Effective Governance for Sustainable Soil Management at National Level: Selected Recommendations Based on African and German Soil Law Studies

Abstract

Although soils provide social and ecological services which are of a clearly transnational dimension, the management of soils need to be addressed locally. Thus, an appropriate—or better—effective governance for sustainable soil management at national level is essential. This chapter provides some fundamental recommendations for an effective governance based on legal studies on soil governance in several African states and in Germany.

To forget how to dig the earth and to tend the soil is to forget ourselves.—Mahatma Gandhi

1 Introduction

The social and ecological services of soils such as hunger and poverty prevention, food security, climate mitigation and adaptation as well as host of biodiversity are increasingly recognised as fundamental and indispensable for the implementation of sustainability within planetary boundaries. Milestones of the “new awareness” were the outcome document “The Future – we want” of the Rio+20-conference in 2012 and the adoption of the 2030 sustainability agenda by the United Nation’s General Assembly in 2015.¹ In the outcome document state´s leaders concluded that land degradation is a global challenge.² According to the 2030 sustainability agenda, states committed themselves to “strive to achieve a land degradation neutral world”.³ Strong and important words, which are obviously important for the establishment of international cooperation and for a commonly agreed objective. Nevertheless, soils are more or less immobile—not neglecting the mobilisation due to wind and water erosion—and thus primarily a local challenge with regard to their management.

This chapter intends to provide selected fundamental recommendations on how to establish an effective governance for sustainable soil governance at the national level. The recommendations are based on insights collected when analysing soil legislation in various African countries (Cameroon, Kenya and Zambia) and in Germany, which have been conducted by the authors in cooperation with other experts. It shows that despite of the very different economic and societal circumstances and environmental conditions in African countries and Germany, the fundamental challenge from the perspective of law and law implementation are to a certain extent comparable. Stemming from these comparable experiences, the recommendations are meant to provide “food for thought” when reconsidering current soil legislation or redesigning soil legislation in other countries and regions of the world.

2 Soil Legislation in Selected African States: Some Insights

The following deliberations are mainly based on the project Mapping out options for model legislation for sustainable soil management in Africa, which has been financed by the German Federal Ministry for Economic Cooperation and Development (BMZ) through the German Gesellschaft für Internationale Zusammenarbeit (GIZ), aimed at developing options for a model law for soil protection in Africa.

The aforementioned project was carried out from December 2018 until April 2020 by the Development and Rule of Law Programme (DROP) at Stellenbosch University, South Africa, together with the German Environment Agency (UBA). On the basis of three country studies in Cameroon, Kenya and Zambia by African experts, options for a model law were identified and summarised.⁴

In addition, the insights have been instructed by two workshops on soil protection governance in Africa, which were organised by the German Environment Agency together with local partners, the Konrad Adenauer Foundation⁵ and the Gesellschaft für Internationale Zusammenarbeit. The workshops were held in Kampala, Uganda, in 2017⁶ and in Nairobi, Kenya in 2018.⁷ These workshops were instrumental in getting to a better understanding of the specific challenges in African counties concerning the establishment of an effective governance of sustainable soil management.

2.1 Background Information: Main Soil Challenges

Africa is the world’s second largest continent with more than 50 distinct states. The continent’s population was estimated to be 1.2 billion in 2016. The major economic activity in Africa is agriculture. Other economic activities include mining, energy generation and investments and manufacture and any kind of trade. The local climates differ strongly in Africa, such as an equatorial climate, tropical climate, arid and semi-arid conditions and subtropical conditions in the highlands. The kind of vegetation and fauna in Africa depend on the local climate.⁸ Still there are vast areas which are hardly affected by human activities.

Most African economies have developed differently. In some countries, industrialisation is already relatively well established while others are still struggling. But several conditions prevail in most, if not all, African states:

• Large parts of the population generate their living from agriculture and the Gross Domestic Product (GDP) of countries is largely based on agricultural activities.

• Most farmers practise on a small scale and are thus extremely vulnerable to external shocks due to climatic and/or economic changes.

