1

Ben Boer and Ian Hannam, Chapter 21: ‘Land Degradation Law’ in Jorge Viñuales

and Emma Lees (eds),

Oxford Handbook on Comparative Environmental Law (Cambridge University Press, to be published May 2019)

21

Land Degradation

_______________________________________________________

Contents

21.1 Overview

21.2 Causes and Effects of Land Degradation

21.3 Legal Responses to Land Degradation 21.3.1 Global Initiatives

Co321.3.1.1 Introduction

21.3.1.2 The Convention to Combat Desertification

21.3.1.3 The Convention on Biological Diversity

21.3.1.4

21.3.1.5

21.3.1.6

The UN Framework Convention on Climate Change

Land Degradation as a Common Concern of Humankind

IUCN Covenant on Environment and Development

21.3.2 Regional Initiatives

21.3.3 Strategies and Policies

Forest Ecosystems and Land Degradation

The World Soil Charter 2014

21.3.3.1

21.3.3.2

21.3.3.3 The UN Sustainable Development Goals and Land Degradation

Neutrality

21.3.4 National Laws and Policies

21.3.4.1 Introduction

21.3.4.2 Land Tenure

21.3.4.3 Access to Land

21.3.4.4 Farming Systems and Land Use

21.3.4.5 The Role of Protected Areas

21.3.4.6 Physical Planning to avoid Land Degradation/Co3

21.4 Concluding Remarks

21.5 Select Bibliography

________________________________________________________

‘A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic

community. It is wrong when it tends otherwise.’1

1 A. Leopold, ‘The Land Ethic ’in A Sand County Almanac (Oxford: Oxford University Press, 1989), 224–5.

2

Abstract

This chapter examines the international legal regime on land degradation. It first provides

a brief overview of land degradation as a complex environmental issue around the world

before discussing the causes and effects of land degradation. It then analyses a variety of

legal responses to land degradation, from global initiatives such as the Convention to

Combat Desertification, the Convention on Biological Diversity, the United Nations

Framework Convention on Climate Change, and the IUCN Covenant on Environment and

Development; regional initiatives such as the World Soil Charter 2014 and the UN

Sustainable Development Goals 2015; and national laws and policies. The chapter also

explores some of the main elements that need to be taken into consideration when

designing legislation to address land degradation, including land tenure, access to land,

farming systems and land use, the role of protected areas, and physical planning.

Keywords

Land degradation, soil, international environmental law, climate change, sustainable

development, biodiversity, land degradation neutrality

21.1 Overview

Land degradation is one of the most complex environmental issues facing national

governments and communities worldwide. It is also one of the least understood. Land and

its primary constituent element, the soil, form the basic terrestrial foundation of human

development and survival, physically sustaining societies around the world

through agriculture, grazing, forestry, and the maintenance of water sources. The

human links to land and its soils are an inherent part of global and national culture

and heritage.2 Soil bodies are large and readily identifiable ecosystems and are the

fundamental components of terrestrial biodiversity.3

Until recently, land degradation law was seen as the poor cousin of natural resources

and environmental law. However, with some 33 per cent of the world’s arable land being

2 Soil as part of the heritage was recognized for example in debates on the Soil Conservation Act 1938 of New South

Wales, Australia: ‘Men who waste land, or how unnecessarily destroy timber, destroy something that is the heritage

of the nation, and they should be allowed to do so no longer’, Bill McKell, quoted in T. Bonyhady and T. Griffiths,

Prehistory to Politics, John Mulvaney, the Humanities and the Public Intellectual (Melbourne: Melbourne University

Press 1996), 159. 3 B.W. Boer and I.D. Hannam, ‘Developing a Global Soil Regime’, Special edition 1 ‘Soil governance’, 2015

International Journal of Rural Law and Policy 1, available at:

http://www.austlii.edu.au/au/journals/IntJlRuralLawP/2015/2.pdf; see also B.W. Boer and I.D. Hannam, ‘Legal

Aspects of Sustainable Soils: International and National’ (2003) 12(2) Review of European Community and

International Environmental Law 149, at 149.

3

lost to soil erosion or pollution in the last forty years,4 there is now an increasing

concentration on the law and policy relating to land degradation and its links to food

security and associated human rights. Further, as soils are the second largest reservoir of

carbon after the world’s oceans, their importance as natural carbon sinks, as well as by

release of carbon to the atmosphere through unsustainable agriculture and

grazing practices, means that land degradation is becoming a significant factor in

global5 and regional climate change policy.6

Most states do not have adequate legislation to address the broad range of processes

involved in land degradation. Particular areas of law directly or indirectly attempt to

prevent or control land degradation and to promote sustainable land use. These include soil

conservation law, contaminated land law, planning law, protected areas law, forest law,

water law, desertification law, biodiversity law, and in some jurisdictions, customary laws

relating to Indigenous peoples and local communities. Several global initiatives have been

important in establishing international rules which, when transposed to the national level,

can be directed towards the control and prevention of land degradation. The most

prominent of the multilateral instruments relating to land degradation control in arid, semi-

arid, and dry sub-humid areas is the United Nations Convention to Combat Desertification

in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa.7

While calls for an international instrument addressing land degradation beyond the realm

of desertification have been made since the early 2000s, progress on developing such a

regime has been slow.8 On the other hand, several regional treaties contain provisions to

control or prevent land degradation.

This chapter first paints a broad canvas of land degradation law at international level,

sketching the developments of this field in the past few decades, and then delves into legal

regimes at regional and national level.

21.1 Causes and Effects of Land Degradation

Land degradation is a process in which the state of the biophysical environment is affected

by a combination of natural and human-induced processes acting upon the land.9 The more

4 D. Cameron, C. Osborne, C. Horton, and M. Sinclair, ‘A Sustainable Model for Intensive Agriculture’ Grantham Centre

Briefing Note (December 2015), 2, available at: http://grantham.sheffield.ac.uk/wp-content/uploads/2015/12/A4-

sustainable-model-intensive-agriculture-spread.pdf. 5C. Streck and A. Gay, ‘The Role of Soils in International Climate Change Policy’ in H. Ginzky, I. L. Heuser, T. Qin, O.

C. Ruppel, and P.Wegerdt (eds.),International Yearbook of Soil Law and Policy 2016 (Cham: Springer 2017) 105.6 J. Verschuuren, ‘Towards an EU Regulatory Framework for Climate-Smart Agriculture: The Example of Soil Carbon

Sequestration’ (2018) Transnational Environmental Law 301.

7 United Nations Convention to Combat Desertification (UNCCD) 33 ILM 1328 (1994). 8 See B.W. Boer, H. Ginzky, and I. L. Heuser, ‘International Soil Protection Law: History, Concepts, and Latest

Developments’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016 at 50; see also Boer and Hannam,

‘Developing a Global Soil Regime’.

9 More specifically, Art. (1(f) UNCCD defines ‘land degradation’ as: ‘. . . the reduction or loss, in arid, semi-arid and dry

sub-humid areas, of the biological or economic productivity and complexity of rain-fed cropland, irrigated cropland,

or range, pasture, forest and woodlands resulting from land uses or from a process or combination of processes,

including processes arising from human activities and habitation patterns, such as: (i) soil erosion caused by wind

and/or water; (ii) deterioration of the physical, chemical and biological or economic properties of soil; and (iii) long-

term loss of natural vegetation’.

4

degraded land becomes, the less it can ecologically support. This can cause degradation to

accelerate, as plants and animals that would normally play a part in restoring the soil are

unable to survive. Agricultural practices are a common cause of land degradation.

