International Yearbook of Soil Law and Policy 2020/2021

Foreword by Keriako Tobiko, Cabinet Secretary in the Kenyan Ministry of Environment and Forestry
Land Tenure Rights and Sustainable Soil Management in Kenya
Preface
Contents
Part I: Land Tenure Rights and Sustainable Soil Management
Clash of Modern and Traditional Tenure Concepts: An Overview
1 Introduction
2 Background to Tenure
3 Traditional Tenure
4 Modern Tenure
5 Clash Between Modern and Traditional Tenure
6 Conclusion
References
Mutually-Reinforcing Transgressions of Justice in Large Scale Land Acquisitions in the `Public Interest´
1 Introduction
2 Acquisition and Their Consequences for Rural Land Economies
3 The Injustice of Land Governance
4 Justice Depraved
4.1 Redistributive Justice
4.2 Recognition
4.3 Procedural Justice
4.4 Distributive Justice
4.5 Capabilities, Sufficiency and Equality
5 Conclusion
References
Soil Steering Law in Germany
1 Objective of This Contribution
2 Aspects of the Historical Development of German Soil Law
3 The Systematics of Soil Law in German Literature
4 Attempt at a Systematics of Soil Law
5 The Special Case of the Agricultural and Forestry Real Estate Transaction Act
6 The Connection of Agricultural Real Estate Transaction Law to Settlement Law
7 The Reform Discussion on Agricultural Real Estate Transaction Law
8 Urban Soil Law, Fundamental Freedoms, and Investment Aspects
9 Relevance and Change of Seven Guiding Principles of Agricultural Law from 1950
10 Concluding Remarks
References
Quantitative Targets, Tradable Planning Permits and Infrastructure Cost Calculators: Examples of Instruments Addressing Land T...
1 Introduction
1.1 Current Land Take Trends in Europe and Their Impacts
1.2 International and European Policies for Reducing Land Take
1.3 Research Design of the Project SURFACE
2 Policy Instruments Applied or Discussed in European States
2.1 Quantitative Targets for the Reduction of Land Take
2.2 Tradable Planning Permits
2.3 Infrastructure Cost Calculator
3 Discussion
4 Further Research Needs
References
Regulating Large-Scale Farmland Investments in Low Income Countries (`Land Grabbing´): Appraising Different Modes of Transnati...
1 Introduction
2 Large-Scale Farmland Investments: Quantity, Quality, Trends, and Issues
3 Efforts to Govern Large-Scale Farmland Acquisitions Through Law: Regimes and Instruments
3.1 The Legal Frame
3.2 National Law Instruments in Low Income Countries
3.2.1 Typology
3.2.2 Empirical Findings: Design and Implementation Issues
3.3 Governing Large-Scale Farmland Investments Through International Guidance?
3.3.1 Minimum Principles to Address the Human Rights Challenge (2009)
3.3.2 FAO´s Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests
3.3.3 FAO Principles for Responsible Investment in Agriculture and Food Systems (2014)
3.3.4 UNIDROIT Legal Guide on Agricultural Land Investment Contracts
4 Assessing State and Potentials of the Existing Governance System
4.1 Increasing Knowledge
4.2 Reframing the Issue and Developing New Narratives
4.3 Flexibly Shifting Modes of Governance
5 Conclusions
References
Land Use Policies as Drivers of Land Cover Change in Cameroon
1 Introduction
2 The Human and Physical Environment
3 Historical Overview of Some Land Use Policies/Decisions in Cameroon
4 Some Legislative and Regulatory Policies on Land Use After Independence in 1960
4.1 Private Land Property
4.2 Institutional Framework Charged with Formulating and Implementing Land Use Policies
4.2.1 MINADER
4.2.2 Ministry of Livestock, Fisheries and Animal Industries (MINEPIA)
5 Forestry and Environmental Policies (MINEP and MINFOF)
6 Analysis on the Local Regulatory Framework in Land Use Policies
7 Conclusion
References
The Protection of Soil Under Cameroonian Law: The Place of Investors
1 Context and Rationale for Soil Protection
1.1 Soil and Land Distinguished
1.2 Soil Protection and Investment Nexus
1.3 So What Is the Real Problem?
1.4 Some Key Theoretical Underpinnings on Soil and Soil Degradation
2 How Are Investors a Source of Soil Degradation in Cameroon?
3 Current Soil Regulatory Mechanisms in Cameroon: Focus on Investors
3.1 Enabling Legal Environment
3.1.1 International Legal Environment: The Principles and Concepts on Soil and Investments
3.1.1.1 Land Degradation Neutrality Concept and Its Implication for Investors Control for Soil Protection
3.1.1.2 The Principle of Inclusive Growth and Sustainable Development and Its Implication for Investors Control for Soil Prote...
