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Edited by Susan C. Breau and Katja L.H. Samuel

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Edited by Susan C. Breau and Katja L.H. Samuel

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Marie Aronsson-Storrier and Haythem Salama

Contaminated water poses significant challenges to human life and development, and water crises are now being considered as one of the main global risks for the coming decade. In light of recent initiatives such as the Sendai Framework for Disaster Risk Reduction 2015–2030, the Sustainable Development Goals 2015–2030, and the acknowledgment by the UN General Assembly of the rights to water and sanitation, this chapter examines some of the principal global challenges posed by water contamination through the lens of disaster risk reduction, sustainable development and international human rights law. It finds that water contamination functions as a powerful illustration of how these three areas of international law complement and reinforce each other, and that the links between them should be further explored and developed by actors seeking to address the significant problems caused by the pollution of water.

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Hà Lê Phan and Inga T. Winkler

Water security and disasters are mutually linked. On the one hand, too much water (floods) and too little water (droughts) may constitute disasters. On the other hand, access to water is often a significant challenge during responses to disasters, notwithstanding if they are related to water. Water security plays a pivotal role in all stages of a disaster, from prevention and mitigation through disaster response to recovery and reconstruction. In disaster settings, water security is governed by a complex interplay of different branches of international law. These include international humanitarian law, international criminal law, international environmental and water law, climate change law, international refugee law and human rights law. The chapter seeks to discuss whether these regimes comprehensively govern and achieve water security in times of disasters; whether they have evolved into a body of international disaster law; and whether protection gaps remain and how these could be addressed.

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Colin T. Reid and Walters Nsoh

Biodiversity offsetting involves allowing development causing biodiversity loss to proceed in one place so long as biodiversity gains are achieved elsewhere to ensure no net loss of biodiversity. In designing such schemes, attention has to be paid to the major challenges of identifying and valuing what constitutes a biodiversity gain and ensuring that it can and will be delivered, despite the practical difficulties and uncertainties shown by ecological practice. The arrangements for an offset can involve several parties who must be assured that each will comply with their obligations, requiring a network of legal relationships involving legal, financial and operational responsibilities. Schemes in operation in various jurisdictions offer examples of how such issues can be tackled, as well as demonstrating bio-banking schemes, whereby those seeking to provide a biodiversity gain to offset some harmful activity can do so by contributing to an existing conservation programme, which can benefit by being financed by this source of income.
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Colin T. Reid and Walters Nsoh

Conservation covenants (or easements) involve landowners agreeing that the use of their land will be restricted in some way so as to further conservation. Such agreements are binding not just on the original party but on future landowners as well, potentially in perpetuity. Covenants can act as a conservation device in their own right or as a means of giving legal shape to the obligations underlying arrangements for the payment for ecosystem services or biodiversity offsetting. Such schemes operate as a matter of private law, and design issues to be addressed include how such agreements can be enforced; the duration of such covenants; the extent to which they can be modified or terminated (by the parties alone, through the involvement of a public body or subject to some form of external scrutiny); and how best to draft such agreements to cope with our increasingly dynamic environment. Lessons can be learnt from current proposals in England and experience in the United States, where the shape of easements is affected by the desire to attract charitable status and hence tax relief.
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Colin T. Reid and Walters Nsoh

There are substantial ethical objections to a market-based approach to biodiversity. The Land Ethic, Deep Ecology and Wild Law all call (in different ways) for humans to see themselves as part of the natural world, not as its masters who are free to buy, sell or destroy it. To the extent that schemes rely on the creation of habitats to balance losses which are being permitted to occur, there are concerns that these are inherently different from authentic habitats, and that returning land to its ‘wild’ state can destroy valuable human heritage. There are also concerns that some matters are inherently unsuited to a market-based approach and that there needs to be an appreciation that the application of such thinking alters our perception of relationships between parties and with the things being traded. It must be recognised, though, that existing legal approaches also embody choices which are relevant here and far from uncontestable.
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Colin T. Reid and Walters Nsoh

Globally we are failing to halt the loss of biodiversity while at the same time coming to realise the many ways in which the natural world provides us with a range of very valuable ecosystem services. Traditional laws of property have given little recognition to nature and we have largely resorted to ‘command and control’ techniques when trying to regulate our impact on biodiversity (e.g. designating protected sites and species). Across environmental regulation, however, there is growing interest in and use of other, market-based techniques, such as trading and offset schemes, as a means of addressing environmental problems. Such an approach might be applied in relation to biodiversity as well. There are, however, challenges in doing so and some critics would argue that this would amount to an unacceptable commodification of nature. The remaining chapters of this book examine pervasive issues affecting the use of a market-based approach for biodiversity conservation, explore the key legal mechanisms that might be employed, consider the challenges in designing effective and efficient schemes and reflect on some of the ethical debates on their use.
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Colin T. Reid and Walters Nsoh

Payment for ecosystem services (PES) involves payments made in exchange for the management of land to maintain or enhance the range of services that it provides to the public at large or to more specific beneficiaries. The aim is to provide a financial incentive for continued service provision, saving beneficiaries the vast cost of replacing them. The legal arrangements for a PES scheme can take the form of transactions made on a voluntary basis, but some may also involve mandatory elements. Existing schemes around the world offer examples of how important design issues can be dealt with. Essential starting points in such schemes include matching those who benefit from a service with those who provide it and providing a means of valuing the service(s) to be paid for. Buyers of services must be able to identify who is eligible to receive payments, a task that is not always straightforward where there is a lack of certainty over the property rights which provide control over land management. Other design issues include drafting contracts that assure the parties that obligations will be met in the short, medium and long terms and establishing mechanisms for the overall governance of the schemes to ensure that they are widely seen as having legitimacy, especially when private arrangements are used to pursue public goals. Besides the technical challenges there is also the question of which landowners should be supported by such schemes: those who currently provide the most services, or those whose lands offer the greatest potential for enhancement, or every landowner who provides ecosystem services. Moreover, there is a need to address the issue of those who do not contribute but continue to receive benefits, especially given the public goods character of biodiversity services.
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Colin T. Reid and Walters Nsoh

There are a number of pervasive design challenges to be faced if there is to be more widespread use of market-based instruments for biodiversity which are effective, efficient and accepted as legitimate. One key issue is the uncertainty in the practical effectiveness of the steps taken to (re-)create or enhance habitats, which are vital for many schemes. Moreover, in contrast to areas such as greenhouse gases where trading mechanisms are already in use, biodiversity is essentially non-fungible, site specific and requires long-term and coherent action to achieve results. There are also difficulties in determining the value to be given to elements of nature, in assessing their equivalence and in ensuring that recognition is given only for actions which provide benefits for nature that are truly additional to ‘business as usual.’ The proper operation of schemes will further require recognition of a range of property rights, some of them likely to be novel. Effective monitoring of what is being achieved and enforcement of long-term undertakings are also essential. In adopting market-based approaches, attention must be paid to transaction costs and asymmetries of information, which will affect how the market operates. Further questions concern the overall governance of schemes where public goals are pursued through an accumulation of private deals. In considering such challenges, it must be remembered that these are not unique to the new approach being considered. At present there are choices on such issues embedded in the existing approaches and legal structures. These structures are not value-free and already require an element of comparative valuation in determining which species and habitats are to be given special legal protection.