• National income is often dependent on the export of natural resources. The level of processing, manufacturing and industrialisation are usually low.

• Foreign investment in land, agriculture and extraction of natural resources is an important economic factor.

• African states often face a high or very high levels of debt, which strongly hinders the ability to invigorate economic development by stimulus programmes.

In light of the aforementioned statements, it must be emphasised that soil is a very important resource in Africa due its economic dependence from agricultural sector. Nevertheless, due to its overall low productivity hunger and poverty are still challenges in many African countries.

Given these circumstances as main drivers, the following activities need to be mentioned: Primarily agriculture, secondly mining, industrialisation and infrastructure, thirdly urbanisation.

Adverse climatic conditions often negatively influence the ability of farmers to establish sustainable agricultural practices. Due to the fact that a high percentage of farming is of small-scale nature resilience against these climatic changes is low, which in turn can lead to migration within states and beyond borders.

Moreover, societal circumstances like poverty, but also poor law implementation and enforcement as well as illegal or illegitimate foreign investment in land (e.g. “land-grabbing”) can also be drivers of soil degradation.

Forms of degradation may include overstocking and overgrazing, erosion and land-slides, wrong use of nutrients and pesticides and in particular deforestation.

2.2 A Strengths and Weaknesses Analysis of Current Legislation: An Overview

The following section shall provide an overview on gained insights, reflecting strengths and weaknesses of current soil legislation in Cameroon, Kenya and Zambia. Only the most essential aspects could be mentioned here.⁹

The three country studies in Cameroon, Kenya and Zambia show that none of the national constitutions of the three countries entail explicit or substantive provisions on sustainable soil management although some have set out ambitious provisions on natural resources, environmental protection and, partly, even on benefit-sharing.¹⁰ It was furthermore concluded that in none of the aforementioned jurisdictions an overarching policy on sustainable soil management and a coherent soil legislation exist. Given this status, it seems to be recommendable to introduce some kind of framework legislation on sustainable soil management that can inter alia serve the following purposes:

• Recognition of ecological and social services as legally binding objectives;

• recognition of soils as natural resources;

• imposition of an ex-ante control system.

Furthermore, it became apparent that none of the analysed legislation entailed provisions on the implementation of the objective “land degradation neutrality”. This objective is one of the 169 targets of the 2030 Agenda for Sustainable Development, which has been adopted by the United Nations General Assembly in 2015.¹¹

Three primary aspects should be mentioned in legally declaring soil as a natural resource and stressing its ecological functions and the establishment of an ex-ante control system: Firstly, the costs of rehabilitation or restoration by far exceed the costs of sustainable management.¹² Secondly, sustainable soil management is important—together with other mechanisms such as avoidance of societal tensions and political and military conflicts, birth control, and fair-trade patterns—in achieving an improvement in the economic conditions in African countries, while contributing to sustainable development. Thirdly, as climate change is very high on the international political agenda, a number of relevant international funds have been established and made accessible for climate mitigation and adaptation projects.

As soil degradation is caused by almost all human activities regulatory provisions concerning the various drivers of soil degradation which are additional to the framework legislation are needed.

Concerning agriculture, in all the three analysed countries, slash and burn practices have been identified as being detrimental to soil health. In Zambia these practices are prohibited by the Environmental Management Act, while in Kenya the prohibition is pursuant to the Forest Conservation and Management Act. In the case of Cameroon, the 1994 Forest Act proscribes slash and burn practices.¹³

An additional challenge is the misuse of pesticides and fertilizers. Overgrazing and overstocking are additional issues of contention, which might lead to negative effects for soils.¹⁴

Three main approaches were discussed and recommended. Firstly, the need of clear scientifically based standards for those activities as the use of pesticides and fertilizers, which should be legally binding, putting competent authorities in a position to implement and enforce them.¹⁵ Secondly, there is a necessity to raise awareness amongst the farmers on the negative effects of certain practices. Thirdly, extension services need to be strengthened.¹⁶

As stated, the analysis of the three country studies made it clear that legally binding standards are important as they enable competent authorities to implement legal provisions on the protection of soils. Standards should in particular be established for soil quality with regard to soil health as well as to physical parameters (e.g., for soil carbon, biodiversity and organic matter).