3.1.1.3 The Concept of Improved and Sustainable Soil Management and Implication for Investors´ Responsibility
3.1.2 Domestic Legal Environment
3.1.2.1 Domestic Policy Prescriptions for the Control of Investors for the Purpose of Soil Protection
3.1.2.2 Domestic Legal Prescriptions for the Control of Investors for the Purpose of Soil Protection
3.2 Enabling Institutional Environment
4 Opportunities for, and Challenges to the Implementation of Soil Protection Regulations: Investors´ Perspectives
4.1 Opportunities
4.1.1 Tax Concessions: Exoneration from Custom Duties
4.1.2 Compensation Award (Annual Prizes) or Tax Rebate for Green Investment
4.1.3 Compromise (Transaction) and Arbitration
4.2 Challenges
4.2.1 The Challenge of Compliance, Implementation and Enforcement of Soil Protection Related Provisions
4.2.2 Absence of Enabling Instruments for Effective Implementation of Some Relevant Soil Protection Legislation
4.2.3 Lame Collaboration and Coordination among Centralised and Decentralised Territorial Collectivities
5 Conclusion and Recommendations
5.1 Conclusion
5.2 What Is the Way Forward?
References
Sustainable Land Management Through Social Innovation in Land Tenure
1 Introduction
2 The Role of Social Innovation in Securing Legitimate Access to Land
3 Case Study: Intra-Household Land Use Agreements in Burkina Faso
3.1 Description of the Study Site
3.2 The Research Process
3.3 Effects and Outcomes of the Land Rights Transfer Process
3.3.1 Changed Attitudes to and Perceptions of Gender Roles
3.3.2 Increased Tenure Security
3.3.3 Incentives for Adoption of Soil Protection Measures
3.3.4 Integration of Social Innovation Into Statutory Land Governance and GIZ Soil Projects
3.4 Reflection on the Process
4 Case Study: Community-Led Land Lease Guidelines in Western Kenya
4.1 Description of the Study Site
4.2 The Research Process
4.3 Effects and Outcomes of the Process to Develop Land Lease Guidelines
4.3.1 Enhanced Land Tenure Security and Reduced Land Disputes
4.3.2 Enhanced Land Access for Women
4.3.3 Increased Adoption of Soil Protection Measures
4.3.4 Policy Integration of Land Lease Guidelines
4.4 Reflection on the Process
5 Discussion
5.1 Civil Society Organisations as Bridging Agents
5.2 Towards Gender Equality Through Social Innovation
5.3 Assuring Legitimacy of Land Tenure Agreements
5.4 Alignment of Customary and Statutory Land Tenure Systems
5.5 Tackling Land Governance for Soil Restoration
6 Concluding Remarks
References
Part II: Recent International Developments on Soil Governance
UNCCD COP 14: Mirroring Soil and Land´s Growing Relevance at the Interface of Climate and Biodiversity; Discussion Focus on Dr...
1 Introduction
1.1 Overview of Characteristics of UNCCD
1.2 Overview of the 14th Conference of the Parties
2 Thematic Foci: Land Degradation Neutrality, Drought and Land Tenure
2.1 Land Degradation Neutrality (LDN)
2.1.1 Background
2.1.2 Discussions and Negotiations
2.1.3 Decision and Follow-Up
2.2 Drought
2.2.1 Background
2.2.2 Discussions and Negotiations
2.2.3 Decisions and Follow Up
2.3 Land Tenure
2.3.1 Background
2.3.2 Discussions and Negotiations
2.3.3 Decision and Follow Up
3 Conclusions
References
Assessment of the African Union, FAO, and UNCCD Roles in Enhancing Soil Governance in Africa Through the Lens of Agriculture P...
1 Introduction
2 Appraising the Soil Management Situation in Africa
3 Soil Governance Arrangements Under the African Union
3.1 Soil Governance Under African Treaty Law
3.2 African Union Policy Approaches to Prioritizing Soil Management Through Agriculture Investments
4 Assessing the Role of FAO and UNCCD in Soil Governance and Window of Opportunity to Support Sustainable Actions in Africa
4.1 Assessing Integration of FAO´s Sustainable Soil Methodology in CAADP Implementation Through National Agriculture Investmen...
