Model
of Regulation for the protection of water resources
by Francesco ANASTASI, University of Messina, Italy.
Water is a fundamental resource for the birth and development of human
civilization.
Ernst Kapp classified the great ancient civilizations by assuming water
as a taxonomic criterion, distinguishing three types of civilization: the potamic, the thalassic and the oceanic cultures[1].
In the same sense, Carl Schmitt had elaborated a contrast between
terrestrial civilizations and oceanic civilizations, assuming water as the
foundation of every civilization[2].
Nowadays the distribution of water is unbalanced: the resource is in
continuous contraction and the indiscriminate use of the resource combined with
climate change will increase the imbalances.
It is calculated that within the terrestrial hydrosphere, fresh water
constitutes about 2.5%, and no more than 0.26% overall can be used for human
purposes, the remaining quantity being constituted by the Antarctic ice.
According to the 2015 edition of the World Water Development of the
United Nations, by 2030 is expected a 40% drop in water availability, unless
the management and the use of this resource improve by then[3],[4].
The idea of a right to water,
as a constitutionally protected value and as a guaranteed essential common
good, is one of the fundamental problems of the 21st century[5].
In the European law system, there are many problems concerning the use
of water: for example, the various forms of pollution that threaten rivers,
lakes and underground waterways or the various uses of water resources[6].
On this point, also Pope Francis in the Encyclical Laudato si, dated 24 May 2015, has made many
considerations on the theme of “care of the common home” and on the link, today
increasingly evident among the concerns for nature and justice towards the
poorest.
The Pope addresses in his text an invitation to act to the States to
ensure the right of everyone to access water: “to face the fundamental problems
that cannot be solved by the actions of individual countries, a global
consensus is essential. for example, [...] to ensure access to drinking water
for all” [7].
Most of the rules on water are addressed to states, which often deal
mainly with affirming their territorial sovereignty over water resources
present in their territory rather than guaranteeing the right to water of their
citizens.
Furthermore, under the international law, the right to water is subject
to a series of normative acts of different legal value, from the declarations
of the General Assembly of the United Nations to acts of greater effectiveness
from the point of view of the obligation, which, moreover, are not addressed in
the same direction.
This contributes greatly to making the overall regulatory framework even
more uncertain and contradictory.
For instance, in the Chart of Nice, there is no precise reference to
right to water, whilst some constitutions of African countries have recognized
this right.
It should be noted that the effects of privatization policies are more
aggressive when they are aimed at territories in which there is not a strong
welfare tradition, as in the EU, capable of balancing the most radical thrusts
of privatization and liberalization.
It is not a coincidence, therefore, that the most violent popular
reactions against the processes of privatization of the water resource took
place in Cochabamba in Bolivia and that the constitutionalization
of the right to water is affecting South America.
In particular, Constitutions of Bolivia (article 20.III) of 2009,
Ecuador (article 3) of 2008 and Uruguay (article 47) of 2004[8] are among the
constitutions in which a right to water was expressly stated.
As it has been pointed out[9], the change to
the Bolivian constitution is a direct consequence of the revolt in 2000, which
was known as “water revolt”.
These events explain both the forecast of access to water and sanitation
as a human right, and the prohibition of forms of privatization of the water
service.
Also worthy of note are other provisions of the Bolivian constitution:
for example the §373 defines the fundamental right to
water for life, and attributes to the State the task of guaranteeing and
promoting access to water resources, implementing a series of principles
including those of solidarity, equity and sustainability[10].
The proclamation of the right to water as fundamental has consequently
determined a centralization of the competences: in Bolivia, it was established
the Ministry of Water.
The right to water is one of those rights that transcends and embraces
the whole history of man and society.
It is paradoxical, however, that in our contemporary society we are
talking about the right to water as if it was something new, almost a
post-modern innovation.
With reference to water, some spoke of “ancient law” as an expression of
the vision that an historical civilization has of essential relationships
between man and society, property and nature[11].
In reconstructing the philosophical-juridical debate between property
and common goods, it seems useful to start from the conception of Grotius[12], who, in
theorizing the concept of private property as a natural right, alluded to a
concept of property other than real estate or business - which we are used to -
incorporated into the Napoleonic Code.
