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The Evolution of The Evolution of Water Law Water Law

in the European Unionin the European Unionbyby Paulo Canelas de Castro Paulo Canelas de Castro

Jean Monnet ChairJean Monnet ChairUniversity of MacauUniversity of Macau

pcanelas@umac.mopcanelas@umac.mo

Jean Monnet Seminar – September 5, 2001Jean Monnet Seminar – September 5, 2001

Water Governance: Water Governance: European and Chinese PerspectivesEuropean and Chinese Perspectives

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Legal Development Legal Development in the Water Sector in the EUin the Water Sector in the EU

– Main milestones– Main milestonesuntil the mid-90suntil the mid-90sEarly beginnings Early beginnings

(73)(73)

Steady development Steady development 2 Regulatory Waves2 Regulatory Waves(piecemeal, driven (piecemeal, driven

by water use)by water use)

After mid-90s – 3rd waveAfter mid-90s – 3rd waveMid 90s, breaking point Mid 90s, breaking point - Rethinking of water policyRethinking of water policyAdoption (difficult) of the Adoption (difficult) of the WFD , 2000WFD , 2000 3rd age of EU Water Policy3rd age of EU Water Policy

- WFD- WFD- “daughter” Directives (priority - “daughter” Directives (priority substances, groundwater, floods, substances, groundwater, floods, droughts & water scarcity, marine droughts & water scarcity, marine strategy, coastal areas)strategy, coastal areas)- CIS- CIS

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Why this evolutionWhy this evolution? ? - The catalyst of EU Water Law- The catalyst of EU Water Law

- European Citizens + Authorities European Citizens + Authorities concern (“water crisis”):concern (“water crisis”):

- Water quality + environment (ecological Water quality + environment (ecological health)health)

- Awareness of institutional incapacity , Awareness of institutional incapacity , mainly of the State mainly of the State (lack of vision, lack of teeth/ (lack of vision, lack of teeth/ implementation)implementation)

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Fundamental issueFundamental issue

How can a natural resource without national How can a natural resource without national borders and object of multiple uses borders and object of multiple uses be managed wholly and efficiently (borders) ?be managed wholly and efficiently (borders) ?

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Fundamental issue - responseFundamental issue - response Integrated Water Resources ManagementIntegrated Water Resources Management

(IWRM)(IWRM) processprocess of of coordinatingcoordinating conservation, conservation,

management and development of water, land and management and development of water, land and related resources across sectors within a given river related resources across sectors within a given river basin, basin,

in order to maximize the economic and social in order to maximize the economic and social benefitsbenefits derived from water resources in an derived from water resources in an equitable manner while preserving and, where equitable manner while preserving and, where necessary, restoring freshwater ecosystemsnecessary, restoring freshwater ecosystems

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Fundamental issue - responseFundamental issue - response

International River Basin ManagementInternational River Basin Management water management based on water management based on hydrographic boundaries : hydrographic boundaries :

the river basin district as the coordinating the river basin district as the coordinating unit regardless the national and unit regardless the national and administrative borders that may be on the administrative borders that may be on the way.way.

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Legal Response - GloballyLegal Response - Globally

Dublin International Conference on Dublin International Conference on WaterWater and the Environment : 1992. and the Environment : 1992.

Rio de Janeiro Earth SummitRio de Janeiro Earth Summit : 1992 : 1992 attempted to exemplify further the attempted to exemplify further the components of IWRM. components of IWRM.

Agenda 21Agenda 21 contains a chapter which contains a chapter which develops the approach.develops the approach.

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Impact on EU Water Law Impact on EU Water Law - Argument Outline- Argument Outline

1.1. a very a very innovativeinnovative law/policy – WFD, 2000 law/policy – WFD, 2000- as much as the Water Policy is relatively - as much as the Water Policy is relatively oldold... … ... … with WFD became a very innovative policy, with WFD became a very innovative policy, old, but very old, but very young at heartyoung at heart

2. Changes (manifold, significance) 2. Changes (manifold, significance) = = paradigm shiftsparadigm shifts

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WFDWFDThere are three concepts that could be There are three concepts that could be

considered the International river basin considered the International river basin management in EU, that is:management in EU, that is: The river basin district as the The river basin district as the

organizing/planning unit for water management;organizing/planning unit for water management; River basin management plans as tools for river River basin management plans as tools for river

basin district planning; andbasin district planning; and Consultation with and participation of water Consultation with and participation of water

users and the public in river basin management.users and the public in river basin management.

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Environmentally-friendlyEnvironmentally-friendly1st+2nd waves – shallow 1st+2nd waves – shallow environmentalismenvironmentalism

1.1. Orientation - Orientation - The economic The economic driverdriver

2. Object 2. Object (Fragmentary(Fragmentary+ Sectorial)+ Sectorial)

3. Objectives3. Objectives( struggle against ( struggle against

pollution)pollution)4. Technical 4. Technical

obligationsobligations

3rd wave – deepening the 3rd wave – deepening the environmental friendlinessenvironmental friendliness

1.1. EcologicalEcological leaning leaning2.2. ObjectObject – – reality of Naturereality of Nature : all waters + : all waters +

ecosystems (ecosystems (integrationintegration); ); - - reality of problemsreality of problems: every activity / : every activity /

impacts (impacts (holismholism))3. Environmental 3. Environmental ObjectivesObjectives (article 4) (article 4)- Good water statusGood water status (article 1) (ecological (article 1) (ecological

criteria)criteria)- river basinriver basin as geographic reference as geographic reference- Comprehensive good water Comprehensive good water managementmanagement regime regime