Overworking the soil can degrade it, sometimes permanently. A stark example of land

degradation can be seen in the infamous 1930s United States Dust Bowl droughts, when

large-scale topsoil loss occurred as a result of a combination of intensive agriculture and

drought conditions.10 This stimulated the enactment of the first US Farm Bill and

subsequent soil conservation legislation.11

On a global scale, accelerated wind and water soil erosion are the principal land

degradation processes. Current estimates of the area of degraded land worldwide vary from

1 billion to 6 billion hectares.12 The critical drivers are seen to be: agriculture and forestry;

urbanization; infrastructure development; energy production; and mining and quarrying.13

The UNCCD Global Land Outlook 2017 observes:

Direct drivers are either natural (e.g., earthquakes, landslides, drought,

floods) or anthropogenic (i.e., human-induced); some of the latter influence

what would formerly be thought of as natural climatic events. Human-

induced drivers such as deforestation, wetland drainage, overgrazing,

unsustainable land use practices, and the expansion of agricultural,

industrial, and urban areas (i.e. land use change) continue to be the most

significant proximate cause of land degradation.14

The more recent phenomenon of the purchase or lease of productive agricultural lands in

poorer countries by richer countries, often known as ‘land-grabbing’ is of increasing

concern.15 The practice can undermine sustainable livelihoods and economic development

10 ‘A Report of the Great Plains Area Drought Committee’, Hopkins Papers, Franklin D. Roosevelt Library. 27 August

1936, available at: https://babel.hathitrust.org/cgi/pt?id=coo.31924000933956; J. N. Gregory, American Exodus: The

Dust Bowl Migration and Okie Culture in California (Oxford: Oxford University Press, 1991). 11 J.J. Richardson Jnr. and E. Dooley, ‘United States Soil Degradation’ in Ginzky et al., International Yearbook of Soil

Law and Policy 2016, at 411. The Soil Conservation Act 1935 Pub.L. 74–461established the United States Soil

Conservation Service; the Act recognized the ‘wastage of soil and moisture resources on farm, grazing and forest

lands . . . is a menace to the national welfare’. ‘This legislation was amended and replaced . . . by the Soil Conservation

and Domestic Allotment Act 1936 (Pub. L. 74-461) . . . with the express purpose of encouraging the use of soil

resources in such a manner as to preserve and improve fertility, promote economic use, and diminish the exploitation

and unprofitable use of the national soil resources.’ 12UNCCD, Global Land Outlook, 1st edn. 2017, available at:

https://static1.squarespace.com/static/5694c48bd82d5e9597570999/t/59e9f992a9db090e9f51bdaa/1508506042149/

GLO_Full_Report_low_res_English.pdf, at 43; see also J. Watts, ‘Third of Earth’s soil is acutely degraded due to

agriculture’, The Guardian, 14 September 2017, available at:

https://www.theguardian.com/environment/2017/sep/12/third-of-earths-soil-acutely-degraded-due-to-agriculture-

study. A 1991 estimate put it at some 1,643 million hectares: L.R. Oldeman, R.T. Hakkeling, and W.G. Sombroek,

World Map of the Status of Human-Induced Soil Degradation (Wageningen, The Netherlands: ISRIC/UNEP, 1991).

13 IBTUNCCD, Global Land Outlook/IBT, at 44–50.

14 Ibid., at 40.

15 Major investors now see land in foreign countries as an attractive asset. Over the last decade, they have bought or

leased large areas, especially in developing countries, for farming, mining, tourism, and other uses. Governments

generally welcome the influx of funds in the hope that they will stimulate the economy. However, such land

acquisitions are often seen as controversial; see e.g. FAO (2015) Status of the World’s Soils, at:

http://www.fao.org/3/a-i5228e.pdf; The Soil Atlas, Facts and Figures about Earth, Land and Fields (Berlin: Heinrich

Böll Foundation and Institute for Advanced Sustainability Studies, 2015), available at:

https://www.boell.de/sites/default/files/soilatlas2015_ii.pdf; UNCCD, Global Land Outlook, at 83,notes that

‘“[L]and grabs” are a growing phenomenon in Central and South America, Africa, the Pacific, and south-east Asia’.

5

as well as the capacities of societies and individual nations. They can result in degradation

of land and contribute to lower levels of human well-being and higher levels of

vulnerability, deprivation, and disadvantage. Oguamanam argues that ‘land grabs are not

sensitive to the socio-ecological agency of land in rural communities in

developing countries that are targets of land grabbing. In Madagascar,

Mozambique, Ethiopia, Uganda, Cambodia, Indonesia, Colombia, Brazil, and elsewhere,

land grabs have resulted in the displacement or forced relocation of millions of

culturally diverse indigenous and local communities from their ancestral lands. These

displacements violate communities’ subsistence and self-determination rights and

disrupt their environmentally sustainable stewardship practices.’16 He goes on to argue

that ‘land-use practices associated with land-grabbing threaten the biological and

cultural diversity that represents integral aspects of sustainable agriculture, and by

extension, sustainable development.’17

The human rights aspect of land-grabbing was a focus of the Tirana Declaration

of 2011, which denounced ‘all forms of land grabbing . . . ’, defining large-scale

land grabbing, inter alia, as acquisitions or concessions that ‘in violation of human

rights, particularly the equal rights of women’.18

Further issues involve the involuntary migration and displacement of people

and communities from productive lands into marginal ecological and economic areas

because of ethnic and religious conflict and associated deprivation and violence.19

With respect to the forest sector, the ‘main cause of land degradation in forest

ecosystems is selective logging of commercially valuable trees’.20 This industry has

caused severe soil erosion and loss of biodiversity in many of the world’s forests,

especially in Southeast Asia where the density of commercially valuable timber species

is high. Other causes are forest fires; by removing surface vegetation, excessive

runoff can result. In addition, mining can entail removal of non-timber forest products,

and cause soil and water pollution. The Center for International Forestry Research states:

Deforestation and degradation can impact heavily on small communities who are

dependent on forests as a source of emergency income and food during famine or

economic hardship. Deforestation also permanently destroys valuable plant and

wildlife species within a forest. A degraded forest may not be able to support

specialized species. Excessive clearing or thinning of forests can destabilize the

world’s climate by releasing into the atmosphere millions of tons of greenhouse gasses

normally stored in wood in the form of carbon. This can damage the atmosphere and

It also indicates that ‘in the period 2000–2011 around 200 million hectares changed hands with the average size of

land deals around 40,000 hectares’.

16 IBTC. Oguamanam, ‘Sustainable Development in the Era of Bioenergy and Agricultural Land Grab’ in S. Alam, S.

Apapattu, C. G. Gonzalez, and J. Razzaque (eds.), International Environmental Law and the Global South

(Cambridge: Cambridge University Press, 2015), 237, 249/IBT.

17 Ibid. 18 See Tirana Declaration, Securing Land Access for the Poor in Times of Intensified Natural Resources Competition,

Report of the ILC International Conference and Assembly of Members Tirana, Albania, 24–7 May 2011, available

at:http://www.landcoalition.org/sites/default/files/documents/resources/aom_2011_report_web_en.pdf. 19 G. Mastrojeni, ‘Soil Degradation and Migrations in the Age of the Global Environmental Crisis: A Policy-Making

Perspective’ in Ginzky et al, International Yearbook of Soil Law and Policy 2016, at 181. 20 CIFOR, ‘Deforestation and Degradation’, Factsheet, available at:

http://www.cifor.org/Publications/Corporate/FactSheet/degradation.htm.

6

contributes to global warming and climate change. By storing carbon, forests provide

a major environmental benefit by reducing global warming. In most cases, people

clear tropical forests to cultivate land. This is motivated by many factors. These

include the prospect of generating greater income through farming, changes in land

rights, tenure, subsidies, tax laws, resettlement projects, new or restored roads,

population pressures and corruption.21

The link between unsustainable forestry and land degradation has been long recognized.

Significantly, the 1992 Statement of Forest Principles22 noted that:

[E]fforts to maintain and increase forest cover and forest productivity

should be undertaken in ecologically, economically and socially sound

ways through the rehabilitation, reforestation and re-establishment of trees

and forests on unproductive, degraded and deforested lands, as well as

through the management of existing forest resources.23

Improving human well-being by protecting soil from degradation has thus become a moral

imperative and a critical aspect of human rights in recent years, particularly from the point

of view of food security.24 Concern about world hunger and food security has stimulated

the appointment by the United Nations of a Special Rapporteur on the Right to Food,25 and

is also a significant focus of the 2015 UN Sustainable Development Goals.26

The process of restoring land that has become degraded is known as remediation. 27 In

some cases, land is too badly degraded for remediation to be effective, forcing communities

21 Tropical deforestation is estimated to contribute around 20% of global greenhouse gas emissions, and is often cited as

one of the major causes of the enhanced greenhouse effect; e.g. Gregory P. Asner, ‘Measuring Carbon Emissions from

Tropical Deforestation: An Overview’, Environmental Defence Fund, 2009, available at

https://www.edf.org/sites/default/files/10333_Measuring_Carbon_Emissions_from_Tropical_Deforestation--

An_Overview.pdf; In another study, of the total emissions from deforestation and forest degradation, forest degradation

accounted for 25% of them; see T. Pearson et al, ‘Greenhouse gas emissions from tropical forest degradation: an

underestimated source’ Carbon Balance and Management, Springer Open, 2017 Dec; 12: 3

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5309188/ Concerning the issue of corruption in the forest sector see

e.g. S. Butt, R. Lyster, and T. Stephens, Climate Change and Forest Governance: Lessons from Indonesia (Abingdon:

Routledge, 2013), 58.22 See United Nations Conference on Environment and Development‘ Non-legally Binding Authoritative Statement of

Principles for the Management, Conservation and Sustainable Development of All Types of Forests’ (1992) 31 ILM 881,

especially Principles/Elements 2(b) and 8(b); see also ‘Non-legally Binding Instrument on All Types of Forests’ (2007),

UNGA E/2007/INF/2/Add.2.