In order to determine these standards data and information on soils and other parameters are required. Information and data are often lacking or at least not available to the extent necessary as the country studies have shown.¹⁷ Traditional knowledge in the communities is a (sometimes hidden) treasure of information, which is not seldomly neglected or even discarded in the absence of being considered modern or appropriate.¹⁸ It is thus important to first collect and systematise all kinds of relevant information, including traditional knowledge, and to secondly disseminate it to all concerned actors. In this respect soil science entities can be instrumental as they can function as an institutionalisation of the science- policy interface.

Insufficient or even lack of adequate law enforcement is often a core issue in developing countries, in particular in counties of sub-Saharan Africa.¹⁹ This was also strongly reflected in the findings of the country studies in Cameroon, Kenya and Zambia.²⁰

Thus, in order to become effective, several management tasks need to be implemented by governmental bodies (while private institutions have to be managed by the governmental bodies in order to fulfil the specific tasks). First of all, information on soil conditions and soil quality, as well as on ongoing activities which might affect soils and on technological options, need to be collected and disseminated among the relevant competent authorities. Secondly, the management task involves standard setting, which is a complex, demanding and time- and resource-intensive task. Thirdly, soil authorities need to control potentially negative activities for soils in the frame of a prior permission regime. Finally, monitoring of soils is an additional task and competent authorities need to control and enforce the compliance with substantial provisions. In this context it seems to be beneficial that the roles, responsibilities amongst ministries and administrative branches are clearly demarcated and regulated. In order to take into account the local specificities, it seems to be reasonable to strengthen devolution processes and a decentralised administration.²¹

The potential advantages and benefits of an accountable and transparent administration can be highlighted as follows: Clarity concerning the procedures should foster trust in the process. Secondly, the reputation of states can be significantly increased—also at the international level. Clarity establishes a level playing field for all—including foreign investors. Thereby, a positive regulatory environment for fair and responsible investment can be formed, expelling detrimental foreign investments.

Workable arrangements for institutions and procedures can ensure that respective states can be in a better position dealing with future challenges, such as the effects of the climate crisis, poverty and hunger. The detailed determination of the specific roles, competencies and responsibilities of the various governmental entities is important to enable the implementation of the substantial provisions effectively. It needs to be stressed that the determination of specific roles, competencies and responsibilities is a demanding issue. It needs to be legally stipulated, which ministry is responsible for which particular driver and for which concrete task.

Water, for example, is a problematic issue in many African countries. And in most, if not all, African countries there are water ministries and a complex administrative setting of competent authorities. A simple and perhaps promising approach might be to add the responsibility for sustainable soil management to the water-related entities.

Local chiefs and traditional leaders hold a strong and respected position in most African countries with regard to the living conditions of local communities. However, cases have been reported where local chiefs have misused their powers to either neglect the requirements of environmental protection or to make short-term and unjustified earnings to the disadvantage of the respective local communities. Therefore, in the context of soil protection it seems to be necessary to involve local chiefs and support them with advice from soil scientists’. As such they should be integrated in the soil-related administrative structure.²²

Cameroon, Kenya and Zambia enacted legislation on access to environmental information, public participation, environmental impact assessment and access to justice. However, such legislation reflected various aspects of ambiguity leading to weak law enforcement.²³ It was recommended that environmental impact assessment should be mandatory by law for all activities, which might have significant effects on soils. Access to information on soil quality needs to be guaranteed and effective legislation should be enacted that clearly defines the scope and structure of public participation in soil protection decision-making. Specialised courts on environment and land matters seem to be one viable option to improve access to justice. In addition, the expertise of judges on soil and land topics could be strengthened. These mechanisms are of particular importance with regard to foreign investments in land and resource extraction, such as mining. This is also due in order to support local communities to raise their concerns and to enable them in seeking effective protection of the local environment.

