Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
CONSULTANT REPORT
ENHANCING
TRANSBOUNDARY
COOPERATION IN WATER MANAGEMENT IN
THE PRESPA LAKES BASIN
29 OCTOBER 2008
Dr. Owen McIntyre
Faculty of Law
University College Cork
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
TABLE OF CONTENTS
LEGAL MANDATE OF THE PROPOSED PRESPA WATER MANAGEMENT
WORKING GROUP (PWMWG)............................................................................................ 3
1.
Prime Ministerial Declaration Declaration on the Creation of the Prespa Park and the
Environmental Protection and Sustainable Development of the Prespa Lakes and their
Surroundings (Aghios Germanos, 2 February 2000).............................................................. 3
2.
International `Soft' Law................................................................................................. 4
3.
General Duty to Cooperate under Customary International Law................................... 9
(a)
Duty to Prevent Transboundary Harm................................................................... 9
(b)
Duty to Cooperate ............................................................................................... 19
4.
Common Management Institutions / River Basin Commissions ................................. 26
(a)
Community of Interests ....................................................................................... 28
(b)
Common Management Institutions ..................................................................... 31
5.
Practice under the PPCC .............................................................................................. 42
6.
Obligations under E.C. Law......................................................................................... 44
7.
Conclusions on the Legal Mandate of the PWMWG................................................... 49
SITUATIONAL ANALYSIS RE WATER MANAGEMENT............................................ 51
FYR of Macedonia................................................................................................................ 51
Greece ................................................................................................................................... 53
Albania.................................................................................................................................. 57
TERMS OF REFERENCE FOR THE PROPOSED PRESPA WATER MANAGEMENT
WORKING GROUP (PWMWG).......................................................................................... 59
Background........................................................................................................................... 59
Principles .............................................................................................................................. 61
Responsibilities..................................................................................................................... 61
Membership .......................................................................................................................... 63
Procedural Arrangements ..................................................................................................... 64
DETAILED IMPLEMENTATION PLAN FOR THE PRESPA WATER MANAGEMENT
WORKING GROUP (PWMWG).......................................................................................... 67
Establishment........................................................................................................................ 67
Nominations / Approval........................................................................................................ 67
Tasks ..................................................................................................................................... 67
TERMS OF REFERENCE FOR PART-TIME INTERNATIONAL EXPERT TO
FACILITATE FUNCTIONING OF THE PROPOSED PRESPA WATER MANAGEMENT
WORKING GROUP................................................ ERROR! BOOKMARK NOT DEFINED.
Background:...........................................................................Error! Bookmark not defined.
Scope of Work, Duties and Responsibilities..........................Error! Bookmark not defined.
Deliverables ...........................................................................Error! Bookmark not defined.
Terms and Conditions............................................................Error! Bookmark not defined.
Required Expertise and Experience .......................................Error! Bookmark not defined.
Submission Requirements and Deadline for Application ......Error! Bookmark not defined.
ANNEX I: LIST OF MEETINGS CONDUCTED............................................................... 73
2
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
LEGAL MANDATE OF THE PROPOSED PRESPA WATER MANAGEMENT
WORKING GROUP (PWMWG)
As it is currently considered unlikely, at least in the short to medium-term, that trilateral
inter-State agreement might be reached on a more formal legal and institutional basis for
trilateral cooperation for the Prespa Basin and, as it is envisaged that the proposed Prespa
Water Management Working Group (PWMWG) would operate under the aegis of and
support the work of the existing Prespa Park Coordination Committee (PPCC), it is
necessary briefly to examine the legal mandate of the PPCC, especially in respect of
technical cooperation. Notwithstanding the (provisional) conclusions of the Technical
Assessment Report1 prepared by the international legal consultant engaged by UNDP
which includes, inter alia, a legal analysis of this issue, it is readily apparent that the
PPCC does enjoy a de jure (formal legal) and de facto (based on the factual practice of
the littoral States) mandate to pursue effective performance of its stated functions and to
establish such subordinate bodies as are necessary for such performance.
1.
2000 Prime Ministerial Declaration
First of all, the Declaration, adopted in 2000 by none other than the Prime Ministers of the
three littoral States, acting in their capacities as Heads of Government, places
considerable emphasis on the commitment of the States to enhance inter-State
cooperation for the purposes of the environmental protection and sustainable development
of the Prespa Lakes ecosystem.2 For example, Paragraph 3 of the Declaration recognises
the importance of respecting international instruments aimed at the protection of the
natural environment and declares that `[I]ndividual national activities should be
complemented by international collaboration in this field'. Paragraph 6 solemnly
commits the three littoral States to further cooperative action:
`This Declaration will be followed by enhanced cooperation among competent
authorities in our countries with regard to environmental matters. In this context,
joint actions would be considered in order to
a) maintain and protect the unique ecological values of the "Prespa Park",
b) prevent and/or reverse the causes of its habitat degradation,
c) explore appropriate management methods for the sustainable use of the Prespa
Lakes water, and
d) to spare no efforts so that the "Prespa Park" become and remain a model of its
kind as well as an additional reference to the peaceful collaboration among our
countries.'
Though the 2000 Declaration might be described as a mere `policy document', containing
only a commitment to consider joint actions and omitting any requirement on the part of
the signatory States to adopt national legislation or provide regular funding from State
budgets,3 it remains a normative act of international `soft' law, which acknowledges the
general obligation of States under customary international law to cooperate in the pursuit
1 S. Bogdanovic, Technical Assessment Report: Prespa Park Coordination Committee in Transboundary
Ecosystem Management (23 December 2007).
2 Prime-Ministerial Declaration on the Creation of the Prespa Park and the Environmental Protection and
Sustainable Development of the Prespa Lakes and their Surroundings (Aghios Germanos, 2 February 2000)
3 Supra, n. 1, at 27.
3
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
of environmental protection, and in the protection of shared water resources in particular.4
It does not follow that because the Declaration contains no specific institutional
arrangements for its implementation, it could not serve as the legal basis for establishing a
coordination body for that purpose.5 Similarly, neither the fact that there exists no formal
legal designation of `transboundary park' under international law nor that the
geographical scope of the declared Prespa Park, which comprises `Ramsar Protected
Sites' in each littoral State, does not correspond with a more holistic `drainage basin' or
`ecosystems approach',6 take away from the duty of the littoral States under international
law to cooperate in protecting the Prespa Lakes ecosystem, which they have done since
2000 by means of the PPCC. In support of this conclusion, it is vitally important to
understand fully the often understated role and status of such `soft law' instruments in
identifying the acknowledged duties of States, in this case in respect of the obligation to
cooperate in good faith in the environmental management and sustainable development of
the Prespa Basin.
2.
International `Soft' Law
Notwithstanding the provisions of the 1997 UN Convention on the Non-Navigational
Uses of International Watercourses7 and other conventional provisions expressly
concerned with the environmental protection of international watercourses, a number of
customary international legal rules and principles can be argued to have developed in
recent decades which might be expected to have a role to play in this regard. The
existence and, to a lesser degree, the normative status of these rules and principles have
largely been defined by `the progressive gathering of recurrent treaty provisions,
recommendations made by international organizations, resolutions adopted at the end of
international conferences, and other texts that can be said to have influenced State
Practice'.8 Such rules include the obligation to prevent transboundary pollution and the
rules relating to responsibility and liability for such pollution, the obligation to co-operate
and the requirement for environmental impact assessment for projects having
transboundary effects, while customary principles include the precautionary principle,
sustainable development, intergenerational equity and common but differentiated
4 For example, the UNDP-GEF Project Document, Integrated Ecosystem Management in the Prespa Lakes
Basin of Albania, FYR-Macedonia and Greece remarks, at para. 155, that
`The initiative which led to the Prime Ministers' Declaration was very top-down and the
participation of local stakeholders around the lakes basin in this decision was initially very little.
And yet, the declaration successfully laid the foundation for the significant transboundary work
that has followed.'
This characterisation of the initiative leading to the Declaration as `top-down' testifies to the Declaration's
character as a solemn normative act of the Governments of the littoral States.
5 See, Bogdanovic, supra, n. 1, at 28.
6 Ibid., at 27.
7 (1997) 36 ILM 719, (New York, 21 May 1997) Not yet in force. (Hereinafter, the `UN Convention').
However, though the Convention has not entered into force, it is likely to remain highly influential and
persuasive as a statement of current customary and general international law on watercourses as it is the
culmination of over 20 years of in-depth research by the International Law Commission into the state of
international watercourse law and practice. It is also significant that all three littoral States have signed the
Convention.
8 P. M. Dupuy, `Overview of the Existing Customary Legal Regime Regarding International Pollution', in
D. B. Magraw, International Law and Pollution, (University of Pennsylvania Press, Philadelphia, 1991), 61
at 61.
