La incorporación de la variable ambiental a los conflictos competenciales en materia de aguas en España y en Argentina

Abstract

Growing environmental awareness over recent years has had an impact not only on water related regulations, but also on how the actual Spanish water law has evolved over the years, gradually contemplating social interests. Traditionally the prime concern with regards to water was the need to assure its availability, but at present, having seen the existing environmental damage, the actual quality of the water and its preservation, issues that previously lacked importance, have now become of prime importance to governments. The purpose of this doctoral thesis is to analyse the effects that the incorporation of the environmental variable has had on conflicts related to jurisdiction between the State and the Autonomous Communities in Spain, and between the Provinces and the Nation in Argentina. This paper is based on the following premise: possible conflicts related to jurisdiction owing to increased environmental awareness. This growing awareness, if pursued in an extreme, could affect other jurisdictions such as territorial, environmental and those regarding natural resources and, in this case in particular, could invalidate autonomous/provincial or even state/national jurisdictions with regards to water. However, in the same way, the exercise of exclusive jurisdiction on continental waters cannot create a vacuum in the jurisdiction regarding the environment, as this would then impede the protection of this natural resource - water. By comparing various legal systems this highlights differences and similarities in the systems and the necessity to unify the Law, in an area as fundamental as water. By surpassing the frontiers of individual legal systems, the problem which underlies the legal difficulties associated with water and the environment as a whole becomes visible. The comparison is carried out in the search for the transfer of experience and knowledge regarding the different legal systems. The aims of this thesis are: (i) analysis of the changes to the legal systems in Spain and Argentina from when the Water Law became systematised, the environmental shaping of the legislation, up to its present-day form; (ii) analysis and comparison of jurisdictional distribution in the areas of water and environment of two models: The Spanish Autonomous Community model and the Argentinian Federal State model, both with different criteria with regards to distribution of power. These analyses offer a global perspective of the main variations in the decisions made and the jurisdictional problems arising from these decisions; (iii) practical analysis of the conflict of power and identification of the criteria established to resolve these conflicts. For this purpose, the paper is divided into five chapters: Chapter I summarizes the various phases regarding changes to the Water Law in Spain and Argentina; Chapter II includes the analysis of the distribution of power in the area of water in both legal systems; Chapter III focuses on the distribution of power in the field of environment in Spain and Argentina; Chapter IV analyses the jurisdictional conflicts related to water-environment in the Spanish legal system and the criteria for their resolution; Chapter V focuses on jurisdictional conflicts related to water-environment in the Argentinian legal system. With these objectives and this structure in mind, the research not only encompasses Environmental Water Law, but addresses key issues of Administrative and Constitutional Law, in particular with regards to the State model and the system of distribution of constitutional powers. The conclusions highlight the existence of similar problems due to the decentralization of powers even when the criteria for the distribution of power were totally dissimilar.