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Transboundary River Basin Management in Europe Legal Transboundary river basin management in Europe Legal instruments to comply with European water management obligations in case of transboundary water pollution and floods Andrea M. Keessen, Jasper J.H. van Kempen & Helena F.M.W. van Rijswick* 1. Introduction Modern water policy is shaped by geographical areas in the context of which water courses are divided into river basins. This is reflected on an international level by treaties such as the 1992 Convention on the Protection and Use of Transboundary Watercourses and International lakes (the Helsinki Convention),1 and at the European level by the Water Framework Directive (the WFD)2 and the Floods Directive.3 An interesting feature of modern water law, particularly on a European level, is that it aims to achieve a specific ‘status.’ This implies that ground water and surface water in the river basin should be in a certain ‘good status’ under the WFD, while the Floods Directive stipulates that flood risks should be manageable in order to reduce the risk as well as the consequences of a flood for humans, the environment, cultural heritage and the economy.4 The obligations arising from the European water directives are, in principle, aimed at a certain result to be achieved by each individual Member State.5 Due to the transboundary nature of water management, these objectives can only be achieved, however, if the parties located in a transnational river basin (EU Member States and non-Member States) cooperate. The combina- tion of, on the one hand, the geographical area approach which requires Member States to cooperate (even with third countries, if need be) and, on the other, objectives that have to be met by each Member State individually, leads to a fragile balance as a result of which it is not clear whether Member States can be held responsible for not achieving the objectives due to reasons over which they do not have complete control. To put it differently: Member States can manage * Andrea Keessen is a University Lecturer and Researcher, email: [email protected]. Jasper van Kempen is a PhD Candidate, email: [email protected]. Marleen van Rijswick is Professor of European and Dutch Water Law, email: [email protected]. All three authors work at the Centre for Environmental Law and Policy/NILOS, Utrecht University (the Netherlands). The authors would like to thank Harm Dotinga for his helpful remarks on this article. 1 In force since 6 October 1996; 31 ILM 1312 (1992). 2 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22.12.2000, p. 1. 3 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks, OJ L 288, 6.11.2007, p. 27. 4 Cf. the objective of the Marine Strategy Framework Directive (Directive 2008/56/EC, OJ L 164, 25.6.2008, p. 19) is a ‘good environmental status’ for marine regions. 5 Art. 249 EC Treaty. http://www.utrechtlawreview.org/ Volume 4, Issue 3 (December) 2008 35 ANDREA M. KEESSEN, JASPER J.H. VAN KEMPEN & HELENA F.M.W. VAN RIJSWICK water that fails to meet the quality requirements without this failure being (completely) attribut- able to events taking place on their own territory.6 There may be several reasons why a Member State is not able to meet its own obligations arising from a water directive. One can think in this context of international cooperation within a river basin that does not achieve the intended results in time, and particularly regarding the WFD one also can think of the inability of EU Member States to take the measures required in other policy fields because they lack the adequate powers to do so (agricultural policy, fisheries policy, admission of products for e.g. medicinal products and pesticides). In the latter case (lack of adequate powers) it means that Member States have to rely on initiatives taken by Community institutions.7 The WFD does not provide for an exemption in these cases, and neither does the Floods Directive.8 This means that it is doubtful whether a Member State will be able to defend itself by (partly) shifting the blame onto another (Member) State. After all, a Member State is responsible for its own waters. As the new water directives, and the WFD in particular, focus primarily on the achievement of a specific objective, it is of the utmost importance to know exactly which possibilities are available to central or decentralised government bodies in order to meet these obligations in cases of transboundary water pollution or increased flood risk. This article addresses the legal instru- ments which Member States and (decentralised) water authorities have at their disposal in this respect to meet their European obligations and thus shape transboundary river basin management. First of all, we will discuss aspects of transboundary cooperation aimed at combating transboundary water pollution and floods within river basins, including instruments to create such cooperation (Section 2) and ways of effectively implementing this cooperation (Section 3). Subsequently (Section 4), the article will address the remedies Member States and decentralised water authorities have at their disposal to enforce the said cooperation, ranging from international dispute settlements (Section 4.1) to European procedures (Section 4.2) and domestic administra- tive procedures (Section 4.3). If the cooperation and the enforcement of compliance fail, a downstream Member State will have to make an extra effort to meet its obligations under European water directives. It may need extra water treatment capacity or water storage to meet its obligations to achieve a specific result. Obviously, that Member State incurs additional expenses. Moreover, the continuation of transboundary water problems may lead to a complete failure to meet its European obligations and, as a result, the Member State will be liable for damages towards the European Community. That is why we conclude the article with a description of a possible remedy which Member States or water authorities have at their disposal to seek damages from another Member State or a foreign decentralised government body in a civil lawsuit before a domestic court (Section 5). Here, we will discuss issues such as the jurisdiction of the domestic court under public interna- tional and private international law (Section 5.1), the applicable law (Section 5.2) and the effects of EU law on the assessment of liability (Section 5.3). 6 For a further discussion on this topic see H. van Rijswick, Moving Water and the Law. On the Distribution of Water Rights and Water Duties within River Basins in European and Dutch Water Law, 2008. 7 We will not discuss this issue here. Cf. M. Montforts et al., ‘Legal constraints in EU product labelling to mitigate the environmental risk of veterinary medicines at use’, 2004 Regulatory Toxicology and Pharmacology 40, no. 3, pp. 327-335; M. Montforts et al., De relatie tussen productregistratie en waterkwaliteitsregelgeving: geneesmiddelen, diergeneesmiddelen en veevoederadditieven, 2006, Report of the Netherlands National Institute for Administrative Health and the Environment, with a summary in English; H. van Rijswick et al., ‘The Influence of Environmental Quality Standards and the River Basin Approach taken in the Water Framework Directive on the Authorisation of Plant Protection Products’, 2008 European Energy and Environmental Law Review, pp. 78-89. 8 By contrast, the Marine Strategy Framework Directive and the Directive on Priority Substances (Proposal for a Directive of the European Parliament and of the Council on environmental quality standards in the field of water policy and amending Directive 2000/60/EC, COM(2006) 398 final) recognise such an exception in the event of pollution originating abroad. 36 Transboundary river basin management in Europe The article will end with some concluding remarks about the legal instruments we have discussed and the possibility to seek damages if these instruments fail (Section 6). 2. Creating transboundary cooperation The WFD, and in its wake the Floods Directive, compel Member States to institutionally embed consultations between Member States on how to meet the objectives of the WFD for the entire river basin.9 Member States are required to create a river basin district for each river basin, which includes the incorporation of the necessary administrative regulations and the appointment of an appropriate competent body.10 A river basin may cover the territories of more than one Member State. If this is the case, the Member States involved should cooperate within an international river basin district for which they can use existing structures which have been put in place by virtue of international agreements.11 This means that Member States can choose from several alternatives regarding their cooperation with other Member States within a river basin. We would like to make the distinction between, on the one hand, forms of cooperation that are more suitable for large rivers and, on the other, forms of cooperation developed for regional transboundary cooperation regarding water management of smaller rivers and waters. The WFD and the Floods Directive also aim at cooperation within an international river basin district when the river basin extends beyond the territory of the Member States.12 The Rhine and Danube are examples of rivers that extend beyond the EU’s territory. A river basin which extends beyond the EU leads to complications because third countries cannot be compelled to implement the WFD and Floods Directive. This does not mean, however, that third countries are unwilling to support the creation of an international river basin district or meet the objectives laid down in these directives.
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