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Edited by Mara Tignino and Christian Bréthaut

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Edited by Mara Tignino and Christian Bréthaut

Recent decades have seen pivotal changes in the management and protection of water resources, with human rights, environmental and water law each developing a strong interest in the conservation of fresh water. This surge in interest has meant that dispute settlement mechanisms, along with diplomatic tools, are becoming increasingly necessary for conflict resolution. This Handbook offers an analysis of the interaction between law and various forms of knowledge and expertise, ranging from economics to environmental and social sciences. Leading scholars examine general and specific water legal regimes and analyse the interplay between various disciplines in order to establish the extent to which law is informed by each.
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Moritz Reese

Climate change is well underway and is set to have increasing impacts on water quality and quantity. Changing precipitation patterns, higher temperatures and more extreme weather events are expected to change the game for the public management of surface and ground waters in many regions around the globe. This chapter looks at the implications of this challenge for water legislation and at how regulatory frameworks can facilitate and enforce greater adaptability of public water management. It identifies key regulatory requirements of adaptive water management and analyzes whether these requirements are accounted for in existing international freshwater law and in the example of the EU Water Framework Directive as an advanced regulatory regime of integrated river basin management. The EU Water Framework Directive – with its quality-oriented, integrated and cyclical approach – is basically providing a suitable framework for adaptive water management. However, there is also room for further advancements in that regard. Keywords: Chapter 12 (Reese): Climate change adaptation, water scarcity and drought, water governance, adaptive water management, public good, German water law

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Nigel Bankes

The Columbia River Treaty between Canada and the United States was concluded in 1961 and entered into force in 1964. The Treaty is recognized as an outstanding example of the cooperative development of an international river basin based upon the idea of sharing the benefits of that cooperation. The Treaty principally addresses two values, flood control and power. The Treaty has no set termination date but either party may give ten years notice as of September 2014 to terminate the power sharing provisions. The flood control provisions change automatically in 2024. However, the Treaty has also been subject to criticism on the grounds that it fails to reflect a broader suite of values, including ecological values. Both parties have been considering their position with respect to possible amendments. This chapter describes the balance struck by the original Treaty and the positions of both parties with respect to possible amendments. Keywords: Chapter 10 (Bankes): Columbia River Treaty, power control, flood control, ecosystem-based function, sharing of benefits, British Columbia

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Douglas Fisher

Water in its natural location has traditionally been regarded as a common resource to be used for the benefit of the community in question. The function of legal rules has been to grant access to the resource: for example, by the conferment of individual rights of access according to the common law or by the grant of such rights according to an institutionalized administrative system. In Australia the legacy of the common law favoured the common law riparian doctrine. The recognition of the unique environmental and climatic conditions in Australia influenced the development during the twentieth century of a public domain regime. This chapter analyzes these developments in Australia in the context of their wider doctrinal context. Keywords: Chapter 1 (Fisher): Common Resource, Roman law, Chinese law, public domain regime, riparian doctrine, Australian water law

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Ed Couzens and Meda Couzens

One of the world’s most water-stressed regions is Southern Africa, where the problems of relative water scarcity are compounded by extreme levels of poverty and underdevelopment. In such a situation, states in the Southern African Development Community (SADC) region would be expected at least to have water-related rights in their constitutions and even to provide constitutional imperatives to conserve water. Strangely, however, some do not contain any water-related provisions at all. Amongst those that do, a variety of approaches are taken to the common problem that is water scarcity. This chapter initiates the exploration of this vast topic by canvassing the position in each of the SADC member states (and Kenya) and then considers the different types of right each state has chosen to provide. The conclusion stresses the differences between the varied approaches taken by SADC member states, and the implications of these, and contains suggestions for further research. Keywords: Chapter 2 (Couzens and Couzens): Constitutional provisions, human rights, access to water, fundamental water-right, South African states, ecocentrism

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Tiina Paloniitty

The EU has had a multi-faceted approach in addressing agricultural runoff, specifically when relating to the eutrophication of the Baltic Sea. Here three EU policies and instruments - the Common Agricultural Policy (the ‘CAP’), the Water Framework Directive (the ‘WFD’) and the EU Strategy for the Baltic Sea Region (the ‘SBSR’) - are examined within the framework of the legal system of Finland with the aim of scrutinizing the practical, legal and normative ramifications of these governance tools. It is suggested that even when the SBSR has agricultural runoff as its ratio moderatio, its implications at the practical level are limited. The ‘post-Weserian’ normativity of the WFD ought to result in legally binding water quality standards for individual undertakings but the procedural question lingers: as long as the agricultural emissions are not within the scope of any environmental permitting procedure, implementing the norm may require further modifications of the administrative procedures. Keywords: Chapter 14 (Paloniitty): Water Framework Directive, agricultural runoff, Common Agricultural Policy (CAP), land-based water pollution, environmental permitting, greening agriculture.

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Maria Onestini

Constitutional environmental rights in Argentina are drivers for defining and enforcing actionable rights in policy and in law regarding human rights vis-à-vis the environment. The Constitution, since its 1994 reform, recognizes environmental rights and directly links them to human development. It establishes the ‘right to a healthy, balanced environment, apt for human development’. This assertion has provided a fertile ground to sustain policy development and rights enforceability regarding the human right to the environment. The human right to water is one of the constructs from which broader human rights is constructed and enforced in the country. However, the ‘right to the environment’ has proven to be an elusive construct. The study will examine how this new rights-based paradigm is being built upon by norms and jurisprudence and how the concept is being operationalized. Cases where the right to water is raised and actioned are used as examples of this enforceability. Keywords: Chapter 4 (Onestini): Constitutional environmental rights, water rights policy, access to drinking water, Ombudsman, environmental information, Argentina

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Erkki J. Hollo

The introductory note gives on overview of the main characteristics and structures of law relating to water management. The legal roots go far back into ancient cultures. In modern laws water resources are classified as public and private waters. Accordingly, in national laws property rights to waters are regulated differently. The differences are not relevant for planning and decision-making in matters concerning water management projects because here public interests and environmental concerns are decisive. International water law aims at solving conflicts between states concerning transboundary and international waters. This implies certain limitations on state sovereignty and respect for the interests of other parties to a watercourse. The leading principles have to some extent been developed on the basis of national models. One deficiency concerning compliance with international commitments is the lack of efficient control and practical sanctions, in particular in cases of hostile or careless neighbours. Keywords: Introduction (Hollo): International water law, European water law, water rights, basin principle, water governance