23 ‘Non-legally Binding Authoritative Statement of Principles for the Management, Conservation and Sustainable

Development of All Types of Forests’, 8(b).

24 See UNCCD, Human Rights and Desertification: Exploring the Complementarity of International Human Rights Law

and the United Nations Convention to Combat Desertification: Desertification, Land Degradation and Drought (Issue

Paper No 1, Secretariat of the United Nations Convention to Combat Desertification in cooperation with the Swiss

Agency for Development and Cooperation, Druck Center Meckenheim GmbH, 2008), available at:

http://www.ohchr.org/Documents/Issues/Climate Change/Submissions/UNCCD.pdf; see also UN Special Rapporteur

on the Right to Food at: http://www.ohchr.org/EN/Issues/Food/Pages/FoodIndex.aspx. 25 United Nations Office of the High Commissioner on Human Rights, ‘Special Rapporteur on the Right to Food’,

available at: http://www.ohchr.org/EN/Issues/Food/Pages/FoodIndex.aspx, accessed 26 November 2017. 26 Sustainable Development Goal 2, ‘End hunger, achieve food security and improved nutrition and promote

sustainable agriculture’.

27 See generally, , H.P. Liniger and W. Critchley (eds.), World Overview of Conservation Approaches and Technologies

(WOCAT),‘Where the Land is Greener: Case Studies and Analysis of Soil and Water Conservation Initiatives

Worldwide’ (Bern: WOCAT, 2007).

7

that relied on the land to relocate in order to access new resources. This in turn can

contribute to population pressures in other fragile environments, ultimately repeating the

land degradation cycle all over again. The aim of land degradation laws and policies is to

neutralize this cycle, and then to encourage the processes that enhance the soil.

21.3 Legal Responses to Land Degradation

21.3.1 Global Initiatives

21.3.1.1 Introduction

Land degradation is a cross-cutting issue. It intersects with the conservation of biodiversity,

the causes and effects of climate change, the transport and disposal of hazardous wastes,

and the incidence of contaminated lands. It is also relevant to the capacity of various states

and regions to sustain their human populations and to guarantee food security. In recent

years there has been an increasing interest in examining and understanding the law relating

to land degradation and the promotion of sustainable land use, with more determined

moves to promote reform in this area of environmental law at an international level.28 Some

progress has also been made on developing appropriate frameworks for sustainable

management of land at the national level.

Land degradation first gained broad international attention at the 1992 Earth Summit.

Agenda 21devoted a chapter to ‘Managing Fragile Ecosystems: Combating Desertification

and Drought’.29 The Earth Summit’s three international conventions each have a land

protection role, with provisions that could be used to promote sustainable land use,

although the provisions are generally tangential to the particular needs of soil. They are the

1994 Convention to Combat Desertification in Countries Experiencing Serious Drought

and/or Desertification, Particularly in Africa30 (UNCCD), the 1992 United Nations

Convention on Biological Diversity (CBD)31 and, to a lesser extent, the 1995 United

Nations Framework Convention on Climate Change (UNFCCC).32 The UNCCD

specifically links these three instruments in its Preamble: ‘Bearing also in mind the

contribution that combating desertification can make to achieving the objectives of the

United Nations Framework Convention on Climate Change, the Convention on Biological

Diversity and other related environmental conventions.’33 In addition, the Rio Declaration

28 Boer, Ginzky, and Heuser, ‘International Soil Protection Law’, at 49; Boer and Hannam, ‘Developing a Global Soil

Regime’; Boer and Hannam, ‘Legal Aspects of Sustainable Soils: International and National’, at 149.

29 Agenda 21, Chapter 12, available at: https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf. 30 UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification,

particularly in Africa (Paris, 17 June 1994) 33 ILM (1994), 1328; this instrument is known as a ‘Rio Convention’,

although it was prepared later; see ‘The Rio Conventions’ at: https://www.cbd.int/rio.

31 UNEP Convention on Biological Diversity, 31 ILM (1992) 822.

32UNEP United Nations Framework Convention on Climate Change, 31 ILM (1992) 849. 33UNCCD preambular, para. 25; see also ‘About the Convention’, at: http://www2.unccd.int/convention/about-

convention.

8

on Environment and Development,34 and the Non-legally Binding Statement of Forest

Principles35contain important principles for land degradation control and prevention.

21.3.1.2 The UNCCD

The definition of ‘desertification’ under the UNCCD acknowledges that land degradation

in arid, semi-arid, and dry sub-humid areas of the world results from various factors,

including climatic variations and human activities (Article 1). The UNCCD acknowledges

that arid, semi-arid, and dry sub-humid areas together account for a significant proportion

of the earth’s land area and form the habitat and source of livelihood for a large proportion

of its population. The objective of the Convention is to prevent and reduce land

degradation, rehabilitate partly degraded land, and reclaim desertified land, particularly in

countries that experience serious drought. However, the UNCCD cannot be considered an

adequate instrument for the protection and sustainable use of soil as such because its

provisions do not adequately recognize soil bodies as ecosystems, nor does it contain other

elements to capture the full range of legal principles and processes to encourage protection

and sustainable management of soil. Further, the UNCCD’s geographic focus of

‘desertification’ to arid, semi-arid, and dry sub-humid areas under the UNCCD excludes

other climatic regions of the world that experience severe land degradation processes.

While the addition of annexes enables the UNCCD to be applied more specifically at

the regional level, taking into account different climatic and geographical conditions,36 the

annexes do not operate to extend the reach of the convention beyond arid, semi-arid, and

dry sub-humid areas in the regions. However, this is not to deny that those areas not

currently classified as ‘semi-arid and dry sub-humid’ within the regions could become so.

This appears to be contemplated by the UNCCD text, for example in the context of National

Action Programmes, by use of the phrase‘ drought prone areas’.37The Annexes to the

Convention use similar language: the Asian Annex includes the phrase ‘strengthen and/or

establish information, evaluation and follow up and early warning systems in regions prone

to desertification and drought’;38the Central and Eastern Europe Annex includes ‘the

variety of forms of land degradation in the different ecosystems of the region, including

the effects of drought and the risks of desertification in regions prone to soil erosion caused

by water and wind.’39 While an interpretation that broadens the scope of the Convention

has not been put forward explicitly by the UNCCD Secretariat, the use of such phrases, as

well as the continued recent use of the phrase‘ desertification/land degradation and

drought’ in documents arising from the Conferences of the Parties40 gives rise to that

possibility.41

34 (1992) 31 ILM 874; principles 4, 6, and 7 are the most pertinent.

35 Non-legally Binding Statement of Forest Principles 1992.

36 Annex I: Africa; Annex II: Asia; Annex III: Latin America and the Caribbean (LAC); Annex IV: Northern

Mediterranean; Annex V: Central and Eastern Europe (CEE), at http://www2.unccd.int/convention/regions.

37 Article 10(1)(d) UNCCD (emphasis added).

38 Annex II, Art. 4(1) (h) Regional Implementation Annex for Asia (emphasis added).

39 Annex V, Art. 2(b) Regional Implementation Annex for Central and Eastern Europe (emphasis added). 40 e.g. in Ordos Declaration, agreed at COP 13CCD/COP(13)/21/Add.1, available at:

http://www2.unccd.int/sites/default/files/inline-files/Ordos%20declaration.pdf, preamble and Arts. 7, 10, and 11. 41 Article 31(3) Vienna Convention on the Law of Treaties; see also International Law Commission, ‘Subsequent

Agreements and Subsequent Practice in Relation to the Interpretation of Treaties’, UNGA, 19 March 2013,

9

21.3.1.3 The Convention on Biological Diversity

The objective of the CBD is relevant to land degradation as it includes the conservation of

biological diversity, encouraging the sustainable use of its components and the fair and

equitable sharing of the benefits arising out of the utilization of genetic resources, including

by access to genetic resources and by transfer of relevant technologies. It takes into account

various rights over those resources (Article 1). The CBD also recognizes that nations have

a responsibility for conserving their biological diversity and for using their biological

resources in a sustainable manner (preamble).

