The Evolution of Water Law in the European Union

1. 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

2. 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

3. 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)

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

5. 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

6. 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.

7. 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.

8. 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

9. 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.

10. 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

11. 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)

12. 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)

13. - The “informal” Organisation for the implementation of the new regime

14. 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

15. 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