According to Grotius, natural law, which derives from the rational and
social nature of man, is independent for what concerns its validity, not only
from the will of God, but also from its existence (it would be valid “etiam si givemus Deum non esse”, Prolegomeni, 11)[13].
In this context, private property is an autonomous legal figure, but it
is not possible to attribute the characteristics of a natural fact to it: its
assignment to specific individuals is the fruit of human activity and its
appropriation[14].
In Grotius’ view, the first act of appropriation occurs already in the
consumption of food; the same process is then extended to the appropriation of
objects such as clothing, livestock and finally the appropriation of land and
natural resources. This appropriation, which does not result in mere
consumption, is the result of a tacit or manifest agreement[15].
Specifically, John Locke in the book on the ownership of the Second
treaty on the government questions how the ownership of water should be
understood.
In particular, the English philosopher states that water belongs to
everyone, regardless of who drawn it: in its natural state it presents itself,
in its natural state, as a collective natural good, indivisible and
inappropriate[16].
Therefore, in Locke’s vision water is a natural common good that man has
the right to use. However, when the water is drawn from the state of natural
sharing to the sphere of ownership of the individual who uses it for the
satisfaction of their daily needs[17].
Starting from this perspective, Locke theories the right to property
over all goods that are the result of human work: consequently, water when it
was drawn or extracted passed into the private juridical sphere of the
individual[18].
With reference to the dialectic of commons-private property, the
philosophy of German idealism developed a particularly in-depth reflection on
the fundamentals of private property and consequently on the legal regime of
common goods.
In this context, the reflection of Immanuel Kant, rejecting the idea of
Locke according to which work transforms common property into private property,
recognizes that this is unthinkable without previous community possession (communia fundi originaria)
[19].
The exploitation of land and resources necessarily depends on the availability
and possession of the same. Therefore, according to Kant it must be possible to
“have as mine any object of my will”, or, otherwise said, private property can
coexist with the freedom of all people according to a universal law: to
conclude otherwise would deny the same foundation of freedom[20]. In fact, “the
connection established by Kant between freedom, self-determination and property
is at the base of his political doctrine”[21].
The almost Manichaean debate between property and common goods, of which
we gave a very quick essay in the twentieth century has led to some interesting
elaborations that seems opportune to reconstruct briefly in this context.
Of great interest is the idea provided by Garrett Hardin, who, on the
basis of the intuitions of William Forster Lloyd[22], has
elaborated a refined theory made explicit in the article published in Science
of 1968, “The tragedy of common goods”.
In his work, the starting point of the contemporary debate on the
subject, Hardin states that users of a common resource are trapped in a dilemma
between individual interest and collective utility, sustainable in situations
characterized by scarcity of the population (lack of population).
The technical solutions that have been used in the past, in reality,
only represent expedients able to move the problem ahead of time. It is
therefore necessary that the State imposes “coercion” as a remedy and only
system to avoid “tragedy”. According to Hardin, a Statal
solution that would control the market can lead to the elaboration of political
and legislative solutions, able to safeguard the interest and the good of the
community, placing these values before the protection of individual liberty and
individual rights, first of all the property right[23].
A completely different methodological approach to the subject of
property is that of the so-called neo-contractualism[24]. This
orientation refers to the political economy, from which the concept of homo oeconomicus
(the main exponents are Buchanan and Nozick), which would have an unlimited
right to property.
Inspired by the seventeenth-century natural lawyers (in this case,
Buchanan refers to Hobbes, and Nozick to Locke), the exponents of this approach
project men into a hypothetical state of nature, in which they are forced to
recognize that they are incapable of repressing or regulating themselves the
conflicts that inevitably arise between beings driven by selfishness.
This is how “protective associations” are born, to which the services
are used by individuals, against payment, to protect their property and their
personal rights. When one of these associations assumes a monopoly position, it
assumes the functions of “minimal state”[25]. This argument
leads to the thesis that the minimal State possesses only those competences
attributed to it by individuals interested in protecting legitimately acquired
assets (property and personal rights).
