats in conformity with international commitments; but other groups argue that the proposed changes do not conflict with international obligations.

YOUR TASK

A. In preparation for the meeting, prepare a position paper, with particular focus on the specific challenge(s) most affecting your department/organization. Identify:

  1. International obligations respecting the protection of wetlands, watercourses, and habitat relevant to your priority issue(s);
  2. Whether proposed developments or activities will put the country out of compliance with the identified obligations;
  3. Specific objections and concerns or interpretative challenges, including issues associated with the scope and definition of wetlands; the importance, contribution or value of wetlands; reasonable use of watercourses; and so on.

B. At the meeting, 15 minutes have been allotted for each agenda item. Each interested party will have time to explain their position, followed by a short discussion of each proposal.

ANNEX B - CONVENTION EXCERPTS

Ramsar Convention on Wetlands of International Importance

Article 1

1. For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.

Article 3

1. The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory.

2. Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organization or government responsible for the continuing bureau duties specified in Article 8.

Article 4

1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not, and provide adequately for their wardening.

2. Where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat.

UN Watercourses Convention

Article 5: Equitable and reasonable utilization and participation

1.Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.

2.Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.

Article 6: Factors relevant to equitable and reasonable utilization

1.Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:

(a)Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;

(b)The social and economic needs of the watercourse States concerned;

(c)The population dependent on the watercourse in each watercourse State;

(d)The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;

(e)Existing and potential uses of the watercourse;

(f)Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;

(g)The availability of alternatives, of comparable value, to a particular planned or existing use.

3.The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

Convention on Migratory Species

Article I

Interpretation

1. For the purpose of this Convention:

a) "Migratory species" means the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries;

b) "Conservation status of a migratory species" means the sum of the influences acting on the migratory species that may affect its long-term distribution and abundance;

c) "Conservation status" will be taken as "favourable" when:

(1) population dynamics data indicate that the migratory species is maintaining itself on a long-term basis as a viable component of its ecosystems;

(2) the range of the migratory species is neither currently being reduced, nor is likely to be reduced, on a long-term basis;

(3) there is, and will be in the foreseeable future sufficient habitat to maintain the population of the migratory species on a long-term basis; and

(4) the distribution and abundance of the migratory species approach historic coverage and levels to the extent that potentially suitable ecosystems exist and to the extent consistent with wise wildlife management;

d) "Conservation status" will be taken as "unfavourable" if any of the conditions set out in sub-paragraph (c) of this paragraph is not met;

e) "Endangered" in relation to a particular migratory species means that the migratory species is in danger of extinction throughout all or a significant portion of its range;

f) "Range" means all the areas of land or water that a migratory species inhabits, stays in temporarily, crosses or overflies at any time on its normal migration route;

g) "Habitat" means any area in the range of a migratory species which contains suitable living conditions for that species;

h) "Range State" in relation to a particular migratory species means any State (and where appropriate any other Party referred to under subparagraph (k) of this paragraph) that exercises jurisdiction over any part of the range of that migratory species, or a State, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species;

Article II

Fundamental Principles

1. The Parties acknowledge the importance of migratory species being conserved and of Range States agreeing to take action to this end whenever possible and appropriate, paying special attention to migratory species the conservation status of which is unfavourable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitat.

2. The Parties acknowledge the need to take action to avoid any migratory species becoming endangered.

3. In particular, the Parties:

a) should promote, co-operate in and support research relating to migratory species;

b) shall endeavour to provide immediate protection for migratory species included in Appendix I; and

c) shall endeavour to conclude Agreements covering the conservation and management of migratory species included in Appendix II.

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