Fundamental to the CBD is the concern that biological diversity is being significantly

reduced by human activities. This obviously includes the processes of land degradation.

The avoidance of land degradation is implicit in the definition of ‘sustainable use’, defining

the term as ‘the use of components of biological diversity in a way and at a rate that does

not lead to the long-term decline of biological diversity, thereby maintaining its potential

to meet the needs and aspirations of present and future generations’ (Article 2). A feature

of the activities carried out under the auspices of the CBD is a focus on agricultural

biodiversity, with a strong interdependence being recognized between the two.42

The CBD and UNCCD Secretariats are actively developing a strategy for land

degradation in the context of biodiversity conservation entitled Framework and Guiding

Principles for a Land Degradation Indicator, as part of the effort to ‘monitor and report

on progress towards target 15.3 of the Sustainable Development Goals, the strategic

objectives of the Rio Conventions and other relevant targets and commitments’.43 It

recognizes that many countries do not have the capacity to monitor and report on land

degradation. The purpose of the Framework is ‘to provide consistent definitions and the

best available methodologies as well as global/regional data options for three sub-

indicators’.44 These include land cover and land cover change, land productivity, and

carbon stocks above and below ground ‘that could be used to derive the indicator for

monitoring and reporting progress towards SDG Target 15.3 as well as other relevant

targets and commitments.’45

It is contended here that for the CBD to take on an expanded, more precise role in

addressing land degradation and encouraging the sustainable use of land, it would be

desirable for technical guidelines to be drafted on sustainable land management, reinforced

by an extra protocol to the Convention.46Such provisions would desirably then be reflected

in legislation on land degradation and soil conservation at the national level.

21.3.1.4 The UN Framework Convention on Climate Change

A/CN.4/660, available at: http://legal.un.org/docs/?symbol=A/CN.4/660; see also, with respect to the reach of the

Ramsar Convention on Wetlands, J. Jensen and A. Gardner, ‘A Legal Obligation to Restore Wetlands by

Environmental Water Allocations’(2017) 1 Chinese Journal of Environmental Law 158, at 186. 42 ‘What is Agricultural Biodiversity?’, at: https://www.cbd.int/agro/whatis.shtml, and ‘Why is it Important?’, at

https://www.cbd.int/agro/importance.shtml. 43 IBTUNCCD, CBD, FAO, Global Environment Facility and UNEP, Draft for Consultation; Framework and Guiding

Principles for a Land Degradation Indicator, 2016/IBT.

44 Ibid., at 3.

45 Ibid.

46 Article 28, Adoption of Protocols CBD.

10

The UNFCCC recognizes the role of terrestrial ecosystems as a sink and reservoir for

potential greenhouse gases and is concerned that human activities have been substantially

increasing the atmospheric concentrations of greenhouse gases.47 Two of the principal

sources of greenhouse gases are changes in land-use cover (e.g. forests) and land use (e.g.

cultivation). As noted above, soils are a major reservoir of the earth’s carbon, second only

to the oceans.48 The main land use activities that play a role in emissions of greenhouse

gases and initiate or exacerbate soil degradation are deforestation, biomass burning,

cultivation, using organic manure, applying nitrogenous fertilizers, and over-grazing of

livestock. Excessive vegetation clearance, a principal cause of land degradation, is one of

the key concerns of the UNFCCC. Land degradation exacerbates the emission of gases

from terrestrial and aquatic ecosystems to the atmosphere. The UNFCCC promotes

sustainable management, and the conservation and enhancement of sinks and reservoirs of

greenhouse gases not controlled by the Montreal Protocol, including biomass, forests, and

oceans as well as other terrestrial, coastal, and marine ecosystems. However, while its focus

is on the reduction in emissions in all sectors, it cannot be considered as a sufficiently

specific legal vehicle to address land degradation.49

The Kyoto Protocol50 under the UNFCCC, adopted in 1997, contains a responsibility

to promote sustainable forms of agriculture in the light of climate change considerations

(Article 2(a)(iii)). It recognized the need to expand and preserve soil carbon sinks and

improve agricultural practices in countries where a significant proportion of the emissions

are related to the clearing of vegetation for agriculture (Articles 3 and 5). The Marrakech

Accords provided rules for the implementation of the Protocol.51

The 2015 Paris Agreement under the UNFCCC deals with mitigation of greenhouse

gas emissions, adaptation, and finance.52 Its preamble recognizes ‘the importance of the

conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse

gases referred to in the Convention’. This has important implications for land degradation

control. Under the Paris Agreement, each country determines plans and regularly reports

on the contribution it should make to mitigate global warming. There is no mechanism to

force a country to set a specific target by a particular date, but each target should go beyond

previously set targets, an approach that is now recognised as the principle of progression,53

as expressed in UNFCCC Article 3: ‘the efforts of all Parties will represent a progression

over time’. The aim of the Paris Agreement is to enhance the implementation of the

47 See: The Accounting of Biological Sinks and Sources under the Kyoto Protocol—A Step Forward or Backwards for

Global Environmental Protection? (Special Report, German Federal Government, 1998). 48 UNFCCC preamble: ‘Aware of the role and importance in terrestrial and marine ecosystems of sinks and reservoirs of

greenhouse gases . . . ’. 49 See further, I. D. Hannam, ‘International and National Aspects of a Legislative Framework to Manage Soil Carbon

Sequestration’ in (2004) 65Special Issue International Journal of Climatic Change 365–87.

50 Kyoto Protocol to the Framework Convention on Climate Change, Bonn (1998) 37 ILM 22.

51 Marrakech Accords, available at: http://unfccc.int/land_use_and_climate_change/lulucf/items/3063.php.

52 Paris Agreement, available at: http://unfccc.int/paris_agreement/items/9485.php; adopted by consensus on 12

December 2015.

53 C. Voigt and F. Ferreira, ‘“Dynamic Differentiation”: The Principles of CBDR-RC, Progression and Highest Possible

Ambition in the Paris Agreement’ Transnational Environmental Law, 5:2 (2016), pp. 285–303; see also Principle 13,

IUCN World Declaration on the Environmental Rule of Law, IUCN World Commission on Environmental Law,

available at:

https://www.iucn.org/sites/dev/files/content/documents/world_declaration_on_the_environmental_rule_of_law_fina

l_2017-3-17.pdf.

11

UNFCCC through: ‘(a) Holding the increase in the global average temperature to well

below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase

to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the

risks and impacts of climate change and (b) Increasing the ability to adapt to the adverse

impacts of climate change and foster climate resilience and low greenhouse gas emissions

development, in a manner that does not threaten food production’ (Article 2).These actions

will likely include a wide range of national sustainable land management actions to control

or prevent land degradation, including limitations on forest clearing, and improving land

cover by employing conservation farming techniques and preventing overgrazing of

pastures.54

21.3.1.5 Land Degradation as a Common Concern of Humankind

Large-scale land degradation processes of wind and water erosion (or a combination of

both) can lead to significant transboundary problems affecting two or more countries,

necessitating cooperation between states.55Transboundary Natural Resources Management

(TNRM) has been defined by Griffin et al. as: ‘[A]ny process of cooperation across

boundaries that facilitates or improves the management of natural resources (to the benefit

of all parties in the area concerned)’.56Given the interdependence of many countries on

trade in food products to address their food security, the world itself can be regarded a

‘global farm’, making land degradation truly a matter of common global concern. For the

use, conservation and development of other natural resources, such as water (rivers, lakes,

and groundwater), as well as the air and the components of biodiversity, a wide range of

international and regional instruments have been agreed.The concepts of common heritage

of (hu)mankind as found in the UN Convention on the Law of the Sea,57 and common

concern of humankind, as seen in the CBD and UNFCCC, are used in respect of areas and

natural resources both within and beyond the national jurisdiction of any state.58 It is

notable, however, that the UNCCD does not use the phrase ‘common concern’ but refers

to desertification and drought as ‘problems of global dimension in that they affect all

regions of the world and that joint action of the international community is needed to

combat desertification and/or mitigate the effects of drought’. By regarding land

degradation as a common concern of humankind in the same way as in the CBD and

54 C. Neely, S. Bunning, and A. Wilkes (eds.), Review for evidence on dryland pastoral systems and climate change:

implications and opportunities for mitigation and adaptation (Rome: Food and Agriculture Organization of the United

Nations, 2009), see generally 5-11.