4.2 Assessing the Potential of the UNCCD and Land Degradation Neutrality Agenda in Enhancing Soil Governance in Africa
5 Conclusion
References
Part III: Regional/National Reports
Options for Tackling the Challenges of Effective Management of Soils in Africa
1 Introduction
1.1 Effective/Sustainable Soil Management
2 International Context of Sustainable Soil Management
3 Key Conceptual and Regulatory Aspects of Soil Management in Africa
3.1 Post-independence Effects
3.2 Relevance of Land Rights/Tenure in Africa to Sustainable Soil Management
3.3 Traditional and Ecological Approaches
3.4 Climate Change, Adaptation, and Mitigation
4 Challenges of Effective/Sustainable Soil Management
4.1 Legal
4.2 Political, Social, Economic and Institutional Challenges
5 Conclusion and Recommendations
References
The European Green Deal: Progress for Soil Protection?
1 Introduction
2 Current Status of Soils in the EU
3 European Green Deal: Scope and Relevance for the Legal Protection of Soils
3.1 General Scope and Objectives
3.2 Existence of a Specific EU Soil Protection Law?
4 Environmental Provisions of the European Green Deal
4.1 Zero Pollution Action Plan for Soil: Tackling Soil Pollution
4.2 Biodiversity Strategy
4.3 European Climate Law
4.4 Conclusion
5 Agricultural Provisions of the European Green Deal
6 Other Policy Areas of the European Green Deal
7 Preliminary Conclusion on the Relevance of the EGD for Soil Protection Law
8 Further Development of EU Soil Protection Law
8.1 Proposal for a Soil Framework Directive of 2006 and Reasons for Its Failure: Lessons Learned?
8.2 Towards a New Soil Protection (Framework) Directive
9 Outlook on the Green Deal in Transition Towards a Soil Framework
References
Soil Protection Legislation and Policy in South Africa: An Overview
1 Introduction
2 Country Information
3 Main Drivers of Soil Degradation
4 What Is Causing Soil Threats?
5 Who Are the Most Relevant Actors with Regard to Soil Degradation?
6 The Organisational Structure of the State and the Legal System
7 International Law
7.1 Relevant International Agreements
7.2 Application of International Law
8 Statutory Soil Legislation
9 Environmental Provisions in the Constitution
10 Legislation on Land Property/Land Ownership and on Land Rights to Uses/Access
11 Public Environmental Law
12 Cross-Cutting Issues
13 Legal Requirements on Environmental Monitoring
14 Recommendations and Conclusion
References
Soil Protection Governance in Iran
1 Introduction
2 Soil Degradation in Iran
2.1 Desertification
2.2 Salinization
2.3 Unsustainable Agriculture
2.3.1 Overextension and Misallocation of Farmland
2.3.2 Inefficient Cultivation
2.3.3 Soil Pollution
2.3.4 Deforestation and Destruction of Vegetation Cover
2.3.5 Construction
2.4 Impacts of Soil Degradation
3 Legal Mechanisms of Soil Protection
3.1 International Conventions and Cooperation
3.2 National Legislation
3.2.1 General Provisions
3.2.1.1 Prevention of Pollution
3.2.1.2 Soil Preservation
3.2.1.3 Cultivation Reform
3.2.1.4 Vegetation Cover Protection
3.2.2 Act on Soil Protection (ASP)
3.2.2.1 Definitions and Targets
3.2.2.2 Instruments
3.2.2.3 Implementation
3.2.2.4 Restoration and Rehabilitation
3.2.2.5 Education
3.2.2.6 Legal Innovations
4 Challenges of Soil Protection Governance
4.1 Significant Threats, Minor Reactions
4.2 Land Planning
4.3 Cultivation Reform
4.4 Institutional Barriers
4.4.1 Administrative Coordination
4.4.2 Implementation and Enforcement
4.4.3 Cross-Sectoral Participation
4.5 Protection of Soil in Climate Change
4.6 Research and Education
4.7 Restoration
5 Conclusion
References
Part IV: Cross-cutting Issues
Sustainable Soil Management Threats Resulting from the COVID-19 Pandemic
1 Introduction
2 Background and Scientific Link: COVID-19 and Sustainable Soil Management (SSM)
2.1 The Background to the Outbreak of COVID-19
2.2 The Scientific Link: COVID-19 Pandemic and Sustainable Soil Management
3 COVID-19 Pandemic Threats on the Global Environment
3.1 Threat to Global Peace and Security
3.2 Threat to Global Food Security
3.3 Turning Point for Globalisation
3.4 COVID-19 Pandemic and Air Pollution
3.5 COVID-19 Pandemic and Water Pollution
3.6 COVID-19 Pandemic and Land/Soil Pollution
4 Soil Related Socio-economic Impacts of COVID-19
4.1 Zambia Country Specific Measures for Managing the COVID-19 Pandemic
4.2 COVID-19 and Social, Cultural and Economic Rights in Southern Africa
5 Law and Policy Research: COVID-19 Pandemic Threats and Sustainable Soil Management
5.1 Research Prospects: COVID-19 Pandemic Threats and SSM
5.2 Need to Legislate for COVID-19 Pandemic Threats on SSM
5.2.1 Laws and Policies Addressing Public Health Disasters
5.2.2 UN Sustainable Development Goals (SDGs)
5.2.3 Towards Global Legislation for Soil
6 Conclusion and Future Policy Considerations
References
Soil and Land Stewardship: An Action Perspective for More Soil Care and Protection?
