Edited by Slavko Bogdanovic WATER POLICY AND LAW IN THE MEDITERRANEAN An Evolving Nexus FACULTY OF LAW Business Academy Novi Sad Novi Sad 2011 WATER POLICY AND LAW IN THE MEDITERRANEAN An Evolving Nexus © 2011 All rights reserved by: Faculty of Law of the University Business Academy in Novi Sad Faculty of Sciences of the University of Novi Sad Copyright holders for the papers published in this publication are their authors. EUROPEAN UNIVERSITY INSTITUTE ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Mediterranean Programme WATER POLICY AND LAW IN THE MEDITERRANEAN An Evolving Nexus Edited by Slavko Bogdanovic 2011 N o v i S a d Faculty of Law of the University Business Academy in Novi Sad Faculty of Sciences of the University of Novi Sad In collaboration with The Water Programmes of UNESCO—PC-CP component This publication contains the results of the European University Institute (EUI) Robert Schuman Centre for Advanced Studies (RSCAS) 10th Mediterranean Research Meeting Workshop 11: “Law of Water Management in the Mediterranean – Past, Present, Future”, held in Montecatini Therme (Italy), 25-28 March 2009 http://www.eui.eu/DepartmentsAndCentres/RobertSchumanCentre/Research/ InternationalTransnationalRelations/MediterraneanProgramme/Index.aspx PREFACE The book you are about to open and hopefully read is entitled “Water Policy and Law in the Mediterranean”. However, the title is somewhat misleading. The book, although consisting of eleven specific case studies from all over the Mediterranean (and a bit beyond), is far wider in scope than one might assume. Water policy and law cannot be taken separately from other aspects of Integrated Water Resources Management (IWRM), and this broadens the scope of the book considerably. Despite huge differences between the regions of the world (e.g. The Danube River Basin vs. the Mediterranean) the guiding principles as well as the obstacles to implementation of integrated water resource manage- ment are simply universal. Integrated Water Resources Management is the practice of making decisions and taking actions while considering multiple viewpoints on how water should be managed. These decisions and actions relate to situations such as planning of new capital facilities, controlling reservoir releases, regulating floodplains, and - developing new laws and regulations, which was the principal focus of this book. The need for multiple viewpoints is the consequence of competition for water resources and complex institutional constraints. The decision-making process is often lengthy and involves many participants. IWRM considers the perspec- tives of various stakeholders, factors of the human environment, and aspects of natural water systems. Furthermore, it uses structural and non-structural mea- sures to control natural and human-made water resources systems for beneficial uses. Structural components used in human-made systems control water flow and quality and include conveyance systems (channels, canals, and pipes), diver- sion structures, dams and storage facilities, treatment plants, pumping stations and hydroelectric plants, wells, and appurtenances. Elements of natural water resources systems include the atmosphere, watersheds (drainage basins), stream channels, wetlands, floodplains, aquifers, lakes, estuaries, seas and the ocean. This book, however, mainly discusses non-structural measures of integrated wa- ter resource management, such as legal frameworks and regulatory programmes, pricing systems and incentives, public interest, and institutional mechanisms. Ideally, water-control facilities and environmental elements work together in water resources systems to achieve water management objectives. In other words, integrated water resource management builds upon the concept of eco- system goods and services. And this is where we come to the book’s subtitle v vi – an evolving nexus – which introduces the concept of ecosystem goods and services developed to aid our understanding of the human use and management of natural resources. Our health and wellbeing depends upon the services pro- vided by ecosystems and their components: water, soil, nutrients and organisms dependent on them. Therefore, ecosystem services are the processes by which the environment produces resources utilised by humans such as clean air, water, food, and materials, and absorbs human wastes or acts as sink. In Europe, the Water Framework Directive (WFD), which is seen as a mod- ern Bible for water managers, promotes the concept of integrated river basin management – a process of co-ordinating of conservation, management and development of water, land and related resources across sectors within a given river basin, in order to maximise the economic and social benefits ecosystem( services) derived from