NORMATIVE FRAMEWORK

TCP PROJECT FORMAT

"Improving the Legal Framework for Food and Agriculture,
with special reference to [insert subject area]"


Explanatory Note: The following document is based on the TCP Guidelines, and highlights some aspects of those Guidelines that are of particular relevance for legal technical assistance projects. It is not, however, a substitute for the TCP Guidelines. Project formulators should take care to ensure that allrequisites set forth in those Guidelines are met.

1. The document can be used for a wide variety of legal subject areas. Technical assistance in law is a cross-cutting activity that is potentially relevant to any of the subject areas within FAO’s mandate. Depending on a member country’s specific needs, FAO may be called upon to provide assistance in food law, animal law, plant law, fisheries law, water law, land law, forestry law, trade law, biodiversity and wildlife law, environmental law, laws concerning rural institutions, marketing and credit, legal aspects of gender and numerous other related specialities. This document, therefore, does not focus on a specific substantive area of law. It has been drafted so that it can be adapted to whatever sub-category of food and agriculture law is the subject of a country’s particular request.

2. The document can be used for formulating projects in which legal technical assistance is the main activity, or for formulating the legal component of multi-disciplinary projects. The emphasis that project design gives to legal technical assistance will vary from project to project. In some cases, legal technical assistance will be the primary focus. In other cases, it may be only one of several components. For example, a project on policy or institutional reform in a particular sector may include components that focus on economics, biology and institutional strengthening, as well as a component that examines the opportunities and constraints posed by the legal framework.

This document is intended for use in such situations as well. It may, in other words, be used for formulating the legal component of projects in which legal analysis and advice is only one of several activities. For example, for a multi-component project, the guidelines below on how to formulate the "Background", "Objectives" or other sections should be used to draft those portions of the respective sections dealing with legal aspects. Other non-legal portions of those sections would be derived from other specialized normative frameworks.

It should be noted that whether or not law is the principal focus of a project, legal technical assistance usually requires a multi-disciplinary approach, combining the efforts of legal experts with technical experts in the specific sector. Thus, even in "stand alone" legal assistance projects, legal experts will often work side by side with other types of specialists to ensure that legal recommendations are technically well-grounded.

3. The document can be used for formulating projects of a regional nature. Legal technical assistance projects may on occasion have a regional focus. For example, governments may request assistance in drafting regional agreements on a particular subject, or in harmonizing national legislation between countries to promote regional objectives (e.g., for the management of water, fisheries, forestry or wildlife resources.) This document may be easily modified to accommodate such projects as well.


I. PROJECT SUMMARY

As required by TCP Guidelines, this section should put particular emphasis on the outcome (desired improved situations or changes) expected from the project (not to exceed one half-page).

Data Needs:
  • Main features of the project with emphasis on the expected outcomes of the legal component.
Data Sources:
  • Individual chapters of the project document


II. BACKGROUND AND JUSTIFICATION

This section (or in the case of multi-component projects, that portion of this section dealing with the legal component) should briefly describe existing weaknesses in the country's legal framework with respect to the sector in question. It should indicate specifically how these legal weaknesses are related to urgent problems within the sector, and how they act as serious constraints to the solution of those problems.

The relevant legal weaknesses to be highlighted in this section will take different forms, depending on the country and the overall substantive focus of the project. Examples, one or more of which may apply in a given context, may include concerns that existing legislation:

- is outdated and no longer reflects government policy objectives or modern approaches to development within the sector;
- is poorly drafted, confusing and contradictory, undermining effective implementation;
- is poorly synchronized with legislation of other sectors, leading to confusion about institutional mandates and to poor co-ordination between sectors;
- cannot be effectively implemented because it is not supported by needed subsidiary legislation;
- is unnecessarily complex and establishes cumbersome regulatory and enforcement mechanisms that are costly to implement and that inhibit important activities;
- acts as a constraint to the implementation of specific development projects;
- fails to provide a secure legal framework for appropriate and sustainable investment in the sector or creates inappropriate barriers to trade;
- does not reflect international best practice;
- does not incorporate accepted international standards and/or does not adequately address the country's obligations under international agreements;
- is inadequately understood within government agencies, the judiciary and civil society.

