Abstract
Horizontal fragmentation, from a public-values perspective, is a quite well-documented phenomenon in international (water) law. However, the literature does not provide any insight into vertical or substantive fragmentation, i.e. differences in the protection of public values at the various institutional levels. This article assesses whether there is substantive fragmentation in water law at the international, the European, the sub-regional (Danube River Basin), and the Dutch domestic level. To this end, first a working definition of the concept of ‘public water values’ will be formulated. Subsequently, this article will draw conclusions regarding the degree of substantive fragmentation in water law across the institutional levels mentioned, based on an in-depth analysis of relevant sources of water law. The article will not present an exhaustive overview of public water values, but elaborates on a number of core values in water law.
Highlights
Water is often characterized as a public good for various reasons: it can benefit large numbers of people without diminishing its quality, it is a natural resource, it serves the basic needs of individuals, and is essential for maintaining the ecosystem
There is a general idea about what these values might be, it is still unclear what the concrete public water values are and to what extent these are incorporated in the various dimensions of water law and at the different institutional/governance levels
The analysis focuses on identifying those public values that are important for the water sector
Summary
Water is often characterized as a public good for various reasons: it can benefit large numbers of people without diminishing its quality, it is a natural resource, it serves the basic needs of individuals, and is essential for maintaining the ecosystem. There is a general idea about what these values might be, it is still unclear what the concrete public water values are and to what extent these are incorporated in the various dimensions of water law (economic, environmental and social) and at the different institutional/governance levels (international, regional, sub-regional and domestic). The term ‘fragmentation’ is often associated with negative consequences; the general idea is that diverging approaches would lead to inconsistent, incoherent and ineffective results as well as to legal uncertainty These negative connotations raise the question whether institutional fragmentation negatively affects the protection of public values. The article will conclude with a brief assessment of the status of substantive fragmentation of public values incorporated at the different levels of water law (Section 4)
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