4
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
responsibility. Other, emerging principles can be identified which may eventually form
part of the corpus of relevant customary international environmental law, including the
so-called `ecosystems approach'. The key significance of such rules and principles lies in
the fact that, as the accumulated legal expression of environmental protection concerns by
the international community, they indicate the issues which are likely to be identified and
articulated as central in the environmental protection of international drainage basins and
the means by which such issues are likely to be considered. The normative content of the
rules and principles of customary and general international law on the environment is
likely to inform the interpretation and application of the rules and principles which are set
out in outline in the environmental provisions of the 1997 Convention and other relevant
instruments. Indeed, it is submitted that it is largely by virtue of the very sophistication
and extensive elaboration of these substantive and procedural rules and principles of
general international environmental law that environmental considerations are likely to
enjoy such prominent status as a factor in determining an equitable regime for the
utilisation of shared freshwater resources, pursuant to the cardinal rule of international
water resources law that of `equitable and reasonable utilisation'. Further, customary
international law is likely to continue to play a significant residual role in the settlement
of international environmental disputes concerning shared water resources as it may apply
to States which are not party to the 1997 Convention or other conventional arrangements
or to disputes between States parties which are not covered by the Convention due to the
use of reservations. Indeed, before referring the topic of the non-navigational uses of
international watercourses to the International Law Commission for codification, the UN
General Assembly recognised that, despite the existence of numerous treaties governing
the use of particular international rivers, most situations were covered by customary, not
conventional, international law.9
In recent years, debate has raged over the precise legal status of many international
environmental norms and principles which are often assumed to enjoy binding force in
customary international law. Taking an examination of actual State behaviour as the basis
for determining whether a norm is part of customary law, Bodansky notably concludes
that, `[A]ccording to the orthodox account of customary international law, few principles
of international environmental law qualify as customary'.10 Having regard to several
purported norms of customary international law, including the prohibition on
transboundary harm, the precautionary principle and the duty to notify, he observes that,
with the possible exception of the International Law Commission and some work of the
International Law Association, legal writers' assertions about customary international law
are not based on surveys of State behaviour but on the utilisation of texts produced by
States and by non-State actors, such as courts, arbitral panels, intergovernmental and non-
governmental organisations and legal scholars.11 Such texts include cases, statutes,
treaties, codifications, resolutions and declarations. Therefore, he characterises these
9 See, Survey of International Law, Working Paper prepared by the Secretary-General in the Light of the
Decision of the Commission to Review its Programme of Work, UN Doc. A/CN.4/245 (1971), para. 285, at
141. See further, G. Hafner and H. L. Pearson, `Environmental Issues in the Work of the International Law
Commission', (2000) 11 Yearbook of International Environmental Law 3, at 11.
10 D. Bodansky, `Customary (and Not So Customary) International Environmental Law, (1995) 3 Global
Legal Studies Journal 105, at 112. See also, H.E. Chodosh, `Neither Treaty Nor Custom: The Emergence
of Declarative International Law' (1991) 26 Texas International Law Journal, 87 and N. C. H. Dunbar,
`The Myth of Customary International Law' (1983) 8 Australian Yearbook of International Law.
11 Ibid., at 113.
5
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
norms as `declarative'12 rather than customary law but concedes that, while their
usefulness may be limited in relation to third-party dispute settlement by courts and
arbitral tribunals, such norms have an important role to play in terms of voluntary
compliance and in terms of bilateral and multilateral negotiations.13 Indeed, as courts and
arbitral tribunals play, at least as yet,14 a relatively minor role in the resolution of
international environmental disputes, `declarative' norms of international environmental
law can, by exerting a compliance pull on States15 and, more importantly, by influencing
negotiations and other second-party control mechanisms, play a very significant role.
Bodansky concludes that
`the biggest potential influence of these norms is on second-party control
mechanisms. Most international environmental issues are resolved through
mechanisms such as negotiations, rather than through third-party dispute
settlement or unilateral changes of behaviour. In this second-party control
process, international environmental norms can play a significant role by setting
the terms of the debate, providing evaluative standards, serving as a basis to
criticize other states' actions, and establishing a framework of principles within
which negotiations may take place to develop more specific norms, usually in
treaties'.16
Further, international environmental norms, though declaratory in nature, can be expected
to play a significant role in informing the rules and principles contained in the 1997
Convention and other treaty instruments. As Dupuy points out
`A number of guidelines emitted by these bodies ... [international institutions,
both intergovernmental and, at a lower stage, non-governmental (e.g., the Institut
de Droit Internationale, the International Law Association, and the International
Union for Conservation of Nature)] ... have penetrated gradually into
contemporary State practice. In certain cases, these guidelines bring an important
12 Ibid., at 116, See also, Chodosh, supra, n. 10.
13 Ibid., at 117-119. See further, M. Ehrmann, `Procedures of Compliance Control in International
Environmental Treaties', (2002) 13 Colorado Journal of International Environmental Law and Policy, 377-
443. See generally, selected essays in D. Shelton (ed.), Commitment and Compliance: The Role of Non-
Binding Norms in the International Legal System (OUP, Oxford, 2000), and in particular, A. Kiss, `The
Environment and Natural Resources: Commentary and Conclusions', at 223-242.
14 Bodansky speculates that `[T]he establishment of an environmental chamber of the International Court of
Justice and the recent cases between Nauru and Australia and between Hungary and Slovakia may signal
the emergence of a greater judicial role', ibid., at 117. Similarly, Judge Stephen Schwebel has noted that
`[A] greater range of international legal fora is likely to mean that more disputes are submitted to
international judicial settlement. The more international adjudication there is, the more there is likely to be;
the "judicial habit" may stimulate healthy imitation', Annual Report of the ICJ to the 54th General
Assembly, UN Doc. A/54/PV.39, 26 October 1999, at 3, and that `increase in recourse to the Court
[International Court of Justice] is likely to endure, at any rate if a state of relative détente in international
relations endures', Annual Report of the ICJ to the 53rd General Assembly, UN Doc. A/53/PV.44, 27
October 1998, at 4. On the background to the establishment of the Environment Chamber of the ICJ and
the growing number of environmental cases coming before the Court, see M. Fitzmaurice, `Environmental
Protection and the International Court of Justice', in V. Lowe and M. Fitzmaurice (eds.), Fifty Years of the
International Court of Justice 293, at 305-314. In relation to the Mediation and Conciliatory Committee of
the Organisation of African Unity, see T. O. Elias, `The Charter of the Organisation of African Unity'
(1965) 59 American Journal of International Law 243, at 263-264.
15 See further, T. M. Franck, The Power of Legitimacy Among Nations, (1990), at 41-42; M. E. O'Connell,
`Enforcement and the Success of International Environmental Law' (1995) 3 Indiana Journal of Global
Legal Studies, 47.
16 Supra, n. 10, at 118-119.
6
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
contribution to the definition of international standards on the basis of which the
due diligence to be expected from "well-governed" modern States can be
established'.17
He further concludes that
`Soft law [international directives or undertakings that are not, strictly speaking,
binding in themselves] must be taken into account in the tentative analysis and
interpretation of what is certainly already "hard law", that is, international
directives or undertakings that are binding of their own accord under international
law'.18
More specifically, Dupuy suggests that both trends identified in treaty practice and soft
law guidelines defined by international institutions can be taken into consideration `to
define more concretely the material contents of "due diligence"'.19 Of course, the
consistent inclusion of normative rules and principles in the declarations and resolutions
of international organisations, and of the United Nations in particular, contributes
significantly to the process of custom generation. As Judge Tanaka commented, in his
dissenting opinion in the South West Africa Case (Second Phase), in relation to repeated
pronouncements in UN resolutions and declarations:
`This collective, cumulative and organic process of custom generation can be
characterised as the middle way between legislation by convention and the
traditional process of custom making and can be seen to have an important role
from the viewpoint of development of international law'.20
This process might be expected to have made a particularly significant contribution to the
development of international environmental law where the use of soft law declaratory
instruments has been so widespread. Also, though some prominent commentators have
maintained that, in relation to the formation of custom, `what states do is more important
than what they say',21 others, notably Akehurst, criticise this distinction between the
`material components' and other `elements' of `practice', noting that `it is artificial to try
to distinguish between what a state does and what it says'.22 Indeed, Hohmann notes that,
like `no other area of international law, [international environmental law] is influenced by
such a multitude of guidelines, resolutions and other declarations', the grouping of which
documents `in the category of soft law (in contrast to hard law) does not do justice to the
peculiarities of modern ways of making international environmental law'.23 He takes the
view that for the purpose of identifying customary law, State practice may be reduced to
diplomatic practice where the following three criteria are fulfilled:
(i) `the values at the basis of the resolutions concerned are shared by all States and
all States see the need to establish the legal rule quickly;
17 Supra, n. 8, at 61.
18 Ibid., at 62.
19 Ibid., at 69.
20 (1966) ICJ Rep. 248, at 292.
