126
10 The Resilience of Transboundary Water Governance …
no-harm rule, incorporated into EU law through the backdoor of the UNECE Water
Convention (Baranyai 2015).
10.1.3.2 UNECE Law
The UNECE Water Convention
15 does not explicitly address the transboundary allocation of water resources either. It does, however, contain a number of important
provisions that provide useful guidance to riparian states when it comes to water
quantity management. Also, in an important region of the UNECE—notably: Central Asia—the Water Convention has played a key role in pacifying co-riparian relations characterised by highly political allocation disputes. Finally, the Convention
bodies have lately started to address the quantitative aspects of transboundary water
governance in an open spirit. Consequently, while both EU law and the Water Convention are primarily driven by quality considerations, the UNECE regime seems
to go much further in accommodating quantitative aspects of water management,
including transboundary allocation.
First and foremost, the Convention requires riparian states to “ensure that transboundary waters are used in a reasonable and equitable way, taking into particular
account their transboundary character, in the case of activities which cause or likely
to cause transboundary impact” (Art. 2.2.c)) (emphasis added). The Convention
defines “transboundary impact” broadly, i.e. covering not only significant ecological impacts, but also “effects on socio-economic conditions” caused by alterations in
river flow (Art. 1.2.). The official Guide to the Convention further specifies that “a real
impairment of [any] significant use” must be construed to be covered by the Convention definition (UNECE 2013a), underlining that such impairment can relate not only
to public health or the environment, but also to industry or property, i.e. economic
uses of water (McIntyre 2015). Importantly, unlike its UN counterpart, the UNECE
Water Convention does not specify the conditions that are relevant to equitable and
reasonable utilisation. To bridge that gap, however, the Guide refers to Article 6.1.
of the UN Watercourses Convention that enlists a range of relevant non-ecological
factors, such as the social and economic needs of the watercourse states concerned,
the population dependent on the watercourse, and other existing and potential uses
as well as establishes the relative precedence of vital human needs in case of conflict
among conflicting uses (UNECE 2013a). In summary, the UNECE Water Convention does cover the quantitative aspects of transboundary water management under
the equitable and reasonable utilisation principle as it is complemented by the “noharm” rule (Art. 2.1.). Although the Convention does not specify direct allocation
rules or mechanisms, it nonetheless goes beyond ordinary EU law as it recognises
the importance water quantity management on equal footing with quality control and
15 Convention on the Protection and Use of Transboundary Watercourses and Lakes, Helsinki, 17
March 1992.
10 The Resilience of Transboundary Water Governance …
no-harm rule, incorporated into EU law through the backdoor of the UNECE Water
Convention (Baranyai 2015).
10.1.3.2 UNECE Law
The UNECE Water Convention
15 does not explicitly address the transboundary allocation of water resources either. It does, however, contain a number of important
provisions that provide useful guidance to riparian states when it comes to water
quantity management. Also, in an important region of the UNECE—notably: Central Asia—the Water Convention has played a key role in pacifying co-riparian relations characterised by highly political allocation disputes. Finally, the Convention
bodies have lately started to address the quantitative aspects of transboundary water
governance in an open spirit. Consequently, while both EU law and the Water Convention are primarily driven by quality considerations, the UNECE regime seems
to go much further in accommodating quantitative aspects of water management,
including transboundary allocation.
First and foremost, the Convention requires riparian states to “ensure that transboundary waters are used in a reasonable and equitable way, taking into particular
account their transboundary character, in the case of activities which cause or likely
to cause transboundary impact” (Art. 2.2.c)) (emphasis added). The Convention
defines “transboundary impact” broadly, i.e. covering not only significant ecological impacts, but also “effects on socio-economic conditions” caused by alterations in
river flow (Art. 1.2.). The official Guide to the Convention further specifies that “a real
impairment of [any] significant use” must be construed to be covered by the Convention definition (UNECE 2013a), underlining that such impairment can relate not only
to public health or the environment, but also to industry or property, i.e. economic
uses of water (McIntyre 2015). Importantly, unlike its UN counterpart, the UNECE
Water Convention does not specify the conditions that are relevant to equitable and
reasonable utilisation. To bridge that gap, however, the Guide refers to Article 6.1.
of the UN Watercourses Convention that enlists a range of relevant non-ecological
factors, such as the social and economic needs of the watercourse states concerned,
the population dependent on the watercourse, and other existing and potential uses
as well as establishes the relative precedence of vital human needs in case of conflict
among conflicting uses (UNECE 2013a). In summary, the UNECE Water Convention does cover the quantitative aspects of transboundary water management under
the equitable and reasonable utilisation principle as it is complemented by the “noharm” rule (Art. 2.1.). Although the Convention does not specify direct allocation
rules or mechanisms, it nonetheless goes beyond ordinary EU law as it recognises
the importance water quantity management on equal footing with quality control and
15 Convention on the Protection and Use of Transboundary Watercourses and Lakes, Helsinki, 17
March 1992.