Legal weaknesses may also be of a regional nature. Examples include weak or non-existent regional legal mechanisms for ensuring coordinated management of transboundary or shared resources, or individual national laws on such resources that are poorly harmonized with one another.

For each legal weakness that is identified, a brief description of the impact of that weakness on the sector should be included.

The section should describe what efforts government has taken or is taking with respect to addressing the legal problems in the sector. This should include, if applicable, reference to any recent or on-going legislative drafting activities within the sector, whether funded by Government or international donors, and how FAO assistance would be expected to build upon, complement without duplicating such activities, and serve as a catalyst for a larger-scale activity.

In light of the problems identified, the section should describe why FAO's intervention is urgent. In particularly, it should explain what critical gap in expertise FAO would be expected to fill. In legal technical assistance projects, the relevant gap in expertise may take several forms, depending on the particular country and the issues involved. In most cases, national expertise in a specialized area of law may be weak. FAO's assistance may be critical in strengthening national capacity to draft laws that reflect a thorough technical understanding of the sector, and that take into account recent international techniques or strategies that have direct relevance for a country's problems. It may also provide specialized expertise to adjust national laws to reflect new obligations assumed under international or regional agreements in a particular sector.

Data Needs:
  • Major weaknesses in the country's legal framework of relevance to the sector/sub-sector.
  • Legal weaknesses acting as constraints to overcome specific problems within the sector/sub-sector.
  • Recent, on-going or planned legislative drafting, legal training or law-related capacity-building activities.
  • Existing critical gaps in relevant legal expertise; indication of urgency of an FAO intervention.
  • Expected impact of the technical assistance to be provided.
Data Sources:
  • Ministry of Agriculture/Legal Department
  • Office of FAO Representative concerned
  • FAO Legal Office


III. OBJECTIVES OF THE ASSISTANCE

The overall objective is to promote good governance and effective implementation of government policies and strategies in support of food security and sustainable development, through the improvement of the legal framework for the sector in question.

Specific objectives within this overall objective will vary depending on the project and the legal issues identified in Section II, above. These objectives may include:

- to undertake a comprehensive and systematic analysis of the existing legal framework, with detailed identification of significant weaknesses;
- to develop specific recommendations for addressing the identified legal weaknesses (including, as appropriate, draft legislation, regulations and/or other legal instruments), drawing as appropriate on international "best practices" tailored to local needs;
- to strengthen local capacity to draft specialized legislation;
- to facilitate a consultative approach to the design of legal reform proposals, ensuring cross-sectoral and multi-stakeholder involvement;
- to strengthen the capacity of government institutions, including the judiciary, to apply the law, through training and dissemination of information;
- to strengthen the capacity of governments to negotiate international agreements;
- to develop regional legal instruments and harmonized national legislation concerning shared or transboundary resources or issues of regional significance.

Data Needs:
  • see Section II - "Background and Justification".
Data Sources:
  • Ministry of Agriculture/Legal Department
  • Team Leader


IV. PROJECT OUTPUTS (RESULTS)

Project outputs will flow from the specific objectives, and will vary accordingly from project to project. Typical outputs include:

- a written in-depth analysis of the existing legal framework;
- a written in-depth analysis of institutional, policy and technical issues affecting the sector and having particular relevance to the design of legal reform proposals;
- draft legal instruments, in the form of proposed legislation, regulations and/or other instruments as may be appropriate to address the identified weaknesses in the legal framework;
- stakeholder consultation, frequently in the form of public workshops;
- training of national legal experts, and of government counterparts involved in implementation of the law, through seminars, study tours, development of training material, etc.

