Mulot Vanessa, doctor of law.
"Marine spoof: new challenges, new legal practices. '' »
Thesis on 27 March 2015.
These research works have received financing from the Fund "axa for research.
Presentation of the topic:
This thesis started in October 2009, focuses on the legal and insurance of the risk of marine submergence analysis and anticipation of the phenomenon of the rise of sea level.
This theme focuses on both the legal and scientific aspects. Indeed, to better understand this topic, it should be to consider the reports of the IPCC, of interest generally to climate change and natural hazards.
But it need above all to develop a transversal approach, indeed the apprehension of the risk of marine flooding affects both public law and private law. The difficulty therefore lies in order to deal with many aspects of the law.
At the beginning of this thesis if marine submergence was topical, because the scientific reality of climate change, which accelerates sea level rise, it was no news at the level of the sphere policy and the public seemed little sensitive to this issue.
However, it was already the interest of insurers, who have quickly perceived the economic and human challenge that this risk could represent in the years to come.
This interest of the insurers for the risk of marine submergence was supported by the occurrence of the Xynthia storm in February 2010 only 3 months after the commencement of this research. Due to both human and economic consequences that he has trained, this event marks a real turning point in the approach and the apprehension of the risk of marine submergence. All actors, be it the State, insurers, individuals (…), take conscience of the existence, the danger and the extent of this phenomenon. It becomes a real problem.
Studies on the subject that were low before this event are increasing, whether through research, reports, studies, reflections on this theme are engaged. Submergence becomes a current most sensitive topic as recently demonstrated by the Xynthia trial.
It must indeed be aware that climate change and urbanization contribute to accentuate the vulnerability, thus increasing the human issues and economic exposed to coastal risks.
One is thus faced with two contradictory phenomena, one side the sea advancing, another man who keeps wanting to get closer it.
Thus the human and increasing vulnerability and trained an additional cost for insurers.
If the planning policy does not change, type disasters Xynthia multiply, the human and economic consequences will be considerable.
There is an urgent need to renew the legal tools that constantly urbanization on vulnerable coastal areas.
The thesis focuses on existing legal means and insurance or to build, to reduce the vulnerability of assets and human activities marine submersions, in a context of rising sea levels.
To carry out my demonstration, it appears necessary to open a reflection on all the tools to prevent natural hazards and determine whether they are or not transposable to the risk of flooding. It should also be to mainstream adaptation to the phenomenon of sea-level rise.
Thus, I first studied the role of public actors in the reduction of human vulnerability to marine submergence.
My demonstration is based on 4 main points:
First on the study of the first legal tools of reducing human vulnerability to the risk of flooding marine.
I am leaning then on the prevention of the risk by planning and planning documents, with including an analysis of risk-specific documents.
Then the legal tools that can be used to intervene on the existing goods subject to this risk.
Finally I studied through the example of the Xynthia storm the flaws in the french system of risk prevention, as well as the measures following this event. My aim here is to establish a State of positive law to determine if the tools at the disposal of Governments are adapted and applied.
Following these analyses I try to propose new ways of governance anticipated and for risk adapted to fill any gaps.
Therefore, the aim of my first part is to study the legal tools at the disposal of public actors to contribute to the reduction of human vulnerability to marine submergence, and propose ways to adapt.
Secondly, the role of public actors in the reduction of the vulnerability of human and its activities at the marine submergence is studied.
This demonstration focuses on the study of "indemnity" to determine regimes if they are or not adapted to the risk of flooding marine.
Then I analyse the legal issues relating to insurability or non-insurability of the phenomenon of the rise of sea level. In fact, this phenomenon is differ from temporary flooding because of its progressive and permanent character. This is therefore to determine whether the hazard characterizing this phenomenon is sufficient to be considered as insurable.
I then try to propose new ideas and new compensatory mechanisms to sustain the regime catnat and respond to climate change, while acting on prevention.
In this part I therefore aims to establish a State of the compensatory systems french to determine whether they are or not adapted to climate change specifically to the issue of marine submergence and the phenomenon of the rise of sea level. As a result of these analyses, I try to propose a reform of the insurance law to anticipate on the long term and to deal with the consequences of climate change.
The demonstrations being carried out prove that public and private actors play an important role in the reduction of human vulnerability to marine flooding, thanks to all of the legal and insurance tools made available to them. But these measures will not be effective if synergy exists with the insurers. Insurers should encourage the implementation of prevention measures driven by the public authorities, through their compensatory mechanisms. Prevention and compensation measures must therefore be consistent to be effective.
