Characteristics
In order to be effective, the rules devised under legal frameworks for water resources management must be fully implemented (i.e. put into practice) and be capable to be enforced (i.e. where the rules are not followed, they can be required to be followed through enforcement mechanisms).
The need for a monitoring compliance mechanism to provide the necessary scientific foundation for regulation is important and this takes different forms at international and national levels. At the international level, generally river basin organizations or a treaty-regime deals with monitoring compliance. At the national level, a series of laws and bylaws or regulations set forth the rule-enforcement mechanisms.
Implementation (ensuring the rules of the game are applied fully) encompasses the activities of various governmental and non-governmental actors and institutions to put the requirements of laws into practice; this is sometimes also referred to as monitoring compliance.
Such activities might include, inter alia, the enactment of executive regulations and guidelines; establishing institutions, designating their responsibilities and coordinating their activities with remits to oversee implementation. To enable effective implementation, the laws and regulations need to be clearly stated (i.e. capable of being identified and evaluated as having been implemented, or not); feasible technically, economically and socially (i.e. fit-for-purpose at the level they are required to be implemented); and provide for appropriate sanctions in case of violations. In order to sustain itself, effective implementation requires training and capacity building as much as awareness raising and education.
The implementation of international obligations arising from bilateral and multilateral agreements related to water resources management, usually across the entire basin as the basic unit of management, requires watercourse States that are legally bound by these agreements to take all measures to ensure that these obligations are covered under national legislation. Such measures might include for instance the enactment of implementing laws and regulations; developing relevant programmes and initiatives, establishing new institutions or revising the responsibilities of existing institutions; and strengthening capacity in terms of finance, scientific and technological expertise. The above implementation measures are mainly preventive by nature. However, since perfect implementation is rare, corrective measures are often needed to ensure ongoing sound water resources management; these can be achieved through enforcement measures.
Enforcement refers to the range of measures taken by competent authorities to ensure that actors failing to comply with laws or regulations are brought back into compliance through supportive or punitive measures.
At national level, evaluating compliance usually occurs through a reporting requirement. This provides the basis for enforcement actions by identifying and documenting non-compliance and includes measures such as reporting, inspections, self-monitoring by regulated entities, monitoring, sampling, and reviewing citizen complaints. For example, reporting might be required for water service providers with respect to water quality parameters, and for individuals and organizations involved in the development and use of water on the level of any pollutants that they directly or indirectly discharge into a water body.
At an international level, some river basin commissions are entrusted to monitor through periodic inspections (for example, 1960 Treaty between India and Pakistan Regarding the Use of the Waters of the Indus) and reporting (for example, 1994 Convention on the Cooperation for the Protection and Sustainable Use of the Danube River).
Sanctions are used as a credible threat to compel compliance and might rely on administrative, civil, or criminal prosecution. Sanctions range from the issuance of formal administrative orders, formal notices of non-compliance, and administrative consent orders, to fines and other financial penalties, facility closure, and, in extreme cases, imprisonment. Individuals or corporate bodies or government may be required to compensate damages they caused under fault-based or strict liability legal regimes.
Fault-based liability arises when an entity found liable for a negligent or intentional illegal act or omission (fault) that caused the damage. In contrast, strict liability shifts the burden of proof to the defendant. It might not require proof of damage, negligence, or causation and usually applies to hazardous activities. Personal liability for employees and officers of corporations causing pollution can also operate as a useful deterrent. Some measures facilitate sanctions, as might financial cautions provided in advance by developers to cover for the costs of clean-up in case of accident or non-compliance at later dates. Besides corrective measures, the legislation of some countries provides for rewards for those who perform their responsibilities particularly well (see for instance Tools C7.05; C7.06).
Various actors and institutions play a distinct role in the implementation and enforcement of water-related legislation (B1.01; B1.02). While administrative and regulatory agencies remain primarily responsible for implementation and enforcement measures, NGOs and individuals are playing increasingly active role in ensuring that water-related legislation is followed and violators are punished through filing complaints and, where authorized, citizen suits.
However, the role of NGOs is often restricted by rules on standing to sue which limit access to the courts to land owners or water right holders who are damaged by a pollution discharge. This might be a significant barrier in terms of access to justice for NGOs and individuals. The role of the judiciary is also essential in this respect for interpreting laws, enforcing rights and providing a forum for conflict resolution. Thus, the preventive and corrective measures of implementation and enforcement lay a sound foundation for conflict prevention and dispute resolution.
Lessons learned
- To be effectively implemented, water laws have to be clearly stated, socially acceptable and administratively enforceable.
- Implementation and enforcement should take into account the unique nature of national legal systems and related economic, social, and cultural circumstances.
- Means of implementation and enforcement must be not only available but also practically exercisable.
- The right mix of public and private enforcement and implementation assistance mechanisms should be selected to accommodate differences in national circumstances and complexity of water management.
- Sanctions should be graduated to reflect the degree of offence and may range from administrative fines to imprisonments.
- Enhancing institutional capacity as well as public awareness and participation is crucial in designing and adopting implementation and enforcement measures. Often a lack of implementation is linked directly with lack of capacity or resources (human and financial).