water resources (ecosystem goods or functions) in an equitable manner while preserving and, where necessary, restoring freshwater ecosystems. Integrated river basin management includes water demand and supply, trans- boundary aspects, upstream-downstream linkages, water and environment, de- velopment (including poverty alleviation), and organisational and institutional aspects at different scales. During 2009/10 the first generation of River Basin District Management Plans and Programmes of Measures was adopted. Now, the challenge is to implement these plans and programmes, which is exacerbated by the requirement to down-scale the plans to the sub-basin or catchment level. In the case of an international river basin district extending beyond the bound- aries of the Community, Member States shall endeavour to produce a single river basin management plan entailing measures of basin-wide importance, which would simultaneously set the framework for more detailed plans at the sub-basin and/or national or even local level. In addition, there will be severe problems everywhere: in the water–abundant Danube Basin, where flood protection is still one of the major issues to be addressed by water management, or in the Mediterranean region, where people face the problem of water scarcity. Without an ecosystem approach, integrated water resources management remains only a concept, if not a vague vision, while in real life there are water-related conflicts of interests that need resolution in the most pragmatic, yet feasible and sustainable ways. This is exactly why this book is valuable. It is not a travelogue, although it takes us on an exciting journey to places from Tunisian deserts to the fertile flood- plains of the Tigris and Euphrates. It is a compilation of extremely diverse, spe- cific cases of the world’s common disease - water related tensions and conflicts. It only seems to be biased by the most extreme cases, which derive from a troubled region such as Mediterranean, with all historical and political burdens in the background, although it does not differ from yet another troubled region – the vii Balkans, for example. Therefore, it is applicable everywhere in the world, because the conflicts between agriculture and urbanisation, between energy production and water abstraction, between flood protection measures and wetland restora- tion plans are so painfully common. It is neither a cookbook on how to resolve water related conflict, as there is no a single one-size-fits-all solution. Yet, from each of the eleven case studies we can learn the same key message: (Good) water legislation is only one prerequisite to the sound implementation of integrated water resource management, which relies entirely on three pillars: communica- tion, adaptive management and participatory principle. Novi Sad, January 25th, 2011 Ivana Teodorovic v xi xiii xv xix xxiii xxvii xxxi xxxv 1 18 42 60 TABLE OF CONTENTS v PREFACE xi ACKNOWLEDGEMENTS xiii CONTRIBUTORS xv ACRONYMS AND ABBREVIATIONS xix TABLE OF NATIONAL LEGISLATION xxiii TABLE OF OF INTERNATIONAL TREATIES & OTHER LEGAL & POLICY INSTRUMENTS xxvii TABLE OF EU LEGISLATION xxxi TABLE OF CASES xxxv INTRODUCTION 1 Léna Salamé and Rana Kharouf-Gaudig WATER LAW IN EAST MEDITERRANEAN COUNTRIES: The Imperative of a Holistic Approach 18 Alia Gana PERCEPTION OF RISKS AND SOCIO-INSTITUTIONAL CHANGES IN THE MANAGEMENT OF WATER RESOURCES: A Comparative Approach of Local Dynamics in the Mediterranean 42 Nawal El Haouari and Frank Steenbergen THE BLIND SPOT IN WATER GOVERNANCE: Conjunctive Groundwater Use in the MENA Countries 60 David Shorr PRIVATE RIGHTS IN PUBLICLY-OWNED WATER: The Pathology of Israeli Water Law ix x 79 Sarah Cherrabi El Alaoui TRADITIONAL & MODERN WATER MANAGEMENT IN THE TAFILALET REGION: The Case of the Ghorfa 90 Bülent Açma WATER SECURITY IN THE MIDDLE EAST: A Case Study of the Euphrates and Tigris Rivers 120 Slavko Bogdanovic THE ROLE OF LAW IN THE MANAGEMENT OF SHARED WETLANDS & LAKES IN THE MEDITERRANEAN REGION 146 Paulo Canelas di Castro FROM A COMMON CONCEPT TO A COMMON EXPERIMENTATION: An Assessment of the Water Framework Directive’s Impact on Water Management in Europe 169 Valeria di Cosmo IS THE COST PASS-THROUGH FAIR FOR THE ITALIAN WATER SECTOR? The Italian Water Firm Performance Determinants in a Capital Structure Oriented Approach 191 Guadalupe Martinez and Valérie Pattyn AUTONOMIZATION OF DRINKING WATER MANAGEMENT SUPPLY? The Tunisian Experience 212 Héla Yousfi UNIVERSAL MOTIVATIONS AND LOCAL INTERPRETATIONS: The Public Private Partnerships Case of a Drinking Water Management Contract in Lebanon 235 INDEX ACKNOWLEDGEMENTS All good will of co-directors and editorial efforts invested in publishing in the monograph of papers submitted and discussed during the Workshop