Cooperation with non-Member States

There are a number of transboundary water basins and established international river basin districts in Europe which involve both EU Member States and non-EU ripar-ian states. According to the Water Framework Directive, there is no legal obligation for the Member States to coordinate with non-EU countries in the management of the shared basin. However, coordination is encouraged and Member States ‘shall en-deavour’ to produce a single coordinated river basin management plan for the shared basin. In the same vein, there is no legal obligation for Member States to establish a joint management regime with an appropriate institutional framework with the non-EU riparian(s).

In practice, most river basins that are shared between EU Member States and non-Members have been designated as international river basin districts according to the WFD, and remarkable coordination in the management of the transboundary waters is taking place among the states involved. Joint implementation of the WFD with non-EU countries has been considered as a major issue of concern for EU Member States.⁶³ It is indeed important to engage non-Member States, since their contribu-tion and active involvement in sustainable management practices is often significant, if not crucial, for achieving the objectives of EU water law; most importantly for reaching and maintaining the good status of the waters in a transboundary context.

The level of cooperation varies from flexible cooperation projects involving all ripar-ians to coordination programs and participation in the work of established trans-boundary water institutions.

Funding from the EU often plays an important role in fostering cooperation and building capacity in non-EU Member States within the context of transboundary water management.

62 INBO, ‘WFD contributions to water’, supra note 36, at 3. It has been studied that 158 of the world’s 263 international river basins lack any type of cooperative management framework. UN Water, Transboundary Waters, supra note 2, at 6.

63 INBO, ‘WFD contributions to water’, supra note 36, at 21.

The Role of EU Water Directives in Promoting Transboundary Water Cooperation and Water Security through Water Agreements – with a Special Focus on Finland

An example of a transboundary river that is shared by EU Member States and non-Members and that has a sophisticated management regime is the Rhine. An interna-tional convention to govern the river was first established in as early as 1804;⁶⁴ and new Conventions and Protocols have subsequently been added, the latest being the Convention on the Protection of the Rhine, which entered into force in 2003.⁶⁵ The Rhine Convention has been ratified by Germany, France, Luxembourg and the Neth-erlands (EU Member States), Switzerland (a non-Member State) and the European Community. The joint management body established under the Convention is the International Commission for the Protection of the Rhine (ICPR).⁶⁶

The Rhine has been designated as an international river basin district under the EU Water Framework Directive. Consequently, a coordinated management plan, as re-quired by the WFD, has been created by the riparian states.⁶⁷ The Rhine Coordina-tion Committee,⁶⁸ working under the ICPR, has as one of its aims to coordinate and harmonize the implementation of the Water Framework Directive among the Parties to the Rhine Convention. The need for the Committee arose because it was seen that the Rhine Convention and the ICPR are not suitable for the task as a non-Member State and the European Community are also Parties to the Convention on the one hand,⁶⁹ and as some EU Member States that are lying in the Rhine catchment area are not Contracting Parties to the ICPR, on the other hand.

In spite of the separate Coordination Committee being responsible for coordinating the implementation of the WFD in the area of application of the Rhine Conven-tion, some have seen the Directive rather as an impediment than as a contributor to the development of further measures by the ICPR. In the background, there is the perceived tendency of Member States to focus more on the implementation of the WFD in their own territory rather than investing in the ICPR to take active meas-ures in transboundary issues.⁷⁰ Nevertheless, it could be that the focus will shift back to transboundary questions when pressures in that direction become more intense, for instance due to increased transboundary pollution problems and/or if there is found to be inadequate compliance with the objectives of the WFD.

Another good example within this context is the Danube River. Altogether, this riv-er flows through the triv-erritories of 19 states, which makes it the world’s most intriv-er-

inter-64 Convention Respecting the Navigation of Rhine between the Empire and France, Paris, 15 August 1804, 57 Consolidated Treaty Series 465.