Elinor Ostrom has questioned the idea that there is only one way to
solve the problems posed by common goods - whether it is Hardin’s statistic
hypothesis or the subdivision and privatization of the resource, an essentially
economic idea - with the recent publication of “Governing the Commons”[26].
It is noted that both the authoritarian-centralized management of the
commons as well as its privatization, although usable in certain situations, do
not constitute the solution nor are they themselves immune from significant
problems.
Starting from the study of empirical cases, in which it is shown how
real individuals are not hopelessly condemned to remain imprisoned in the
problems of collective action related to the shared exploitation of a resource,
Ostrom has questioned the idea that there are models universally applicable[27].
On the other side, in many cases individual communities appear to have
managed to avoid unproductive conflicts and to reach agreements on the
sustainable use of common resources over time through the endogenous
development of institutions entrusted with their management[28].
The European Union has always been very sensitive to the planning of
water resources and has promoted water resources planning instruments to
guarantee essential water quality levels[29].
At present, the main problems concerning the management of water
resources are due to the lack of public investments for the efficiency of the
water network, as well as to consumption and dispersion by private individuals
both in the performance of economic activities and for domestic use.
However, at present Europe seems to be very oriented towards
accentuating the individual dimension of the right to water, to the detriment
of the collective or communitarian right. Litigation on environmental issues
has shown that there is no place for popular actions other than those related
to compensation for environmental damages.
Therefore, the European legal system does not offer new ideas in the
conception of common goods.
Going into more details, the right to water is assumed to be linked to
the human fundamental rights on which the Union is founded (Article 2 TEU) and
indirectly linked to the environmental protection referred to in art. 37 of the
Charter of fundamental rights of the European Union and also in art. 191 TFEU,
dedicated specifically to the European Union’s environmental policy[30].
The first Council Directive, n. 75/440/EEC on the quality of surface
water was intended for the production of drinking water in the Member States,
emphasized in the preamble “the need to protect human health and to exert
control over surface water intended for the production of drinking water and on
the treatment of such water purification”[31].
In 1980, the Council adopted a directive on the quality of water
intended for human consumption, which was then repealed by Council Directive
98/83 with the aim of protecting “human health from the adverse effects of
contamination of water intended for human consumption, ensuring its healthiness
and cleanliness”[32]. EU water law
had therefore initially developed in a fragmented way, focusing on the
different forms of water use and pollution, on issues of implementation and
subsidiarity[33].
The breakthrough in EU policy on this matter was achieved by the
Directive of the European Parliament and of the Council known as the Water Framework Directive.
The Directive is innovative from many points of view. It conceives the
water management referring to the “river basin” (art. 2, 13) according to an
integrated approach. It also proposes to regulate the management of fresh water
combining quantitative and qualitative aspects including both surface and
underground waters[34].
However, the Directive merely states, in a general way, in the first
paragraph of the preamble that “water is not a commercial product on a par with
others, but a heritage that it must be protected, defended and treated as
such”.
Related to the Framework Directive are also the Council and European
Parliament Directives adopted in 2006 and 2008 respectively on the protection
of groundwater against pollution and deterioration and on the environmental
quality standard in the water policy field[35].
More recently, it was adopted the Directive 2014/23/EU of the European
Parliament and of the Council on the awarding of concession contracts: it
explicitly excludes concessions in the water sector from its scope[36].
In the preamble, in paragraph 40, we find an important reference to
water as a “good”, “the importance of water as a public good of fundamental value
for all citizens of the Union”[37].
Not even the interpretation of the aforementioned directives provided by
the Court of Justice of the European Union has contributed to the affirmation
of the human right to water. And indeed there were a
lot of infringement proceedings issued by the European Commission against one
of the EU member states for failure or incorrect transposition of one of the
aforementioned directives[38].
A support for the progressive recognition of the right to water in the
EU, and consequently also international, actually, came from civil society,
thanks to a new instrument of participatory democracy made available by the
Treaty of Lisbon: the initiative of European citizens (ICE)[39].
As noted by the doctrine, the ECI is set up as a form of “initiative (of
citizens) for an initiative (the legislative one of the European Commission)”;
therefore, an absolutely unique and innovative tool in the legal system of the
Union. In other words, the ICE would operate as a “law initiative”, which is
also “transnational”, given the participation of citizens of different Member
States[40].