Data Needs:
  • List of specific outputs expected, to the extent possible in quantitative terms, such as number of draft legal instruments proposed, number of workshops held, number of national legal experts trained.
Data Sources:
  • Ministry of Agriculture/Legal Department
  • Team Leader


V. WORK PLAN

A detailed work plan will be developed on a project-by-project basis. Typical elements of such a work plan may include the following:

- collection and review of existing and proposed legislation, regulations, case law, customary law, international agreements, etc. directly or indirectly affecting the sector in question;
- consultations with relevant government institutions and civil society stakeholders to assess existing mechanisms and capacities for implementing relevant laws and to assess the actual effects of those laws on the ground;
- simultaneous analysis of relevant institutional, policy and technical issues to serve as inputs into the assessment of the strengths and weaknesses of the legal framework, and as inputs into the formulation of recommendations for legislative reform.
- preparation of a first report setting forth the results of the above analyses, and presenting recommendations or options for addressing the issues identified.
- submission of the first report to government, and circulation for discussion and comments among relevant agencies and stakeholders;
- collection of reaction to the report, by way of written comments, interviews and/or one or more public meetings.

1. On the basis of the recommendations set forth in the report, as modified in light of the comments received, the preparation of draft legislation, regulations and/or other legal instruments as may be appropriate in the circumstances.

2. Submission of legal drafts (with accompanying commentary) to government and circulation among relevant agencies and stakeholders. This would frequently be followed by workshop(s) to present and discuss proposed legal drafts.

3. Finalization of proposed legislation, regulations and/or other legal instruments in light of comments received (including the recommendations of workshop(s), if any).

4. If applicable, preparation of training materials to assist in educating government officials, parliamentarians and other stakeholders about the proposed law and modalities for its implementation.

5. If applicable, study tours or other training activities for national experts or counterparts (to be conducted at an appropriate point within the sequence of project activities).

Sufficient time should be programmed between project missions to give government and other stakeholders ample opportunity for absorption and discussion of project findings and recommendations.

Data Needs:

  • Estimate and the logical sequence of the project activities including, for example: review of existing and proposed legislation; consultation with relevant government institutions, analysis of relevant institutional, policy and technical issues to serve as inputs into the assessment of the strengths and weaknesses of the legal framework; preparation and submission of first report to the Government, if applicable; preparation of training materials and organization of study tours.

    Data Sources:

    • Ministry of Agriculture/Legal Department
    • Team Leader


    VI. CAPACITY BUILDING

    The project document should describe in clear terms how the project will use national experts/consultants to achieve project objectives and how the use of such experts/consultants will contribute to building national capacity in the recipient institutions/country. In a typical legal technical assistance project, FAO's assistance will help strengthen national capacity to draft technically specialized legislation, and to understand and use international best-practice techniques or strategies that have direct relevance for the problems of the relevant sector. This capacity strengthening will be provided through the collaboration of international experts, national experts and national counterparts in all aspects of the project, and may be provided more specifically through activities that are particularly focused on training.

    Data Needs:
    • Numerical data on national experts/consultants to benefit from training that will contribute to national capacity building.
    Data Sources:
    • Ministry of Agriculture/Legal Department
    • Team Leader


    VII. INPUTS TO BE PROVIDED BY FAO

    The description of the inputs should give a clear relationship between each of them and the respective project activities which each input supports. See TCP Guidelines, Annex I, page iii.
    a) Personnel services
    Technical services of international and/or national experts/consultants
    - International consultants/experts
    - FAO Advisory Technical Services (ATS)
    - National experts and consultants
    - International expertise under Partnership Programmes (i.e. TCDC/TCCT or Retired experts and consultants)
    - Administrative support
    - Supervisory Technical Services (STS)

    Typically, the project consulting team will consist of both international legal experts (international consultants, FAO staff or partnership programme experts) and national legal experts.

    The purpose of international expertise is to ensure that member countries have exposure to international best practice in the particular field of law, and access to the comparative lessons provided by the experiences of as many other similarly situated countries as possible. Frequently, wide-ranging knowledge of international experience in specialized fields of law is not available in-country. Where competent experts with the requisite level of international experience are available under the TCDC/TCCT programmes in countries that have signed these agreements, preference should be given to their employment.