55 Reduction in water quality by soil erosion and sedimentation in transboundary watercourses can affect many countries;

likewise, soil particles from wind erosion can be deposited in countries that are great distances from their origin. Dust

from China is blown towards Korea, Japan, and the Pacific Ocean, and transport of dust has been demonstrated by

chemical and radiological analysis of dust in Hawaiian soil, Greenland ice cores, and St. Elias mountain in Canada; see

Makiko Kakikawa, ‘Dustborne microorganisms in the atmosphere over an Asian dust source region, Dunhuang’ Air

Quality, Atmosphere & Health December 2008, Volume1, Issue 4, 195–202.

https://link.springer.com/article/10.1007/s11869-008-0024-9 56 J. Griffin et al., Transboundary Natural Resource Management in Southern Africa: Main Report (Washington, D.C.:

Biodiversity Support Program, World Wildlife Fund, 1999)3.

57 See e.g. K Baslar, The Concept of the Common Heritage of Mankind in International Law (The Hague: Brill, 1998). 58 See the Declaration of Principles Governing the Seabed and the Ocean-floor, and the Subsoil thereof, beyond the Limits

of National Jurisdiction (1970); and the UN Convention on the Law of the Sea—Part XI (1982).

12

UNFCCC, a conceptual shift may be achieved to accord this issue the same weight as in

those two conventions.59

Bearing the above in mind, it makes sense for states sharing a common land system to

manage that system as a single ecological unit notwithstanding national boundaries, as has

been done in the European Union (EU) with respect to water resources.60 In fact, the

proposal for a European Soil Directive61 in 2006 contemplated such an approach:

Soil degradation in one Member State or region can have transboundary

consequences. Indeed, dams are blocked and infrastructure is damaged

downstream by sediments massively eroded in another country farther

upstream. Equally, groundwater bodies flowing through bordering nations

can be polluted by contaminated sites on one side of the border. Losses of

soil organic matter in one Member State can impair the achievement of the

Kyoto protocol targets by the Community. This would imply that the costs

to restore environmental quality are borne by a Member State different from

that where the soil degrading practice occurred.62

21.3.1.6 IUCN Covenant on Environment and Development

Finally, with respect to global initiatives, the provisions of the IUCN Covenant on

Environment and Development should be noted.63 The Covenant takes a holistic approach

to the protection of the environment and conservation of natural resources. The Covenant’s

commentary recognizes that protection and restoration of soils are essential to many natural

systems and resources, as well as to biological diversity’.64 Article 23 states:

Parties shall take all appropriate measures to ensure the conservation and

where necessary the regeneration of soils for living systems by taking

effective measures to prevent large-scale conversion and soil degradation

59 See B.W. Boer, ‘Land Degradation as a Common Concern of Humankind’ in F. Lenzerini and A. Vrdoljak (eds.),

International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Oxford: Hart

Publishing, 2014), 289. 60 e.g. various Directives of the European Union aim to achieve a uniform approach to the use of natural resources, such

as Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community

action in the field of water policy (EU Water Framework Directive). It provides for a river basin approach to water

management in the EU; see http://ec.europa.eu/environment/water/water-framework/info/intro_en.htm.

61 ‘Soil’, see http://ec.europa.eu/environment/soil/process_en.htm.

62 Commission of the European Communities, ‘Proposal for a Directive of the European Parliament and of the Council

establishing a framework for the protection of soil and amending Directive 2004/35/EC 6’, available at:http://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52006PC0232&from=EN. The Soil Directive proposal as

placed in abeyance in 2014; see ‘The proposal for a Soil Framework Directive’ available at

http://ec.europa.eu/environment/soil/process_en.htm

63 Draft International Covenant on Environment and Development: implementing sustainability, 5th edn. 2015, available

at: https://portals.iucn.org/library/node/46647/IBT.

64 Ibid., at 83.

13

and loss, to combat desertification, to safeguard the processes of organic

decomposition and to promote the continuing fertility of soils.

21.3.2 Regional Initiatives

Attempts to address land degradation prior to the 1992 UN Conference on Environment

and Development were predominantly regional in nature, and did not establish specific

rules for sustainable land use.65 Only one of these is a specific soil instrument, made under

the 1991 Alpine Convention,66 namely the Protocol for the Implementation of the Alpine

Convention in the Field of Soil Protection.67 This is the only legally binding regional

instrument in the world specifically directed to the protection of soil. It aims ‘to reduce

quantitative and qualitative soil impairments, in particular by applying agricultural and

silvicultural production processes which have a minimal detrimental impact on the soil, by

using land economically, controlling erosion and restricting soil sealing’ (preamble).

Among its objectives it provides:

In particular, the ecological functions of soil, which are essential elements

of the ecological balance, shall be safeguarded and preserved both

qualitatively and quantitatively on a long-term basis. The restoration of

impaired soils shall be promoted.68

Markus suggests, with some reservations regarding regional socio-economic and political

conditions, that this Protocol could provide a model for an international soil conservation

regime.69

In the African region, the Revised African Convention on the Conservation of Nature

and Natural Resources,70 adopted in March 2017, includes specific mention of soil under

its definition of ‘natural resources’ (Article V 1). It is one of few regional treaties that plays

a significant role in addressing land degradation. Its objectives are to enhance

environmental protection, foster the conservation and sustainable use of natural resources,

and to harmonize and coordinate policies in these fields with a view to achieving

ecologically rational, economically sound, and socially acceptable development policies

and programs (Article II). These provisions are critical for the prevention and control of

land degradation. The parties are guided by three important principles that are relevant for

65 e.g. the 1968 African Convention for the Conservation of Nature and Natural Resources 1001 UNTS 4 (note that this

instrument was revised in 2017 to include land degradation); the 1974 Convention Establishing a Permanent Inter-

State Drought Control Committee for the Sahel; also Art. 7 1985 ASEAN Agreement on the Conservation of Nature

and Natural Resources (not in force), available at: http://sunsite.nus.edu.sg/apcel/kltreaty.html.

66 The 1991 Alpine Convention is focused on pursuing ‘a comprehensive policy for the preservation and protection of

the Alps by applying the principles of prevention, payment by the polluter (the ‘polluter pays’ principle) and

cooperation, after careful consideration of the interests of all the Alpine States, their Alpine regions and the European

Economic Community, and through the prudent and sustained use of resources . . . ’ (Art. 2(1)). The Convention

includes soil conservation under its ‘General Obligations’ in Art. 2(2)(d).

67 The Protocol for the Implementation of the Alpine Convention of 1991 in the Field of Soil Protection 1991 Official

Journal of the European Union, L 337/29, available at:

http://www.alpconv.org/en/convention/protocols/Documents/SoilProtocolEN.pdf.

68 Final para to Article. 1(2), Protocol to Alpine Convention. 69 See T. Markus, ‘The Alpine Convention’s Soil Conservation Protocol: A Model Regime?’ in Ginzky et al.,

International Yearbook of Soil Law and Policy 2016, at 149, 163.

70 https://au.int/en/treaties/african-convention-conservation-nature-and-natural-resources-revised-version;.

14

land degradation control, including: ‘the right of all peoples to a satisfactory environment

favorable to their development, the duty of States, individually and collectively to ensure

the enjoyment of the right to development, and the duty of States to ensure that

developmental and environmental needs are met in a sustainable, fair and equitable

manner’ (Article III).Article VI includes specific measures on land and soil:

1. The Parties shall take effective measures to prevent land degradation, and

to that effect shall develop long-term integrated strategies for the

conservation and sustainable management of land resources, including soil,

vegetation and related hydrological processes.

2. They shall in particular adopt measures for the conservation and

improvement of the soil, to, inter alia, combat its erosion and misuse as well

as the deterioration of its physical, chemical and biological or economic

properties.

Any new international or regional framework to guide national legal efforts to address land

degradation must, we contend, be based on a clear understanding of the confusing

differences in the use of terminology in the environmental law, land science, sociological

and ecological disciplines.71 A range of concepts and terms that appear in the instruments

outlined above can be used to underpin such a framework but careful attention should be

paid in the selection and explanation of its elements for possible adoption at national level.