Three initiatives reached the required number of statements of support
and were presented to the Commission. The first to reach one million signatures
was “Right2water” (1,659,543 signatures).
In the proposal, the citizens’ committee urged the Commission to propose
legislation aimed at establishing the universal human right of drinking water
and sanitation.
The Commission responded to the European Citizens’ Initiative with the
Communication of 19 March 2014, stating that the right to safe drinking water
and sanitation as internationally established must always be linked to the
right to life and human dignity as if it is a “derived right”[41] rather than an
autonomous right.
In the communication, the Commission emphasizes EU action to guarantee
access to drinking water and sanitation for the population[42].
Recently, with the Communication of January 31, 2012, the European
Commission presented a proposal for a Directive of the European Parliament and
of the Council in order to amend the Directives n. 2000/60 / EC and 2008/105 /
EC. The amendments were limited to the management of the substances in the
water sector: it was “technical” proposal, evidently not aimed at the
recognition of the human right to water[43].
The European Parliament, vice versa in its resolution of 8 September
2015, invited the Commission (paragraph 10) to present legislative proposals,
“including, where appropriate, a revision of the Water Framework Directive
which recognizes universal access and law human water” calling for a universal access to safe drinking water and
sanitation to be recognized in the EU Chart of Fundamental Rights.
This would imply the possibility for individuals to claim the rights
deriving from the directive before the national courts.
Among the aims of the Directive, in addition to the quality of the
water, it should be compulsory that every State must guarantee access to a
minimum amount of water necessary to satisfy the essential needs of all
individuals.
However, the essential level could be defined internally at national
level, based on indications from the World Health Organization and / or the
European Commission.
This would ensure on one hand the opportunity for individuals to own
rights that can be exercised before internal jurisdictions, and on the other
hand the opportunity for the Court of Justice to interpret the provisions of
the Directive.
The Court of Justice in this way could assess whether the minimum
quantity, set by the State, of water necessary for the essential needs of
individuals, meets the parameters detected at the international level.
This would ensure that the elements of the right to water (availability,
accessibility, acceptability, affordability and quality) would be subject to a
minimal harmonization.
This proposal is only one on the long route of the affirmation of the
right to water as a norm of international law.
One of the important indications that could derive from the Directive
could be the identification of the “right price” of the water, to be defined at
a national level according to the indications of the Directive itself.
In this context, however, it is noted that the European Parliament stressed
in this regard that the Commission should not - under any circumstances -
promote the privatization of water in the context of an economic adjustment or
in any other procedure on coordination of the EU’s economic strategy (paragraph
22).
The choice between different systems to tackle the different
environmental problems does not only entail a purely instrumental analysis of
the best way to achieve environmental protection objectives, but also raises
controversial ethical and political issues[44].
The main objection to the use of economic incentives for environmental
protection is ethical. It is argued that human life and ecological integrity
are priceless values, which must not be corrupted by the market. Economic
incentives, reducing environmental protection to an economic calculation,
compromise fundamental rights and allow powerful companies to obtain permission
to inflict damage simply by paying a fee[45].
These theses are often cited as arguments in favor of regulation: the
state should absolutely establish what rights to health and to the environment
the economic actors must respect and should force them to do so[46].
The preference for the public ownership of areas of exceptional
landscape value is also based on the ethical concept that these areas are a
symbol of the nation, representing an important part of its cultural heritage
and must therefore belong to the nation in the interest of the entire
population.
This position is widespread in the United States and much less shared in
Europe, where important elements of cultural heritage are often in private
hands.
The choice and implementation of a policy of environmental protection
that takes place through certain institutions rather than others can influence
the strategic balance between the various interest groups that participate in
it and favor certain results in place of others.
Today there is greater awareness of the problems of collective action
and representation, and therefore of the danger of public decisions that
reflect private, economic, ideological and bureaucratic interests.
The advocates of ‘legalization’ argue that there is a tendency to lose
sight of the objectives set by environmental laws during the phase of their
implementation at the administrative level; in particular, to include
environmental interests in the decision-making process could open up to a
review and examination of the community[47].
