Coordination among the different levels and actors of transboundary water

The multiplicity of governance layers can enhance resilience as it allows flexibility to develop policy measures at the scale most appropriate for the problem⁸⁹⁴. In order, however, to achieve the optimal outcome, coordination among the various players must be ensured both horizontally and vertically.

893 See section II.2.4. above.

894 GREEN et al. (2013) op. cit. p. 12.

196

Obviously, the nature and intensity of coordination depends predominantly on the legal relationship among the relevant actors. Where the legal link is weak or missing between the various decision-makers of transboundary water governance, the coordination also tends to be weak or non-existent. In such cases, coordination is left to the mutual political will of the relevant actors. Contrariwise, coordination tends to be robust and meaningful where the relationship among the various actors is based on a solid legal instrument.

III.3.3.1. Horizontal coordination

As regards horizontal coordination the most relevant relationship is the one between the two relevant policy-making bodies: the UNECE and the European Union. As discussed extensively above, the interplay of the two regimes is characterised by the clear dominance of EU water law and policy⁸⁹⁵. Although the European Union and its member states constitute the largest group among the parties to the UNECE Water Convention, the political engagement of the European Commission – the external representative of the EU – in the work of the Convention bodies remains limited. According to the publicly available documents of the large number of relevant meetings held by the UNECE (minutes, lists of participants, etc.) the European Commission is present only at a selected number of events. Even if present, it hardly makes significant contribution to the deliberations⁸⁹⁶. This goes against the repeated invitation of Convention bodies to strengthen the cooperation between the EU and the UNECE in the field of water policy⁸⁹⁷. On the other hand, none of the Convention bodies have any formal role in the formulation of EU water policy and law, let alone its implementation. Consequently, the institutional interaction between the relevant EU and UNECE bodies remains limited, with almost no coordination whatsoever on their work programme, implementation experience, etc.

This is a serious shortcoming as the lack of overall synchronisation between these two universally praised regimes leads to suboptimal practical outcomes on either side: the EU fails to directly benefit from the dynamic and problem-oriented work programme of the Convention, whereas the Convention bodies cannot directly rely on the wealth of experience accumulated by the European Commission in the implementation of decades of EU water law and policy. It must be pointed out, however, that there have been a number of issue-specific areas – e.g. the

895 See section II.2.4. above.

896 See the relevant meeting documents at: https://www.unece.org/environmental-policy/conventions/water/envwatermeetings.html#/ (accessed 12 February 2019).

897 UNECE Report on the Workshop on Approaches and Tools for River Basin Management: Experience Drawn from the Implementation of the EU Water Framework Directive, MP.WAT/WG.1/2001/8.

197

implementation of the EU’s Water Initiative⁸⁹⁸ or the preparation of certain technical and expert documents⁸⁹⁹ – where the mutual benefits of cooperation have been successfully realised between the two entities.

An additional critical segment of horizontal coordination is the interaction between riparian states. As shown in Part II, EU member states are inter-linked through an almost seamless web of multilateral and bilateral cooperation treaties⁹⁰⁰. These all contain institutional arrangements that create a framework for formal cooperation. Although, the level of actual interaction very much depends on the scope and character of the given treaty and the political willingness of the riparian states concerned, each EU member state can expect and even enforce a certain degree of cooperation vis-à-vis its fellow riparians. Yet, as the experience of the first implementation cycle of the WFD confirms, horizontal coordination among member states is often inconsistent⁹⁰¹.

III.3.3.2. Vertical coordination

Vertical coordination among the various actors of transboundary water governance seems more comprehensive. The UNECE maintains an intense and structured relationship with bodies operating at basin or bilateral level. Given that the establishment of “joint bodies” is a core obligation under the UNECE Water Convention, the Convention bodies pay particular attention to the activity of the formal institutions of co-riparian cooperation, e.g. by way of providing assistance to the their establishment, operation, promoting inter-RBO coordination, allowing participation in various Convention meetings and events, etc.⁹⁰² In turn, the various basin commissions take an active part in the practical implementation of the Convention⁹⁰³.

As regards basin treaties and organisations, the EU itself seems to be more engaging as well.

The EU is party to the Rhine and the Danube Conventions. Therefore, the European Commission follows the activity of the two relevant basin commissions closely. In turn, as shown above, all basin organisations within the EU actively participate in the implementation

898 https://www.unece.org/env/water/npd.html (accessed 12 February 2019).

899 http://www.unece.org/index.php?id=45241 (accessed 12 February 2019).

900 See Figure 12 above.

901 GREEN et al. (2013) op. cit. p. 13.

902 http://www.unece.org/env/water/workshop_joint_bodies_2013.html,

http://www.unece.org/env/water/joint_bodies_workshop_2014.html (accessed 12 February 2019).

903 JEKEL (2015) op. cit. p. 235-248.

198

of the Water Framework Directive⁹⁰⁴, providing a direct link between the EU and basin-wide activities. Occasionally, the EU actively relies on the support of basin organisation. As regards the Danube, for instance, the European Commission, has, over the past two decades, launched a number of initiatives – such as the Danube-Black Sea Task Force (2001)⁹⁰⁵ or the EU’s Danube Region Strategy (2011)⁹⁰⁶ – in whose implementation the International Commission for the Protection of the Danube has played an important part. Yet, given the rigid structure of EU decision-making none of the basin organisations at issue have any official role in the formulation of EU water law and policy.

Finally, mention also must be made of the coordination between EU institutions and member states. Here, the relationship is based on Treaty on the Functioning of the European Union and secondary EU legislation. In terms of formal decision-making member states – through the Council of the European Union – strongly influence the adoption of legal and policy instruments relevant for transboundary cooperation. At the level of implementation the network of EU water directors also play an important role besides the European Commission, even though their activity is not based the primary or secondary law of the EU, but on an autonomous initiative of the European Commission⁹⁰⁷. Equally powerful is the impact of the Commission on national water policy. Through the systematic supervision of the implementation of EU law, the Commission can enforce the legal requirements of transboundary cooperation and, to a lesser extent, can mediate co-riparian disputes⁹⁰⁸. In summary, vertical interaction between EU institutions and member states is robust, lively and reciprocal in nature.