21.3.3 Strategies and Policies

21.3.3.1 The World Soil Charter 2014

The non-legally binding Revised World Soil Charter of 2014 specifies that ‘[s]oils are a

key enabling resource, central to the creation of a host of goods and services integral to

ecosystems and human well-being. The maintenance or enhancement of global soil

resources is essential if humanity’s overarching need for food, water, and energy security

is to be met.’72 The Charter includes guidelines for actions by government, including to:

‘incorporate the principles and practices of sustainable soil management into policy

guidance and legislation at all levels of government, ideally leading to the development of

a national soil policy’.73

21.3.3.2 The UN Sustainable Development Goals 2015 and Land

Degradation Neutrality

71 The authors have prepared both a national guide and a draft protocol on sustainable use of land and its soils: I.D.

Hannam and B.W. Boer, Drafting Legislation for Sustainable Soils: A Guide (Switzerland and Cambridge: IUCN

Gland, 2004), 2; I.D. Hannam and B.W. Boer, ‘Draft Protocol for Soil Security and Sustainable Use of Soils and

Commentary, prepared for a side-event at UNCCD COP9 (2009), see Yearbook of International Environmental Law

2009, Vol. 20, 839.

72 Global Soil Partnership and FAO, Revised World Soil Charter 2014, available at:

http://www.fao.org/fileadmin/user_upload/GSP/docs/ITPS_Pillars/annexVII_WSC.pdf; the UN Food and

Agriculture Organization negotiated the updating of the 1982 World Soil Charter as part of the establishment of the

Global Soil Partnership, established in 2013, and comprises a wide range of governments, institutions, and non-state

actors, see: http://www.fao.org/globalsoilpartnership/partners/en/.

73 Ibid. 3.V Actions by Governments (emphasis added).

15

In 2015, the United Nations completed negotiations for the new UN Sustainable

Development Agenda.74 The seventeen Sustainable Development Goals (SDGs), which

form part of the 2030 Agenda came into effect in January 2016. Over the next fifteen years,

the SDGs are intended to mobilize efforts to end poverty, fight inequality, and address a

wide range of environmental issues, including climate change, conservation of the oceans,

desertification, land degradation, and the loss of biodiversity.75 Although the SDGs are not

legally binding, governments are expected to take ownership and establish national

frameworks to achieve the Goals and their associated Targets.

With regard to land degradation, the general aim of SDG 15 is to ‘conserve and restore

the use of terrestrial ecosystems such as forests, wetlands, drylands and mountains by

2020’. The UNCCD Global Land Outlook observes that ‘SDG 15 . . . puts a strong

emphasis on the need to scale up transformative management practices with the goal to

“Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage

forests, combat desertification, halt and reverse land degradation, and halt biodiversity

loss”’.76

Land degradation neutrality is seen as ‘a new paradigm in environmental politics for

Sustainable Development Goal (SDG) 15’.77SDG Target 15.3 ambitiously aims, by 2030,

‘to combat desertification, restore degraded land and soil, including land affected by

desertification, drought and floods, and strive to achieve a land-degradation neutral

world’.78 Knut Ehlers observes that this Target ‘thus mainstreams in the SDGs the concept

of a “land degradation neutral world” as a leitmotif for soil protection.’79 A 2016 Science-

Policy Brief defines Land Degradation Neutrality (LDN) as ‘a state whereby the amount

and quality of land resources necessary to support ecosystem functions and services and

enhance food security remain stable or increase within specified temporal and spatial scales

and ecosystems’.80 LDN is a new initiative intended to halt the ongoing loss of healthy land

through land degradation. Unlike past approaches, LDN creates a target for land

degradation management, promoting a two-pronged approach: to avoid or reduce

degradation of land combined with measures to reverse past degradation. The objective is

74 Transforming our World: the 2030 Agenda for Sustainable Development, UN A/RES/70/1,

https://sustainabledevelopment.un.org/post2015/transformingourworld.

75 United Nations, The Sustainable Development Agenda, available at:

http://www.un.org/sustainabledevelopment/development-agenda/.

76 UNCCD, Global Land Outlook, at 36. 77 G. Metternich and A. Cowie, ‘Kill not the Goose that Lays the Golden Egg: Striving of Land Degradation Neutrality’,

International Institute for Sustainable Development, SDG Knowledge Hub, 23 November 2017,

http://sdg.iisd.org/commentary/guest-articles/kill-not-the-goose-that-lays-the-golden-egg-striving-for-land-

degradation-neutrality/.

78 The UNCCD 2018–30 Strategic Framework adopted by the 2017 UNCCD Conference of the Parties links the

UNCCD’s aims with SDG 15.3. It includes a ‘Vision’ which emphasizes the achievement of ‘a land degradation-

neutral world consistent with the 2030 Agenda for Sustainable Development, within the scope of the Convention’

(emphasis added); Annex to The future strategic framework of the Convention, Draft decision submitted by the Chair

of the Committee of the Whole: II. Vision, 3. ICCD/COP (13)/L.18, available at:

http://www2.unccd.int/sites/default/files/sessions/documents/2017-09/copL-18.pdf. 79 K. Ehlers, ‘Chances and Challenges in Using the Sustainable Development Goals as a New Instrument for Global

Action Against Soil Degradation’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 73, 75.

80 UNCCD Science-Policy Brief 02—September 2016; http://www2.unccd.int/sites/default/files/relevant-links/2017-

01/18102016_Spi_pb_multipage_ENG_1.pdf. This definition is intended to apply to affected areas as defined in the

text of the UNCCD.

16

that losses are balanced by gains, to achieve a position of no net loss of healthy and

productive land.81

The UNCCD 2018–30 Strategic Framework82that emerged at COP 13 was described

as ‘a new global roadmap to address land degradation ’and ‘the most comprehensive global

commitment to achieve Land Degradation Neutrality (LDN) in order to restore the

productivity of vast swathes of degraded land, improve the livelihoods of more than 1.3

billion people, and to reduce the impacts of drought on vulnerable populations’.83 The

Strategic Framework includes a range of provisions with respect to policy and planning

and ‘actions on the ground’, but does not specifically include legal requirements to achieve

its objectives. The Ordos Declaration that was also issued at COP 13 committed to

facilitate, ‘for Parties that wish to do so, the voluntary land degradation neutrality target-

setting process, and to provide sufficient support to national efforts to turn defined land

degradation neutrality targets into effective projects and equitable action’.84 The challenge

is to translate Goal 15 and Target 3, together with the aims of the Strategic Framework into

implementable legislation and policies that will deliver LDN at a national level in all

countries suffering from land degradation.

21.3.4 National Laws and Policies

21.3.4.1 Introduction

As noted in the introduction to this chapter, most countries do not have specific legislation

to address land degradation. In 2002, the authors observed:

Only a few States have a law that refers to the ecological features or needs

of soil, or its role in the conservation of biological diversity. Many

individual laws do not have a clear statement of purpose or objectives, and

in other cases, the stated intention of the legislation is poorly reflected in

the substantive provisions of the legislation. Some States have developed a

framework of legislation to manage a number of distinct soil and land use

problems, but they generally lack a linking or coordinating mechanism.85

In the ensuing sixteen years, with some exceptions, the position is not very different.

However, with the increasing attention now begin given to land degradation through the

concept of LDN, it might be expected that more states will enact specific legislation.86 The

81 See also UNCCD Policy Brief, Zero Net Land Degradation: A Sustainable Development Goal for Rio+20

(2012);http://www.unccd.int/Lists/SiteDocumentLibrary/Rio ttp://www.unccd.int/Lists/SiteDocumentLibrary/R.

82 UNCCD 2018–30 Strategic Framework, ICCD/COP(13)/L.18n 38, available at:

http://www2.unccd.int/sites/default/files/sessions/documents/2017-09/copL-18.pdf.

83 ‘Countries agree on a landmark 2030 strategy to save fertile lands’, see

http://www2.unccd.int/news-events/countries-agree-landmark-2030-strategy-save-fertile-lands.

84 The Ordos Declaration, para. 1 (emphasis in original).

85 I.D. Hannam and B.W. Boer, Legal and Institutional Frameworks for Sustainable Soils: A Preliminary Report (IUCN

Environmental Policy and Law Paper No. 45 2002), xiv, available

at:https://portals.iucn.org/library/sites/library/files/documents/EPLP-045.pdf.