Different land tenure types and policies strongly influence land-use practices and hence affect the quality of soils in Africa. Land tenure in the three countries—both statutory and customary—is characterised by insecurity, constituting a potential underlying driver of soil degradation. Differing and at times conflicting co-existing land tenure types can lead to conflict and foster unsustainable land and soil management practices. For example, communally ‘owned’ lands, in particular, in Cameroon and Zambia are insecure in a sense that they can easily converted into national lands for development purposes.

One reason for the insecurity of owned land is the high economic value which has increased the tendency of the most powerful to engage in land-grabbing and dispossession in Africa. This is often to the detriment of the most vulnerable parts of society that are increasingly being displaced from their lands, leading to heated disputes and conflict. In addition, all three countries have weak governments when it comes to the problem of corruption.

The aforementioned insights have inter alia prompted the following recommendations: The multiplicity of legal instruments and requirements on access to land should be reduced by means of harmonisation and consolidation of the fragmented and dispersed pieces of legislation on land tenure should be amalgamated into a single, comprehensive and overarching land act. It is necessary that the “new” land act recognises customary laws relating to land tenure or at least ensures that procedures for access to land are comprehensible and accessible to all.

Measures by which corruption could be avoided and institutional capacity in land administration matters should be enhanced.

Foreign investors constitute one of the main groups of actors responsible for soil degradation in many African countries, as was seen in Cameroon, Kenya and Zambia. This necessitates more effective monitoring and control mechanisms, particularly but not limited to the mining and agricultural sectors. Thus, improving the legal control of foreign investors is critical to guarantee the effective protection of soils.

To enable new markets for sustainable development requires adequate regulatory frameworks (international, regional and national) in order to give investors the necessary confidence and at the same to guarantee the interests of local communities as well as to protect the environment.

There are several suggestions which need to be considered further:

• Imposition of environmental degradation by means of taxation, such as for pollution or soil contamination, to be paid by both foreign and domestic investors;

• land reforms should be promoted that limit the amount of land that can be acquired by foreign investors or that specify sizes of land depending on the activity to be carried out.

It should also be mentioned that the newly created African Continental Free Trade Area (AfCFTA) agreement will connect 1.3 billion people across 55 countries with a combined GDP valued at US$3.4 trillion. It has the potential to lift 30 million people out of extreme poverty but achieving its full potential will depend on putting in place significant policy reforms and trade facilitation measures.²⁴ Enabling free trade may also lead to potential negative externalities of trade, which may also affect soils. In this light, the enabled free trade needs to be implemented in a way that it maintains or even enhances the ecological and social services of soils.

3 Soil legislation in Germany: Some insights

Germany is—in contrast to the African overall circumstances—a highly-industrialised country with a myriad of small-middle scale enterprises and a complex and developed administration. In the following—again—some background information will be provided followed by some insights and recommendations from the current soil governance regime.²⁵

3.1 Background Information: Main Soil Challenges

Due to its very diverse Germany’s environment ranging from high mountains in the south, lakes and transboundary rivers like the Rhine and the Danube, hilly regions in central Germany, coastlines to the North and the Baltic sea, and its continental climate at least 12 different types of soils with regard to their texture, compaction and colour can be found in Germany.²⁶

Germany’s highly diversified industry, which is based on a strong labour force, a large capital stock, a low level of corruption, and a high level of innovation, has the largest national economy in Europe, which is also the fourth largest by nominal GDP in the world. The economic success is mainly built on exports as Germany is the third strongest export country in the world.²⁷

Agriculture and forestry contributed less than one percent to the GDP in 2018.²⁸ Germany is highly populated, about 230 persons per square kilometre.²⁹

According to Article 20 of the German Basic Law (the “Grundgesetz”, Constitution of 1949), Germany is a “social and democratic federal state”. In fact, the governmental structure with the sixteen constituent federal states, which are called “Länder”, could be described as highly decentralised.