A use of economic incentives for environmental protection, according to
the most recent theoretical elaboration, contributes to ensuring greater
responsibility for political decisions, which must establish the level of
incentive, entrusting concrete implementation to the market[48].
This approach avoids the risk of leaving a wide margin of discretion to
public administrators in the context of choices regarding the administration of
resources: the most significant risk for the protection of the environment is
precisely the discretionary power[49].
As noted above, therefore, water should be considered as a fundamental
right[50], even though at the same
time it is a common good since it belongs equally to everyone, and every man
has the right to use it for satisfying his needs accordingly.
The public water management model, however, has not regulated the
private exploitation of water, except for the management of discharges[51].
In this context, and based on the empirical analysis of the exploitation
of the resource, both market failures have emerged, namely the inadequacy of
private law (civil liability and the judicial protection of rights) [52] to ensure
effective protection of the environment, but also the defects of a public
regulation based on rigid mechanisms of command
and control[53].
Too stringent constraints and rigidities have discouraged the
introduction of new products or the use of more efficient production techniques
with penalizing investments in the sector[54]. In fact, the
planning deeds[55], in the
abstract, fundamental rationalization tools, have not succeeded in generating
good practices or protocols capable of generating virtuous mechanisms.
It is therefore necessary to assess whether the creation of artificial
markets[56], similarly to
what happened in the electricity sector, could generate a mechanism to increase
the efficiency of private exploitation of the resource, fueled by a demand
induced by the need to comply with legal obligations affecting certain types of
companies[57].
In recent years, these models have been tested in Italy and in other European
countries with the effect of implementing the virtuous and practical behaviors
of rationalization of resources and their exploitation.
In particular, the model developed in Italy with regard to the
electricity system envisages three types of “white, green and black”
certificates.
In particular, white certificates, also known as Energy Efficiency
Certificates (TEE), represent an incentive to reduce energy consumption in
relation to the distributed good.
The proposed mechanism - innovative worldwide - suggest the creation of
a market of energy efficiency certificates, certifying the actions taken.
White certificates concern three types of interventions: saving
electricity, saving natural gas and/or saving other fuels. The interested
distributors can be both compulsory and on a voluntary basis: all the
distributors of electricity and gas are obliged; whose final users exceed
100,000 units.
The Authority with an economic contribution, whose value is annually
established by the Authority itself, rewards the compliance with energy saving
limits. Moreover, it is possible to earn by selling excess certificates thanks
to the achievement of savings higher than the yearly one.
On the other hand, those who fail to comply with the minimum obligations
are sanctioned and must purchase additional securities necessary to achieve the
set minimum target on the market[58].
The Commission noted that these instruments allow the achievement of
production and consumption targets for renewable energy sources within market
mechanisms that guarantee efficiency, while offering less certainty in investor
returns[59].
It has been calculated that these demand policy actions will make it
possible to achieve, as a result, energy savings equal to the average annual
increase in national energy consumption in the period 1999-2001, with lower CO2
emissions.
This intuition of a regulated market that incentivizes supply and
distribution, but that sanctions at the same time all the improper practices in
order to pollute the resource, can constitute an opportunity to overcome the
existing conflicts, granting everyone access to a clean and usable resource.
[1] See E. Kapp Elements of a Philosophy of Technology On the
Evolutionary History of Culture. Edited by Jeffrey West Kirkwood and Leif
Weatherby, 2018.
[2] See C. Schmitt, Land
und Meer. Eine weltgeschichtliche Betrachtung,
Stuttgart, Klett-Cotta, 1954, trad. it. Milano, Adelphi, 2002.
[3] See The UN World Water Development Report 2015,
Water for a Sustainable World, disponibile at: http://www.unesco.org/ ; UN World Water Development Report,
Wastewater: The Untapped Resource, 2017,
available at: http://www.unesco.org/.
[5] See B. Edward., E. J. De Haan
(edited by), The Scarcity of Water,
Emerging Legal and Policy Responses, Kluver Law
International, 1997.