21 S. M. Schwebel, `The Effect of Resolutions of the U.N. General Assembly on Customary International
Law, (1979) Proceedings of the American Society of International Law, at 304. See, in support of this view,
A. A. d'Amato, The Concept of Custom in International Law, (New York, 1971), at 88-91. See generally,
H. Meijers, `On International Customary Law in the Netherlands' in I. F. Dekker and H. H. G. Post (eds.),
On The Foundations and Sources of International Law (T.M.C. Asser Press, The Hague, 2003) 77, at 83-
84.
22 M. Akehurst, `Custom as a Source of International Law' (1974-75) 47 British Yearbook of International
Law, at 3.
23 H. Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law
(Graham & Trotman, London, 1994), at 335.
7
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
(ii) there must be an absence of pre-existing customary law to be displaced; and
(iii) there should be limited evidence of (external) State practice.'24
Hohmann sees the primary role of soft-law instruments in the identification of custom as
that of `the solidifying of indicators for a documentation of the opinio juris' of States.25
However, he also points out that
`the establishment of duties of customary law has also occurred through
agreements ... if indications exist for the formation of opinio juris, if an
agreement adopts this rule, if the rule can be generalized and if it is contained in a
global agreement or in at least two regional agreements of two different
regions'.26
Therefore, `rules of customary law initiated through declarations find their way into
agreements and vice versa'.27
Therefore, the solemn adoption of a `declarative' instrument by the three Prime Ministers
of the three Prespa littoral States formally acknowledging the need for the States to
cooperate in the environmental protection and sustainable development of the Prespa
Lakes ecosystem is of considerable legal significance as evidence of the opinion juris (an
opinion of law or necessity) required in order for each State to be bound by the basic
requirements of the duty to cooperate.
At any rate, the single most important source of rules and principles that may have
crystallised into generally binding norms of customary international environmental law is
the accumulated corpus of relevant multilateral and bilateral treaty provisions. As Sir
Robert Jennings declared in a statement made to the United Nations Conference on
Environment and Development, it is
`a principal task of the ICJ to decide, applying well-established rules and criteria,
whether the provisions of multilateral treaties have or have not developed from
merely contractual rules into rules of general customary international law'.28
Of course, the consistent inclusion of a provision of a particular normative character in
bilateral treaties also provides significant evidence of acceptance of a rule in international
law. In relation to shared water resources in particular, by 1963 a UN publication29 had
listed 253 treaties on non-navigational uses of international rivers and in 1974 another UN
document identified a further 52 bilateral and multilateral agreements that had been
concluded in the intervening period.30 Clearly, this reservoir of treaty practice has greatly
assisted the International Law Commission in the elaboration of the 1994 Draft Articles
which formed the basis of the 1997 Convention and led State actors and
24 Ibid.
25 Ibid., at 336.
26 Ibid., at 337.
27 Ibid.
28 The text of the statement is reproduced in R. Jennings, `Need for Environmental Court?', (1992) 22(5/6)
Environmental Policy and Law 312, at 313, and in (1992) 1 Review of European Community and
International Environmental Law 240, quoted in M. Fitzmaurice, supra, n. 14, at 300.
29 UN Legislative Series, Legislative Texts and Treaty Provisions Concerning the Utilization of
International Rivers for Other Purposes than Navigation, UN Doc. ST/LEG/LER.B/12. See C. O. Okidi,
`Preservation and Protection Under the 1991 ILC Draft Articles on the Law of International Watercourses'
(1992) 3 Colorado Journal of International Environmental Law and Policy 143, at 144.
30 Legal Problems Relating to the Non-Navigational Uses of International Watercourses, UN Doc.
A/CN.4/274, prepared during the 26th session of the ILC, and reproduced in [1974] 1 Yearbook of the
International Law Commission. See Okidi, ibid.
8
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
intergovernmental bodies to argue that there are principles of international law which can
be applied to the preservation and environmental protection of international watercourses
in the absence of bilateral and multilateral agreements.31 In turn, the inclusion of certain
rules and principles in the ILC's Draft Articles, and subsequently in the Convention, must
greatly enhance their status as established or emerging rules of general customary law,
particularly in light of the ILC's particular function within the UN system and the
cautious approach taken to its role of progressive development of international law,
tempered by the constraints imposed by the reality of international State practice.32
It is significant in the case of the Prespa Lakes that all three littoral States have signed the
1997 U.N. Watercourses Convention and that Albania and Greece have ratified the 1992
U.N.E.C.E. Helsinki Convention,33 both of which place very considerable emphasis on
the duty of States to cooperate in the management and protection of shared international
water resources. In addition, all three littoral States have ratified a range of binding
multilateral treaty instruments committing States parties to cooperate in the protection of,
inter alia, wetlands, migratory species, biological diversity, and cultural and natural
heritage,34 as well as international instruments requiring application of a range of
horizontal procedural measures for environmental protection,35 which by definition
assume a high degree of effective transboundary cooperation.
3.
General Duty to Cooperate under Customary International Law
(a) Duty to Prevent Transboundary Harm
Two of the most widely accepted rules of international law, and of international
environmental and natural resources law in particular, are those requiring that States act to
prevent significant transboundary harm and, in order to meet the due diligence
requirements of this duty, that States actively cooperate in good faith to prevent such
harm. Dupuy describes the obligation to prevent or abate substantial damage from
transfrontier pollution, or a significant risk of causing substantial damage, as `well-
established'.36 Further, `on the basis of a broad comparison of treaty law, international
resolutions, and regional practice' he articulates the rule as providing that
31 This argument was urged in the recommendations of the 1977 United Nations Water Conference held at
Mar del Plata, Argentina. See Report of the United Nations Water Conference, UN Doc. E/CONF.70/29, at
115. See further, Okidi, ibid., at 159.
32 See further, J. Brunée and S. J. Toope, `Environmental Security and Freshwater Resources: A Case for
International Ecosystem Law' (1994) 5 Yearbook of International Environmental Law 41, at 58
33 U.N.E.C.E. Convention on the Protection and Use of Transboundary Watercourses and International
Lakes (Helsinki, 1992)
34 U.N.Convention on Wetlands of International Importance (Ramsar, 1971); UNESCO Convention
Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972); U.N. Convention on
Migratory Species and Wild Animals (Bonn, 1979); Convention on the Conservation of European Wildlife
and Natural Habitats (Bern, 1979); U.N. Convention on Biological Diversity (Rio de Janeiro, 1992).
35 U.N.E.C.E. Convention on Environmental Impact Assessment in a Transboundary Context (Espoo,
1991), and Protocol on Strategic Environmental assessment (Kiev, 2003); Convention on Access to
Information, Public Participation in Decision-Making and Access to Justice in Environmental matters
(Aarhus, 1998), and Protocol on Pollutant Release and Transfer Registers (Kiev, 2003) [Greece and FYR on
Macedonia]
36 Supra, n. 8, at 63.
9
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
`[I]n the exercise of their sovereign rights to exploit and use, pursuant to their
development policies, their natural resources, States shall take into account the
impact of actual or anticipated activities in areas placed under their jurisdiction on
the environment situated beyond their frontiers. They shall take in good faith and
with all due diligence, appropriate measures to prevent transfrontier pollution by
elaborating, in particular, rules and procedures adapted to the requirements of the
protection of the environment, and see to it that these are effectively applied'.37
Numerous commentators conclude that this obligation has entered the realm of customary
international law.38 Notable examples include Wolfrum who asserts that `[T]here is
agreement in international law that, in general, transfrontier damage is prohibited. This
prohibition has essentially been developed under customary international law'.39
Similarly, in 1992, Birnie and Boyle could conclude that
`[I]t is beyond serious argument that states are required by international law to
take adequate steps to control and regulate sources of serious global
environmental pollution or transboundary harm within their territory or subject to
their jurisdiction. This is a principle of harm prevention, not merely a basis for
reparation after the event, although in its judicial applications it has usually taken
the latter form'.40
The same authors have subsequently elaborated on the legal status and substantive content
of this principle, stating that
`Two propositions enjoy significant support in state practice, judicial decisions,
the pronouncements of international organizations, and the work of the
International Law Commission and can be regarded as customary international
law, or in certain aspects as general principles of law:
(i) that states have a duty to prevent, reduce, and control pollution and
environmental harm, and
(ii) a duty to co-operate in mitigating environmental risks and emergencies
through notification, consultation, negotiation, and in appropriate cases,
environmental impact assessment'.41
The OECD provides a commonly accepted definition of `transfrontier pollution' which is
taken to refer to
`any intentional or unintentional pollution whose physical origin is subject to, and
situated wholly or in part within the area under, the national jurisdiction of one
37 Ibid.
38 See, inter alia, A Kiss and D. Shelton, International Environmental Law (1991), at 130; P. Sands,
Principles of International Environmental Law (1995), at 190; E. B. Weiss, S. C. McCaffrey, D. B.