1 Introduction
2 What Is Soil and Land Stewardship?
2.1 Stewardship: A Boundary Object
2.2 Soil and Land Stewardship
3 Are There Any (Legal) Points of Departure Regarding Soil and Land Stewardship?
3.1 Legal Points of Departure
3.1.1 The International Dimension
3.1.1.1 The International Treaties on Soil Pollution
The Basel Convention
The Rotterdam Convention
The Stockholm Convention
The Minamata Convention
3.1.1.2 The Convention to Combat Desertification
3.1.1.3 The International Organisations
3.1.1.4 The SDGs
3.1.2 The European Dimension
3.1.2.1 The Soil Framework Directive
3.1.2.2 The Environmental Liability Directive
3.1.3 The Environmental Care Obligations
3.1.4 A Short Trip to the Spanish Region of Catalonia
3.1.5 Conclusion
3.2 Other Points of Departure
3.2.1 Soil as a ``Common´´
3.2.1.1 The Demise of the Commons
3.2.1.2 The Tragedy of the Commons
3.2.1.3 The Revival of the Commons
3.2.2 Ecosystems or Ecosystem Services
3.2.3 Granting Rights to Nature
3.2.4 Circular Economy
3.2.5 Conclusion
4 What Are the Constraints We Must Take in Account?
4.1 Private Property Rights
4.1.1 The Right to Ownership Is a Fundamental Human Right
4.1.2 The European Convention on Human Rights (ECHR) as a Classic Lever for Interference
4.2 Legal-Technical Constraints
4.3 The Lack of (Political) Support
5 What Are the Next Steps?
References
Innovative Phosphorus Governance: How to Address Recurring Regulatory Shortfalls-The Example of Germany, Costa Rica and Nicara...
1 Introduction
2 Sustainable Phosphorus Management in a Post-Fossil World
2.1 Phosphorus Management on Farm Level
2.2 Intensive Livestock Farming as a Global Driver of Open Nutrient Cycles
3 Closing the Gap of Phosphorus Governance
3.1 Targets, Strategies and Design of Policy Instruments to Avoid Typical Governance Problems
3.2 Economic Policy Instruments
3.2.1 Fossil Fuels
3.2.2 Livestock Farming
3.2.3 Phosphorus
3.3 Subsidies
3.4 Command-and-Control Regulations: Assessing the Examples of Germany, the European Union, Costa Rica and Nicaragua
3.4.1 Product-Related Fertiliser Legislation
3.4.2 Good Agricultural Practice as Part of the Environmental and Applied Fertiliser Legislation
3.4.3 Circular Economy Legislation
4 Conclusions
References
SoiLEX, The New Tool of the Global Soil Partnership to Strengthen Soil Governance
1 Introduction
2 The Framework of the GSP to Strengthen Soil Governance
3 SoiLEX: A Wiki on Soil Legislation
3.1 Objectives
3.2 Development of the SoiLEX System
3.2.1 Initial Database
3.2.2 Structure of the SoiLEX Database
3.2.3 Verification of the Database at the National Level
3.3 SoiLEX Applications
4 Preliminary Analysis of the SoiLEX Database
4.1 Overview
4.2 Thematic Coverage of Soil-Related Legal Instruments
5 Way Forward
6 Conclusion
References
Soil Protection, Food Security and the Nexus Between Climate Governance and Trade in Agriculture
1 Introduction
2 International Developments in Law
2.1 Global Soil Partnership
2.2 United Nations Convention to Combat Desertification
2.3 United Nations Framework Convention on Climate Change
2.4 Sustainable Development Goals and Land Degradation Neutrality
3 Land Degradation Neutrality-Relevant Policies
4 Land Degradation Neutrality-Relevant National Legal Imperatives
5 Soil Agronomy, Circular Bioeconomy and Supply Chain Management
6 Global Agricultural Commodities Trade
6.1 The World Trade Organisation
6.2 Trade in Agriculture Under the WTO
6.3 The WTO Agreements on Agriculture, Subsidies and Countervailing Measures
7 Conclusion
References