158
10 The Resilience of Transboundary Water Governance …
Before seizing the Court, however, the riparian states must attempt to resolve the
issue through the Administrative Commission of the River Uruguay and, subsequently, direct negotiations (Art. 58-60.). The Mekong Cooperation Agreement also
places the relevant basin organisation, the Joint Committee of the Mekong River
Commission, at the centre of dispute settlement. If the Joint Committee fails to find
a solution to the disagreement, the duty to find a peaceful outcome falls back on
the governments concerned. The parties may, by mutual agreement, also request the
assistance of mediators and “proceed according to the principles of international
law” (Art. 34-35.).
10.5.3 Dispute Settlement in the European Union
10.5.3.1 EU Law
The EU maintains the world’s most effective supranational legal enforcement mechanisms. Yet, as shown below, these mechanisms are by and large unsuitable to handle
bilateral water disputes.
The most important sui generis enforcement procedure within the European Union
is the so-called infringement procedure. This procedure can be initiated by the European Commission for any given infraction of EU law by any member state. It can
lead to the condemnation of the erring state by the European Court of Justice and
the eventual imposition of significant financial penalties (Art. 258, 260 TFEU). This
procedure, however, works top-down between the Commission and the member state
concerned for it is not designed and capable of handling intra-EU disputes adequately.
In fact, member states may also signal alleged instances of non-compliance by other
member states to the Commission which can take up and investigate the matter. If
this relates to an EU law compliance issue that also happens to be a subject of a bilateral dispute between two (or more member) states—e.g. persistent transboundary
water pollution—the Commission’s intervention may eventually solve the interstate
problem too. Recourse to this avenue for the purposes of dispute settlement, however, can yield success only in a limited range of cases. In the first place, the actual
problem must relate to clearly identifiable provisions of EU law. Since these are
predominantly concerned with water quality questions or certain (non-sanctioned)
cooperation mechanisms, the restricted material scope of the infringement procedure
largely omits some of the most pertinent types of transboundary disputes such as
those relating to allocation, short term variability management, etc. (see Sect. 8.3.6).
Moreover, the Commission has no obligation whatsoever to take up the matter and
investigate it in full. This is a critical consideration since the Commission is traditionally reluctant to engage in the bilateral legal disputes of member states whose
prime subject is not a gross violation of EU law.
49 Consequently, it is unlikely that
49 As information on individual infringement cases in the prejudicial phase of the procedure are
disclosed by the European Commission only sporadically, this statement can be best corroborated
10 The Resilience of Transboundary Water Governance …
Before seizing the Court, however, the riparian states must attempt to resolve the
issue through the Administrative Commission of the River Uruguay and, subsequently, direct negotiations (Art. 58-60.). The Mekong Cooperation Agreement also
places the relevant basin organisation, the Joint Committee of the Mekong River
Commission, at the centre of dispute settlement. If the Joint Committee fails to find
a solution to the disagreement, the duty to find a peaceful outcome falls back on
the governments concerned. The parties may, by mutual agreement, also request the
assistance of mediators and “proceed according to the principles of international
law” (Art. 34-35.).
10.5.3 Dispute Settlement in the European Union
10.5.3.1 EU Law
The EU maintains the world’s most effective supranational legal enforcement mechanisms. Yet, as shown below, these mechanisms are by and large unsuitable to handle
bilateral water disputes.
The most important sui generis enforcement procedure within the European Union
is the so-called infringement procedure. This procedure can be initiated by the European Commission for any given infraction of EU law by any member state. It can
lead to the condemnation of the erring state by the European Court of Justice and
the eventual imposition of significant financial penalties (Art. 258, 260 TFEU). This
procedure, however, works top-down between the Commission and the member state
concerned for it is not designed and capable of handling intra-EU disputes adequately.
In fact, member states may also signal alleged instances of non-compliance by other
member states to the Commission which can take up and investigate the matter. If
this relates to an EU law compliance issue that also happens to be a subject of a bilateral dispute between two (or more member) states—e.g. persistent transboundary
water pollution—the Commission’s intervention may eventually solve the interstate
problem too. Recourse to this avenue for the purposes of dispute settlement, however, can yield success only in a limited range of cases. In the first place, the actual
problem must relate to clearly identifiable provisions of EU law. Since these are
predominantly concerned with water quality questions or certain (non-sanctioned)
cooperation mechanisms, the restricted material scope of the infringement procedure
largely omits some of the most pertinent types of transboundary disputes such as
those relating to allocation, short term variability management, etc. (see Sect. 8.3.6).
Moreover, the Commission has no obligation whatsoever to take up the matter and
investigate it in full. This is a critical consideration since the Commission is traditionally reluctant to engage in the bilateral legal disputes of member states whose
prime subject is not a gross violation of EU law.
49 Consequently, it is unlikely that
49 As information on individual infringement cases in the prejudicial phase of the procedure are
disclosed by the European Commission only sporadically, this statement can be best corroborated