Magraw, P. C. Szasz and R. E. Lutz, International Environmental Law and Policy (1998), at 317; D.
Hunter, J. Salzman and D. Zaelke, International Environmental Law and Policy (1998), at 345; D. Wirth,
`The Rio Declaration on Environment and Development:Two Steps Forward and One Back, or Vice
Versa?', (1995) 29 Georgia Law Review 599, at 620.
39 R. Wolfrum, `Purposes and Principles of International Environmental Law' (1990) 33 German Yearbook
of International Law, 308, at 309.
40 P. Birnie and A. Boyle, International Law and the Environment, (O.U.P., Oxford, 1992), at 89.
41 P. Birnie and A. Boyle, International Law and the Environment, (2nd Ed.) (O.U.P., Oxford, 2002), at
104-105. Interestingly, Dupuy also links practical implementation of the obligation to prevent
transboundary pollution with the introduction of procedures for environmental impact assessment, supra, n.
1, at 66-68, see infra.
10
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
State and which has effects in the area under the national jurisdiction of another
State'.42
More recent articulations of the concept tend to include effects in areas beyond national
jurisdictions.43 `Pollution' is in turn defined as
`the introduction by man, directly or indirectly, of substances or energy into the
environment resulting in deleterious effects of such a nature as to endanger human
health, harm living resources and ecosystems, impair amenities or interfere with
other legitimate uses of the environment'.44
The principle is commonly expressed as a application of the maxim sic utere tuo, ut
alienum non laedas and its emergence can be traced to the decision of the arbitral tribunal
in the Trail Smelter arbitration which provides that
`No State has the right to us or permit the use of its territory in such a manner as to
cause injury ... in or to the territory of another or of the properties or persons
therein, when the case is of serious consequence and the injury is established by
clear and convincing evidence'.45
The principle was confirmed in the Corfu Channel case where the ICJ, though not dealing
with transboundary pollution, enunciated the general principle that a State may not
knowingly allow its territory to be used to injure another State.46 The court expressly
proclaimed `the obligation of every State not to allow its territory to be used for acts
contrary to the rights of other States'.47 In the Lac Lanoux arbitration,48 which involved a
dispute between Spain and France over proposals to construct a dam on an international
watercourse, the Tribunal stated obiter that `there is a rule prohibiting the upper riparian
State from altering the waters of a river in circumstances calculated to do serious injury to
the lower riparian State'.49 More recently, in the Advisory Opinion on the Legality or
Threat of Use of Nuclear Weapons, the ICJ has held that the general obligation to prevent,
reduce and control transboundary environmental harm is `now part of the corpus of
international law relating to the environment'.50 Earlier, in the Request for an
Examination of the Situation, concerning French underground nuclear tests, though the
ICJ found that it had no jurisdiction, the separate opinions of Judges Weeramantry and
Koroma would appear to accept that international law requires States not to cause or
permit serious damage in accordance with Principle 21 of the 1972 Stockholm
42 OECD Resolution C(77)28 (17 May, 1977). See, OECD, OECD and the Environment (1986), at 151.
43 It is interesting to note that, for the purposes of international Liability for transboundary harm, the set of
eight draft principles recently adopted by the International Law Commission restrict the concept of
transboundary harm to include only `loss to persons, property, including the elements of State patrimony
and natural heritage, and the environment within national jurisdiction', see P. S. Rao, `International
Liability for Transboundary harm', (2004) 34/6 Environmental Policy and Law 224, at 226 (emphasis
added). For the text and commentaries of the 2004 draft principles on international liability in case of loss
from transboundary harm arising out of hazardous activities, see Report of the International Law
Commission, UNGAOR, Fifty-ninth session (2004), A/59/10, Ch. VII, paras. 158-176.
44 Ibid.
45 U.S. v. Canada, 3 R.I.A.A., (1941), at 1965. Though Bodansky is quick to point out that this decision is
merely one of an arbitration panel and that `after more than fifty years [it] is still the only case in which a
state was held internationally responsible for causing transboundary harm', supra, n. 10, at 114.
46 U.K. v. Albania, I.C.J. Rep. (1949) 4.
47 Ibid. at 22.
48 Lac Lanoux Arbitration (France v. Spain), award of 16 Nov. 1957, 12 R.I.A.A. 281.
49 See, (1974) Yearbook of the International Law Commission, vol. 2, part 2, 194, at 197, para 1065.
50 (1996) ICJ Rep. 226, at para. 29.
11
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Declaration.51 Most recently, in the Case Concerning the Gabcíkovo-Nagymaros Project,
the Court accepted that grave and imminent danger to the environment could constitute a
state of ecological necessity which could provide a ground for the termination of a treaty,
thereby lending indirect support to the existence of a general obligation to prevent
transboundary environmental harm.52 Birnie and Boyle conclude that, though
`[T]he Court's environmental jurisprudence is not extensive ... its judgements
affirm the existence of a legal obligation to prevent transboundary harm, to co-
operate in the management of environmental risks, to utilize resources equitably
and, albeit less certainly, to carry out environmental impact assessment and
monitoring.'53
The principle has long been accepted by the international community and is supported in
numerous influential declarations and resolutions. Most notably, Principle 21 of the
Stockholm Declaration, adopted by the 1972 United Nations Convention on the Human
Environment, provides that
`States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction'.54
The rule, as stated in Principle 21, has been reaffirmed in a wide variety of international
instruments adopted by global and regional interstate bodies. Examples include, the
United Nations General Assembly's 1973 Resolution on Co-operation in the Field of
Environment Concerning Natural Resources Shared by Two or More States55 and 1974
Resolution proclaiming the Charter of Economic Rights and Duties,56 the 1974 OECD
Recommendations on the Control of Eutrophication of Waters,57 on Strategies for
Specific Pollutants Control58 and on Transfrontier Pollution,59 the 1975 Final Act of the
Conference on Security and Co-operation in Europe,60 Principle 3 of the 1978 UNEP
Principles of Conduct in the Field of the Environment Concerning Resources Shared by
Two or More States,61 and Articles 10 and 11 of the 1985 ASEAN Agreement on the
Conservation of Nature and Natural Resources.62 Significantly, the 1975 Helsinki Final
51 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of
20 December 1974 in Nuclear Tests [New Zealand v. France], Order 22 IX 95, ICJ Rep. (1995) 288. See
Birnie and Boyle, supra, n. 41, at 107. Re Principle 21, see infra.
52 I.C.J. Rep. (1997) 7. See further, "Symposium", (1997) 8 Yearbook of International Environmental Law,
3-50; O. McIntyre, "Environmental Protection of International Rivers", Case Analysis of the ICJ Judgment
in the Case concerning the Gabcikovo-Nagymaros Project (Hungary / Slovakia), (1998) 10 Journal of
Environmental Law, 79-91.
53 Supra, n. 41, at 108.
54 Report of the United Nations Conference on the Human Environment, (Stockholm, June 5-16, 1972), part
I, chapter I, reprinted in 11 ILM 1416 (1972).
55 UNGA Res. 3129 (XXVIII), U.N. GAOR Supp. (no. 30A), U.N. Doc. A/9030/Add.1 (1973).
56 UNGA Res. 3281, 29 U.N. GAOR Supp. (No. 31), at 50, U.N. Doc. A/9631 (1975), reprinted in 14 ILM
251 (1975).
57 OECD Council Recommendation C(74)220, reprinted in OECD, OECD and the Environment (1986), at
44-45.
58 OECD Council Recommendation C(74)221, reprinted ibid.
59 OECD Council Recommendation C(74)224, reprinted ibid.
60 14 ILM 1292 (1975).
61 UNEP/IG/12/2 (1978).
62 (1985) 15 Environmental Policy and Law, at 64.
