132
10 The Resilience of Transboundary Water Governance …
the concerned riparian states themselves. All the more so as this complacent approach
is practically ossified in legal terms, as the restrictive unanimity requirement under
the Treaty on the Functioning of the European Union renders it almost impossible
to adopt water sharing rules at EU level. As a result, legal literature and political
discourse on European water governance almost completely ignores the issue of
transboundary water allocation or downplays its significance. Götz Reichert even
sees such “bileteralisation” as a guarantee of (upstream) sovereignty underlining
that “it seems appropriate not to allow an affected Member State to be overruled on
such a potentially contentious issue” since “with regard to the delicate decision on
water apportionment […] it seems more suitable […] to leave it to the regulation of
the actually affected riparian states within the domain of international water law”
(Reichert 2016).
Such complacency seems to be ill-founded on several grounds.
First, while most regions of the European Union have, thus far, been spared
from dramatic water shortages caused by extreme droughts, over-abstraction or flow
manipulation, all relevant studies project that water quantity fluctuations with significant transboundary repercussions are on the rise (see Table 7.1). In other words:
transboundary water allocation may not have been a contentious issue historically,
but it is likely to become so in the foreseeable future. Against this background,
the absence of allocation mechanisms in the EU bodes significantly for increased
hydropolitical vulnerability.
Second, EU countries and their immediate neighbours share some of the geographically most complicated river basins in the world, characterised by relatively
short streams and high numbers of riparian states. As a result, should major changes
emerge in flow volumes and/or in the timing of flow release in a given basin, their
consequences are likely to cascade through a large number of countries within a
short period of time. Thus water allocation challenges tend to have a basin-wide,
rather than bilateral scope, multiplying the political complexity of the question (see
the statement of the UNECE Task Force on Water and Climate, Sect. 10.1.3).
Third, given the dominance of water quality and ecological requirements at
UNECE, EU and basin level, EU states are subject to a gross regulatory asymmetry.
On the one hand, they have to comply, individually and collectively, with uniform and
precise water quality requirements whose implementation cannot be separated from
the sufficient availability of water. On the other hand, EU water law, especially the
WFD, takes hardly any notice of the growing competition for water resources either
internally or in a transboundary context (Zikos and Hagedorn 2017). Consequently,
member states are almost completely deprived of legal rights and mechanisms to
demand that the necessary amount of water is made available to them. As a result,
countries with high exposure to exogenous water sources may infringe their EU and
international water quality obligations for the lack of sufficient volumes despite their
best intentions and efforts.
Finally, the complacent official view of EU institutions and some basin organisations suggest that they grossly ignore or downplay the highly contentious nature of
water allocation negotiations. While Europe has not recently seen the type of colourful, widely mediatised disputes (“water wars”) that frequently occur in the western or
10 The Resilience of Transboundary Water Governance …
the concerned riparian states themselves. All the more so as this complacent approach
is practically ossified in legal terms, as the restrictive unanimity requirement under
the Treaty on the Functioning of the European Union renders it almost impossible
to adopt water sharing rules at EU level. As a result, legal literature and political
discourse on European water governance almost completely ignores the issue of
transboundary water allocation or downplays its significance. Götz Reichert even
sees such “bileteralisation” as a guarantee of (upstream) sovereignty underlining
that “it seems appropriate not to allow an affected Member State to be overruled on
such a potentially contentious issue” since “with regard to the delicate decision on
water apportionment […] it seems more suitable […] to leave it to the regulation of
the actually affected riparian states within the domain of international water law”
(Reichert 2016).
Such complacency seems to be ill-founded on several grounds.
First, while most regions of the European Union have, thus far, been spared
from dramatic water shortages caused by extreme droughts, over-abstraction or flow
manipulation, all relevant studies project that water quantity fluctuations with significant transboundary repercussions are on the rise (see Table 7.1). In other words:
transboundary water allocation may not have been a contentious issue historically,
but it is likely to become so in the foreseeable future. Against this background,
the absence of allocation mechanisms in the EU bodes significantly for increased
hydropolitical vulnerability.
Second, EU countries and their immediate neighbours share some of the geographically most complicated river basins in the world, characterised by relatively
short streams and high numbers of riparian states. As a result, should major changes
emerge in flow volumes and/or in the timing of flow release in a given basin, their
consequences are likely to cascade through a large number of countries within a
short period of time. Thus water allocation challenges tend to have a basin-wide,
rather than bilateral scope, multiplying the political complexity of the question (see
the statement of the UNECE Task Force on Water and Climate, Sect. 10.1.3).
Third, given the dominance of water quality and ecological requirements at
UNECE, EU and basin level, EU states are subject to a gross regulatory asymmetry.
On the one hand, they have to comply, individually and collectively, with uniform and
precise water quality requirements whose implementation cannot be separated from
the sufficient availability of water. On the other hand, EU water law, especially the
WFD, takes hardly any notice of the growing competition for water resources either
internally or in a transboundary context (Zikos and Hagedorn 2017). Consequently,
member states are almost completely deprived of legal rights and mechanisms to
demand that the necessary amount of water is made available to them. As a result,
countries with high exposure to exogenous water sources may infringe their EU and
international water quality obligations for the lack of sufficient volumes despite their
best intentions and efforts.
Finally, the complacent official view of EU institutions and some basin organisations suggest that they grossly ignore or downplay the highly contentious nature of
water allocation negotiations. While Europe has not recently seen the type of colourful, widely mediatised disputes (“water wars”) that frequently occur in the western or