160
10 The Resilience of Transboundary Water Governance …
proxy to act before a national court (preferably one located in the erring riparian), the
applicant in that national procedure can only propose recourse to preliminary ruling
by the ECJ, but cannot compel the acting judge to do so. Consequently, even where
the aggrieved riparian can identify an EU legal issue that can actually be transformed
into a litigation before a national court by a proxy actor with adequate standing, its
actual influence on the progression of the case remains close to zero. Of course, it may
exceptionally happen that an EU riparian state maliciously orchestrates such legal
action to cause nuisance to the other basin state. Overall, however, the very design
of the preliminary ruling procedure will always render it an unsuitable avenue to
resolve state-to-state transboundary water disputes.
The inherent weaknesses of bilateral dispute resolution under general EU law are
not rectified in the context of transboundary water issues either. Under the Water
Framework Directive a member state that has identified “an issue that has an impact
on the management of its waters but cannot be resolved by that member state”—a
euphemistic description of a transboundary problem—may report to “any other member state concerned”. Such “other member state”, however, is not obliged to engage in
any meaningful dialogue to resolve the problem. Alternatively, the WFD also allows
member states to refer all potential interpretative or implementation differences to
the European Commission (Art. 12.). Under this quasi mediation procedure all the
Commission is required to do is to “respond” to the submission within six months
(such “response” has no legal effect whatsoever). This procedure has been rightly
criticised as lacking any enforcement power, with no reported instance of recourse to
it as yet (Keessen et al. 2008). Given the European Commission’s well-known reluctance to engage in the bilateral disputes of EU member states, this soft mediation
procedure is unlikely to ever fulfil the role of a meaningful interstate water dispute
settlement mechanism.
Finally, EU law effectively bars member states from recourse to judicial settlement under multilateral treaties (e.g. the UNECE Water Convention or basin treaties
ratified by the EU), if the dispute concerns any subject of EU water law. Most
international water treaties allow parties to accept the ultimate jurisdiction of the
International Court of Justice or an arbitral tribunal to resolve their disputes. Yet,
EU member states can undertake these kind of general submissions only vis-à-vis
non-EU countries. This restriction flows from the expansive jurisprudence by the
European Court of Justice aiming to safeguard its monopoly to interpret EU law.
In the landmark Mox Plant case
50 —that concerned a dispute between Ireland and
the United Kingdom under the UN Convention on the Law of the Seas—the ECJ
concluded in 2006 that EU member states cannot trigger the dispute settlement mechanisms of international treaties to which the EU is a party. Recourse to such external
settlement mechanisms for intra-EU affairs—goes the verdict—would “create a manifest risk that the jurisdictional order laid down by the Treaties and, consequently, the
autonomy of the [EU] legal system may be adversely affected”. As a result, member
states’ freedom to use established international judicial mechanisms to settle disputes
among themselves is limited to issues that can in no way be connected to the appli50 C-459/03, Commission v. Ireland, ECR 2006, I-04635.
10 The Resilience of Transboundary Water Governance …
proxy to act before a national court (preferably one located in the erring riparian), the
applicant in that national procedure can only propose recourse to preliminary ruling
by the ECJ, but cannot compel the acting judge to do so. Consequently, even where
the aggrieved riparian can identify an EU legal issue that can actually be transformed
into a litigation before a national court by a proxy actor with adequate standing, its
actual influence on the progression of the case remains close to zero. Of course, it may
exceptionally happen that an EU riparian state maliciously orchestrates such legal
action to cause nuisance to the other basin state. Overall, however, the very design
of the preliminary ruling procedure will always render it an unsuitable avenue to
resolve state-to-state transboundary water disputes.
The inherent weaknesses of bilateral dispute resolution under general EU law are
not rectified in the context of transboundary water issues either. Under the Water
Framework Directive a member state that has identified “an issue that has an impact
on the management of its waters but cannot be resolved by that member state”—a
euphemistic description of a transboundary problem—may report to “any other member state concerned”. Such “other member state”, however, is not obliged to engage in
any meaningful dialogue to resolve the problem. Alternatively, the WFD also allows
member states to refer all potential interpretative or implementation differences to
the European Commission (Art. 12.). Under this quasi mediation procedure all the
Commission is required to do is to “respond” to the submission within six months
(such “response” has no legal effect whatsoever). This procedure has been rightly
criticised as lacking any enforcement power, with no reported instance of recourse to
it as yet (Keessen et al. 2008). Given the European Commission’s well-known reluctance to engage in the bilateral disputes of EU member states, this soft mediation
procedure is unlikely to ever fulfil the role of a meaningful interstate water dispute
settlement mechanism.
Finally, EU law effectively bars member states from recourse to judicial settlement under multilateral treaties (e.g. the UNECE Water Convention or basin treaties
ratified by the EU), if the dispute concerns any subject of EU water law. Most
international water treaties allow parties to accept the ultimate jurisdiction of the
International Court of Justice or an arbitral tribunal to resolve their disputes. Yet,
EU member states can undertake these kind of general submissions only vis-à-vis
non-EU countries. This restriction flows from the expansive jurisprudence by the
European Court of Justice aiming to safeguard its monopoly to interpret EU law.
In the landmark Mox Plant case
50 —that concerned a dispute between Ireland and
the United Kingdom under the UN Convention on the Law of the Seas—the ECJ
concluded in 2006 that EU member states cannot trigger the dispute settlement mechanisms of international treaties to which the EU is a party. Recourse to such external
settlement mechanisms for intra-EU affairs—goes the verdict—would “create a manifest risk that the jurisdictional order laid down by the Treaties and, consequently, the
autonomy of the [EU] legal system may be adversely affected”. As a result, member
states’ freedom to use established international judicial mechanisms to settle disputes
among themselves is limited to issues that can in no way be connected to the appli50 C-459/03, Commission v. Ireland, ECR 2006, I-04635.