Principled approaches to environmental law are much in vogue. The most recent set of principles to emerge onto the world scene pertain to water. They were encapsulated in the Brasilia Declaration of Judges on Water Justice of 21 March 2018. The catalyst for the declaration was the 8th World Water Forum supported by the IUCN, the World Commission on Environmental Law, the Global Judicial Institute on the Environment, and the UN Environment Programme.
Globally, managing water resources in terms of both quantity and quality is becoming increasingly critical. For example, the OECD observed (when engaging with the question about why principles regarding water governance matter) that the outlook is “gloomy” and will require people and communities to do “better with less”.[1] In particular, it stated:[2]
Accessible and high quality freshwater is a limited and highly variable resource. OECD projections show that 40% of the world’s population currently lives in water-stressed river basins, and that water demand will rise by 55% by 2050 …
Similarly, the preamble to the Brasilia Declaration noted the importance of the hydrological cycle, the connectedness of groundwater and surface water, and the impact of climate change that is likely to accelerate “the impending water crisis”. Accordingly, the Brasilia Declaration promulgates 10 principles to inform water management focused on stewardship, protecting the ecological integrity of water resources, and inter-generational equity;[3] the corresponding rights and obligations of water users;[4] respect for both the cultural and spiritual links of indigenous peoples with water, and their traditional knowledge regarding catchment based water management;[5] preventing future and remediating past harm;[6] application of the precautionary principle;[7] in cases of uncertainty, interpreting laws in the way “most likely to protect and conserve water resources”;[8] internalising externalties by applying the polluter pays and user pays principles;[9] ensuring that “good water laws” are enacted and implemented;[10] adjudicating environmental disputes in a holistic way rather than utilising a silo approach that determines land use and water issues separately;[11] and ensuring that people and communities have access to environmental information, opportunities to participate in decision-making, and effective access to judicial remedies.[12]
While the principles for water justice in the Brasilia Declaration are clearly at an early stage of legal development, they form part of a strong and emerging tradition of codifying international environmental law – for example, the Oslo Principles on Global Climate Change.[13] But what is important to note regarding these legal developments is the pace at which they are now being developed, and the readiness of apex courts to apply and implement them. This is demonstrated by the metamorphosis from the IUCN World Declaration on the Environmental Rule of Law 2016, to the Global Pact for the Environment 2017 that has been presented to the UN General Assembly by France and subsequently applied by the United Kingdom Privy Council within a matter of months.[14] It is therefore not beyond the bounds of reason to anticipate that the principles articulated in the Brasilia Declaration may follow a similarly expeditious trajectory. What is currently unclear is the likely pace at which these principles will be taken up by specialist environmental courts – but it is for note that there is a real interest from the judges presiding in these courts in developing principled approaches to environmental adjudication.[15]
Homage to Samuel Taylor Coleridge is respectfully acknowledged for the title of this editorial.[16]
Dr Trevor Daya-Winterbottom, Faculty of Law, University of Waikato
[1] OECD, OECD Principles on Water Governance (OECD, Paris, 2015) 1.
[2] ibid.
[3] Principle 1 – Water as a Public Interest Good.
[4] Principle 2 – Water Justice, Land Use, and the Ecological Function of Property.
[5] Principle 3 – Water Justice and Indigenous and Tribal Peoples and Mountain and Other Peoples in Watersheds.
[6] Principle 4 – Water Justice and Prevention.
[7] Principle 5 – Water Justice and Precaution.
[8] Principle 6 – In Dubio Pro Aqua.
[9] Principle 7 – Polluter Pays, User Pays and Internalisation of External Environmental Costs.
[10] Principle 8 – Water Justice and Good Water Governance.
[11] Principle 9 – Water Justice and Environmental Integration.
[12] Principle 10 – Procedural Water Justice.
[13] Expert Group on Global Climate Obligations, Oslo Principles on Global Climate Change (Eleven International Publishing, The Hague, 2015).
[14] Fishermen and Friends of the Sea v Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37 per Lord Carnwath giving the reasons for the Court.
[15] See: www.environmental-adjudication.org.
[16] Samuel Taylor Coleridge, “The Rime of the Ancient Mariner” in William Wordsworth and Samuel Taylor Coleridge Lyrical Ballads with a few other Poems (J & A Arch, Gracechurch-Street, London, 1798).