[6] See R. Giuffrida, F. Amabili, La tutela dell’ambiente nel diritto
internazionale ed europeo, Giappichelli, Torino.
[7] See B. Biscotti, E. Lamarque, Cibo e acqua. Sfide per il diritto
contemporaneo: Verso e oltre Expo 2015, Giappichelli, Torino.
[8] See A.Hildering, International
Law, Sustainable Development and Water Management, Eburon,
2006; also C. Iannello,
Il diritto all’acqua. L’appartenenza
collettiva alla risorsa idrica, la scuola di Pitagora.
[9] Ibidem.
[10] See “El agua constituye un derecho fundamentalísimo para la
vida, en el marco de la soberanía del pueblo. El Estado promoverá el uso y
acceso al agua sobre la base de principios de solidaridad, complementariedad,
reciprocidad, equidad, diversidad y sustentabilidad. II. Los recursos
hídricos en todos sus estados, superficiales y subterráneos, constituyen
recursos finitos, vulnerables, estratégicos y cumplen una función social,
cultural y ambiental. Estos recursos no podrán ser objeto de apropiaciones
privadas y tanto ellos como sus servicios no serán concesionados”, available at:
https://bolivia.justia.com/nacionales/nueva-constitucion-politica-del-estado/cuarta-parte/titulo-ii/capitulo-quinto/.
[11] See P. Maddalena, I beni comuni nel codice civile, nella tradizione umanistica e nella
costituzione della repubblica italiana. 5 October 2011, federalismi.it, available at:
[12] A.
Baldassarre, Diritti inviolabili,
in Enc. Giur., 1989, about the thinking
of U. Grozio, le
droit de la guerre et de la paix, (1625).
[13] Grotius, Prolegomeni al diritto della guerra e della
pace, trad. by Guido Fassò, and Carla Faralli, Morano, Napoli 1979.
[14] With his
teaching, Grotius opposed the voluntary address taken up by some currents of
Protestant thought that saw the root of natural law in God's command rather
than in reason considered as the true nature of man.
[15] R. Brandt, Eigentumstheorien von Grotius bis
Kant, Stuttgart-Bad Cannstatt, 1974.
[16] J. Locke, Secondo trattato sul governo. Saggio
concernente la vera origine, l'estensione e il fine del governo civile
(trad. by A. Gialluca), BUR Biblioteca Univ. Rizzoli, 2001.
[17] Ibidem.
[18] See J. Locke, Secondo trattato sul governo. Saggio
concernente la vera origine, l'estensione e il fine del governo civile
(trad. A. Gialluca), BUR Biblioteca Univ. Rizzoli, 2001.
[19] I. Kant, La metafisica dei costumi, a cura di G.
Vidari, Laterza, 2009.
[20] Ibidem.
[21] W. Euchner, W. Santagata, A. Gambaro, Proprietà
in Enciclopedia delle scienze sociali,
Treccani, 1997.
[22] “If a person puts more cattle into his own field, the
amount of the subsistence which they consume is all deducted from that which
was at the command, of his original stock ; and if, before,there
was no more than a sufficiency of pasture, he reaps no benefit from the
additional cattle,what is gained in one way being
lost in another. But if he puts more cattle on a common, the food which they
consume forms a deduction which is shared between all the cattle, as well that
of others as his own, in proportion to their number, and only a small part of
it is taken from his own cattle. In an inclosed
pasture, there is a point of saturation, if I may so call it, (by which, I mean
a barrier depending on considerations of interest,) beyond which no prudent man
will add to his stock. In a common, also, there is in like manner a point of
saturation. But the position of the point in the two cases is obviously
different. Were a number of adjoining pastures, already fully stocked, to be at
once thrown open, and converted into one vast common, the position of the point
of saturation would immediately be changed.” See W. F. Lloyd, Two Lectures on the Checks to
Population
[23] G. Hardin, “The Tragedy
of the Commons”, Science, 13 December 1968: Vol. 162 no. 3859.
[24] J. Buchanan, Property as a guarantor of liberty,
Aldershot 1993.
[25] R. Nozick, Anarchy, state and utopia, Oxford-New
York 1974 (tr. it.: Anarchia,
stato e utopia, Firenze, 1976).
