Europees waterbeheer: eerlijk zullen we alles delen?

Abstract

This PhD thesis addresses the legal system of European water management and more specifically the role of transboundary water pollution in this system. It focuses on the question of whether the system ensures that the beneficial uses of international river basins are shared in a reasonable and equitable manner among riparian states, without negatively affecting water quality. Neither international law nor European legislation defines what exactly constitutes reasonable and equitable distribution and no independent criterion exists based on which a certain distribution can be declared to be fair or unfair in advance, and using which such a distribution can be made. For this reason, this study uses a procedural fairness concept, based inter alia on the UN Watercourses Convention: if the riparian states involved use a certain fair procedure to determine the distribution and if this includes certain explicitly defined factors such as geography, the environment and socio-economic needs, the result of this procedure is considered to be reasonable and equitable. European law apparently decided to have Member States themselves determine this distribution in mutual consultation: it is true that the EU imposes requirements for water quality, but it includes no instructions on how the resulting ‘pollution allowance’ (verontreinigingsruimte) should be distributed among the riparian states in a river basin. The Member States are obliged, however, to cooperate with the other riparian states in the river basin. Although a large number of instruments is available for cooperation on both the local and regional level as well as on the level of the Member States, so far international management plans governing the Dutch river basins include no arrangements regarding the distribution of pollution allowance or regarding the restriction of transboundary pollution, which for the Netherlands remains a significant problem. One of the causes of this patchy cooperation is the difference in organisational structures on either side of the border and the fact that European legislation does not actually require cooperation to result in distribution arrangements regarding pollution allowances. The fact that transboundary pollution is not countered by cross-border cooperation poses some serious threats to water management authorities, as they are bound by European law to various obligations of result and obligations of best efforts regarding the required water quality. Although international law, European law and national law offer legal instruments to enforce reasonable and equitable sharing of the pollution allowance, and – if enforcement fails – allow for damages to be paid, these instruments only really work if such a distribution is determined up front. This thesis concludes that the current system of European water management is incomplete since it doesn’t provide for a reasonable and equitable sharing of the beneficial uses of international river basins, leaving too much room for transboundary pollution and thereby endangering water quality. This thesis also contains recommendations to change the system and ensure that a reasonable and equitable distribution is made.