10.5 Dispute settlement
161
cation of EU law (Szabó 2008), as it happened e.g. in the Rhine chloride arbitration
between Netherlands and France.
51 Even in such narrow pool of cases, however,
member states are required to inform and consult the European Commission before
any submission is made under a non-EU judicial mechanism. While the Mox Plant
case applies squarely to adjudication, the legal impacts of the judgement on nonbinding conflict resolution mechanisms such conciliation, meditation or recourse to
compliance bodies (e.g. the activity of the Implementation Committee of the UNECE
Water Convention) also remain uncertain.
In summary: EU law fails to provide effective mechanisms for the resolution of
transboundary water disputes. At the same time it deprives member states from the
use of important dispute settlement mechanisms under general international law or
international water law. What it offers instead is a set of procedures almost completely
left to the initiative and judgement of the European Commission (Baranyai 2015).
10.5.3.2 UNECE Law
The UNECE Water Convention foresees regular consultations between the parties
as well as provides for the establishment of joint bodies as a primary forum of coriparian communication and cooperation (Art. 9.2., 12.). These provisions are meant
to ensure the prevention of major transboundary water disputes. Should, however,
such disputes nonetheless arise, parties are called upon to settle the matter through
negotiations or “any other means of dispute settlement acceptable to the parties”
(Art. 22.1.). The Convention does not define any further mandatory steps. However,
it allows parties to accept the jurisdiction of the International Court of Justice or
an arbitral tribunal to be established under the Convention for disputes not resolved
through non-judicial channels (Art. 22.2.).
By a decision of the Meeting of the Parties in 2013 an additional body: the Implementation Committee has been established to complement traditional mechanisms
of conflict prevention and dispute resolution (UNECE 2013b). The Implementation
Committee provides parties with further means to deal with alleged breaches of
obligations stemming from the Convention combining features of mediation, conciliation or simple advisory assistance. While to some extent the judicial procedures
and the implementation review process can have overlapping elements, Attila Tanzi,
monographer of the issue and member of the Implementation Committee, underlines
the complementarity of the two systems: “non-compliance procedures are not formal
and strict procedures aimed at breaches of [obligations] and related legal responsibility, but rather flexible means aimed at providing assistance to parties in addressing
51 The Rhine Chlorides Arbitration concerning the Auditing of Accounts (Netherlands-France), 12
March 2004, PCA Award Series 2008. Here, while the underlying treaty—the 1976 Convention on
the Protection of the Rhine against Pollution by Chlorides—is concerned with a par excellence water
pollution issue (thus subject to EU law), the actual dispute revolved around the correct interpretation
of its 1991 Additional Protocol on the financial obligations of the riparian states. Therefore, it was
recognised as a case that remained outside the remit of EU water law.
161
cation of EU law (Szabó 2008), as it happened e.g. in the Rhine chloride arbitration
between Netherlands and France.
51 Even in such narrow pool of cases, however,
member states are required to inform and consult the European Commission before
any submission is made under a non-EU judicial mechanism. While the Mox Plant
case applies squarely to adjudication, the legal impacts of the judgement on nonbinding conflict resolution mechanisms such conciliation, meditation or recourse to
compliance bodies (e.g. the activity of the Implementation Committee of the UNECE
Water Convention) also remain uncertain.
In summary: EU law fails to provide effective mechanisms for the resolution of
transboundary water disputes. At the same time it deprives member states from the
use of important dispute settlement mechanisms under general international law or
international water law. What it offers instead is a set of procedures almost completely
left to the initiative and judgement of the European Commission (Baranyai 2015).
10.5.3.2 UNECE Law
The UNECE Water Convention foresees regular consultations between the parties
as well as provides for the establishment of joint bodies as a primary forum of coriparian communication and cooperation (Art. 9.2., 12.). These provisions are meant
to ensure the prevention of major transboundary water disputes. Should, however,
such disputes nonetheless arise, parties are called upon to settle the matter through
negotiations or “any other means of dispute settlement acceptable to the parties”
(Art. 22.1.). The Convention does not define any further mandatory steps. However,
it allows parties to accept the jurisdiction of the International Court of Justice or
an arbitral tribunal to be established under the Convention for disputes not resolved
through non-judicial channels (Art. 22.2.).
By a decision of the Meeting of the Parties in 2013 an additional body: the Implementation Committee has been established to complement traditional mechanisms
of conflict prevention and dispute resolution (UNECE 2013b). The Implementation
Committee provides parties with further means to deal with alleged breaches of
obligations stemming from the Convention combining features of mediation, conciliation or simple advisory assistance. While to some extent the judicial procedures
and the implementation review process can have overlapping elements, Attila Tanzi,
monographer of the issue and member of the Implementation Committee, underlines
the complementarity of the two systems: “non-compliance procedures are not formal
and strict procedures aimed at breaches of [obligations] and related legal responsibility, but rather flexible means aimed at providing assistance to parties in addressing
51 The Rhine Chlorides Arbitration concerning the Auditing of Accounts (Netherlands-France), 12
March 2004, PCA Award Series 2008. Here, while the underlying treaty—the 1976 Convention on
the Protection of the Rhine against Pollution by Chlorides—is concerned with a par excellence water
pollution issue (thus subject to EU law), the actual dispute revolved around the correct interpretation
of its 1991 Additional Protocol on the financial obligations of the riparian states. Therefore, it was
recognised as a case that remained outside the remit of EU water law.