[26] E. Ostrom, Governing the Commons: The Evolution of
Institutions for Collective Action, 1990, Cambridge University press.
[27] Ibidem.
[28] Ibid.
[29] See also P. Urbani, “Il recepimento della direttiva comunitaria sulle acque: profili istituzionali di un nuovo governo delle acque”,
in Riv. giur. amb.,
2004, pp. 209 ss. e G. Cordini, La tutela dell’ambiente idrico in Italia e nell’Unione europea, ivi, 2005; also L.
Garofalo, “Osservazioni
sul diritto all'acqua nell'ordinamento internazionale”, in Analisi Giuridica dell'Economia,
1/2010, pp. 15-28; See C. Joachim and L. Mazeau,
Between
risk and complexity: European water protection law issues, in Journal
international de bioéthique et d'éthique
des sciences, 2017.
[30] See S. Hendry, Frameworks for Water Law Reform, Cambridge University Press, 201;
also S. De Vido,
“Il diritto all’acqua nella prospettiva europea”, in Il diritto all’acqua, atti del seminario di studio svoltosi a Milano il 26 novembre 2015 (by L. Violini
e B. Randazzo), Giuffrè Editore,
2017
[31] Directive
of the council, n. 75/440/CEE
[32] Directive
of the council n. 91/676, to avoid nitrates pollution.
[33] E. Morgera, Environment, in S.
Peers, C. Barnard (eds), European Union
Law (OUP, 2014).
[34] See S. Hendry, Frameworks for Water Law Reform, Cambridge University Press, 2015.;
also S. De Vido, “Il diritto all’acqua nella prospettiva europea”, in L. Violini and B.
Randazzo, Il diritto all’acqua,
atti del seminario di
studio svoltosi a Milano il
26 novembre 2015, Giuffrè
Editore, 2017.
[35] Directive
2008/105/CE of the EU Parliament and the Council of 16 december
2008, GU L 348, 24,12.2008 p. 84, also, Directive 2007/60/EC of the European
Parliament and of the Council of 23 October 2007 on the assessment and
management of flood risks, in O L 288/28, 6,11,2007, 27-34
[36] See S. Hendry, Frameworks for Water Law Reform, Cambridge University Press, 2015;
also S. De Vido, “Il diritto all’acqua nella prospettiva europea”, in L. Violini and B.
Randazzo, Il diritto all’acqua,
atti del seminario di
studio svoltosi a Milano il
26 novembre 2015, Giuffrè
Editore, 2017.
[37] Directive
2014/23/CE of the EU Parliament and the Council, del 26 February 2014 GU L 94,
28.3.2014.
[38] Economic
Social Cultural rights Committee, General Comment No. 15: The Right to Water
(Arts. 11 and 12 of the Covenant) adopted at the Twenty-ninth Session of the
Committee on Economic. Social and
Cultural Rights, 20 gennaio, 2003.
E/C.12/2002/11. According to some authors, the Court has contributed to the
“strengthening of the legal basis for the human right to water” (M. A. Salman and Siobhán McInerney-Lankford, The Human Right To
Water, Washington 2004).
[39] Cfr, interalia, F. Fetacno, “Il
diritto di iniziativa dei cittadini europei: uno strumento efficace di
democrazia partecipativa?”, in Rivista
italiana di diritto pubblico comparato, 2011, p. 727 Ss.; also “il nuovo
istituto di democrazia partecipativa le sue prime applicazioni”, in Studi sull’integrazione europea, 2012,
p. 523 ss.; G. Allegri, “Il diritto di iniziativa cittadini europei:
verso quale democrazia partecipativa in Europa?” in S. Civitarese Matteucci, F. Guarriello, P. Puoti
(eds), Diritti fondamentali e politiche
della UE di Lisbona, Santarcangelo, Maggioli, 2013.
[40] See S. De Vido, “Il diritto all’acqua nella prospettiva europea”, in L. Violini and B. Randazzo, Il diritto
all’acqua, atti del seminario di studio svoltosi a Milano il 26 novembre 2015,
Giuffrè Editore, 2017.