12
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Act of the Conference on Security and Co-operation in Europe (CSCE),63 which later
gave rise to the Organisation for Security and Cooperation in Europe (OSCE)64 and
includes all European States and all former Soviet States in the Caucasus and Central Asia
as well as the U.S. and Canada, states in its Preamble
`Acknowledging that each of the participating states, in accordance with the
principles of international law, ought to ensure, in a spirit of co-operation, that
activities carried out on its territory do not cause degradation of the environment in
another state or in areas lying beyond the limits of national jurisdiction'.65
The `no harm' rule has been included in codifications of international law, such as the
International Law Association's Montreal Rules of International Law Applicable to
Transfrontier Pollution, Article 3(1) of which provides that `[S]tates are in their legitimate
activities under an obligation to prevent, abate, and control transfrontier pollution to such
an extent that no substantial injury is caused in the territory of another State'.66 Similarly,
the rule has been included in a number of normative environmental treaty regimes, most
notably by means of Articles 194(2) of the 1982 U.N. Convention on the Law of the Sea
which requires that `[S]tates shall take all measures necessary to ensure that activities
under their jurisdiction or control are conducted so as not to cause damage by pollution to
other States and their environment'.67 Other treaty instruments incorporating the
principle include the 1992 Espoo Convention on the Transboundary Effects of Industrial
Accidents.68
The principle has been confirmed by Principle 2 of the Rio Declaration which restates
Stockholm Principle 21 except in that it alludes to States' `own environmental and
developmental policies'.69 In relation to this modification, Sands concludes that `[T]he
introduction of these words may even expand the scope of the responsibility not to cause
environmental damage to apply to national developmental policies as well as national
environmental policies'70 while Birnie and Boyle suggest that it does no more than
`confirm an existing and necessary reconciliation with the principle of sustainable
development and the sovereignty of states over their own natural resources'.71 In this
form, the rule has been included in the provisions of various treaties arising from the Rio
process, for example Article 3 of the Convention on Biological Diversity72 and the
preamble to the Framework Convention on Climate Change.73 It has also played an
influential role in the post-Rio development of international environmental law, for
63 Supra, n. 60.
64 The CSCE was formally constituted by the 1990 Charter of Paris, 30 ILM (1991), 193 and changed its
name to the OSCE in 1994. See further, P. Sands and P. Klein, Bowett's Law of International Institutions
(Sweet & Maxwell, London, 2001), at 199-201.
65 Emphasis added.
66 International Law Association, Report of the 60th Conference (1982), at 1-3.
67 21 ILM (1982) 1261. See also, Article 192(2).
68 31 ILM (1992) 1333.
69 Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992), 31 ILM 876.
Emphasis added.
70 P. Sands, Principles of International Environmental Law (Manchester University Press, 1995), at 50.
71 Supra, n. 41, at 110.
72 31 ILM (1992) 818.
73 31 ILM (1992) 851.
13
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
example in the Nuuk Declaration on Environment and Development in the Arctic74 and
the 1994 Convention to Combat Desertification.75 It is clear that, at least as regards later
formulations of the `no harm' principle, it applies to all areas beyond which the State in
question exercises sovereign jurisdiction and so operates to extend protection to the so-
called `global commons' such as the high seas, the deep seabed, outer space or the global
climate.76
Despite the overwhelming support in State and treaty practice and international soft-law
instruments for the existence in customary law of an obligation to prevent transboundary
harm, and the characterisation of this obligation as the `cornerstone of international
environmental law',77 some commentators remain sceptical. Knox, for example, insists
that Stockholm Principle 21 `has the problem an uncomfortable one, for a would-be
principle of customary international law that it does not seem to enjoy the necessary
support in state practice'.78 He cites Schachter's observation that `[T]o say that a state
has no right to injure the environment of another seems quixotic in the face of the great
variety of transboundary environmental harms that occur every day'.79 Indeed, Knox is
so implacably convinced that the general prohibition of transboundary harm does not
enjoy customary status that he refuses to regard the emergence of legal requirements for
transboundary environmental impact assessment (EIA) as a requirement of or means of
giving effect to this rule, and instead views transboundary EIA as an outgrowth of rules
requiring domestic EIA and as a consequence of the principle of non-discrimination.80
However, this view fails to take adequate account of the fact that few who support the
status of this obligation as a rule of customary international law would argue that it
prohibits all transboundary harm.81 It is widely understood that this rule applies subject
to two considerable limitations. First, the harm or potential harm involved must exceed
the threshold of `significant' or `substantial' harm in order to come within the ambit of
the prohibition.82 This position is supported by, inter alia, the WCED Experts Group on
Environmental Law,83 the International Law Association84 and United States practice.85
74 (1993) 4 Yearbook of International Environmental Law, 687. See D. Rothwell, `The Arctic
Environmental Protection Strategy and International Environmental Co-operation in the Far North' (1995) 6
Yearbook of International Environmental Law, 65.
75 33 ILM (1994) 1016.
76 See, for example, UNGA Res. 2995 XXVII (1972), the Preamble to the 1975 CSCE Final Act, supra, n.
60, and Article 194(2) of the 1982 United Nations Convention on the Law of the Sea, supra, n. 67.
77 See Sands, supra, n. 70, at 186 and E. B. Weiss, S. C. McCaffrey, D. B. Magraw, P. C. Szasz and R. E.
Lutz, International Environmental Law and Policy (1998), at 316.
78 J. H. Knox, `The Myth and Reality of Transboundary Environmental Impact Assessment' (2002) 96
American Journal of International Law 291, at 293. See also, Bodansky, supra, n. 10, at 110-111.
79 O. Schachter, `The Emergence of International Environmental Law' (1991) 44 Journal of International
Affairs 457, at 463.
80 Supra, n. 78.
81 For an example of one of the very few commentators who continue to argue that the prohibition applies to
all transboundary harm, see S. E. Gaines, `Taking Responsibility for Transboundary Environmental Effects'
(1991) 14 Hastings International and Comparative Law Review 781, at796-797.
82 See K. Sachariew, `The Definition of Thresholds of Tolerance for Transboundary Environmental Injury
Under International Law: Development and Present Status' (1990) 37 Netherlands International Law
Review 193, at 196.
83 Experts Group on Environmental Law of the World Commission on Environment and Development,
Environmental Protection and Sustainable Development: Legal Principles and Recommendations, (1987)
(Article 10), at 75. Reprinted in J. Lammers and R. D. Munro (Eds.), Environmental Protection and
Sustainable Development: Legal Principles and Recommendations Adopted by the Experts Group on
14
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Second, the prohibition is normally understood as reflecting an obligation as to
performance, based on standards of `due diligence', rather than an absolute obligation as
to result.86 Though there may remain some uncertainty in relation to the exact meaning
of `significant' or `substantial' harm87 and in relation to the types of harm which might be
included,88 such uncertainty does not necessarily detract from the legitimacy of the rule.
Indeed, Principle 22 of the Stockholm declaration expressly obliges States to act to
remedy such uncertainty, by providing that
`States shall co-operate to develop further the international law regarding liability
and compensation for the victims of pollution and other environmental damage
caused by activities within the jurisdiction or control of such States to areas beyond
their jurisdiction'.89
This exhortation is repeated as Principle 13 of the Rio Declaration which further requires
States to act `in an expeditious and more determined manner' in developing international
law in this area.90
As regards State practice relating specifically to international watercourses, numerous
bilateral and multilateral treaties incorporate some form of general obligation of
prevention of substantial transfrontier environmental harm.91 For example, Article
58(2)(e) of the 1960 Frontier Treaty concluded between the Federal Republic of Germany
and the Netherlands provides that
`The contracting parties ... shall take or support ... all measures required ...
(e) to prevent such excessive pollution of the boundary waters as may substantially
impair the customary use of the waters by the neighbouring State'.92
Further examples include the 1964 Agreement concerning Frontier Watercourses
concluded between Finland and the U.S.S.R. and the 1973 Agreement between Mexico
and the United States concerning the Permanent and Definitive Solution to the
Environmental Law of the World Commission on Environment and Development (London, 1986). The
Experts' Group was established to prepare legal principles which ought to be in place now, or before the
year 2000, to support environmental protection and sustainable development within and among all States,
ibid., at 7.
84 Supra, n. 66, Article 3(1).
85 Restatement (Third) of the Foreign relations Law of the United States (1987), para. 601.
86 See further, A. E. Boyle, `State Responsibility and International Liability for Injurious Consequences of
Acts Not Prohibited by International Law' (1990) 39 International and Comparative Law Quarterly 1, at
14-15; R. Pisillo-Mazzeschi, `Forms of International Responsibility for Environmental Harm', in F.
Francioni and T. Scovazzi (eds.), International Responsibility for Environmental Harm (1991) 15, at 24; G.
Handl, `National Uses of Transboundary Air Resources: The International Entitlement Issue.
Reconsidered', (1986) 26 Natural Resources Journal 405, at 429.
87 For example, `substantial' and `significant' harm may not be interchangeable. See S. E. Gaines, supra, n.
81, at 796, who suggests that `[I]n both domestic American usage and international law, the term
"substantial" connotes a magnitude of harm that is a quantum step greater than merely "not significant"'.