65 Convention on the Protection of the Rhine, Bern, 12 April 1999, in force 1 January 2003, available at

<http://www.iksr.org/fileadmin/user_upload/Dokumente_en/convention_on_tthe_protection_of__the_

rhine.pdf> (visited 11 August 2015).

66 See <http://www.iksr.org/en/index.html>.

67 For more information, see ICPR, ‘Management Plan 2009’, available at <http://www.iksr.org/index.

php?id=171&L=3> (visited 11 August 2015).

68 See <http://www.iksr.org/en/international-cooperation/about-us/organisation/coordinating-committee-cc/index.html> (visited 25 September 2015).

69 Rijswick et al, ‘The Need for International’, supra note 12, at 143.

70 Keessen et al, ‘Transboundary River Basin Management’, supra note 47, at 38.

national river basin. The Convention on Co-operation for the Protection and Sus-tainable Use of the River Danube, or the Danube River Protection Convention (DRPC),⁷¹ entered into force in 1998 and has 15 Contracting Parties.⁷² It is notable that not all Parties are EU Member States (i.e. Bosnia-Herzegovina, Croatia, Mol-dova, Montenegro, Serbia and Ukraine). In addition to the general Danube River Protection Convention, numerous bilateral treaties exist between states in the Dan-ube river basin district. There treaties are usually of older origin than the EU WFD and so they do not directly fulfill the requirement of the Directive that agreements should be ‘established in order to ensure coordination’ in the implementation of the WFD.⁷³ However, they are generally used as the platform for coordination needed to fulfil the requirements of the WFD.⁷⁴

The River Basin Management Expert Group (RBM EG)⁷⁵ was created under the Danube management regime to prepare and coordinate the necessary actions for the implementation of the EU Water Framework Directive. The Expert Group devel-oped a strategy on how to coordinate the actions of the riparian countries, how to develop a coordinated river basin management plan, and how to report to the Eu-ropean Commission on the actions taken. This strategy was accepted in 2002.⁷⁶ The members of the DRPC report regularly to the Danube Commission on the progress of their implementation of the EU WFD, and these national reports serve as a means for exchanging information between the riparian states and for streamlining imple-mentation activities at the national level.⁷⁷ The Danube River Basin Management Plan was created in 2009, in part to comply with the requirements for international river basin districts set out in the WFD.⁷⁸

71 Convention on Co-operation for the Protection and Sustainable Use of the River Danube, Sofia, 29 June 1994, in force 22 October 1998, <http://www.icpdr.org/main/sites/default/files/DRPC%20English%20 ver.pdf> (visited 11 August 2015).

72 The membership of the Convention has been restricted, and is open only to those states that have territories of more than 2000 km² within the Danube Basin.

73 Annex I of the WFD.

74 ICPDR, ‘Danube River Basin District Part A – Roof report Information required according to Art. 3 (8) and Annex I of the EU Water Framework Directive’ (2004), available at <http://www.icpdr.org/main/

sites/default/files/Roof%20report%202003%20-%20Main%20document_FINAL.pdf> (visited 11 August 2015) at 16.

75 See <http://www.icpdr.org/main/icpdr/river-basin-management-expert-group>.

76 Ursula Schmedtje, ‘Development of the Danube River Basin District Management Plan – Strategy for coordination in a large international river basin’, draft (2005), available at <http://projects.inweh.unu.

edu/inweh/inweh/content/342/Proj%20website/Strategic_Paper_for_River_Basin_Management_

Plan_-_draft_9s.html> (visited 11 August 2015).

77 ICPDR, ‘Danube River Basin District’, supra note 74.

78 See ICPDR, ‘Danube River Basin Management Plan (2009)’, available at <http://www.icpdr.org/main/

activities-projects/danube-river-basin-management-plan-2009> (visited 11 August 2015).

The Role of EU Water Directives in Promoting Transboundary Water Cooperation and Water Security through Water Agreements – with a Special Focus on Finland