Public Values in Water Law: A Case of Vertical Fragmentation?

M. Ambrus

H.K. Gilissen

J.J.H. van Kempen

Water and Ocean Law in Times of Climate Change

31 October and 1 November 2013

Utrecht University, Utrecht

Setting the scene

• Water as a public good• Need of ensuring public values• But difficulties because:

a) Water is managed at different levels

b) Water management has different dimensionsWater law isfragmented.

Purposes of the paper

1. Theoretical framework for the identification of public values

2. Which public values are protected at different levels and across two dimensions of water law

Main question:

Whether institutional fragmentation leads to substantive fragmentation as to the public values being protected?

Public values: a conceptual framework (I) - BackgroundFragmented water law: horizontal and vertical fragmentation

Horizontally:

a) Environmental dimension

b) Economic dimension

c) Social justice/human rights dimension

Vertically:

d) Global/international level

e) Regional level (EU)

f) Sub-regional level (river basin)

g) Domestic level

Public values: a conceptual framework (II) – Public values in general

Public Values

Bozeman’s definition:‘A society’s “public values” are those providing normative consensus about

(a) the rights, benefits and prerogatives to which citizens should (and should not) be entitled;

(b) the obligations of citizens to society, the state, and one another; and

(c) the principles on which the governments and policies should be based.

Three aspects thereof:1. Collectivity who benefits2. Normative consensus3. Principles for law-making

Values vs interests/rights

Public values are guiding principles or guidelines, which should – from a perspective of societal morality and in the interest of the public – be respected when making decisions in water law and governance.

Public values: a conceptual framework (III) – Working definition

Virtues of water: ‘water is inherently public, and governments have a continuing obligation to ensure its effective management for overall societal well-being, including both environmental protection and essential human consumptive needs.’ (Thomson)

Public values: a conceptual framework (IV) – Water-specific public values

Water

virtues:Human needs

Environmental protection

Public water values

Rules of conduct

Conclusions

Converging public values at different levels of water law. The rules of conduct are nevertheless somewhat diverging.

All in all:

No ‘real’ substantive fragmentation – even though strong institutional fragmentation.