86 Snapshots of progress as well as lack of it are recorded for various regions and states in S. T. Shikongo, ‘Greeting to

the Launch of the Yearbook from an African Perspective’ in Ginzky et al., International Yearbook of Soil Law and

Policy 2016, at 3; T. Qin and F. Dong, ‘Legislative Progress and Soil Contamination Prevention and Control in China’

17

following section briefly summarizes some of the main elements that need to be considered

when designing legislation to address land degradation.

21.3.4.2 Land Tenure

Land tenure systems in many regions tend to be dynamic, responding to socio-economic

and political changes put in place for the exploitation of natural resources. Secure land

tenure is seen as an important part of sustainable land management.87 As recognized by

FAO, ‘[L]and tenure and environmental conditions are closely related: land tenure can

promote land use practice that harms the environment or it can serve to enhance the

environment’.88 As noted by the FAO, ‘[i]n many parts of the world, clearing the land has

become an effective way to lay claim to it. For example, forests have traditionally been

used for slash-and-burn agriculture by local people who had customary rights to those

resources,’89 and ‘lack of clear rights can reduce the incentive to implement long-term

resource measures, which leads to land degradation’.90 This observation is reinforced by

the 2017 Global Land Outlook: ‘Many developing countries lack adequate laws, or fail to

implement established provisions that legally determine who owns the land and its

resources.’91

The types of land tenure in place for a particular jurisdiction often determine the kinds

of uses to which land can be put.92 It can be used as a conservation tool through zoning of

uses that specify what can and cannot be done on the land, with specific protections for

soils, water, flora, and fauna being attached to the zoning. Such mechanisms can be

significant for controlling or preventing land degradation and promoting sustainable land

use.93 The different categories of land tenure will determine who uses the land and how the

land is managed, which in turn can determine the type, degree and extent of land

degradation. Land tenure is categorized by the UN Food and Agriculture Organization as

private, communal, open access, or state land tenure.94 The Global Land Outlook uses a

in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 365; I. Hannam, ‘National Developments in

Soil Protection in Mongolia’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 285; M.

Raffelsiefen and T. Strassburger, ‘The Protection of Soil: Does the European Union Live up to its own Ambitions?’

in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 389; Richardson and Dooley (‘United States

Soil Degradation’) note that ‘there has been some legislative development at federal and state level in the United

States’; see also Du Qun and I.D Hannam, Law, Policy and Dryland Ecosystems in the People’s Republic of China

(IUCN Environmental Policy and Law Paper No. 80, 2011), available at:

http://www2.ecolex.org/server2neu.php/libcat/docs/LI/MON-086129.pdf.

87 See generally, FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests

in the Context of National Food Security (Rome, 2012), available at

:http://www.fao.org/docrep/016/i2801e/i2801e.pdf. 88 IBTFAO, Land Tenure and Rural Development (FAO Land Tenure Studies 3, Rome, 2002), 23, available at:

http://www.fao.org/3/a-y4307e.pdf/IBT.

89 Ibid.

90 Ibid.

91 IBTUNCCD, Global Land Outlook, at 24/IBT. 92 Ibid. ‘Land tenure and environmental conditions are closely related: land tenure can promote land use practices that

harm the environment or it can serve to enhance the environment. ’Land tenure and rural development, at 23.

93 J. Oglethorpe (ed.), Tenure and Sustainable Use (SUI Technical Series Vol. 2, The World Conservation Union, 1998). 94 FAO, Land Tenure and Rural Development, at 8. In practice, most forms of holdings may be found within a given

society, e.g. common grazing rights, private residential and agricultural holdings, and state ownership of forests.

18

slightly broader categorization: nationalized; freehold; leasehold; rental; cooperative; and

customary land tenure.95

21.3.4.3 Access to Land

Several strategies exist to gain access to land which can directly, or indirectly, affect the

environmental condition of the land. These include:

• Purchase.

• Adverse possession or prescription; the acquisition of rights through possession for

a prescribed.96

• Leasing, or gaining access to land by paying rent to the owner.

• Sharecropping, or gaining access to land in return for paying the owner a percentage

of the production.

• Inheritance or gaining access to land as an heir.

• Squatting illegally on land.97

In addition to these strategies, land access can be enabled by land reform.98 Land

reform necessarily involves the reworking of laws and regulations regarding land

ownership as well as a revisiting of customary tenure systems. Such land reforms usually

occur in situations where much of the land is owned by a relatively small number of

landowners and the land is idle or under-utilized. Land restitution is also seen as an

important type of reform,99 as has redistribution.100 Such reforms necessarily involve legal

and institutional changes regarding ownership and use, and often can be politically

controversial. Concerning large-scale land redistribution, anti-reform arguments include

loss of productivity and lack of adequate compensation. Zimbabwe is an example of the

difficulties of such reforms, whereby land redistribution has contributed to economic

decline, environmental degradation and increased food insecurity.101

21.3.4.4 Farming Systems and Land Use

Farming, including agriculture, aquaculture, grazing, and forestry, use a significant

proportion of the world’s land, in order to provide the essential products for maintenance

of human life. Land also has intangible values, in terms of open space, cultural landscapes,

95 UNCCD, Global Land Outlook, at 81. 96 In some countries, this may be the only method for small farmers to gain formal access to vacant or abandoned land

and to bring it into productive use.

97 Summarized from FAO, Land Tenure and Rural Development, at 16. 98 F. Batty, ‘Pressures from Above, Below and Both Directions: The Politics of Land Reform in South Africa, Brazil and

Zimbabwe’ (Western Michigan University, presented at Annual Meeting of the Midwest Political Science

Association, Chicago, Illinois, 7–10 April 2005).

99 M. Adams and J. Howell. ‘Redistributive Land Reform in Southern Africa’ (Overseas Development Institute. DFID.

Natural Resources Perspectives No. 64. January 2001)..

100 FAO. Land Tenure and Rural Development, 17.

101 ‘From Breadbasket to Basket Case’, The Economist, 27 June 2002; S. Moyo and W. Chambati, Land and Agrarian

Reform in Zimbabwe: Beyond White Settler-Settler Capitalism (CODESRIA & AIAS, 2013), available at:

http://www.codesria.org/spip.php?article1779.

19

and aesthetics.102 States have varying legal and institutional systems that determine the

nature of the law and policy that govern agrarian land, and therefore, its role in sustainable

management of the land and avoidance of the occurrence of land degradation.103 Depending

on the particular economic and political systems involved, legal regulation can determine

whether landowners retain freedom in land use decision-making, or whether that freedom

is restricted. Farmers are in any case recognized as having ‘a dual indivisible role, the first

being that of an entrepreneur trying to maximize his/her benefits, the other being that of a

manager of public goods: the environment’.104

Farming systems cover a range of farm activities: cropping, livestock grazing, forestry

and woodlots, fisheries, including aquaculture, forestry, and poultry. The concept of

sustainable farming systems involves using the land without disrupting the ecological and

socio-economic balance. Historically, many farming systems, and especially cropping,

have been concentrated on maximizing yield, often leading to significant land degradation.

Globally, farming and pastoral land is paid most attention by the UNCCD through its

focus on semi-arid and drought-affected land.105 However, the CBD is also significant for

agriculture and pastoral land because it recognizes that nations have a responsibility for

conserving their biological diversity and for using their biological resources in a

sustainable manner.106 As noted above, the UNFCCC recognizes the role of terrestrial

ecosystems as sinks and reservoirs for potential greenhouse gases and that human activity

has been contributing to atmospheric concentrations of greenhouse gases.107 Laws

concerning protection of land are seen as important in keeping pastoral land productive.

They focus on soil productivity, prevention of erosion, and protecting land from

environmental damage.108 Typical examples are found in Australia, the United States and

Canada.109

21.4.4.5 The Role of Protected Areas

A protected area is defined by the CBD as ‘a geographically defined area which is

designated or regulated and managed to achieve specific conservation objectives’ (Article

2). A broader definition that has been widely accepted across regional and global

frameworks has been provided by the International Union for Conservation of Nature

(IUCN) in its categorization of guidelines for protected areas: ‘A protected area is a

102 IBTM. R. Grossman and W. Brussaard (eds.), Agrarian Land Law in the Western World, Essays about Agrarian Land

Policy and Regulation in Twelve Countries of the Western World (Wallingford: CAB International, 1992)/IBT, xiii–

xiv.

103 Ibid., at xiv. 104 R. Simoncini, ‘Agricultural Use of Natural Resources in Europe’ in Oglethorpe (ed.), Tenure and Sustainable Use, at

10.