88 Contrast, for example, Handl, who asserts that material damage rather than `moral injury' is necessary for
State responsibility for environmental harm, and Rubin, who suggests that State responsibility for
transboundary pollution should include intangible injury. See G. Handl, `Territorial Sovereignty and the
Problem of Transnational Pollution', (1975) 69 American Journal of International Law 50, at 75 and A. P.
Rubin, `Pollution by Analogy: The Trail Smelter Arbitration', (1971) 50 Oregon Law Review 259, at 273-
274. See further, Knox, supra, n. 78, at 294.
89 Supra, n. 54.
90 Supra, n. 69.
91 See generally, Dupuy, supra, n. 8, at 65.
92 508 UNTS 14.
15
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
International Problem of the Salinity of the Colorado River93 and the 1983 U.S.- Mexico
Agreement for Co-operation on Environmental Programs and Transboundary Problems.94
In addition, Dupuy notes that in the course of several interstate disputes concerning
pollution of shared waters States have taken care to refer expressly to the legal value of
this principle and to explain that their behaviour did not amount to a violation. He notes
that this respect for the principle explains the `attitude both of Brazil in relation with
Argentina in the Itaipu barrage affair and, even more, of India in the context of its
difficulties with Bangladesh relating to the diversion of a part of the Ganges waters ...'.95
In practical terms, the requirement that States exercise `due diligence' in relation to
activities which might cause significant harm to areas beyond their national jurisdiction is
central to implementation of the `no harm' rule. At its simplest, due diligence requires
that States introduce legislative and administrative controls to ensure that such harm is
prevented, mitigated or reduced and, though such a standard of conduct may conveniently
allow for flexibility, Birnie and Boyle point out that it can be lent a measure of `concrete
content and predictability' by looking to internationally agreed minimum standards as set
out in treaties or in the resolutions and decisions of international bodies.96 Examples of
such `eco-standards' include those set out in the annexes to the 1973 MARPOL
Convention97 and the 1972 London Dumping Convention98 which are both referred to
and effectively incorporated by the 1982 UNCLOS. Equally, the due diligence standard
may be understood by reference to the constantly evolving standards of `best available
technology'(BAT), `best available technology not entailing excessive cost' (BATNEEC),
`best practicable means'(BPM), or `best practicable environmental option' (BPEO).99
Interestingly, due diligence requirements often permit special allowance to be made for
developing countries in determining their precise legal obligations100 and so this approach
can be used to give practical effect to the emerging principle of `common but
differentiated responsibility'.101 The ILC's draft Convention on the Prevention of
Transboundary Harm provides useful and authoritative guidance on the substantive
content of the requirement to exercise due diligence, identifying four key elements:
(i) `taking all appropriate measures to prevent and minimise the risk;
(ii) co-operation for this purpose with other States and competent international
organisations;
93 12 ILM (1973) 1105.
94 22 ILM (1983) 1025.
95 Supra, n. 8, at 66. See further, P-M Dupuy, `La Gestion concertée des resources naturelles: á propos du
différend entre le Brésil et l'Argentine relatif au barrage d'Itaipu' [1978] 24 Annuaire Français de Droit
International 866.
96 Supra, n. 41, at 112-113.
97 12 ILM (1973) 1319.
98 11 ILM (1972) 1294.
99 Examples include Article 4(3) of the 1974 Paris Convention for the Prevention of Marine Pollution from
Land-Based Sources, 13 ILM (1974) 352, pursuant to which BAT standards have been adopted by the Paris
Commission, and Article 6 of the 1979 Geneva Convention on Long-Range Transboundary Air Pollution,
18 ILM (1979) 1442.
100 For example, Article 2 of the 1972 London Dumping Convention requires State parties to take effective
measures `according to their scientific, technical and economic capabilities'.
101 The view that special allowance is to made for developing countries in determining the content of their
legal obligations is reflected in Principle 23 of the Stockholm Declaration and in Principles 6, 7 and 11 of
the Rio Declaration as well as in the Ozone Protocol and the Conventions on Climate Change and
Biological Diversity. See Birnie and Boyle, supra, n. 41, at 112.
16
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
(iii) implementation through necessary legislative, administrative, or other action,
including monitoring mechanisms;
(iv) a system of prior authorisation for all relevant activities or major changes
thereto, based on prior assessment of the possible transboundary harm.'102
In relation to this formulation of the due diligence requirement, Birnie and Boyle
confidently conclude that
`there is ample authority in treaties, case law and state practice for regarding these
provisions of the Commission's draft convention as a codification of existing
international law. They represent the minimum standard required of states when
managing transboundary risks and giving effect to Principle 2 of the Rio
Declaration'.103
At any rate, it is clear that the obligation to prevent transboundary harm cannot be
divorced from a number of associated obligations, such as those relating to co-operation
and, in respect of major development projects, environmental impact assessment, through
which the no-harm rule may be enforced and to which the no-harm rule lends enhanced
normative status.
Consistent with Article 7 of the U.N. watercourses Convention, the prohibition in Article
21(2) is based on the standard of `due diligence'. In 1988, Special Rapporteur McCaffrey
canvassed the relevant state practice, the work of the International Law Institute and the
writings of leading publicists to convince the Commission that the due diligence standard
had broad support.104 According to the Special Rapporteur, under this standard
`a watercourse State would be internationally responsible for appreciable [now
significant] pollution harm to another watercourse State only if it had failed to
exercise due diligence to prevent harm. In other words the harm must be the result
of a failure to fulfil the obligation of prevention.'105
A similar approach to the obligation to prevent transboundary harm was adopted by the
ILA in its 1982 Montreal Rules on Water Pollution in an International Drainage Basin,
Article 1(c) of which obliges States to `attempt to further reduce any water pollution to
the lowest level that is practicable and reasonable under the circumstances'.106
Article 21(2) further obliges watercourse States to `take steps to harmonize their policies'
in relation to the prevention, reduction and control of pollution of an international
watercourse and aims to avoid conflicts from arising due to divergent national policies
and standards. The 1991 commentary actually explains that this obligation does not
require States to formulate and apply identical policies, but to work together in good faith
to achieve and maintain such harmonisation as is necessary to avoid the likelihood of
conflicts arising.107 This obligation is supported by State practice. For example, Article
194 of the 1982 UNCLOS contains a very similar provision. In order to facilitate this
102 Report of the International Law Commission (2001) GAOR A/56/10, Articles 3-7. See further, A. Boyle
and D. Freestone (eds.), Sustainable Development and International Law (OUP, Oxford, 1999), Ch. 4. See
also, Birnie and Boyle, ibid., at 113.
103 Ibid.
104 See generally, [1988] 1 Yearbook of the International Law Commission, at 121-164.
105 Ibid., at 164.
106 International Law Association, Report of the Sixtieth (Montreal) Conference, (1982), at 535.
107 Draft Articles on the Non-navigational Uses of International Watercourses and Commentaries Thereto,
Provisionally adopted on First Reading by the International Law commission at its Forty-Third Session
(1991), at 143.
17
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
process of bilateral or regional harmonisation, Article 21(3) requires watercourse States to
consult `... at the request of any of them ... with a view to arriving at mutually agreeable
measures and methods to prevent, reduce and control pollution of an international
watercourse ...'. Such measures and methods are to include, inter alia:
(a) Setting joint water quality objectives and criteria;
(b) Establishing techniques and practices to address pollution from point and non-
point sources;
(c) Establishing lists of substances the introduction of which into the waters of an
international watercourse is to be prohibited, limited, investigated and monitored.
There is well-established State practice for the drawing up of lists of toxic substances and,
at the ILC's fortieth session in 1988, the Special Rapporteur drew attention to the list of
environmentally harmful chemical substances and the definition of `hazardous wastes'
prepared by the UNEP.108 The Special Rapporteur further suggested that:
`It might be possible to stipulate that the lists be drawn up in accordance with
internationally accepted standards, such as those contained in the 1973 and 1978
MARPOL Conventions and in the 1974 Paris Convention on the Prevention of
Marine Pollution from Land-based Sources'109
He also suggested, as an alternative approach, a provision based on model principle 8(d)
of the set of principles adopted in 1987 by the UNECE on co-operation in the field of
transboundary waters.110 Model principle 8(d) provides:
`In the prevention and control of transboundary water pollution, special attention
should be paid to hazardous substances, especially those which are toxic, persistent
and bioaccumulative, whose introduction into transboundary waters should be
prohibited or at least prevented by using the best available technology; such
pollutants should be eliminated within a reasonable period of time'.111
Article 21(3) can be regarded as a means of giving specific effect to the general obligation
to co-operate contained in Article 8 and the obligation imposed on watercourse States
under Article 7(2) to `take all appropriate measures ... in consultation with the affected
State, to eliminate and mitigate ... harm ...'. Further, the 1991 commentary refers, in the
context of Article 21(2) and (3), to the general obligation on watercourse States under
Article 5(2) to `participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner'.112
In conclusion, therefore, it is generally agreed that the obligation to prevent transboundary
pollution, as well as containing a substantive core, entails a number of associated
procedural duties113 including, most significantly, the general duty of States to cooperate.
