182
12 Conclusions
• the absence of water allocation mechanisms: a direct consequence of the
absence of water quantity management is that—apart from the basic principles
of international water law—there are no rules and mechanisms in place in the EU
to govern water allocation between riparian states. Given that water allocation
disputes are the most common source of interstate tensions in hydrodiplomacy,
this omission may turn into a major vulnerability gap in several parts of Europe,
if water stress or scarcity continues to intensify as projected. The dominance of
water quality and ecological requirements at UNECE, EU and basin level results
in a gross regulatory asymmetry. Basin states have to comply, individually and
collectively, with uniform and precise water quality requirements whose implementation is closely linked to the availability of water. Yet, the same countries
are almost completely deprived of legal rights and mechanisms to demand that
the necessary amount of water is made available to them. As a result, riparian
states with high exposure to exogenous water sources may infringe their EU and
international water quality obligations for the lack of sufficient volumes despite
their best intentions and efforts;
• limited management of hydrological variability in a transboundary context: an additional consequence of the foregoing is the one-sided approach of
European water law to the transboundary management of hydrological extremes.
While all four layers regulate flood prevention and protection at an exemplary
level of sophistication, less positive is the picture when it comes to the management of droughts. Although member states are required to assess changing
hydrological conditions in their share of international basins, neither EU and
UNECE law, nor basin treaties call for real adaptation interventions in the case
flow volumes decline. Undoubtedly, the basic principles of transboundary water
cooperation (equitable and reasonable utilisation and the no-harm rule) together
with the various information exchange and notification procedures create a basic
framework to address such critical situations. These, however, do not provide
operative guidance as to the immediate adaptation measures to be taken, including adjustments in transboundary flow allocation. This shortcoming can largely
be attributed to the complacent approach of EU law and decision-makers vis-àvis the question of transboundary water quantity management;
• inadequate mechanisms of dispute settlement: the mechanisms available to
EU member states to channelize and resolve significant transboundary water
disputes are inadequate. The EU’s own legal system places the European Commission at the centre of law enforcement, which, however, investigates parallel
violations of member states and tends to avoid any engagement in bilateral disputes. Consequently, there are no readily available, easy-to-access platforms
in place to handle co-riparian differences. Also, EU law generally prohibits
arbitration or recourse to the International Court of Justice in the context of
most transboundary water issues. Instead, it only allows member states to sue
each other before the European Court of Justice. This option, however, does not
offer a viable alternative due to a series of political and institutional constraints.
European water law therefore displays an important hydropolitical gap as it fails
12 Conclusions
• the absence of water allocation mechanisms: a direct consequence of the
absence of water quantity management is that—apart from the basic principles
of international water law—there are no rules and mechanisms in place in the EU
to govern water allocation between riparian states. Given that water allocation
disputes are the most common source of interstate tensions in hydrodiplomacy,
this omission may turn into a major vulnerability gap in several parts of Europe,
if water stress or scarcity continues to intensify as projected. The dominance of
water quality and ecological requirements at UNECE, EU and basin level results
in a gross regulatory asymmetry. Basin states have to comply, individually and
collectively, with uniform and precise water quality requirements whose implementation is closely linked to the availability of water. Yet, the same countries
are almost completely deprived of legal rights and mechanisms to demand that
the necessary amount of water is made available to them. As a result, riparian
states with high exposure to exogenous water sources may infringe their EU and
international water quality obligations for the lack of sufficient volumes despite
their best intentions and efforts;
• limited management of hydrological variability in a transboundary context: an additional consequence of the foregoing is the one-sided approach of
European water law to the transboundary management of hydrological extremes.
While all four layers regulate flood prevention and protection at an exemplary
level of sophistication, less positive is the picture when it comes to the management of droughts. Although member states are required to assess changing
hydrological conditions in their share of international basins, neither EU and
UNECE law, nor basin treaties call for real adaptation interventions in the case
flow volumes decline. Undoubtedly, the basic principles of transboundary water
cooperation (equitable and reasonable utilisation and the no-harm rule) together
with the various information exchange and notification procedures create a basic
framework to address such critical situations. These, however, do not provide
operative guidance as to the immediate adaptation measures to be taken, including adjustments in transboundary flow allocation. This shortcoming can largely
be attributed to the complacent approach of EU law and decision-makers vis-àvis the question of transboundary water quantity management;
• inadequate mechanisms of dispute settlement: the mechanisms available to
EU member states to channelize and resolve significant transboundary water
disputes are inadequate. The EU’s own legal system places the European Commission at the centre of law enforcement, which, however, investigates parallel
violations of member states and tends to avoid any engagement in bilateral disputes. Consequently, there are no readily available, easy-to-access platforms
in place to handle co-riparian differences. Also, EU law generally prohibits
arbitration or recourse to the International Court of Justice in the context of
most transboundary water issues. Instead, it only allows member states to sue
each other before the European Court of Justice. This option, however, does not
offer a viable alternative due to a series of political and institutional constraints.
European water law therefore displays an important hydropolitical gap as it fails