Data Gathering: Inventory of Legal Instruments related to Flood Management

The second component of RLAT, data gathering, seeks to identify all legal instruments relating to flood management, both at the national level and, if applicable, the international level. The aim here is not to analyse the legislation and regulatory context in detail, but simply to identify the relevant legal instruments and customs for flood management within certain categories.

International Legal Instruments

First, it needs to be determined what legal bindings and soft law instruments exist that may have an influence on the policy decisions and actions taken at the national level. This can be achieved by researching which treaties the country in question is a party to, and the soft law instruments it has supported. The purpose is to consider the global and regional obligations that the country needs to fulfill, and how these obligations can best be adapted in the domestic context. Certain principles that are laid down in the international legal instruments may be relevant and applicable. An overview of the international legal instruments that, if in force, may affect the way flood management is being carried in a country and their relevance in transboundary flood management issues are listed in Table 1 (pdf). It is noted that in most cases the major lines of national flood management policy and subsequent legislation will be shaped by domestic decision-making processes and needs. Yet, international obligations will have to be accounted for and general principles of international law may be an “aid” in formulating a national legislative framework, in particular where national experience with the subject of flood-related law is lacking.

National Legal Instruments

Second, it needs to be determined what the country’s constitution provides for on issues related to flood management and distribution of responsibilities between various administrative units. Apart from the constitution, the types of legal instruments that may be used to put into effect flood management programmes vary. Those relevant to flood management need to be identified. Primary and secondary national and, as required, subnational legislation can be listed for purposes of later cross-referencing in Table 2 (pdf).

The ease with which legal instruments may be altered will decrease as the immutability of the content increases, with a Constitution being the most difficult to change. Normally a distinction is made between primary legislation, which may be expected to address the main principles of the relevant subject matter, and secondary legislation, which would normally deal with the minutiae. The names and functions attributed to the varying types of legislation will differ between countries, but examples of primary legislation will include codes, laws, statutes, directives and ordinances. Secondary legislation might include regulations rules, statutory instruments, decrees and orders. The matters addressed in secondary legislation are usually easier to change, therefore more rapid legislative processes may be in place to facilitate this. Legal case laws also provide a valuable assessment of not only the existing legal ground conditions but also the adaptability of the society towards a change. In addition, flood management programmes may also be governed by documents issued by regulators and local authorities.

Relevant national legal instruments are not only those directly dealing with flood management or water resources, but also those that have a focus on land use, protection and conservation of ecosystems, human right to development and the participation of common stakeholders in decision-making. It is therefore important that those using this Rapid Legal Assessment Tool concentrate on gathering legal instruments that have their focus on or affect one or more of the subjects indicated in the first column of Table 3 (pdf). The table provides a list of likely relevant areas, which need to be looked into for assessing the existing legal instrument supporting or relevant to flood management. It should be kept in mind that issues relating to flood management might also be contained in other related laws and therefore the relevance as given in the second column must be closely explored.

Finally, it should be recognized that the applicable law may not be contained only in written law. Customary law may also play a very significant role and this should be indicated under relevant subject headings.

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