1. VI Annual Colloquium of IUCN Academy Ciudad de Mexico 2008 Non-economic Environmental Interests in Legal Norm-setting and Enforcement – Example:Water Prof. Erkki J. Hollo University of Helsinki, Faculty of Law 13 th November 2008 erkki.hollo@helsinki.fi

3. Structure of presentation  Identification of the legal issue  Media-related aspects  Values in ENL  Theses and legal control  Features of Finnish water law Property law on waters  Transboundary water law  Some results

4. Definition  Non-economical values include these two: ”public interests” in terms of ecological values (to be considered also on the area of property rights) human-related needs in terms of health, recreation, welfare in housing etc.

5. Theses: I  Need to balance ”human law” and the ”law of the nature”  ”Non-economical” in ENL is equal to ”ecological” (physical environment) and ”social” (human-nature environment; cf. poverty)  Thus: poverty as a social problem is a non-economical environmental loss

6. Theses: I cont.  Contradiction in terms: all law is ”human”, also the acceptance of ”natural law” in a legal system  But nature may hit back… the results are known or predictable, also not predictable  Nature laws force to apply the precautionary principle

7. Thesis II  Formal or hard law usually protects hard economic interests  We need hard law to protect soft or weak (non-economic) interests

8. Thesis II cont.  Soft law and principles are necessary but legally not enforceable if in conflict with hard rights and economic interests.  The way to overcome this effect is apply direct effect of constitutional provisions or moral/env. principles

9. How to react legally? Challenge!  Legal interests in waters are multifaceted, depending on needs and supply in individual areas and societies.  Also the system of property law addresses waters in different ways depending on the political structure in a state.

10. Interrelations and integration  Legal difficulties arise from the character of the water itself or the impacts of climate on waters  Recent scientific approaches to the topic bring additional challenges to national and transboundary water law  This leads to the need of the consideration of non-economic interests

11. Property rights to waters  Private ownership (waterbed and resource)  Public sovereignty or ownership (waterbed)  Riparian rights (water)  Mixed private and public

12. Reasons for property institutions  As a resource, if protected by constitutional property rights, water is a valuable factor in the economic market and in the organization of water management.  Water services on the market are highly depending on the structure of water supply which again may rely on different permits and protected legal rights.  Property rights are relevant as far as the price of water and the costs for technical water taking are concerned.

13. What is required to meet challenge  …a legal understanding of the modern concept of economic legal interests  … cost benefit evaluation, in development and legislative projects, of both economic and non- economic interests

14. Balancing of rights and interests  Required:  Distinction between political power and law  Legality control  Institutional tools Substantial tools

15. Tools for realization I  The challenge to recognize NE- intersts is not enforceable if the legal system does not provide for binding hard law rules  Main institutional requirements are: Legislation Expert authorities Court control

16. Tools II  Substantial tools for non-economic value-setting in law Identification of ecol. and social interests in EIA and permit rules Binding balancing of all interests in values in permit rules Supported by expertise of authorities (training, research)  Exclusion of political priorities 

17. The Finnish water property system  All natural resources arewithin private property rights (waterbed, priority to use water)  State and municipalities are also ”real” owners

18. Finland…  All surface waters, groundwater, seashore  Ownership follows ab initio ownership of land but may be independent

19. Comparative water law  The principles for solving enforcement problems are similar in TrB law (state sovereignty) and national law (property limits)  However, supranational law does not affect property-related competence rules in national law

20. Some Sources of TrB Water law  Different levels of water law: International (Convention on The Law of The Sea (UNCLOS) Global (UN Convention on the Use of non-navigational waters 1997) Regional and transboundary (ECE 1992, European Union, WFD 2000) Comparative water reasoning (transboundary treaties and practices)

21. ILA water law principles  Water management principles  The ILA Helsinki Rules 1966 and Berlin Rules 2004:  The Helsinki Rules of 1966: basic topics with proposed statements:  - Equitable and reasonable utilization  - Obligation not to cause harm  - Environmental protection  - Requirement of notification of parties concerned

22. Water Basin (ILA)  This indivisible hydrologic unit shall be managed as a single unit to assure the “maximum utilization and development of any portion of its waters” (ILA 1966, art. II).  The rule explicitly includes all tributaries (including tributary groundwater) within the concept of “drainage basin” and thus extends the reach of the rules beyond the primary international watercourse itself.

23. Land Use Relation  Hydrological structure of the so- called water basin involves larges areas of groundwater, flood areas, marshes and more. The definition of a water basin is even more difficult than the legal definition of water areas.

24. Helsinki Rules Art. IV:  “Each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin”.  Sustainability and the need of taking into account social and economic structures were reflected in the Helsinki Rules, long before the “official” declaration of “Sustainable development” in 1987, and before the first UN Environmental Conference in Stockholm 1972.

26. A New Approach  The Helsinki Rules and the rules supplementary thereto largely limited their approach to the rule of equitable utilization and the prevention of transboundary harm.  The UN Convention, while gave more attention to the prevention of various kinds of harm, also limits its rules to transboundary contexts. – The question of binding international standards or just principles; interpretation on the basis of well-established customary law.  Some of the Berlin Rules are closely related to international human rights law and are in that sense binding.  Other rules focus on international environmental agreements without considering the formal validity of those agreements.  The position of the ILA: international principles and standards represent a reliable basis for setting national rules on water management end protection of the aquatic environment of water basins, including groundwater resources. Formulations: not to pronounce exact numeric values but to oblige parties to take “best efforts” or “take all appropriate measures”. States and regions must have a possibility for their own reasonable and at the same time hopefully efficient water policy.

28. UN Convention 1997 Article 5 Equitable and reasonable utilization and participation  Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner--- taking into account the interests of the watercourse States concerned, consistent with adequate protection in the watercourse.  Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. ---

29. UN Convention Article 7 Obligation not to cause appreciable harm  Watercourse States shall, ---take all appropriate measures to prevent the causing of significant harm to other watercourse States.  Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall-- - take all appropriate measures, --- to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

30. ILA Berlin Rules 2004  The Berlin Rules have a solid position as a set of principles not only for international but also for national and regional water law.

31. ILA Berlin … cont.  Individual rights are one important new topic in the Berlin Rules, mainly inspired by international law and the Aarhus Convention on participation rights.  Groundwater a specific topic. Ch. VIII apply to all aquifers, regardless of whether the aquifer is connected to surface waters or whether it receives any significant contemporary recharge.

32. Berlin…. Integration and Human Rights  The Berlin Rules take into account the development of bodies of international environmental law, international human rights law, and the humanitarian law relating to the war and armed conflict, as well as the UN Convention 1997.

33. EC Water Policy  WFD= Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.  Waters, natural water bodies and basins, must be managed and observed in terms of quality changes.  All water resources within the EC shall be partitioned and designated into water basins.

34. EC… cont.  Member States shall hereby, inter alia and in accordance with the precautionary approach, take early action and develop long- term plans to ensure the sustainable use of groundwater and of the aquifers in which the groundwater is contained.

35. Management of Coastal Zones  Land use of shores and coasts involve risks to waters and their quality.  Change of the natural and cultural environment of neighbouring sites.  Increasing values and interests related to especially tourism may deteriorate.

36. Coastal Zones in EU  EU Recommendation (2002) on the Integrated Management of Coastal Zones (ICZM).  These recommendations are not binding for the member states of the Union.  The work on regulating ICZM is going on.

37. Results  Political goals on non-economic values should be identified by law  Administration must be bound by law in the application of rules on protection of non-economic values  Representation of public intrests by NGOs and indivuals in procedures  Access to justice of ”concerned” people

38. Thank you for your attention !