105 Articles 8(c) and (f), 19(e). 106 See generally, A Good Practice Guide: Pastoralism, Nature Conservation and Development, available

at:https://www.cbd.int/development/doc/cbd-good-practice-guide-pastoralism-booklet-web-en.pdf.

107 UNFCCC preamble, paras. 2 and 4.

108 I.D. Hannam ‘International Pastoral Land Law’ in G. Steier and K. K. Patel (eds.), International Farm Animal, Wildlife

and Food Safety Law (Cham: Springer, 2017), 601, 602. 109 Soil Conservation Act 1938, New South Wales; Soil and Land Conservation Act 1945, Western Australia, Soil

Conservation Act 1935, US Public Law 74–46, and Soil Conservation and Domestic Allotment Act 1936, Public Law

74–761, Soil Conservation Act 1996, Canada; see further Hannam and Boer, Drafting Legislation for Sustainable

Soils, at 35–41.

20

clearly defined geographical space, recognised, dedicated and managed, through legal or

other effective means, to achieve the long term conservation of nature with associated

ecosystem services and cultural values’.110 The IUCN definition more specifically allows

for the conservation of protected areas with regard to their natural and cultural values. As

a result of the endeavours by national governments, the CBD Secretariat, the IUCN, and

related bodies, pursuant to ‘Aichi targets’ set at the 2010 CBD Conference of the Parties

in Nagoya, some 15 per cent of the world’s terrestrial areas within national jurisdiction are

declared as protected, with the highest regional percentages being found in Latin America

and the Caribbean.111

The legal protection of specific areas can occur at three levels. At the international

level, the World Heritage Convention112 and the Ramsar Convention on Wetlands,113 for

example, designate protected areas according to their definitions and listing criteria, with

nominations being prepared at national level.114 At regional level, the best example is the

European Natura 2000 programme.115 At national level, a large number of states have

enacted laws for protected areas, with varying levels of success.116 The range of natural

values that any one protected area may safeguard can be vast. Many will be allocated

primarily for species conservation, whether for flora or fauna or for the relationship

between them, but protected areas are similarly important for conserving sites of

Indigenous and local community cultural importance. They also represent considerable

reserves of natural resources, as well as the capacity to store carbon.117

21.4.4.6 Physical Planning to Avoid Land Degradation

In many countries, the protection of agricultural land against unsustainable practices is

addressed by physical planning and zoning legislation. Physical planning processes can

produce guidelines for land use at national, state/provincial, and local levels of government.

Physical planning regulations generally have binding effect through a system of zoning,

environmental impact assessment, and approvals for a wide range of both rural and urban

development activities, in order to avoid degradation and inappropriate use of land. In

jurisdictions that include Indigenous people, it is important to ensure their participation in

physical planning and decision-making, as many Indigenous cultures are based on

sustainable use of land resources. The provisions of the United Nations Declaration on the

110 IUCN, ‘What is a Protected Area’, available at: https://www.iucn.org/theme/protected-areas/about. 111 See Aichi Biodiversity Target 11. Protected Planet Report 2016, v, available at:

https://www.protectedplanet.net/c/protected-planet-report-2016.

112 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 1037 UNTS 151.

113 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 1971 996 UNTS 245.

114 See generally A. Gillespie, Protected Areas and International Environmental Law (Leiden: Brill, 2008). 115 See ‘Protected Areas Designated under Regional Conventions’; Natura 2000 is ‘an ecological network of terrestrial,

coastal and marine protected areas aiming to protect the most valuable and threatened habitats and species across

Europe’: https://www.protectedplanet.net/c/world-database-on-protected-areas/regionally-designated-protected-

areas/natura-2000-sites. 116 See B. Lausche, Guidelines for Protected Areas Legislation (IUCN Environmental Policy and Law Paper No. 81,

2010), available at:https://portals.iucn.org/library/sites/library/files/documents/eplp-081.pdf.

117 As noted by Asner, ‘Measuring Carbon Emissions from Tropical Deforestation: An Overview’, carbon emissions

from tropical deforestation account for an estimated 20 per cent of global carbon emissions. Thus, in protecting the

world’s carbon stocks, greenhouse gas emissions are reduced and long-term land cover change can be minimized.

21

Rights of Indigenous People118 should be taken into account in this context, as recognized

in its preamble: ‘Recognizing that respect for indigenous knowledge, cultures and

traditional practices contributes to sustainable and equitable development and proper

management of the environment’.

21.4 Concluding Remarks

Despite the severity of land degradation worldwide, as outlined by the UNCCD’s Global

Land Outlook, in many countries the legislative framework to manage the different

processes of land degradation remains unable to effectively contribute to overcoming the

problems. The future challenges and opportunities for the management and restoration of

land resources in the context of sustainable development have been cited by the Global

Land Outlook as including: food, water and energy security; climate change and

biodiversity conservation; urban, peri-urban, and infrastructure development; land tenure,

governance; gender; migration, conflict, and human security.119

The recent development of the SDGs by the UN and the promotion of the concept of

Land Degradation Neutrality (LDN) as a primary objective in regard to SDG 15.3 have

shed new light on tackling the global problem of land degradation. Equally, new and

innovative legislative frameworks will be required as a component of the overall approach

to achieve LDN. Attaining LDN will significantly contribute to sustainable development

through rehabilitation, restoration, conservation, and sustainable management of land

resources. This integrated approach is the basis of the conceptual framework for LDN, a

target which is seen as the driving vehicle for the implementation of the UNCCD and as

an important part of the 2030 Agenda for Sustainable Development. It has been described

as a daunting challenge, where the ‘institutionalized international cooperation under the

umbrella of UNCCD needs more flesh and concrete actions in terms of scientific study,

concerted international legal mechanisms and policy responses at domestic level to make

it work on the ground’.120 In this regard, at the international level the negotiation of a new

global instrument,121with all the attendant difficulties of introducing yet another

convention, could fill a much-needed gap in providing legislative guidance for national

land degradation controls in those regions where the UNCCD applies, as well as more

generally.

This chapter has ranged over the international, regional, and national legal and policy

frameworks which are currently available to address land degradation. Those frameworks

are demonstrably fragmented, with insufficient connection horizontally between the

various relevant Conventions, as well as vertically between those Conventions and the

regional and national mechanisms. The international community continues to require a

global regime which recognizes the fundamental value of the lands and their soils around

the world, and that such a regime must include principles and concepts to form the basis

118 Adopted by the United Nations General Assembly during its 61st session at UN Headquarters in New York City on

13 September 2007.

119 UNCCD, Global Land Outlook, at 7.

120 B. Desai and B. K. Sidhu, ‘Striving for Land-Soil Sustainability: Some Legal Reflections’ in Ginzky et al.,

International Yearbook of Soil Law and Policy 2016, at 37.

121 See Boer and Hannam, ‘Developing a Global Soil Regime’.

22

for practical and effective mechanisms to address land degradation at national and local

level.

21.5 Select Bibliography

B.W. Boer and I.D Hannam, ‘Legal Aspects of Sustainable Soils: International and

National’ (2003) 12 Review of European Community and International Environmental

Law (RECIEL) 149.

B.W. Boer and I.D. Hannam, ‘Developing a Global Soil Regime’ (2015) 1 International

Journal of Rural Law and Policy 1.

Boer, B.W., H. Ginzky, and I. L. Heuser, ‘International Soil Protection Law: History,

Concepts, and Latest Developments’ in H. Ginzky et al.(eds.), International Yearbook

of Soil Law and Policy 2016 (Berlin: Springer, 2017).

Food and Agriculture Organization (FAO), Voluntary Guidelines on the Responsible

Governance of Tenure of Land, Fisheries and Forests in the Context of National Food

Security (Rome, 2012).

FAO, Status of the World’s Soils (Rome: FAO, 2015).

H. Ginzky, et al. (eds), International Yearbook of Soil Law and Policy 2016 (Berlin:

Springer 2017).

I.D. Hannam and B.W. Boer, Drafting Legislation for Sustainable Soils: A Guide (Gland:

IUCN, 2004).

Liniger, H. P. and W. Critchley (eds.), Where the Land is Greener: Case Studies and

Analysis of Soil and Water Conservation Initiatives Worldwide (Bern: WOCAT, 2007).

United Nations Convention to Combat Desertification (UNCCD), Global Land Outlook

(1st edn. Bonn: UNCCD 2017).