The Danube River Basin and the Bystroe Canal challenge

The Danube River Basin covers a territory of nearly 820,000 km2, shared by 19 countries,28 making it the most international basin in the world. It provides important resources and services to its riparian states and their populations, ranging from drinking-water supply to hydropower generation, and from navigation to agricultural water use.

It is important to note that while pan-European legal and institutional frameworks apply to the Danube River Basin, the WFD is de jure applicable only to those Danube riparian countries that are members of the EU. It does, however, have legal and—more importantly— political effects on the other countries as well. This is because of these countries’ association or accession status with regard to the EU, making the EU’s acquis communautaire applicable to them. The basin is governed by the International Commission for the Protection of the Danube River (ICPDR), which was established on the basis of the 1994 Danube River Protection Convention.29

A key disagreement between two riparian states of the Danube River Basin, Romania and Ukraine, concerns the Bystroe Canal, a navigation project initiated by Ukraine in the early 2000s and still opposed by Romania today. The deep-water navigation canal runs from Vil-covo in Ukraine through the Danube Delta to the Black Sea and provides Ukraine with an additional, deeper navigation route through the delta—an alternative access to the Black Sea to the previously existing route through Romania. The Ukrainian government approved the project in 2004, aiming to strengthen the country’s transport sector and ultimately foster economic development.

Criticism of the project mainly concerned its potential environmental impacts on the Danube Delta—a UNESCO Transboundary Biosphere Reserve and a Ramsar site—and the fact that Ukraine had not conducted a comprehensive environmental impact assessment. An additional criticism—that would become the main component of the Bystroe disagreement—was the fact that Ukraine had not fully notified Romania or all Danube riparian states as it should have done under various instruments governing the Danube River Basin and the entire region, including the 1991 Espoo Convention. While Ukraine notified Romania of its intent to develop the project in 2002, it had not provided the required documentation (such as the environmental impact assessment, which was only finalized after the project had started already30). These concerns were first raised by Romania, but it was quickly joined by regional and international environmental nongovernmental organizations (NGOs) as well as third party governments.31

As a reaction to the start of project implementation, Romania submitted a complaint to the UNECE under the Espoo Convention and its Implementation Committee for alleged noncompliance by Ukraine with the convention and shortly thereafter requested the establishment of an Inquiry Commission. This was accepted by the UNECE, and a commission with experts from Ukraine and Romania and an independent international expert was established. The commission concluded in 2006 that the project was likely to have significant transboundary impacts.32 As Ukraine continued to deny the environmental impacts and continued with implementation, Romania submitted another request to the Espoo Implementation Committee in 2007. The committee reconfirmed that Ukraine needed to make stronger efforts to comply with the requirements of the Espoo Convention. This position was reconfirmed in yet another meeting of the Implementation Committee in 2009, as Ukraine continued project implementation and made significant progress, finalizing the project that year.33

The issue was not only addressed at the pan-European level in the context of the UNECE but also at other levels, including the basin level. The ICPDR, as the basin’s RBO, addressed this issue a number of times. For example, in 2003, at the ordinary meeting of the ICPDR, a statement was issued that emphasized that the ICPDR was “deeply concerned about possible transboundary environmental impacts”34 and therefore warned that continuous construction without proper assessments of the transboundary impacts was “contrary to the spirit and requirements of the Danube River Protection Convention.”35 In October the following year, the executive secretary of the ICPDR and a Hungarian national expert took part in a mission organized by the European Commission and the Espoo Convention to the Danube Delta. And in the 2004 ordinary meeting of the ICPDR (as well as in front of the ICPDR’s Standing Working Group), Ukraine presented a number of reports and assured the ICPDR that the recommendations issued by the Espoo Convention would be implemented.36 Romania also supported this. Based on this, the ICPDR agreed a number of resolutions, including inviting Ukraine to share additional information with all ICPDR contracting parties and requesting the executive secretary of the ICPDR to continue the dialogue with Ukraine and to monitor the implementation of Ukraine’s commitments.37 This was followed up again during the ICPDR’s Standing Working Group meeting in June 2005, when the ICPDR contracting parties, in rather strong language, again recalled Ukraine’s commitment to share information (including the environmental impact assessment for the second phase of the project) and to notify the ICPDR of future activities and the ICPDR’s involvement in their monitoring.38 In addition, the ICPDR president (its highest representative) was requested to approach Ukraine with these requests.39

In the following years, the ICPDR kept requesting Ukraine to provide additional information (including an adequate environmental impact assessment), displaying continuous engagement at the political level. At the same time, the ICPDR also got involved in a number of more technical activities that aimed at addressing the disagreement. These included conducting an assessment of available documentation to better understand the impacts of the canal (confirming the likelihood of negative environmental effects) and developing a sub-basin management plan for the Danube Delta. This aimed at ensuring the cooperative management of the delta by Ukraine and Romania, thus engaging them in cooperation rather than conflict.

Ultimately, Ukraine did comply with all international requirements and provided Romania as well as other states and international organizations with the required information, notified the second phase of the project, and implemented environmental mitigation and management measures. The project did thus ultimately comply with all legal and political requirements of the region. This did not eliminate Romanian concerns over the project but did contribute to a reduction in disagreements between both countries, as well as between Ukraine and the wider European community, and to cooperation being maintained.

The case of the Bystroe Canal shows both the complexities within disagreements over the use and management of shared water resources, and the role legal and institutional mechanisms—namely RBOs—can play in addressing them in a cooperative manner. Even if disagreements do not get fully solved—as the case of the Bystroe project shows—the embeddedness of the process of addressing agreements within a comprehensive regional legal and institutional political framework ensures that at no point in time is overall cooperation at stake between the concerned states.

This presents a stark contrast to other transboundary basins. The RBO in this case has played an important role in maintaining the political pressure while at the same time continuously offering technical inputs and maintaining an exchange at the technical level, ensuring ongoing dialogue between the disagreeing parties. This has made an important contribution to containing the disagreement within the overall legal and institutional framework and at a technical rather than a high political level. This ensured that the disagreement did not escalate to a level where national security considerations or other high politics dimensions would be linked to it, making a resolution much more difficult and an escalation beyond questions of water resources management much more likely. It thus presents a typical case of how disagreements over shared water resources are addressed in the pan-European context and the facilitating role RBOs play.

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