(broad scope of matters and procedures) (broad scope of matters and procedures) 4. 4. PrinciplesPrinciples: precaution, prevention, control at : precaution, prevention, control at

source, minimisation, knowledge and planningsource, minimisation, knowledge and planning

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Economically-friendlyEconomically-friendlyIrrelevanceIrrelevance

1.Water taken as granted in 1.Water taken as granted in quantitative form (State)quantitative form (State)

2. Water services 2. Water services unaccounted for; unaccounted for; Someone would foot the Someone would foot the bill - … the Statebill - … the State

The economy matters The economy matters

1.1. Scarcity + quantityScarcity + quantity issues become a issues become a dimension + dimension + goalgoal of the regime of the regime

2. obligation - 2. obligation - Full cost recoveryFull cost recovery (Internalisation of costs) – induce (Internalisation of costs) – induce conservation and efficient water useconservation and efficient water use

3. obligation – 3. obligation – economic analysis-economic analysis- basis basis for deliberationfor deliberation

4. 4. PrinciplesPrinciples : full cost-recovery, : full cost-recovery, efficiency of uses, efficiency of uses, user-pays, polluter-pays, user-pays, polluter-pays, rational deliberation (information, rational deliberation (information, assessment, knowledge)assessment, knowledge)

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Inclusive social relations - friendlyInclusive social relations - friendlyStatic coded picture - Static coded picture - GovernmentGovernment

1.1. Few actors Few actors (EU, MS, corporations)(EU, MS, corporations)

2. Few, simple types of 2. Few, simple types of relations (dual)relations (dual)

3. Static coded entrenched 3. Static coded entrenched positionspositions

(competences – adversarial, (competences – adversarial, “zero-sum”)“zero-sum”)

4. Hierarchical mode4. Hierarchical mode(principal-delegate model)(principal-delegate model)

Dynamic process – animated picture (“movie”)Dynamic process – animated picture (“movie”)GovernanceGovernance (but not without government)(but not without government)

1. 1. InclusivenessInclusiveness, explosion of , explosion of subjectivitysubjectivity- Emancipation of NSA Emancipation of NSA civil societiescivil societies (NGOs, (NGOs,

individuals, epistemic communities, user individuals, epistemic communities, user associations, stakeholders) – associations, stakeholders) – governancegovernance

- New actors - New actors - empowermentempowerment((ReasonsReasons: knowledge, equity, burden-sharing = : knowledge, equity, burden-sharing =

GOALS GOALS -- efficiency + legitimacyefficiency + legitimacy))- - Old actorsOld actors with new ‘vests’ and new ‘processes’ with new ‘vests’ and new ‘processes’

(EU, States, CIS, inter-state, infra-state, basin)(EU, States, CIS, inter-state, infra-state, basin)2. Multilevel, plurilateral relations, cooperative 2. Multilevel, plurilateral relations, cooperative

relations (win-win)relations (win-win)3. 3. ProcessProcess, dynamic (information, participation), dynamic (information, participation)– – learning process learning process (reporting, indicators, peer review, (reporting, indicators, peer review,

benchmarks, best practices)benchmarks, best practices)4. 4. PrinciplesPrinciples (participation; cooperation, (participation; cooperation,

coordination, information, partnership)coordination, information, partnership)

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- The “informal” Organisation - The “informal” Organisation

for the implementation of the new regimefor the implementation of the new regime

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Legal system-friendlyLegal system-friendlyPositivismPositivism

1. 1. typical legal structuretypical legal structure rulesrules

2. typical legal 2. typical legal instrumentinstrument

- directive (binding)- directive (binding)

3. typical contents3. typical contents- command and control- command and control

4. the legal order4. the legal order PatchyPatchy Unbalanced Unbalanced ineffectiveineffective

Reinvention of legal discourseReinvention of legal discourse1. typical 1. typical legal structurelegal structure

RulesRules PrinciplesPrinciples

2. typical 2. typical legal instrumentlegal instrument Directives (framework+daughters)Directives (framework+daughters) Soft law (guidance docs, standards, benchmarks, Soft law (guidance docs, standards, benchmarks,

targets, strategic papers)targets, strategic papers) ……and again hard law…and again hard law…

3. typical 3. typical contentscontents- empowering (goals and ethical options)- empowering (goals and ethical options)

4. the 4. the legal orderlegal order- order, coherence, system ( W- order, coherence, system ( WFFD, +daughter D, +daughter Directives)Directives)

- a flexible, creative, law-generating system- a flexible, creative, law-generating system- the importance of compliance entities- the importance of compliance entities

5. 5. OrientationOrientation: dynamic (goals,principles) OMC: dynamic (goals,principles) OMC

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Common features – 3rd waveCommon features – 3rd wave1.1. Paradigm shifts Paradigm shifts (Thomas Kuhn) – (Thomas Kuhn) – A visionA vision2.2. Vision= Policy, Law of Vision= Policy, Law of optionsoptions, , goals and goals and

principlesprinciples= = not a technocratic recipe, but a principled, not a technocratic recipe, but a principled, teleologicalteleological

and and ethical constructionethical construction3.3. Much more Much more complexcomplex (goals, instruments, actors, (goals, instruments, actors,

relations, processes, legal vision)relations, processes, legal vision) 4.4. Dynamic Dynamic, evolutive, adaptive – an , evolutive, adaptive – an open-ended open-ended

processprocess5. Centrality of 5. Centrality of principlesprinciples (normative bridges, links) (normative bridges, links)6. Substantive cardinal overarching option = 6. Substantive cardinal overarching option =

sustainable developmentsustainable development