Evolution of international water law in the European continent

The evolution of modern international water law predates the establishment of the European Union and its predecessors. In fact, the EU as a supranational political body has played a very limited role in the development of international water law. On other hand, some member states

342 KUIJPER (2013) op. cit. p. 601.

343 See section II.2.3.4. below.

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of the EU have been the unquestionable driving force behind many of the achievements the of today’s transboundary water governance.

The evolution of today’s vast body of water treaties in Europe was neither linear, nor free of controversies. In fact, as Götz Reichert, a monographer of EU water law, underlines early water treaties grew out of conflict-driven partial approaches³⁴⁴. Collaboration after World War II was not only impeded by strong sovereignty concepts, but also by the stark political division of the European continent. The mid1980s, however, brought about major improvements. In 1985 eight Danube riparian states – overcoming the east-west political divide – signed the Bucharest Declaration on the Cooperation of the Danube Countries on Problems of the Danube Water Management. The Declaration acknowledged the pressing environmental problems in the Danube basin and committed the countries to integrated water resources management³⁴⁵. A similarly important trigger was the 1986 Sandoz accident in Switzerland on the Rhine whose devastating ecological impacts led to a paradigm shift towards ecosystem-oriented, holistic governance approaches all over Europe³⁴⁶.

The fall of the Iron Curtain in 1989-1990 injected fresh impetus into the institutionalisation of transboundary cooperation. The first example of the ensuing treaty-making was the adoption of Elbe Convention³⁴⁷ by Germany, Czech Republic and the European Economic Community as early as in 1990. The year 1992 marked the adoption of the UNECE Water Convention³⁴⁸ that not only provided a solid and durable legal framework for transboundary cooperation for the European continent and beyond, but also required the conclusion of specific basin agreements by parties. This resulted in a new wave of regional treaty-making since the mid1990s. The most notable examples include the Danube Convention (1994)³⁴⁹, the Scheldt Agreement³⁵⁰, the Meuse Agreement³⁵¹ and the Oder Convention³⁵² (1996), the Spanish-Portuguese Basins

344 REICHERT, Götz (2016): Transboundary Water Cooperation in Europe: A Successful Multidimensional Regime? Leiden, Boston, Brill Nijhoff, p. 8-14.

345 MOYNIHAN, Ruby (2015): The Contribution of the UNECE Water Regime to Transboundary Cooperation in the Danube River Basin. In TANZI, Attila et al. (Eds.): The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes – Its Contribution to International Water Cooperation, Leiden, Boston, Brill Nijhoff, pp. 296-307, p.302.

346 REICHERT (2016) op. cit. p. 12.

347 Convention on the International Commission for the Protection of the Elbe, Magdeburg, 8 October 1990.

348 See section II.2.2.2. below.

349 Convention on Cooperation for the Protection and Sustainable Use of the Danube, Sofia, 29 June 1994.

350 Agreement on the Protection of the River Scheldt, Charleville Mezieres, 26 April 1994.

351 Agreement on the Protection of the River Meuse, Charleville Mezieres, 26 April 1994.

352 Convention on the International Commission for the Protection of the Oder, Wroclaw, 11 April 1996.

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Convention³⁵³ (Albufeira Convention, 1998), the new Rhine Convention³⁵⁴ (1999), the Sava Framework Agreement³⁵⁵ (2002) or the Lake Ohrid Agreement³⁵⁶ (2004). Most recently, treaty-making (or revision) at basin level has been influenced by the EU’s Water Framework Directive whose planning and monitoring requirements have been incorporated into the text or work programme of the relevant international agreements and basin organisations³⁵⁷. This evolutionary curve, largely determined by the persistent pollution problems of the 1970s and 1980s, has left a lasting impact on water law within the European Union, resulting in a strong ecological/qualitative focus with water quantity-related or economic issues playing only a marginal role.

Naturally, below basin or sub-basin level riparian states had engaged in formal transboundary water cooperation well before the emergence of the above major basin treaties or the UNECE Water Convention. Bilateral instruments comprise of (comprehensive or partial) water frontier treaties , joint water infrastructure and development treaties, agreements on special water uses, etc.³⁵⁸ Remarkably, such treaties were concluded in large numbers by parties on opposite sides of the Iron Curtain.

Today, EU countries and their neighbours are interconnected by an extensive web of multi- and bilateral treaties. On top of European system of international water law sits the UNECE Water Convention. This is supplemented by basin treaties, sub-basin treaties, comprehensive bilateral water treaties, as well as bilateral treaties covering single transboundary water bodies or particular issues. As Figure 12 show this adds up to an almost seamless treaty coverage of all international river basins situated within or shared by the EU.

353 Convention on the Co-operation for the Protection and the Sustainable Use of the Waters of the Luso-Spanish River Basins, Albufeira, 30 November 1998 (Convenio sobre cooperación para la protección y el aprovechamiento sostenible de las aguas de las cuencas hidrográficas hispanoportuguesas)

354 Convention on the Protection of the Rhine, Bern, 12 April 1999.

355 Framework Agreement on the Sava River Basin, Kranjska Gora, 3 December 2002.

356Agreement between the Council of Ministers of the Republic of Albania and the Government of the Republic of Macedonia for the protection and sustainable development of Lake Ohrid and its watershed, Skopje, 17 June 2004.

357 REICHERT (2016) op. cit. p. 91.

358 See section II.2.2.4. below.

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Figure 12: Map of EU river basin districts indicating transboundary cooperation

Source:

http://ec.europa.eu/environment/water/water-framework/facts_figures/pdf/Transboundary-cooperation-%202012.pdf (accessed 12 February 2019)