The European legal and institutional framework and the role of RBOs
The management, use, and protection of water resources in Europe are embedded in a tight legal, institutional, and political framework. It ranges from the pan-European level all the way to the local level, providing numerous rules, policies, and tools to various actors that guide water resources management in all its dimensions. A considerable share of this framework is of relevance to the many transboundary watercourses in Europe.11
At the broadest regional level, that of the United Nations Economic Commission for Europe (UNECE), the Convention on Protection and Use of Transboundary Watercourses and International Lakes (also referred to as the Helsinki Convention)12 provides international water law guidance on the protection and use of transboundary watercourses. Parties to the convention—among them all European states except for the United Kingdom—commit themselves to a number of substantive and procedural principles for the management of shared watercourses. These include the principle of riparian community, that of equitable and reasonable utilization, and the obligation not to cause significant harm (Article 2). It is important to note that the convention requires parties to establish joint bodies (Article 9), thus emphasizing the importance of RBOs in transboundary basins. Other pan-European conventions complete this pan-regional legal regime for managing transboundary water resources and preventing or mitigating disagreements over them. Such agreements include especially the 1991 Espoo Convention,13 which requires parties to take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impacts (Article 2 of the convention); and the 1992 Convention on the Transboundary Effects of Industrial Accidents,14 which provides guidance concerning the pollution of rivers from industrial accidents.
The EU provides the most comprehensive, binding, and detailed cooperation and integration framework for the region, covering a broad range of issue areas, including water and the environment. Moreover, the supranational legal and institutional framework of the EU that forms the basis of a common integration agenda ensures that states are committed as well as bound to addressing issues of mutual concern in a cooperative manner, including those of a conflictual nature.
Comprehensive EU legislation governs the use, management, and protection of water resources, including those shared between states. The EU Water Framework Directive (WFD)15 is at the heart of this.
Without engaging in a detailed presentation of the WFD, it is important to note here that it sets strict objectives on the chemical and ecological status of water bodies that have to be reached in all basins (Article 4). Based on the basin principle (Article 3), it provides procedural and managerial guidance on how to achieve these objectives, with river basin management plans and related programs of measures being the key instruments (Articles 11 and 13). Other—more issue-specific— instruments complement the WFD: the Drinking Water Directive, Floods Directive, Bathing Water Directive, Groundwater Directive, Urban Wastewater Treatment Directive, and Nitrates Directive.
Specifically with regard to disagreements, EU legislation in general and the WFD in particular provide resolution mechanisms.16 Member states can call on the EU Commission’s assistance in case of a dispute with another state, with the Commission being able to issue a recommendation or a report that advises the concerned states on how to deal with the matter. While such a recommendation itself is not immediately legally binding, it is authoritative in so far as the Commission can institute proceedings against any state failing to meet its obligations under the WFD (the same can be done by any member state in front of the European Court of Justice if it suffers from damage that results from noncompliance with the WFD by another state). This equips the Commission with wide-ranging responsibility with regard to mitigating disagreements among member states17 and reinforces the normative clout of EU water law on them.18 This also illustrates the tight network of legal and institutional linkages, with interstate disagreements within the EU also often constituting noncompliance with the WFD, thus enabling such disagreements to become matters of compliance with the binding EU legal framework. This allows for an authoritative resolution that interstate relations typically do not permit.
This EU legislation is transposed into national (and subnational) law in the EU member countries. In Germany, a riparian state to all the basins discussed in this chapter, for instance, the WFD has been transposed into national law through the Federal Water Act (Wasserhaushaltsgesetz, or WHG). It lays down the basic provisions for water resources management. In addition, the government regulates specific issues through statutory regulations such as the Groundwater Ordinance, the Surface Water Ordinance, and the Wastewater Ordinance. As a country with a federal system, the individual states (“Länder”) play a key role in water resources management in Germany. Länder water acts and various ordinances at that level regulate a number of issues. In addition, local authorities also play an important role through local bylaws on specific matters.19 Practices are similar in other EU
Managing disagreements in European basins 279 states. Moreover, even non-EU members often apply EU water legislation as part of their accession efforts to the EU, which requires them to implement the EU’s acquis communautaire, thus ensuring that most basins in the wider European region can rely on the WFD as a common legal framework that guides their basin-specific cooperation efforts by constituting a far-reaching normative clout.20 While the WFD (and its implementation in member states) has received considerable criticism for both its substantive and procedural requirements and the (lack of) progress that could be achieved on its basis in many water bodies,21 it can still be regarded as a unique instrument for governing (shared) watercourses that have made substantial contributions not only to improving the state of many water bodies but also to bringing riparian states together in a cooperative manner and thus preventing or mitigating disagreements among them that are all too common in many of the world’s basins.
In order to address the additional complexity that the transboundary nature of many watercourses brings, European countries have established agreements and RBOs to govern cooperation over their shared watercourses. RBOs or similar joint bodies exist for the majority of Europe’s transboundary basins,22 providing important tools and instruments for the cooperative management of transboundary water resources.23 They also provide a forum for meetings among riparian states, and for regular exchanges and joint decision-making on critical matters. By addressing matters of a potentially conflictual nature in a regular, structured, and predefined process, RBOs thus contribute to the prevention of disagreements or full-fledged conflicts. RBOs coordinate efforts toward monitoring and assessing the state of a basin and its resources, and organizing related data gathering, analysis, and exchange. This constitutes the basis not only for managing water resources across riparian states but is also often a key prerequisite for preventing or mitigating disagreements. And RBOs are important platforms for engaging different stakeholders in the management of shared water resources.
If disagreements nonetheless occur, RBOs provide mechanisms for addressing them in a predefined and de-escalating manner. The Finnish-Russian Commission on the Utilization of Frontier Waters, for instance, is mandated to arbitrate a disagreement or provide an advisory opinion on the matter at stake, while in the Rhine River Basin the International Commission for the Protection of the Rhine refers disputes to a special arbitration tribunal to be set up if the need arises. It is interesting to note in this context that many treaties on which European RBOs are based provide for either bilateral negotiations as a keymeans for dispute-resolution or refer the matter to an external party (e.g., a specific arbitration tribunal,24 a third party,25 or the International Court of Justice). This reconfirms the rather technical approach that many European RBOs take, focusing on providing the technical and procedural framework for addressing disagreements among member states rather than directly engaging in mitigation or resolution,26 thus pursuing a very technical approach to water diplomacy.
In spite of the many challenges it is facing,27 EU legislation in the form of the WFD—together with instruments in the wider European region—thus provides a comprehensive legal, institutional, and technical framework for environmental policy in general and water resources management—including transboundary—in particular. RBOs as agents for organizing, managing, and coordinating required activities thereby play a particularly important role in ensuring the smooth implementation of these complex requirements and thus the cooperative, nonconflictual, and sustainable management of Europe’s shared water resources.