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The Evolution of Water Law in the European Union. by Paulo Canelas de Castro Jean Monnet Chair University of Macau pcanelas@umac.mo Jean Monnet Seminar – September 5, 2001 Water Governance: European and Chinese Perspectives.
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The Evolution of Water Law in the European Union by Paulo Canelas de Castro Jean Monnet Chair University of Macau pcanelas@umac.mo Jean Monnet Seminar – September 5, 2001 Water Governance: European and Chinese Perspectives
Legal Development in the Water Sector in the EU– Main milestones until the mid-90s After mid-90s – 3rd wave Early beginnings (73) Steady development 2 Regulatory Waves (piecemeal, driven by water use) Mid 90s, breaking point • Rethinking of water policy Adoption (difficult) of the WFD , 2000 3rd age of EU Water Policy - WFD - “daughter” Directives (priority substances, groundwater, floods, droughts & water scarcity, marine strategy, coastal areas) - CIS
Why this evolution? - The catalyst of EU Water Law European Citizens + Authorities concern (“water crisis”): Water quality + environment (ecological health) Awareness of institutional incapacity , mainly of the State (lack of vision, lack of teeth/ implementation)
Fundamental issue • How can a natural resource without national borders and object of multiple uses be managed wholly and efficiently (borders) ?
Fundamental issue - response • Integrated Water Resources Management (IWRM) • process of coordinating conservation, management and development of water, land and related resources across sectors within a given river basin, • in order to maximize the economic and social benefits derived from water resources in an equitable manner while preserving and, where necessary, restoring freshwater ecosystems
Fundamental issue - response • International River Basin Management water management based on hydrographic boundaries : the river basin district as the coordinating unit regardless the national and administrative borders that may be on the way.
Legal Response - Globally • Dublin International Conference on Water and the Environment : 1992. • Rio de Janeiro Earth Summit : 1992 attempted to exemplify further the components of IWRM. • Agenda 21 contains a chapter which develops the approach.
Impact on EU Water Law - Argument Outline a very innovative law/policy – WFD, 2000 - as much as the Water Policy is relatively old... … with WFD became a very innovative policy, old, but very young at heart 2. Changes (manifold, significance) = paradigm shifts
WFD • There are three concepts that could be considered the International river basin management in EU, that is: • The river basin district as the organizing/planning unit for water management; • River basin management plans as tools for river basin district planning; and • Consultation with and participation of water users and the public in river basin management.
Environmentally-friendly 1st+2nd waves – shallow environmentalism 3rd wave – deepening the environmental friendliness Orientation - The economic driver 2. Object (Fragmentary + Sectorial) 3. Objectives ( struggle against pollution) 4. Technical obligations • Ecological leaning • Object – reality of Nature : all waters + ecosystems (integration); - reality of problems: every activity / impacts (holism) 3. Environmental Objectives (article 4) • Good water status (article 1) (ecological criteria) • river basin as geographic reference • Comprehensive good water management regime (broad scope of matters and procedures) 4. Principles: precaution, prevention, control at source, minimisation, knowledge and planning
Economically-friendly Irrelevance The economy matters 1.Water taken as granted in quantitative form (State) 2. Water services unaccounted for; Someone would foot the bill - … the State Scarcity + quantity issues become a dimension + goal of the regime 2. obligation - Full cost recovery (Internalisation of costs) – induce conservation and efficient water use 3. obligation – economic analysis- basis for deliberation 4. Principles : full cost-recovery, efficiency of uses, user-pays, polluter-pays, rational deliberation (information, assessment, knowledge)
Inclusive social relations - friendly Static coded picture - Government Dynamic process – animated picture (“movie”) Governance(but not without government) Few actors (EU, MS, corporations) 2. Few, simple types of relations (dual) 3. Static coded entrenched positions (competences – adversarial, “zero-sum”) 4. Hierarchical mode (principal-delegate model) 1. Inclusiveness, explosion of subjectivity • Emancipation of NSA civil societies (NGOs, individuals, epistemic communities, user associations, stakeholders) – governance • New actors - empowerment (Reasons: knowledge, equity, burden-sharing = GOALS -efficiency + legitimacy) - Old actors with new ‘vests’ and new ‘processes’ (EU, States, CIS, inter-state, infra-state, basin) 2. Multilevel, plurilateral relations, cooperative relations (win-win) 3. Process, dynamic (information, participation) – learning process (reporting, indicators, peer review, benchmarks, best practices) 4. Principles (participation; cooperation, coordination, information, partnership)
- The “informal” Organisation for the implementation of the new regime
Legal system-friendly Positivism Reinvention of legal discourse 1. typical legal structure • rules 2. typical legal instrument - directive (binding) 3. typical contents - command and control 4. the legal order • Patchy • Unbalanced • ineffective 1. typical legal structure • Rules • Principles 2. typical legal instrument • Directives (framework+daughters) • Soft law (guidance docs, standards, benchmarks, targets, strategic papers) • …and again hard law… 3. typical contents - empowering (goals and ethical options) 4. the legal order - order, coherence, system ( WFD, +daughter Directives) - a flexible, creative, law-generating system - the importance of compliance entities 5. Orientation: dynamic (goals,principles) OMC
Common features – 3rd wave Paradigm shifts (Thomas Kuhn) – A vision Vision= Policy, Law of options, goals and principles = not a technocratic recipe, but a principled, teleological and ethical construction 3.Much more complex (goals, instruments, actors, relations, processes, legal vision) 4. Dynamic, evolutive, adaptive – an open-ended process 5. Centrality of principles (normative bridges, links) 6. Substantive cardinal overarching option = sustainable development