[41] Comunication of the Commission, Bruxelles,
19.3.2014 COM(2014) 177 final.
[42] Ibidem.
[43] SEC(20l1) 1546 final, SEC(2011) 1547 final. Bruxelles, 31.1.2012 COM(2011) 876
final 2011/0429 (COD)
[44] McCloskey,
H. J., Ecological ethics and politics,
Totowa, N. J., 1983.
[45] Kelman, J., What
price incentives? Economists and the environment, Boston 1981.
[46] See Richard B. Stewart e Emilio Gerelli, Ambiente, Tutela dell’
, Enciclopedia delle scienze sociali (1991), Treccani.
[47] Ibidem.
[48] Ibid.
[49] Coase, R., “The problem
of social cost”, in Journal of law and
economics, 1960, III; McCloskey, H.
J., Ecological ethics and politics,
Totowa, N. J., 1983; Kelman, J., What price incentives? Economists and the environment, Boston 1981;
Miller, C., Wood, C., Planning and pollution, Oxford 1983; Richard B. Stewart e Emilio Gerelli,
Ambiente, Tutela dell’, Enciclopedia delle scienze sociali
(1991), Treccani.
[50] Frosini T. E., “Il
diritto costituzionale all’acqua”, Rivista
giuridica del Mezzogiorno, Fascicolo 3, settembre 2010.
[51] Iannello C., Il Diritto dell’acqua – l’appartenenza
collettiva della risorsa idrica, la scuola di pitagora editrice, Napoli,
2012.
[52] Clarich M., La tutela dell’ambiente attraverso il
mercato, Diritto Pubblico, 2007; M.
Cafagno, La cura dell’ambiente tra mercato ed intervento pubblico: spunti
dal pensiero economico
[53] See R.B. Stewart, Markets Versus
Environment, cit., pp. 10 ss.; A. Ogus, Regulation. Legal form and economic theory,
cit., pp. 249 s., also see M. Faure,
Environmental regulation, cit., p. 460.
[54] See R.B. Stewart, Markets versus environment?,
european university institute, jean monnet chair papers, 1995, n. 19; m. Cafagno, la cura dell’ambiente tra mercato ed
intervento pubblico: spunti dal pensiero economico, in atti
del primo colloquio di diritto
dell’ambiente promosso dall’associazione italiana di diritto urbanistico (teramo, 29- 30 aprile 2005), milano, Giuffrè, 2006, pp. 191
ss., also see R.B.Stewart, il
diritto amministrativo nel xxi secolo, in riv. Trim. Dir. Pubbl., 2004.
[55] See G. Guidarelli, “Pianificazione e programmazione in materia di risorse idriche”;
in N. Lugaresi, F. Mastragostino
(a cura di), la disciplina giuridica delle risorse idriche, bologna,
2003, pp. 241 ss. Also M. Colucci, F.C.
Rampulla, A.R. Majnardi, “Piani
e provvedimenti nel passaggio dall’amministrazione al governo delle acque”,
in Riv. trim. dir. pubbl., 1974, In the same sense M. Brocca, “Commento all’art. 65 del d.lgs. 3 aprile 2006, n. 152”, in N. Lugaresi, S. Bertazzo, Nuovo
Codice Dell’ambiente, Maggioli,
2009, Rimini.
[56] See E.L. Camilli - F. Di
Porto, “Interaction between
electricity liberalization and environmental targets”, in F. Di Porto, Energy Law in Italy,
London-The Hague-Boston, Kluwer Law International, 2006.
[57] Richard B. Stewart e Emilio Gerelli, Ambiente, Tutela dell’,
Enciclopedia delle scienze sociali (1991), Treccani.
[58] T. M. Moschetta, “I regimi nazionali di
sostegno all’energia prodotta da fonti rinnovabili: questioni di coerenza con i
principi del mercato comune dell’unione europea”, Rivista Quadrimestrale Di Diritto Dell’ambiente, Numero 2/2015 G.
Giappichelli.
[59] See Commission Staff Working Document – European
Commission Guidance for the Design of Renewables Support Schemes, SWD
(2013) 439 Final, del 5.11.2013, paragraph 3.1.4.