11.5 Authority and Flexibility in Decision-Making and Problem-Solving
177
quantity issues (Baranyai 2015). This means that the relative legal barrier (unanimity)
created by the TFEU is elevated into an almost insurmountable institutional barrier
by the prevailing political and cultural conditions.
Even more complicated would be the elimination of the dispute settlement gap
identified in the previous chapter (see Sect. 10.5.3). Here, hydropolitical vulnerability
is created by the latent competition of supranational courts for jurisdictional hegemony. This has led to a situation where EU’s own constitutional regime rejects the
competence of any binding dispute resolution forum other than the European Court
of Justice which is largely unsuitable to adjudicate bilateral water disputes (Szabó
2008). While in theory there may be transboundary water issues that do not fall under
the jurisdiction of the ECJ (e.g. certain allocation questions), the uncompromising
attitude of the European Commission to the supremacy of the ECJ suggests that it
would challenge any recourse by member states to international courts and tribunals
even in cases where the EU legal basis remains very weak (as it actually happened
in the Mox Plant litigation). Consequently, EU law creates an absolute barrier to the
elimination of the systemic gap as regards water dispute settlement between member
states.
11.6 Evaluation
The system of transboundary water governance within the European Union displays a number of important vulnerabilities, such as the almost complete lack of
water quantity management and allocation considerations, limited tools for the management of hydrological variability and the restricted access to adequate dispute
resolution mechanisms.
The foregoing analysis of the adaptive capacity of the EU’s water governance
systems shows that these vulnerabilities are likely to persist in the long term in view
of the EU’s limited authority and flexibility in decision-making and problem-solving.
Most importantly, the rigid EU legal framework, coupled with a number of political
and cultural obstacles, does not allow the flexible adaptation of EU water policy
objectives and measures to emerging challenges to basin hydrology and co-riparian
politics. This applies particularly to the quantitative aspects of transboundary water
management that is not only largely absent from contemporary EU water policy, but
powerful legal constrains suggest that it is likely to remain so in the foreseeable future.
Even more limited is the EU’s adaptive capacity vis-à-vis transboundary water dispute settlement, an important precondition of hydropolitical stability. Here, the EU’s
own constitutional system prevents member states to have recourse to established
international judicial forums without offering suitable alternative mechanisms. Since
this condition relates to the core of the EU’s legal architecture member states will
remain deprived of external water dispute mechanisms indefinitely.
177
quantity issues (Baranyai 2015). This means that the relative legal barrier (unanimity)
created by the TFEU is elevated into an almost insurmountable institutional barrier
by the prevailing political and cultural conditions.
Even more complicated would be the elimination of the dispute settlement gap
identified in the previous chapter (see Sect. 10.5.3). Here, hydropolitical vulnerability
is created by the latent competition of supranational courts for jurisdictional hegemony. This has led to a situation where EU’s own constitutional regime rejects the
competence of any binding dispute resolution forum other than the European Court
of Justice which is largely unsuitable to adjudicate bilateral water disputes (Szabó
2008). While in theory there may be transboundary water issues that do not fall under
the jurisdiction of the ECJ (e.g. certain allocation questions), the uncompromising
attitude of the European Commission to the supremacy of the ECJ suggests that it
would challenge any recourse by member states to international courts and tribunals
even in cases where the EU legal basis remains very weak (as it actually happened
in the Mox Plant litigation). Consequently, EU law creates an absolute barrier to the
elimination of the systemic gap as regards water dispute settlement between member
states.
11.6 Evaluation
The system of transboundary water governance within the European Union displays a number of important vulnerabilities, such as the almost complete lack of
water quantity management and allocation considerations, limited tools for the management of hydrological variability and the restricted access to adequate dispute
resolution mechanisms.
The foregoing analysis of the adaptive capacity of the EU’s water governance
systems shows that these vulnerabilities are likely to persist in the long term in view
of the EU’s limited authority and flexibility in decision-making and problem-solving.
Most importantly, the rigid EU legal framework, coupled with a number of political
and cultural obstacles, does not allow the flexible adaptation of EU water policy
objectives and measures to emerging challenges to basin hydrology and co-riparian
politics. This applies particularly to the quantitative aspects of transboundary water
management that is not only largely absent from contemporary EU water policy, but
powerful legal constrains suggest that it is likely to remain so in the foreseeable future.
Even more limited is the EU’s adaptive capacity vis-à-vis transboundary water dispute settlement, an important precondition of hydropolitical stability. Here, the EU’s
own constitutional system prevents member states to have recourse to established
international judicial forums without offering suitable alternative mechanisms. Since
this condition relates to the core of the EU’s legal architecture member states will
remain deprived of external water dispute mechanisms indefinitely.