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A Legal Obligation to Restore Wetlands by Environmental Water Allocations

In: Chinese Journal of Environmental Law
Authors:
Jeanette Jensen PhD Candidate, Law School, The University of Western Australia

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Alex Gardner Professor of Environmental Law, Law School, The University of Western Australia Researcher, Cooperative Research Centre for Water Sensitive Cities

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Abstract

Wetlands worldwide require significant restoration, especially through environmental water allocations. This article examines the Ramsar Convention (Ramsar) and the Convention on Biological Diversity (cbd) to ascertain whether they require an obligation to restore wetlands by such means. While both conventions contain a general obligation to restore, that obligation appears too uncertain, due to either the disputable status of the language of the text (Ramsar) or the qualifying language expressing it (cbd). The Ramsar obligation, arguably, amounts to a legal obligation that is potentially enforceable in the icj against another contracting party. The article recognizes that the obligation is practically difficult to enforce because: the Convention does not provide a formal dispute settlement procedure; the obligation is derived from guidance in numerous Conference of the Parties resolutions, and is subject to certain exceptions. Further, there is a judicial reluctance to find that the facts prove a breach of the obligations and warrant a remedy. The authors argue, however, that restoration goals are, in fact, achievable through Convention amendments or by an additional protocol.

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