The legislative powers are divided between the Federation (“Bund”) and the constituent federal states (“Länder”). Although the Constitution empowers the Federal Parliament to initiate legislation, in practice, most acts are drafted and submitted by the ministries in charge.³⁰

Subsidiary regulations, called ordinance (“Verordnung”), may be released by the Federal Government or specific ministries if according to Article 80 Basic Law they are entitled by the Parliament to do so (“Ermächtigungsgrundlage”).

Decentralised powers are in particular in place with regard to the enforcement of most federal acts, which rests in the powers of the “Länder” according to Article 83 Basic Law.

Germany has been a member of the European Union (EU) since 1957. Given the transfer of additional competence over the years, the EU is empowered to set legal requirements with regard to most topics of environmental protection, which citizens and enterprises have to comply with.³¹

The EU has its own soil protection policy, although up to now no specific soil legislation has been put in force.

Concerning the main soil threads and drivers, it needs to be emphasised that due to both industrial and economic development and the population density, there is almost no land left, which is not cultivated or modified by human activities or due to human interests.³²

As industrialisation commenced in Germany during the middle of the nineteenth century, due to lacking awareness and knowledge, severe contamination of soil compartments and the local groundwater bodies on (and below) former industrial sites and landfills have been caused over the years. Thus, the about 425,000 of such brownfields pose one mayor soil threads. Calculations for the costs for rehabilitation range up to more than 500 billion Euro.³³

A second soil thread is linked to ongoing industrial activities. Urbanisation and related necessary infrastructural measures such as streets and railways are a third soil thread.³⁴ The land take in Germany is still unsustainably high with about 58 ha per day of which about the half is finally sealed.³⁵

The fourth soil thread is linked to continuously intensified agriculture. Negative effects due to the contamination by fertilizer or pesticides, erosion through floods, wind or landslides and compaction though heavy machinery need to be mentioned.³⁶

Impacts on soil in Germany caused by climate change is the last (but probably not least) soil thread, which has not yet been thoroughly scientifically assessed. It is, however, undisputed that soils are on the one hand extremely important to fight climate change, as they are the second largest biological sequester of carbon and for climate adaptation in particular in urban areas.³⁷ On the other hand, soils may be severely affected by drought, increased water and soil erosion, decline of organic matter and biodiversity—all potential effects of the ongoing change of climate.³⁸

3.2 German Soil Governance: Some Insights and Recommendations

This section will provide some insights and recommendations of German soil protection governance.³⁹

The Federal Soil Protection Act (FSPA) has been enacted 1998. The related Ordinance, Federal Soil Protection Ordinance (FSPO) was put in force on year later. The FSPA and the Ordinance mainly entail provisions which address the management and sanitation of brownfields.⁴⁰

Nevertheless, it has to be highlighted as a remarkable advancement that the FSPA acknowledges soil as natural resource and the ecological functions which soil can provide for society.

In addition, it could be stated, that the importance of soils for the society has been increasingly recognized only within the last twenty years and—as a consequence—specific soil protection governance came in late. Thus, the new soil provisions needed to be aligned with already existing environmental regulations.⁴¹

As a consequence, the FSPA was declared to be subsidiary to other already existing sectoral provisions as far as these deal with soil aspects. Thereby it was intended to avoid regulatory duplication and contraction. The existing sectoral provisions on forests, agriculture, mining and industrial facilities should be used for establishing an effective soil governance.

In a landmark judgement, the Federal Administrative Court (Bundesverwaltungsgericht)⁴² decided that the specific scientific requirements of the FSPA and FSPO, in particular the trigger values for contaminants, must be considered when implementing other sectoral provisions. Thus, taking it from a practical perspective, the sectoral provision to a great extent implements the scientifically founded requirement to avoid further contamination.

This is possible as the FSPA clearly stipulates scientific requirements for contaminants, which are legally binding. The analysis of German soil governance clearly indicates that an effective soil protection governance needs clear specifications of scientific requirements in a legally binding manner. In addition, the provisions on sanitation of brownfields are effective as they clearly stipulate the responsibilities of the competent authority and the private actors.

