Water related adaptation Are West-European countries setting the right example? IUCN Academy of environmental law colloquium 2011 Marjan Peeters Maastricht University, The Netherlands

West European countries … …have a lot of capacity to protect themselves, and are busy doing so –Inside look: What kind of legal frameworks (EU and national) are being developed? –Global perspective: How do they take responsibility towards the need for adaptation in developing countries?

Comparative exercise to water adaptation law

Key points for adaptation research 0. Integrated or sector wise adaptation? Where shall we put water adaptation? 1.Risk assessment & informing society, in particular potential victims 2.Determination of the level of protection 3.Adaptation planning - with public participation 4.Revising and improving relevant legislation (water: water law in connection to spatial planning law, risk disaster law, liability & insurance law) 5.Implementing the law, enforcement -> Role of the courts

Cross-cutting question: Who is responsible for (water) adaptation? Seeking a balance between : - governmental responsibility - responsibility of polluters - responsibility of potential victims

Polluters and water adaptation Can present emitters be hold liable for adaptation costs or climate damage? How can they be made responsible? - auction revenues to be spent to climate funds? Victims and water adaptation How should responsibility of possible (future) victims be addressed? - information towards potential victims - insurance / compensation systems

Governmental responsibility for water adaptation Human rights (right to life, enjoyment of private life) International Treaties …..climate adaptation programmes (UNFCCC, 4(1)(b)) Constitutional rights Legislation containing duties for the government (like flood safety standards) Liability law (governmental liability if a dike would collapse)

In West European countries: Law – being ECHR, EU and national law - requires (water) adaptation in order to protect citizens, Governments need to follow up and enforcement in court is largely possible

Personal experience (flooding of the Meuse in 1993) Moreover: Governmental institutions love adaptation projects

Flooding river Meuse (1993) No casualties, Only economic damage Government decided to do a major river adaptation project

Critique in literature: Adaptation project of the river Meuse was in fact not strictly necessary (no danger to human life, economic costs relatively low) and could even lead, at the end, to higher damages So: how to control the government in order to avoid too big spendings on adaptation and maladaptation? Role of law in that respect?

Interim conclusion - Law asks for adaptation, - Adaptation seems far more popular to politicians than mitigation (in the Netherlands) - How can law deal with avoiding over- adaptation or the risk for maladaptation

Striking advice of the Scientific Council to the Dutch National Government (2006) … give priority to adaptation instead of mitigation … … you get more profit from one euro if you invest in adaptation instead of mitigation…

Deeper concern What if developed countries indeed put more emphasis to protecting themselves than to mitigation efforts and support of developing countries, what does that mean for the international relationships and the possibility to proceed with the multilateral setting?

Key points for adaptation research 0. Integrated or sector wise adaptation? Where shall we put water adaptation? 1.Risk assessment & informing society, in particular potential victims 2.Determination of the level of protection - versus the determination of responsibility to mitigation and to adaptation in developing countries 3.Adaptation planning - with public participation 4.Revising and improving relevant legislation (water: water law in connection to spatial planning law, risk disaster law, liability & insurance law) 5.Implementing the law, enforcement

Auctioning of EU ETS allowances as a possible fund for mitigation and for support to developing countries?

EU law: Member states may decide on spending of auction revenues Obligation from directive 2009/29/EC on spending of auction revenues is a soft one (“should” instead of “shall”) Broad list of possible funding purposes (including developing countries) No national legislation yet that determines the spending of the revenues (for instance to adaptation in developing countries)

Conclusion:  Legal obligations for water adaptation exist in EU countries (ECHR, Aarhus, EU law, National law)  Interesting, diverging developments on the national level, best practices yet to be examined -> clearinghouse / research project / workshops?  However, concern about the balance of national climate policies in view of equity / CBDR: clearinghouse and research on national adaptation practices should disclose how that international responsibility is undertaken

UK Climate Change Act 2008: the national government shall conduct an adaptation assessment followed by a national adaptation plan Advice by the Climate Change Committee

UK National risk register s/resources/nationalriskregister-2010.pdf (short term risk information, national adaptation risk assessment takes long term perspective)

France Environmental Code / Grenelle “Observatoire”, for information and recommendations on adaptation Legislative requirement for: - national adaptation plan - regional integrated plans that include adaptation but also mitigation and air pollution (to be delivered this year)

The Netherlands No integrated adaptation policy, but a large focus on water adaptation policy (as it always have been) More policy attention to adaptation than mitigation

WET AFRICA Water and Environment Transformation (WET) is an organisation dedicated to restoring the waterways of Africa. This is vital work. Waterways are literally the natural arteries of the earth and are home to myriad species as well as providing drinking water, irrigation for the foods we eat and recreation to millions of people throughout Africa. The sad truth, however, is that most of Africa's rivers are badly polluted through human activity, negligence, stupidity and greed. WET was formed to provide know-how and resources to help rehabilitate that most fundamental of natural resources and human rights - clean, safe water. The initiative is supported by the University of California Berkeley International Business Development program and Sustainable Resource Center, the Clinton Global Initiative and the Ashoka Global Association for Social Entrepreneurs.

1. Risk assessment and information - ECHR (art. 2 and 8) - Aarhus Convention (art. 4 and 5) - EU Law (floods directive) - National initiatives (different approaches)

Not only climate related floods, also: -Earthquakes, -Air plane crashes, -Nuclear & Industrial accidents

Striking advice of the Scientific Council to the Dutch National Government (2006) … give priority to adaptation instead of mitigation … … you get more profit from one euro if you invest in adaptation instead of mitigation…

How do these national policies of developed countries (no labelling of revenues EU ETS, more attention to adaptation instead to mitigation) influence the international negotiatons?

What role for human rights? What kind of legislation is needed? What role for liability law? How to integrate water adapation?

Risk information on floods to Dutch citizens How big is the risk that my house gets flooded? , , , http://nederland.risicokaart.nl/?ext= , , ,