Thus, the action of the public authorities and insurers must be strengthened and renewed as demonstrated by the legal analysis of the consequences of the storm Xynthia.
If the existing legal tools could be sufficient to understand and compensate potential damages induced by the single risk of marine submergence, with climate change it becomes necessary to construct a right of adaptation in the long term, capable of addressing new challenges, able to move from the apprehension of a risk of marine flooding than the phenomenon of sea-level rise.
To this end the role of public actors in prevention could be accentuated by using new ways to strengthen the prevention of urbanization in high-risk areas, with particular (following non-exhaustive list of the proposals made in the thesis):
the strengthening of legality in areas at risk, the recentralization of power.
The extension of the band of inconstructibilite from 100 metres on the coast. Indeed, this coastal strip indirectly involved in the protection of persons by backing the urbanization of the coast. However, with the phenomenon of rising sea levels this band decreases from year to year, should therefore be to update it by taking into account forecasts of advance the line aside over several decades, (by amending article L. 146 – 4 of the town planning code.)
Relocation of activities and property, which is to deconstruct a coastal strip is to rebuild it further back in the land. This technique requires to find ways of funding, it may therefore be proposed new mechanisms of appropriation of the property by the State, as for example:
* the implementation of a life annuity for the benefit of the State for homes at risk.
* through the purchase by the State at the time of the death of the owner of the property. In order to avoid the transmission of property at risk.
Thus, if public actors can contribute to the reduction of human vulnerability to marine submergence using legal tools that are made available to them, these tools must still be strengthened in registering more in a prospective vision, nor on five or ten years, but over several decades.
Regarding indemnity plans, new legal avenues are particular to perpetuate the scheme of compensation for natural disasters. If this regime is not the only one to respond to the disaster it is usually most plan when a catastrophic event occurs.
This system based on national solidarity works quite well since its inception in 82, however it was developed in a low catastrophic context and a short-term vision.
However, today the context has evolved. The society is more facing risks, by urban sprawl, to add climate change, anticipating natural disasters more frequent. The conjunction of these factors risk to harm the natural disaster compensation scheme. The difficulty is that the system responds only to exceptional disasters, but is also obliged to take charge of events that could be classified as current.
To deal with these developments, it should be considered a reform more preventive, coherent and comprehensive long-term, but about ensuring the maintenance of solidarity which is the item key and feature of the french system of compensation for natural disasters.
If the occurrence of flooding marine that might be described as temporary challenges, is not as such a novelty for the world of insurance.
On the other hand, today should learn to live with progressive flooding resulting from sea level rise and which entails a submersion permanently. This process is done gradually and is observable in the long term and for sure. So it seems more related to hazard it means a probability of occurrence of risk, because we know with certainty that the sea level is rising. Therefore his insurability issues can arise.
His insurability could effectively be challenged because of the certainty of its realization that makes non-existent the necessary to the contract of insurance risk. But one could possibly admit that this hazard is for example the date of realization of the event, which it is uncertain. So the debate on the insurability or non insurability of the process of sea-level rise is not sliced and will probably lead to lively discussions in the years to come.
However, in the case of his insurability should develop any compensatory mechanisms. Indeed, it is unlikely that the current catnat regime could meet future compensation for all of the properties subject to sea level rise.
Therefore new tracks could be developed:
So, why not consider a littoral solidarity? A permanent submersions compensation fund could be established. It would be powered by coastal homeowners.
Compensation could also be capped by concern for equity in order to ensure the same regime to all homeowners to be submerged.
In order to limit the amount of compensation and empower coastal homeowners new mechanisms could also be envisaged that require collaboration with public actors.
For example, if a temporary flooding causes 50% of damage on housing could be proposed to the owner to benefit from a strategic setback. However, it could make the choice to stay in its property, but it would be more assured.
Such a mechanism would avoid the multiplication of costs for the community. Thus, instead of waiting for good final flooding occurs as a result of a multitude of compensation for temporary flooding, this incitement to the recoil would anticipation and would also reduce costs.
Accordingly, in order to avoid hasty very expensive solutions as was the case when handling the effects of the storm Xynthia, solution that would also not be economically possible, should develop responses to this phenomenon, under penalty of being confronted with difficulties both economic, and human polls.
If not wait nor any compensatory systems, on the other hand they represent a genuine tool of resilience which should not be overlooked and that should be retained or even extended. It is therefore necessary to adapt the compensatory mechanisms to human and environmental developments; engage prospective reflections able register the scheme of compensation for natural disasters in the long term, while providing a hedge against new risks such as the marine submergence and the process of raising the level of the sea.