Compared to soil contamination, the German law has not determined similarly clear scientific requirements for the other soil threats like erosion, compaction or the content of organic carbon. § ⁴³ 17 FSPA entails principles for good agricultural practices which are very generic in nature. FSPA does not foresee a mechanism to specify them—neither by an ordinance delivered by the ministries in charge nor by administrative orders of the competent authorities.⁴⁴ Concluding, it seems very clear that the steering effect of non-binding objectives such as the mentioned principles of good agricultural practices or other political objectives such as the land take reduction objectives (20 or 30 ha by 2020/2030) or the LDN objective is low.⁴⁵

Based on the EU directive on industrial emissions⁴⁶ the German regulation has put in force a new regulatory approach. The operator is requested to deliver a documentation of the status of soils at the beginning of the operation. When the operation is ended the operator is obliged to re-establish the original status, if significant negative effects on soil or groundwater are detected. This regulatory approach is certainly very sensible as it factually enacts an economic incentive for the operators of the industrial site to avoid negative effects on soils and groundwater.⁴⁷

However, this concept only works for point sources such as industrial facilities as the documentation and the assessment of the current status before and after the operation for spatially extended areas such as agricultural activities would not be feasible. Thus, this concept could probably be applied for mining, but not for contamination caused for example by the use of pesticides or fertilizers in the case of agriculture.

Several studies have shown that climate change could severely affect soil quality and that soils as carbon sequester are at the same time extremely important for climate change mitigation. Moreover, there is strong support that soils are needed as climate adaptation measure in urban areas as temperature will increased in particular in larger settlement such as towns and cities.⁴⁸ Therefore, it is recommended that the ecological service of soils is explicitly addressed in Germany’s soil protection governance, probably at best in the FSPA. To state the climate function of soils as an ecological function could be the formal basis to develop—legally binding—scientific requirements and to urge the competent authorities to consider this aspect when implementing the provisions of FSPA and the other sectoral provisions.⁴⁹

As outlined, the “Länder” as empowered by Article 83 of the German Basic Law precisely determine by law the competences of the authorities, the division of labour, the responsibilities and the involvement of other bodies. Thereby, the effectiveness of the work of authorities and—from the perspective of citizens—transparency and accountability are ensured.⁵⁰ Although usually hardly addressed in scientific literature it needs to be highlighted that in order to establish an effective soil protection governance clarity on the competences of the authorities and the relevant procedures, including the involvement of other authorities and the general public, is similarly important as the substantial regulations.

Procedural regulations, such as free access to environmental data and the necessity of an EIA are also of eminent importance. The Federal Environmental Information Act uses the very inclusive term “environmental information”.⁵¹ There is hardly any information related to environmental protection which would not fall under this term.⁵² Authorities are obliged to grant access to the environmental information available to them given that there are no reasons to deny the access. Environmental Impact Assessments are required for the listed categories of projects pursuant to the Environmental Impact Assessment Act.⁵³ The purpose of EIA in legal terms is first to provide more detailed information on the environmental effects which are to be compiled in an Environmental Impact Study and second to ensure that all relevant stakeholders are involved in the decision-making process.

It seems obvious that the probability of an effective soil protection governance increases if the general public or civil society organizations could control the acts of governmental entities although it was not feasible to substantiate by a sociological assessment in this paper.

The formal implementation of the LDN objective is so far weak in Germany.⁵⁴ The “intervention clause” of the Federal Nature Conversation Act in theory entails almost perfectly the first three elements of the UNCCD “LDN response hierarchy”, which are “avoid”, “reduce” and “reverse”.⁵⁵ The “intervention clause” entails four main steps. Interventions on nature have firstly to be avoided, as far as possible. Unavoidable interventions secondly have to be compensated by measures that establish either (primarily) “similar” or “equivalent” nature functions. If the compensation is not feasible, the authority has to thirdly decide whether the interests of nature protection or the project shall prevail. In this former case, the project operator has to pay monetary compensation.⁵⁶

In practice however, the steering effect of the intervention clause in order to achieve the LDN objective is low. Firstly, the intervention clause does not necessarily—dependent of the different guidance documents of the “Länder”—require a compensation of the same nature function, which has been degraded by the project.⁵⁷ Thus, some guidance documents neglect to a certain extent soil functions as a core element of nature and focus more on the living “nature” such as flora and fauna.⁵⁸ Lastly, there is a lack of information and data on the current status of soils which impede the assessment of the effects.

