10.3 Cooperation Over Planned Measures
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10.3.3.3 Multilateral Basin Treaties
The relevant multilateral basin treaties address the issue of planned measures in
a highly inconsistent fashion with no identifiable regulatory pattern. The earliest
relevant instrument, the Elbe Convention covers planned measures only indirectly, in
so far as it tasks the Commission for the Protection of the Elbe to “discuss planned […]
types of utilisation of the waters which may have serious international repercussions,
including hydraulic structures and regulation of the waters” (Art. 2.1.k)). The same
language is contained in its sister agreement, the Oder Convention (Art. 2.1.j)). In a
similar fashion, the Meuse Agreement mentions planned interventions only in relation
to the responsibilities of the International Commission of the Meuse. The Agreement
calls on the Commission to “strengthen the exchange of information and opinions
[…] concerning projects subject to environmental impact assessment […] that may
have a significant transboundary impact” (Art. 4.4.g)). The Rhine Convention does
not mention the issue even indirectly. These noticeable lacunas, however, do not
have any practical importance as the relevant riparian states are either EU members
or parties to the Espoo Convention.
Against this background the Danube Convention constitutes an outlier in so far as it
creates a sui generis basin-wide notification mechanism. The Convention specifically
covers “planned activities […] and measures as far as they cause or are likely to cause
transboundary impacts” and defines them very broadly (Art. 3.2.). These planned
measures and activities have to be reported to the ICPDR (Art. 10.). If no other
bilateral or multilateral mechanism is triggered by the affected states, the affected
riparian(s) may request a consultation with the state of origin. As a general rule,
such a consultation must take place in the framework of the ICPDR “with the aim to
achieve a solution” (Art. 11.1.). During the consultation period authorisation of the
project must be suspended. Should consultations fail to deliver a mutually acceptable
solution within one year, the state of origin may go ahead with the project regardless
of objections by other riparians (Art. 11.2.).
Even more rigorous is the Sava Framework Agreement. It considers cooperation
over planned measures such a priority that it calls for the adoption of a specific
protocol regulating the issuance of permits for installations and activities that “may
have a transboundary impact on the integrity of the water regime” (Art. 9.2.). While
such protocol has never been produced, the parties to the Framework Agreement
can still rely on the procedures of the Danube Protection Convention, the Espoo
Convention or (partially) EU law.
10.3.3.4 Bilateral Water Treaties
Cooperation concerning planned measures has been a key feature of bilateral water
treaties in Europe from the outset. Even, some of the earliest water frontier treaties
required not only notification and consultation, but also the consent of the other
riparian to major works that affected water quantity or quality in the relevant frontier
145
10.3.3.3 Multilateral Basin Treaties
The relevant multilateral basin treaties address the issue of planned measures in
a highly inconsistent fashion with no identifiable regulatory pattern. The earliest
relevant instrument, the Elbe Convention covers planned measures only indirectly, in
so far as it tasks the Commission for the Protection of the Elbe to “discuss planned […]
types of utilisation of the waters which may have serious international repercussions,
including hydraulic structures and regulation of the waters” (Art. 2.1.k)). The same
language is contained in its sister agreement, the Oder Convention (Art. 2.1.j)). In a
similar fashion, the Meuse Agreement mentions planned interventions only in relation
to the responsibilities of the International Commission of the Meuse. The Agreement
calls on the Commission to “strengthen the exchange of information and opinions
[…] concerning projects subject to environmental impact assessment […] that may
have a significant transboundary impact” (Art. 4.4.g)). The Rhine Convention does
not mention the issue even indirectly. These noticeable lacunas, however, do not
have any practical importance as the relevant riparian states are either EU members
or parties to the Espoo Convention.
Against this background the Danube Convention constitutes an outlier in so far as it
creates a sui generis basin-wide notification mechanism. The Convention specifically
covers “planned activities […] and measures as far as they cause or are likely to cause
transboundary impacts” and defines them very broadly (Art. 3.2.). These planned
measures and activities have to be reported to the ICPDR (Art. 10.). If no other
bilateral or multilateral mechanism is triggered by the affected states, the affected
riparian(s) may request a consultation with the state of origin. As a general rule,
such a consultation must take place in the framework of the ICPDR “with the aim to
achieve a solution” (Art. 11.1.). During the consultation period authorisation of the
project must be suspended. Should consultations fail to deliver a mutually acceptable
solution within one year, the state of origin may go ahead with the project regardless
of objections by other riparians (Art. 11.2.).
Even more rigorous is the Sava Framework Agreement. It considers cooperation
over planned measures such a priority that it calls for the adoption of a specific
protocol regulating the issuance of permits for installations and activities that “may
have a transboundary impact on the integrity of the water regime” (Art. 9.2.). While
such protocol has never been produced, the parties to the Framework Agreement
can still rely on the procedures of the Danube Protection Convention, the Espoo
Convention or (partially) EU law.
10.3.3.4 Bilateral Water Treaties
Cooperation concerning planned measures has been a key feature of bilateral water
treaties in Europe from the outset. Even, some of the earliest water frontier treaties
required not only notification and consultation, but also the consent of the other
riparian to major works that affected water quantity or quality in the relevant frontier