Clémentine Bories is Professor of International Public Law at Toulouse Capitole University, member of the Institut du droit de l’espace, des territoires et de la communication (IDETCOM) and specialist in international cultural heritage.

Sabine Boussard is Professor of Public Law at the University of Paris Nanterre, Director of the Centre de recherches en droit public (CRDP) and a specialist in administrative property law.

With Anne Danis-Fatôme and Béatrice Parance, Professors of Private Law, Sabine Boussard and Clémentine Bories led a research project funded by the ComUE Paris Lumières entitled Les biens communs, un outil juridique à aiguiser? The aim of this research was to use the functionalities of the “commons” or “common property” to help certain legal regimes evolve. The characteristics attributed to the commons, which can articulate private property with collective access, concurrent control and dedicated governance, were likely to provide a remedy to certain legal blockages to enable better accessibility, greater sharing and stronger protection of certain essential goods or vital resources.

“L’eau un bien commun ?” is a restitution of the work of a seminar that was organized on this theme in 2019, and which constituted a high point of this research project. Reflections on water take on an experimental dimension when crossed with the debates surrounding the “battle of the commons”, fought more than 25 years apart between ecologist Garrett Harding (1968) and political scientist Elina Olstrom (1990). Olstrom’s early research on the commons focused on entrepreneurial and institutional action to prevent the flooding of a water table in Los Angeles (1965).

Today, water is considered a common heritage at both international and national level, echoing the realization that water is a scarce, dwindling resource that must be accessible to all, and that it is also a space to be preserved for the biodiversity that the aquatic environment harbors. The water crisis and the solutions needed to overcome it are at the heart of today’s news. At a time when a quarter of the world’s population has no access to drinking water, the United Nations organizes an annual Conference on Water, which should lead to the recognition of freshwater as a common heritage of humanity. At the same time, negotiations for the adoption of the Biodiversity beyond national jurisdiction (BBNJ) agreement on the conservation and sustainable use of marine biological diversity were completed on June 19, 2023, resulting in the enshrinement of a legally binding instrument that extends protection of the sea to areas beyond the jurisdiction of individual states.

With the battle for mega-basins in full swing, on August 1, 2023, France adopted an action plan for “resilient and concerted water management”, comprising 53 measures targeting three major issues: sobriety of use, quality and availability of the resource.

The book “L’eau, un bien commun ?” proposes to analyze water – in all its forms and components – as a model of common goods, in order to reflect on the legal changes needed to improve access, sharing, governance and protection of this vital resource. It brings together some twenty contributions that offer innovative reflections thanks to cross-fertilizations between philosophy, law (legal history, international, French, local and Italian law) and anthropology.

The question of access to water brings us back to the recognition of a right to water, and helps us understand that the dynamics of the commons do not necessarily accommodate the recognition of a subjective right.

The sharing of water is the subject of a transdisciplinary historical, anthropological and legal analysis, drawing on local examples (the Dombes in France, the river resources of Tabasco in Mexico and the conflicts linked to the sharing of water on the Spanish-Lusian border) and international examples (international waterways and the sharing of the sea as organized by the 1982 Montego Bay Convention).

The section on water governance recalls that the concept of governance is at the heart of thinking on the commons, and demonstrates that the logic of the commons makes it possible to overcome the fragmentation of legal regimes and the public/private water dichotomy. She also discusses public water management and the management of protected marine areas in the Seychelles Islands. It also looks at the case of “beni comuni” water in Naples, in reaction to the scandal caused by water privatization, and the lessons to be learned from the work of the Rodotà Commission.

The final section looks at water protection, beginning with reflections on the effectiveness of certain water protection tools and institutions. First of all, the personification of watercourses, which affects several rivers such as the Ganges, the Whanganui or the Amazon, and whose movement continues on a local scale: the hearings of the Loire Parliament, the Tavignano river in Corsica, the Mar Menor lagoon in Spain. Next, social and environmental responsibility are analyzed through the standards of protection and use imposed on water companies. Finally, the latest developments in the law governing the conservation of the public maritime and river natural domain are presented, making it possible to crack down on water pollution and effectively supplement the repressive arsenal found in the Environmental Code.

Secondly, the issue of water protection raises the question of liability mechanisms. On the one hand, the civil liability of polluters and compensation for environmental damage, which allows us to look back at the shipwrecks of the Amoco Cadiz (1978) and the Erika (1999). Secondly, we look at the process of penalizing behavior in the name of water protection, thanks to the concept of water as a common good.

Thirdly, water and environmental protection regimes are analyzed through examples drawn from French law (hydroelectricity), European law (maritime spatial planning) and international law (marine biodiversity and the work that led to the BBNJ agreement).

 

Clémentine Bories

Clémentine Bories is Professor of International Public Law at Toulouse Capitole University, a member of the Institut du droit de l’espace, des territoires et de la communication (IDETCOM) and a specialist in international cultural heritage.

 

 

 

 

 

Sabine Boussard

Sabine Boussard is Professor of Public Law at the University of Paris Nanterre, Director of the Centre de recherches en droit public (CRDP) and a specialist in administrative property law.