This duty to cooperate may take a variety of forms depending on the relevant factual
circumstances. For example, before undertaking any development or activity with a risk
of significant transboundary harm, the State with jurisdiction over the activity should
assess its potential transboundary impacts. However, States are generally required to co-
108 Report of the International Law Commission on the Work of its Fortieth Session, [1988] 2 Yearbook of
the International Law Commission, UN Doc. A/43/10, at 165.
109 Ibid.
110 Ibid.
111 UN Doc. E/ECE (42)/L. 19, at 18.
112 Draft Articles on the Non-navigational Uses of International Watercourses and Commentaries Thereto,
Provisionally adopted on First Reading by the International Law commission at its Forty-Third Session
(1991), at 140.
113 See generally, Knox, supra, n. 78, at 295-296.
18
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
operate in relation to the prevention of transboundary harm and, in particular, to notify
any potentially affected States and to consult with them over the measures to be taken.
The substantive obligation to prevent pollution is based on a requirement of due diligence
and failure to actively cooperate in good faith, by conducting an adequate transboundary
EIA for example, is likely to indicate breach of the rule where significant harm occurs.
As Okowa observes:
`it may be argued that such assessments may be a relevant factor in determining
whether a State has acted with the requisite degree of diligence in discharging its
customary law or treaty-based duty to prevent environmental harm. A State that
fails to assess the impact of proposed activities on the territories of other States
can hardly claim that it has taken all practicable measures with a view to
preventing environmental damage'.114
Further, established and emerging principles of customary international environmental
law act upon the various determinations involved. For example, the precautionary
principle is likely to have a role to play in deciding whether any harm caused or likely to
be caused by the activity in question is significant for the purposes of the duty to prevent
environmental harm. All of these elements are present, to a greater or lesser degree,
either explicitly or implicitly, in the regime for the prevention of transboundary
environmental harm established by the 1997 UN Convention on the Non-navigational
Uses of International Watercourses.
(b)
Duty to Cooperate
The general obligation on States to co-operate in the resolution of international problems
is widely accepted and receives support from such an authoritative legal source as Article
1(3) of the United Nations Charter which states that one of the purposes of the United
Nations is `[T]o achieve international co-operation in solving international problems of an
economic, social, cultural or humanitarian character ...'. The ICJ has noted that the main
principles established by the UN Charter have acquired a customary value independent of
that text115 and this approach is evident in the United Nations General Assembly's 1970
Resolution on Friendly Relations and Co-operation Between States.116 The general
obligation to co-operate is given practical effect by means of various associated rules of
procedural conduct that are evolving as contemporary international custom, including the
duties to notify, consult, negotiate and warn. However, Bodansky once again questions
the true status of such rules, suggesting that they are likely to be `declarative' rather than
customary.117 At any rate, the obligation to co-operate, whatever its exact legal
status, can be said to be more firmly established and highly developed in terms of its
application to the protection of the environment and the environmental protection and
utilisation of shared natural resources. Indeed, as Dupuy notes, `co-operation is the
general means by which States will implement the substantive rights and duties regarding
114 P. N. Okowa, `Procedural Obligations in International Environmental Agreements' (1996) 67 British
Yearbook of International Law 275, at 280. This argument was advanced by New Zealand in the 1995
Nuclear Tests case, supra, n. 51, see aide-mémoire of 21 August 1995, and the dissenting opinion of Judge
Palmer, (1995) ICJ Rep. 381, at 411.
115 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits,
(1986) I.C.J. 14 (Judgment of June 27).
116 G.A. Res. 2625 (XXV), U.N. GAOR Supp. (No. 28), at 121, U.N. Doc. A/8028 (1970).
117 Supra, n. 10, at 114. See also, G. Partan, `The "Duty to Inform" in International Environmental Law',
(1988) 6 Boston University International Law Journal 43, at 83.
19
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
the use of transboundary natural resources'.118 Similarly, Birnie and Boyle describe the
obligation to co-operate in mitigating transboundary environmental risk as `now widely
acknowledged' and, more particularly, they refer to the `requirement of prior consultation
based on adequate information' as `a natural counterpart to the concept of equitable
utilization of a shared resource'.119 In support of this conclusion one needs only to
consider the numerous non-binding recommendations and declarations of States which
refer to the obligation to co-operate and define some of its means of implementation. For
example, Principle 24 of the Stockholm Declaration on the Environment120 articulated the
obligation and this formulation has been restated by the U.N. General Assembly in
several resolutions, including the 1972 Resolution on Co-operation Between States in the
Field of Environment121 and the 1973 Resolution on Co-operation in the Field of the
Environment Concerning Natural Resources Shared by Two or More States.122 A later
General Assembly Resolution on Co-operation in the Field of the Environment
Concerning Natural Resources Shared by Two or More States123 further developed the
obligation and was inspired by the 1978 UNEP Principles of Conduct on Shared Natural
Resources.124 Principle 13 of the 1978 UNEP Principles requires that effects on the
environment, as well as on the resources of other States, are among the matters which
must be taken into account in policies on the use of shared resources. The obligation to
co-operate has been restated in several OECD Recommendations, including the 1974
Recommendation on Transfrontier Pollution.125 The obligation also receives support
from the declarations of various regional groups and organisations. For example, Article
2 of 1989 Declaration of Brasilia, adopted by the Sixth Ministerial Meeting on the
Environment in Latin America and the Caribbean, provides
`The Ministers endorse the principle that each State has the sovereign right to
administer freely its own resources. This does not, however, exclude the need for
international co-operation at the sub-regional, regional and world levels; rather it
reinforces it'.126
Though some commentators remain sceptical of the value of seeking to identify general
customary procedural rules on the basis of treaty provisions, case law and limited State
practice,127 the 1992 Rio Declaration128 contains a strong endorsement of the requirement
to notify and consult in Principle 19, which provides that
`States shall provide prior and timely notification and relevant information to
potentially affected States on activities that may have a significant adverse
118 Supra, n. 8, at 70.
119 Supra, n. 41, at 126. For further support for this assertion among leading commentators, see G. Handl,
`The Principle of `Equitable Use' as Applied to Internationally Shared Natural Resources: Its Role in
Resolving Potential International Disputes over Transfrontier Pollution', (1978) 14 Revue Belge de Droit
International 40, at 55-63; A. E. Utton, `International Environmental Law and Consultation Mechanisms'
(1973) 12 Columbia Journal of Transnational Law 56; F. L. Kirgis, Prior Consultation in International
Law, (Charlotsville, Va., 1983).
120 Supra, n. 54.
121 UNGA Res. 2995(XXVII), U.N. GAOR Supp. (No. 30), U.N. Doc. A/8732 (1972).
122 Supra, n. 55.
123 UNGA Res. 34/186, U.N. GAOR Supp. (No. 46) at 128, U.N. Doc. A/34/46.
124 Supra, n. 61.
125 Supra, n. 59. Others include Recommendations C(77) 115, C(77)28 and C(78)77, in OECD, OECD and
the Environment (1986), at 181, 150 and 154 respectively.
126 Reprinted in 28 ILM (1989) 1311.
127 In particular, see Okowa, supra, n. 114, at 317-22. See also, Bodansky, supra, n. 10., at 114.
128 Supra, n. 69.
20
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
transboundary environmental effect and shall consult with those States at an early
stage and in good faith'.
Birnie and Boyle conclude that Principle 19 reflects and codifies the relevant precedents
from treaty and State practice and case law and further point out that
` ... even if notification and consultation in cases of transboundary risk may not yet
be independent customary rules, non-compliance with them is likely to be strong
evidence of a failure to act diligently in protecting other states from harm under Rio
Principle 2.'129
Further, the work of international codification bodies supports the general requirement of
transboundary co-operation in cases of significant environmental risk. Examples include,
Articles 4-6 of the 1982 International Law Association's Montreal Rules on Transfrontier
Pollution.130
Similarly, a very considerable number of treaty instruments refer to the need for States to
co-operate and many provide detailed measures for discharging this obligation. Relevant
examples of general environmental treaties include, the 1968 African Convention on the
Conservation of Nature and Natural Resources,131 the 1974 Paris Convention for the
Prevention of Marine Pollution from Land-Based Sources,132 the 1974 Helsinki
Convention on the Protection of the Marine Environment of the Baltic Sea Area,133 the
1976 Barcelona Convention for the Protection of the Mediterranean Sea Against
Pollution,134 the 1979 ECE Convention on Long-Range Transboundary Air Pollution,135
the 1982 UN Convention on the Law of the Sea,136 the 1983 Canada-Denmark Agreement
for Co-operation Relating to the Marine Environment,137 the 1985 ASEAN Agreement on
the Conservation of Nature and Natural Resources,138 and the 1988 Kuwait Protocol
Concerning Marine Pollution Resulting from Exploration and Exploitation of the
Continental Shelf.139 A considerable number of treaties dealing specifically with shared
freshwater resources also allude to the obligation to co-operate, including the 1963 Berne
Convention on the International Commission for the Protection of the Rhine,140 the 1964
Agreement concerning the Use of Waters in Frontier Waters concluded between Poland
and the USSR,141 the 1971 Act of Santiago concerning Hydrologic Basins concluded
between Argentina and Chile,142 and the 1978 Great Lakes Water Quality Agreement
between Canada and the United States.143 Part III, comprising Articles 11-19, of the 1997
UN Convention on the Law of the Non-navigational Uses of International Watercourses
relates to `Planned Measures' and contains detailed procedural rules requiring
129 Supra, n. 41, at127.
130 ILA, Report of the 60th Conference (1982), 1.
131 1001 UNTS 4. (Article 16).
