176
11 Adaptive Capacity of EU Transboundary Water Governance …
On a general level the UNECE Water Convention has proved to be a remarkably
flexible instrument, being capable of addressing a wide range of issues not foreseen at
the time of its drafting. This openness did not only manifest in the thematic expansion
of the Convention to areas such as the nexus between water, food, energy or adaptation to climate change, but also in the creation of new and innovative institutional
solutions (Implementation Committee, monitoring, etc.) (Bernardini 2015). Yet, the
gradual expansion of the Convention’s system has taken place mainly through the
decisions of the meeting of the parties (MOP) or soft-law instruments, rather than
through formal amendments to the Convention text. In fact, the only amendment
adopted to the Convention thus far concerns the expansion of its scope allowing
regional economic organisations and non-UNECE countries to accede to the Convention (UNECE 2013). The choice of MOP decisions and soft-law instruments over
treaty amendments to expand the activities of the Convention appears to confirm the
complacency of the parties to open up the Convention to substantial modifications.
Such complacency, however, has not, as yet, seemed to amount to a critical barrier
to the adaptation of the governance regime established by the Convention to changing circumstances and the needs of parties. To the contrary, the consistent record of
incremental achievements, supported by an inherent culture of openness, partnership
and engagement, suggests that the UNECE transboundary water governance regime
displays a very high capacity of adaptation. It remains to be seen, however, if this
remarkable yet limited (formal) ability to adjust will be sufficient to withstand the test
of potentially much more conflictual co-riparian relations in the European heartland.
More complicated are the legal, institutional and political conditions influencing
the adaptive capacity of the EU’s own water governance regime. While the Water
Framework Directive is based on adaptive implementation cycles with clearly defined
feedback mechanisms, these inherent review mechanisms do not extend to the revision of the underlying water policy objectives themselves (Green et al. 2013). In
other words: the monitoring-feedback-review process works fine so long as it does
not question the dominance of ecological objectives under the WFD. This limitation
is most clearly manifested by the fact that the WFD, unlike several other environmental directives, does not contain a general policy review clause. Instead, it merely
calls for a periodic evaluation by the Commission of its implementation by member
states and the necessary technical adaptation of the monitoring requirements (Art.
18., 20.). As a result, the Commission reviews every six years whether or not member
states apply the WFD correctly. These reviews are, however, not supposed to address
the question whether or not the WFD is the right instrument to respond to changing
hydrological realities in the EU.
Such constraints are probably not surprising in view of the EU’s restricted authority—under Article 192.2. of the TFEU—to take on such critical water issues as transboundary water quantity management and river flow allocations (see Sect. 10.1.3). As
noted above, Article 192.2 does not prevent the EU to regulate transboundary water
quantity management, it only makes in significantly more difficult to do so. Yet, the
constant opposition of certain member states under the shield of the unanimity voting as well as the Commission’s own complacency to engage in bilateral issues lead
to the systematic rejection of any substantial consideration of transboundary water
11 Adaptive Capacity of EU Transboundary Water Governance …
On a general level the UNECE Water Convention has proved to be a remarkably
flexible instrument, being capable of addressing a wide range of issues not foreseen at
the time of its drafting. This openness did not only manifest in the thematic expansion
of the Convention to areas such as the nexus between water, food, energy or adaptation to climate change, but also in the creation of new and innovative institutional
solutions (Implementation Committee, monitoring, etc.) (Bernardini 2015). Yet, the
gradual expansion of the Convention’s system has taken place mainly through the
decisions of the meeting of the parties (MOP) or soft-law instruments, rather than
through formal amendments to the Convention text. In fact, the only amendment
adopted to the Convention thus far concerns the expansion of its scope allowing
regional economic organisations and non-UNECE countries to accede to the Convention (UNECE 2013). The choice of MOP decisions and soft-law instruments over
treaty amendments to expand the activities of the Convention appears to confirm the
complacency of the parties to open up the Convention to substantial modifications.
Such complacency, however, has not, as yet, seemed to amount to a critical barrier
to the adaptation of the governance regime established by the Convention to changing circumstances and the needs of parties. To the contrary, the consistent record of
incremental achievements, supported by an inherent culture of openness, partnership
and engagement, suggests that the UNECE transboundary water governance regime
displays a very high capacity of adaptation. It remains to be seen, however, if this
remarkable yet limited (formal) ability to adjust will be sufficient to withstand the test
of potentially much more conflictual co-riparian relations in the European heartland.
More complicated are the legal, institutional and political conditions influencing
the adaptive capacity of the EU’s own water governance regime. While the Water
Framework Directive is based on adaptive implementation cycles with clearly defined
feedback mechanisms, these inherent review mechanisms do not extend to the revision of the underlying water policy objectives themselves (Green et al. 2013). In
other words: the monitoring-feedback-review process works fine so long as it does
not question the dominance of ecological objectives under the WFD. This limitation
is most clearly manifested by the fact that the WFD, unlike several other environmental directives, does not contain a general policy review clause. Instead, it merely
calls for a periodic evaluation by the Commission of its implementation by member
states and the necessary technical adaptation of the monitoring requirements (Art.
18., 20.). As a result, the Commission reviews every six years whether or not member
states apply the WFD correctly. These reviews are, however, not supposed to address
the question whether or not the WFD is the right instrument to respond to changing
hydrological realities in the EU.
Such constraints are probably not surprising in view of the EU’s restricted authority—under Article 192.2. of the TFEU—to take on such critical water issues as transboundary water quantity management and river flow allocations (see Sect. 10.1.3). As
noted above, Article 192.2 does not prevent the EU to regulate transboundary water
quantity management, it only makes in significantly more difficult to do so. Yet, the
constant opposition of certain member states under the shield of the unanimity voting as well as the Commission’s own complacency to engage in bilateral issues lead
to the systematic rejection of any substantial consideration of transboundary water