PART II TRANSBOUNDARY WATER GOVERNANCE IN THE EUROPEAN UNION:
Chapter 2 Transboundary water governance in the European Union
II.2.1. A distinct European model of transboundary water governance
II.2.2.2. The UNECE Water Convention
a) History
The overarching institutional framework for pan-European transboundary water cooperation has been created by the United Nations Economic Commission for Europe (UNECE), the UN’s
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regional body. Importantly, the UNECE region is not limited to the European continent as it also includes countries that emerged from the disintegration of the Soviet Union as well as the United States and Canada. Today, the UNECE has 56 member states359.
The UNECE has been active in the field of environmental policy since the 1960s. The current overarching political framework, the Environment for Europe process was launched in 1991 following the collapse of communism in Central and Eastern Europe. This process paved the way for the adoption of a range of landmark environmental conventions throughout the 1990s, such the 1991 (Espoo) Convention on Environmental Impact Assessment in a Transboundary Context, the 1992 (Helsinki) Convention on the Transboundary Effects of Industrial Accidents, the 1998 (Aarhus) Convention on Access to Information, Public Participation in Decision-making and Access to Justice on Environmental Matters or, indeed, the UNECE Water Convention itself360.
UNECE started to address selected water related problems as early as in the 1950s. Throughout the 1960s, 1970s and 1980s it has adopted a large number of recommendations, declarations and decisions addressing a range of water-related questions such as drinking water abstraction, water pollution, economic instruments of water governance, etc. As Alistair Rieu-Clarke, a monographer of UNECE water law, concludes this early body of non-binding instruments reflects “an evolution and consolidation of shared understanding […] on transboundary water challenges” that laid the foundations for the eventual adoption of the Water Convention itself361.
The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (“Water Convention”) was adopted in 1992 and entered into force in 1996.
It has two protocols – the 1999 Protocol on Water and Health and the 2003 Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters – of which the latter is not yet in force. The Convention was amended in 2003 (effective as of 2013) to allow the accession thereto by any member states of the United Nations outside the UNECE region362.
359 https://www.unece.org/oes/nutshell/member_states_representatives.html (accessed 12 February 2019).
360 Also see section I.4.3.2. above.
361 RIEU-CLARKE, Alistair (2015): Remarks on the Drafting History of the Convention. 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. 3-15, p. 5.
362 Amendment to Articles 25 and 26 of the Convention, ECE/MP.WAT/14.
97 b) Objectives
The Convention is based on a holistic approach towards transboundary waters. Thus, it requires parties to consider the broader implications of transboundary waters on human health, the environment and their economic and development policies in an integrated fashion363. Its main objectives comprise:
- the protection of transboundary waters (both surface and groundwater) by preventing, controlling and reducing transboundary impacts, including impacts on human health and safety, flora, fauna, soil, climate, landscape and historical monuments or other physical structures as well as impacts on the cultural heritage or socio-economic conditions;
- the ecologically sound and rational management of transboundary waters;
- the reasonable and equitable use of transboundary waters and therefore prevention of conflicts;
- conservation and restoration of ecosystems364.
In the pursuit of these objectives the Convention explicitly recognises the legal relevance of a number of basic environmental law principles such as the precautionary principle, the polluter-pays-principle and the principle of sustainable management of water resources365.
c) Core obligations
The Convention contains two major categories of obligations:
- general obligations: the first, more general, group of obligations apply to all parties and include such requirements as the authorisation and monitoring of wastewater discharges366; setting emission limits for discharges from point sources based on the best available technology367; the application of best environmental practices to reduce inputs of nutrients and hazardous substances from agriculture and other diffuse
363 Article, 1.2, UNECE Water Convention; BERNARDINI, Francesca (2015): The Normative and Institutional Evolution of the Convention. 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. 32-48, p. 32.
364 Articles 2, 3, UNECE Water Convention.
365 Article 2.5, ibid.
366 Article 3.1.b), Article 4, ibid.
367 Article 3.1.c), f), ibid.
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sources368; environmental impact assessment369; development of contingency plans370; setting of water-quality objectives371, and minimization of the risk of accidental water pollution372,
- obligations of riparian states: the second category of obligations is more specific and must be implemented by parties sharing transboundary waters. Thus, riparian states are obliged to conclude specific bilateral or multilateral agreements that create joint bodies373, to hold consultations concerning the shared watercourse374, to exchange information on the state of water bodies375, to provide mutual assistance in critical situations376, etc.
d) Operation and institutions
The framework nature and the flexible institutional set-up of the Convention permitted the parties to adopt comprehensive work programmes and a wide range of supporting instruments and mechanisms over the years. This has greatly contributed to the further development of the original principles and requirements of the Convention377. Thus, today, the Convention’s activities extend to such novel issues of water management as climate change or payment for ecosystem services, etc. To facilitate implementation strategic and technical guidelines have been developed under the Convention on specific issues such as monitoring, flood control or groundwater378. The UNECE Water Convention is supported by a robust institutional framework, including the regular meetings of the parties, an implementation (compliance) mechanism, various working and expert groups and a highly active secretariat379.
e) Evaluation
Following its entry into force, the Convention has quickly evolved into a full-fledged model platform for transboundary water cooperation that has pioneered on such critical areas as
368 Article 3.1.g), ibid.
369 Article 3.1.h), ibid.
370 Article 3.1.j), ibid.
371 Article 3.2, ibid.
372 Article 3.1. l), ibid.
373 Article 9.1-2, ibid.
374 Article 10, ibid.
375 Article 13, ibid.
376 Article 15, ibid.
377 BERNARDINI (2015) op. cit. p. 33.
378 Ibid.
379 MCCAFFREY (2016) op. cit. p. 35-36.
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transboundary groundwater management, climate adaptation or monitoring, water allocation, etc., receiving critical acclaim worldwide380. It is also widely recognised for its substantial contribution to the development of international water law381. Due to its compatible and complementary character vis-à-vis the UN Watercourses Convention the Convention today represents one of the fundamental building blocks of water governance not only within the European Union, but also on a global scale382.