There are arguments in favour of a “pure” soil related intervention clause in the FSPA as the recognition of soils within the “intervention clause”—based on the Federal Nature Conservation Act - has been debated in Germany for more than a decade—with limited success.

With regard to the LDN objective, two additional instruments have been discussed. First, to establish a permission regime for all substantial land use changes would allow competent authorities to control and manage these changes in a way that the effects on soils are minimized. Second, such a permission regime should be combined with a compensation requirement in order to ensure the required “neutrality”.

As a consequence of the analytical results that non-binding programmatic objective does not render strong steering effects, it seems to be necessary to impose the LDN objective as a mandatory requirement.⁵⁹ Finally, as land/soil degradation is caused by many—very different drivers—planning instruments on a larger spatial scale are needed in order to manage effectively and with foresight the net balance of ongoing degradation and restoration/rehabilitation.⁶⁰

At the end, it should be stated that clarity land tenure is only very seldomly an issue in Germany. Security of land ownership is ensured by the so-called “land charge register”, which is an official documentation of all land titles. Any sale of land title must be documented in this register in order to be legitimate. Furthermore, it is legally required that any contract of real estate sale must be notarised by specialised advocates in order to come into effect.⁶¹

4 Some Recommendations

Considering the insights gained from German and African perspectives, despite the different levels of industrialisation, history, political system and societal realities, some fundamental recommendations could be distilled. The reason for this may be that the recommendations are addressing issues of good governance, legislation and law implementation. These are aspects which are—to a certain extent—independent from the specific circumstances and conditions of a specific state as they are—from a legal perspective—technical in nature. Therefore it is held, that the recommendations—at least to a certain extend—can also be applicable to other regions of the world.

It has to be emphasised that to establish an effective soil governance regime which complies with the aspirations of sustainability has to take into account the following two aspects. First, almost every human activity affects soils and almost inevitably causes—to a certain extent—the degradation of soils. Agriculture, forestry, viniculture, streets, even parks or graveyards, settlings and infrastructure as well as industrial facilities may have—mostly detrimental - effects on soils. Second, soil threats are very different with regard to the challenges they pose. This fact becomes even more complex as soil in itself significantly differs too.

Sustainable soil management is a cross-cutting issue, which has to be addressed by many sectoral provisions. Thus, all sectoral provisions must entail appropriate requirements to maintain and to enhance the ecological and social services of soils.

Given the German experience, it seems to be clear that a kind of a framework legislation certainly improves soil governance. It is essential that the maintenance and enhancement of ecological and social functions of soils should be established as general objective in legal terms. Moreover, soils need to be recognised as “natural resource” in the framework legislation. This is extremely important, as the African experience shows, where in general land has often been regarded as pure private asset on which the owner can decide for him/herself. If the social and ecological services are recognised as legal objectives, land owners would also be obliged to comply with these objectives.

In order to implement and enforce this objective, in the framework legislation—whatever form it may have—a permission control system for land/soil use change should be established. Thereby the competent authorities would be in a position to control and to manage human activities which might have negative effects on soils. In addition, a legal compensation obligation which obliges to offset all negative effects on healthy soils should be enacted. Thereby the objective of land degradation neutrality could be implemented. To even strengthen this approach, it would be instrumental to establish the LDN objective as a legally binding one.

