Europe - UNEP

CHAPTER 4. MAJOR TRENDS IN CONFLICT AND
COOPERATION
Alistair Rieu-Clarke
The aim of this chapter is to assess the range of legal and institutional mechanisms that exist in
Europe to monitor, predict, and pre-empt transboundary water conflicts. Trends in cooperative
mechanisms related to European transboundary waters are identified using an analytical
framework in order to assess the legal scope, substantive water rights and obligations,
procedural rules and mechanisms, dispute resolution mechanisms, and institutional
arrangements. This analytical framework recognises the fact that the existence of an agreement
between countries over their transboundary waters is not in itself sufficient to ensure hydropolitical
resilience. The chapter makes the assumption that in order for a legal framework for transboundary
waters to be equitable and sustainable over the long-term, a set of key components must be present.
This chapter assesses how these key components have been developed within the European
transboundary water context.
4.1 LEGAL SCOPE: SURFACE WATER TO DRAINAGE BASINS
The first section assesses how legal and institutional arrangements leading to cooperation over
transboundary waters in Europe have dealt with geographic scope. It is necessary to ensure that
international regimes regulate all countries’ activities that might have a significant adverse impact on
the interests of other countries sharing the same waters in order to promote hydropolitical resilience
between countries. Adopting a basin approach is largely recognised as the most appropriate method of
achieving such security (Wescoat, 1992). The most pertinent issues to consider are the inclusion of both
surface and groundwater, the coverage of confined groundwater, and the accommodation for relevant
linkages between land and water.
In line with the increasing number of uses of Europe’s water resources, transboundary agreements
have generally broadened their geographic scope to include surface and groundwater, and in some
circumstances, the entire drainage basin. The 1992 Helsinki Convention defined “transboundary
waters” in Article 1 as, “any surface or groundwaters which mark, cross or are located on boundaries
between two or more States; wherever transboundary waters flow directly into the sea.”
The main purpose of the 1992 Helsinki Convention is to require contracting parties to take all
appropriate measures to prevent, control, and reduce any transboundary impact. Pursuant to the
convention, “transboundary impact” is defined as “any significant adverse effect on the environment
resulting from a change in the conditions of transboundary waters caused by a human activity, the
physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party,
within an area under the jurisdiction of another Party.” The way in which ‘transboundary impact’ is
defined under the 1992 Helsinki Convention implies a wide geographic scope; not only does the
convention cover transboundary surface water and groundwater but it also covers land-based activity
affecting the conditions of transboundary waters. Therefore, the convention would cover pollution from
agricultural practices, such as the use of pesticides and fertilisers that filter through the soil and into
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