8.4 The Interplay Among the Various Layers ...
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community spirit of riparian states envisaged by the directive, but also by upstream
dependence on the benefits of downstream action, such as improved fish migration
or flood prevention (Moellenkamp 2007).
Yet, the question of the efficiency of EU transboundary water governance characterised by multiple and overlapping layers naturally arises. Do these regimes compete, cooperate or helpfully complement one another? Is there a dominant regime
with hegemonic ambitions? In other words: does the nature of the interplay among
the various layers of transboundary water governance display signs of positive crossfertilisation or deadly cannibalisation by the dominant regime?
The question whether or not one particular regime dominates transboundary water
governance among EU member states seems relatively easy to answer. Yes, the EU’s
relevant legal instruments, in particular the Water Framework Directive, clearly dominate contemporary co-riparian relations in the bloc. Indeed, the regulatory philosophy
of the WFD and the close practical cooperation its implementation requires created
a new cohesion and dynamics among EU member states that is probably unique in
its kind all over the world (Moellenkamp 2007). This shift of trend and focus is
eloquently illustrated by the WFD’s growing influence on international water agreements and river basin organisations within the EU. As shown above, by now all river
commissions in Europe placed the basin-wide planning, coordination and monitoring
tasks flowing from the WFD at the core of their work programme (see Sect. 8.2.3).
In the case of the Meuse even a new basin treaty was adopted for the implementation
of the Water Framework Directive, practically side-lining all other transboundary
issues. In a probably less conspicuous fashion the UNECE Water Convention has
also extensively drawn on the WFD. As Francesca Bernardini notes: “many of the
soft-law instruments, guidelines and recommendations developed under the Convention were inspired by the Directive and based on the experience of the EU parties
with its implementation” (Bernardini 2015).
More difficult is to answer the question whether the dominance of EU directives in the European transboundary governance scene leads to a mutually beneficial
reinforcement of all affected regimes or to the gradual erosion of the weaker ones.
Indeed, in the context of bilateral water treaties the WFD did bring new focus and
impetus as many such bilateral treaties have been revised as a result of the new obligations introduced by the WFD. Even, the WFD was often used as a pretext to revisit
old and outdated water agreements whose long overdue revision was systematically
blocked by a complacent (typically: upstream) riparian state (see Sect. 8.2.4).
Less positive is the picture when it comes to the relationship between the EU’s
own regime and the UNECE Water Convention despite the fact that the constitutional
hierarchy between the two regimes is crystal clear. Not only does the Water Convention sit higher on the EU’s legal order that the directive, the preamble to the WFD
explicitly defines the directive as one of the implementing measures of the Convention (Recitals (23) and (35)). The approach of the European Commission, however,
suggests that it largely ignores or downplays the importance of the UNECE Water
Convention as an instrument whose practical value has, supposedly, been superseded
by the Water Framework Directive (see Sect. 11.3.1). This is somewhat surprising
in view of the fact that EU member states can greatly benefit from the Convention,
107
community spirit of riparian states envisaged by the directive, but also by upstream
dependence on the benefits of downstream action, such as improved fish migration
or flood prevention (Moellenkamp 2007).
Yet, the question of the efficiency of EU transboundary water governance characterised by multiple and overlapping layers naturally arises. Do these regimes compete, cooperate or helpfully complement one another? Is there a dominant regime
with hegemonic ambitions? In other words: does the nature of the interplay among
the various layers of transboundary water governance display signs of positive crossfertilisation or deadly cannibalisation by the dominant regime?
The question whether or not one particular regime dominates transboundary water
governance among EU member states seems relatively easy to answer. Yes, the EU’s
relevant legal instruments, in particular the Water Framework Directive, clearly dominate contemporary co-riparian relations in the bloc. Indeed, the regulatory philosophy
of the WFD and the close practical cooperation its implementation requires created
a new cohesion and dynamics among EU member states that is probably unique in
its kind all over the world (Moellenkamp 2007). This shift of trend and focus is
eloquently illustrated by the WFD’s growing influence on international water agreements and river basin organisations within the EU. As shown above, by now all river
commissions in Europe placed the basin-wide planning, coordination and monitoring
tasks flowing from the WFD at the core of their work programme (see Sect. 8.2.3).
In the case of the Meuse even a new basin treaty was adopted for the implementation
of the Water Framework Directive, practically side-lining all other transboundary
issues. In a probably less conspicuous fashion the UNECE Water Convention has
also extensively drawn on the WFD. As Francesca Bernardini notes: “many of the
soft-law instruments, guidelines and recommendations developed under the Convention were inspired by the Directive and based on the experience of the EU parties
with its implementation” (Bernardini 2015).
More difficult is to answer the question whether the dominance of EU directives in the European transboundary governance scene leads to a mutually beneficial
reinforcement of all affected regimes or to the gradual erosion of the weaker ones.
Indeed, in the context of bilateral water treaties the WFD did bring new focus and
impetus as many such bilateral treaties have been revised as a result of the new obligations introduced by the WFD. Even, the WFD was often used as a pretext to revisit
old and outdated water agreements whose long overdue revision was systematically
blocked by a complacent (typically: upstream) riparian state (see Sect. 8.2.4).
Less positive is the picture when it comes to the relationship between the EU’s
own regime and the UNECE Water Convention despite the fact that the constitutional
hierarchy between the two regimes is crystal clear. Not only does the Water Convention sit higher on the EU’s legal order that the directive, the preamble to the WFD
explicitly defines the directive as one of the implementing measures of the Convention (Recitals (23) and (35)). The approach of the European Commission, however,
suggests that it largely ignores or downplays the importance of the UNECE Water
Convention as an instrument whose practical value has, supposedly, been superseded
by the Water Framework Directive (see Sect. 11.3.1). This is somewhat surprising
in view of the fact that EU member states can greatly benefit from the Convention,