Good Governance in general depend on data and information. This is also the case for soil management. The African experience show that traditional knowledge on how to sustainably use soils and land should be systematically taken into account. For the science-policy interface institutionalised soil science such as soil scientific institutions would be most instrumental. These entities should collect, evaluate and assess soil data and information and distribute it to policy makers and other users (private sector, farmers).

The German experience underscored that the success of soil governance in practice very much depends on standards, which are legally binding. German soil governance is particularly effective with regard to soil contamination for which legally binding environmental quality standards are in place. On the contrary, for the other soil threats no such standards exist and soil governance is clearly less effective. To sum up, legally binding standards are most important to implement and enforce a sustainable management of soil with regard to the various uses.

Access to land is also extremely important. A lack of legal clarity can be a strong impediment to sustainable soil management, in particular in developing countries as reflected in the African experience. Clarification of tenure rights can support poverty eradication, control of foreign investors and thereby lead to more justice for all. The distinct historical, societal and political realities on the ground always need to be considered. A formal documentation of land titles, private or collective ones, by a governmental entity seems to be one option, as the German example clearly reflects.

It is fundamentally important to establish effective institutional settings and arrangements for the implementation and enforcement. Smart provisions are only ink on the paper without effective implementation, enforcement and—at times also necessary—sanctions. Thus, the roles and responsibilities of the various ministries and competent authorities need to be clearly determined by legal provisions. Based on the experience in Germany and Africa it can be highlighted that the decision-making process to define the competences of the various entities is comparably complicated, demanding and time-consuming as is the drafting of good substantial provisions.

Furthermore, experiences in Germany and in African states show that there is a need to ensure an effective involvement of the society at large and in particular civil society organisations. Access to environmental information, public participation and access to justice are crucial mechanisms in this regard. The involvement of societal actors is important to control public authorities and foreign investors and to prevent all kinds of corruption.

International cooperation offers options for support—both thematically and financially—which could be considered, in particular by developing countries. The FAO provides significant guidance on soil aspects, ranging from pollution, erosion, sustainable agriculture and tenure rights.⁶² In addition, soil management measures should be included in the Nationally Determined Contributions (NDCs) for UNFCCC reporting, which in turn opens opportunities for international funding.⁶³

5 Outlook

Germany is a country, Africa a huge continent, this holds true. Yet, the analysis of German and African insights on how to establish an effective soil governance provided some straightforward recommendations with the potential for consideration in other parts of the world. In many parts of the globe, it is time to bring such ideas forward. Soils are as high as never on the political agenda, most probably due to the interface with prominent political issues like climate change mitigation and adaptation, hunger and poverty prevention and migration policies. Just to name a few highlights: The Pan-African Parliament has requested to develop a so-called model law for sustainable soil management.⁶⁴ The EU has launched a consultation for a new healthy soil’s strategy.⁶⁵ IPCC and IPBES have addressed soil/land issues in their annual or special reports.⁶⁶ FAO and its Global Soil Partnership regularly organise workshops on soil protection issues.⁶⁷ Already the fifth volume of the “International Yearbook of Soil Law and Policy”—each volume the size of about 400 pages—is about to be published.⁶⁸ The “Asian Research Institute for Environmental Law”—ARIEL has—together with IUCN and the German Environment Agency—run a webinar for soil governance in the South-Asian region.⁶⁹

The Covid 19 pandemic—next to its dramatic effects for people´s health and life and to its enormous consequences for daily life—urges all of us to reconsider basic assumptions. New guiding principles for environmental and sustainability policy have been proposed, such as the one-health concept, resilience, structural justice and solidarity as well as an adaptive (in the sense of continuous update according to new information), emancipating and framing governance.⁷⁰ Furthermore, the new chances, opportunities and risks due to the emerging digitalisation—or better the potential new digital culture—need to be discussed in all societies.

Soils are essential—to cope with the challenges posed by climate change and the biodiversity loss and other mayor trends. Soil governance is one means to address these necessities. Best knowledge on available practices to which this article is intended to contribute can be of help, needs to be discussed further and should finally be implemented and enforced everywhere. Not one size fits all and local specificities apply. But what works, needs not be reinvented.