    National expertise, in the form or one or more legal experts from the country, will help ensure that FAO's advice is tailored to the specific traditions and requirements of the country's legal and political systems. Collaboration between international and national experts will also provide a mechanism for strengthening local capacities in highly-specialized areas of law.

    The balance between international and national personnel needs will vary from project to project, depending on the extent to which there is existing local expertise in a particular field, and the extent to which the country wishes to have access to specialized international learning. In some cases, even where the legal profession is relatively advanced, an absence of national expertise in the particular area of law will necessitate a greater emphasis on international input. In others, a greater existing level of national expertise may make a more limited international input appropriate. In all cases, supervision of both international and national experts by FAO staff legal experts is important.

    In addition to legal expertise, there will usually be a need for one or more experts (international or national) specializing in policy, institutional, economic or other aspects of the particular subject area. This is needed to ensure that legal recommendations are based upon a sound understanding of the relevant technical issues facing the sector in question.

    b) Official travel
    c) Contracts, Letters of Agreements or Contractual Service Agreements
    d) General operating expenses (GOE)
    e) Materials, supplies and equipment:
    - Materials and supplies
    - Equipment
    f) Direct operating cost (DOC)
    g) Training:
    - Study tours
    - In-country workshops
    - Fellowships and academic training
    - Young Professionals for on-the-job training

    Data Needs:
    • Number, type and cost of each input personnel service (international and national expertise), official travel (international, domestic, DSA, itinerary).
    • Contracts, Letters of Agreements.
    • General operating expenses.
    • Materials, supplies and equipment.
    • Direct operating costs.
    • Training.
    Data Sources:
    • Ministry of Agriculture/Legal Department
    • Office of FAO Representative concerned
    • Office of UNDP Representative concerned
    • Local suppliers
    • Travel agents


    VIII. REPORTING

    See TCP Guidelines.

    Data Needs:
    • Actual implementation of activities as compared to workplan.
    • Project expenditures.
    Data Sources:
    • Project records
    • Project staff
    • Ministry of Agriculture/Legal Department


    IX. GOVERNMENT CONTRIBUTION AND SUPPORTING ARRANGEMENTS

    Government contribution and supporting arrangements will differ from project to project. In this regard, certain considerations should be taken into account in accordance with TCP Guidelines:

    - The request must be accorded high priority by the Government, which must also ensure that the required local support facilities and services will be available and that follow-up action will be taken (TCP Guidelines, Annex IVa, page i). In the case of legal technical assistance projects, indicia of a commitment to follow-up action may take various forms. A statement of government intent in this regard might be reinforced by some indication of broad-based (as opposed to isolated) recognition within government of the need for legislative reform in the sector. In some cases, legislative reform may have been identified as a specific component of the government's officially adopted policy or programme of action within the sector. It may also be possible for government to point to concrete action that it intends to take to ensure that the outputs of the project are submitted to a systematic process of review and consultation with the expectation of ultimate submission to and adoption by the legislature or other relevant approving body or agency.

    - Requests must provide assurance of the fullest possible participation of the government in project execution, through such means as the use of national institutions, personnel and resources. (Annex IVa, page i). In legal technical assistance projects, it is usually important for there to be a clear commitment on the part of the government to constitute a working group or similar body to interact frequently and meaningfully with project experts, to engage in critical dialogue, to provide guidance and assistance as needed and to provide substantive reaction to preliminary recommendations. Such a group should include representatives from all concerned agencies and, where appropriate, from civil society.

    - Each project should be supervised by a National Project Coordinator nominated and paid by the Government. National Project Professional Personnel or consultants recruited by FAO are fully accountable to the Organization and cannot be on the Government payroll at the time of their assignment. (page 10, par 46) They may not be recruited from the counterpart institution/co-operating agency. (Annex 1, page iv).

    Data Needs:
    • Government contribution in terms of cash, personnel time, facilities, vehicles, building and office space (for workshops/training), secretarial and translation/interpretation expertise and the like).
    Data Sources:
    • Ministry of Agriculture/Legal Department
    • Ministry of Economic Cooperation