132 13 ILM 352 (1974).
133 13 ILM 546 (1974).
134 15 ILM 290 (1976). This instrument has been followed by numerous conventions established on the
same model for the protection of other regional seas.
135 18 ILM 1442 (1979).
136 21 ILM 1261 (1982). (Articles 63,66-67 and 197).
137 23 ILM 269 (1984).
138 Reprinted in (1985) 15 Environmental Policy and Law 64. (Articles 19 and 20).
139 Reprinted in (1989) 19 Environmental Policy and Law 32.
140 Reprinted in Tractatenblad Van Het Koninkrijk Der Nederlanden, No. 104 (1963).
141 552 UNTS 175.
142 UN Doc. A/CN.4/274. (Articles 3-8).
143 30 UST 1383, TIAS No. 9258. (Articles 7-10).
21
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
watercourse States to notify, consult and negotiate in relation to planned measures which
may have adverse effects on other watercourse States.
Even before the development of modern international environmental law, the
commencement of which is normally taken to have been facilitated by and to be
contemporaneous with the 1972 Stockholm process, the Arbitral Tribunal in the Lac
Lanoux case clearly recognised in 1957 the duty of States to co-operate in the use of the
waters of an international watercourse. The Tribunal stated that
`... States are today perfectly conscious of the importance of the conflicting
interests brought into play by the industrial use of international rivers, and of the
necessity to reconcile them by mutual concessions. The only way to arrive at such
compromises of interests is to conclude agreements on an increasingly
comprehensive basis. International practice reflects the conviction that States ought
to strive to conclude such agreements; there would thus appear to be an obligation
to accept in good faith all communications and contacts which could, by a broad
confrontation of interests and by reciprocal good will, provide States with the best
conditions for concluding agreements'.144
The Tribunal clearly linked the obligation to co-operate in good faith with the effective
conclusion of international agreements as a means of ensuring the prevention of
transboundary harm. More recently, in the Case Concerning the Gabcíkovo-Nagymaros
Project, the ICJ judgment reflects the procedural obligation to co-operate to minimise the
risk of environmental harm and, indeed, requires the State parties to agree to co-operate in
the joint management of the project. The Court emphasised the necessity of co-operation
among watercourse States, stating for example that `[O]nly by international cooperation
could action be taken to alleviate ... problems [of navigation, flood control, and
environmental protection]'.145
Even more recently, in the application brought by Ireland to the International Tribunal for
the Law of the Sea (ITLOS) seeking provisional measures to prevent the UK from
commencing operations at its new MOX plant at the Sellafield nuclear site in Cumbria,
the Tribunal in its decision of 3rd December 2001146 prescribed that, pending a decision of
the full hearing of the matter before the special Arbitral Tribunal constituted in
accordance with Annex VII of UNCLOS,
`Ireland and the UK shall cooperate and shall, for this purpose, enter into
consultation forthwith in order to:
(a) exchange further information with regard to possible consequences for
the Irish Sea arising out of the commissioning of the MOX plant;
(b) monitor risks or the effects of the operation of the MOX plant for the
Irish Sea;
(c) devise, as appropriate, measures to prevent pollution of the marine
environment which might result from the operation of the MOX
plant.'147
144 Lac Lanoux Arbitration (France v. Spain), (1957) 25 I.L.R. 101, at 129-130; (1957) 12 Rep. Int'l, Arb.
Awards 281; (1959) 53 American Journal of International Law 156. (Emphasis added.)
145 Case Concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), (1997) ICJ Reports 7, at 20.
146 Ireland v. United Kingdom (The MOX Plant Case), 41 ILM (2002) 405 (Order).
147 Order, para. 89.
22
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
In addition, the Tribunal required the parties to submit a report on the implementation of
the measures by 17th December 2001 and such further reports as might be requested by
the Tribunal President. The Tribunal based these measures on the duty to cooperate, a
fundamental duty under Part XII of the Convention and a general principle of
international law, from which the Tribunal considered that rights arise which may require
preservation by way of provisional measures.148
The 1974 United Nations Charter of Economic and Social Rights and Duties of States
emphasises the inter-relationship between the obligation of prevention of transboundary
harm and the obligation of co-operation, of which the duties to notify and consult form a
fundamental part.149 In relation to the duty of States to provide ad hoc notification before
commencing particular activities or undertaking certain projects capable of causing
environmental damage in the territory of other States, Title E of the 1974 OECD
Recommendation on Principles Concerning Transfrontier Pollution,150 which has been
used as a template by other international bodies including the UNEP,151 requires that
`Prior to the initiation in a country of works or undertakings which might create a
significant risk of transfrontier pollution, this country should provide early
information to other countries which are or may be affected' [and that] `[C]ountries
should enter into consultation [held in the best spirit of co-operation and good
neighbourliness] on an existing or foreseeable transfrontier pollution problem at the
request of a country which is or may be directly affected ...'152
Many environmental treaty regimes make express reference to the related duties to notify
and consult, including the 1979 ECE Convention on Long-Range Transboundary Air
Pollution153 and, notably, Article 206 of the 1982 UN Convention on the Law of the Sea.
However, treaty provisions creating express duties to notify and consult are particularly
prevalent in conventions concerning the development, protection, and use of international
watercourses. Examples include, Article 6 of the 1960 Indus Waters Treaty concluded
between India and Pakistan,154 Article 9 of the 1974 Agreement concerning Co-operation
in Water Economy Questions in Frontier Rivers concluded between the German
Democratic Republic and Czechoslovakia,155 and Article 9 of the 1978 Agreement on
Great Lakes Water Quality.156 Also, for many years now, all international bodies
attempting to codify the main customary rules applying to the environmental protection of
shared freshwater resources have insisted on the key role of the related duties to notify
and consult in the implementation of the general duty to co-operate. See, for example,
Article 6 of the Institut de Droit Internationale (IDI) 1979 Athens Resolution on Pollution
of Rivers and Lakes in International Law.157 These requirements are now set out in detail
148 See further, V. Hallum, `International Tribunal for the Law of the Sea: The MOX Nuclear Plant Case',
(2002) 11 Review of European Community and International Environmental Law 372.
149 G.A. Res. 3281, 29 U.N. GAOR Supp. (No. 31) at 50, U.N. Doc. A/9631 (1975). Reprinted in 14 ILM
251 (1975).
150 Supra, n. 59.
151 See Dupuy, supra, n. 8, at 72.
152 Recommendation C(74)224 (14 Nov. 1974).
153 (1979) T.I.A.S. No. 10541; (1979) 18 ILM 1442.
154 419 U.N.T.S. 125
155 Reprinted in Sozialistische Landeskultur Umweltschutz, Textansgabe Ausgewählter Rechtsvorschriften,
Staatsverslag Der Deutsch Dem. Rep. 375 (1978).
156 30 U.S.T. 1383; T.I.A.S. No. 9257.
157 (1980) Yearbook of the Institute of International Law, Part II, 199.
23
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
in the relevant Articles of the 1997 UN Convention on International Watercourses which,
in the view of the International Law Commission, reflect established international
practice.
Also, in certain situations, such as that pertaining in the Prespa Lakes Basin, the
obligation to co-operate may involve a more general and regular exchange of information,
not only in relation to potential transfrontier pollution but also in relation to the use and
management of shared natural resources. This is particularly the case in relation to
international watercourses where permanent drainage basin or regional institutions
facilitate the common management of shared water resources through such exchange of
information. Such institutions have been in common use since the establishment of the
International Joint Commission by the United States and Canada in 1909.158 More recent
examples of common management institutions for water resources include the Sava
Commission,159 the Danube Commission,160 the Lake Chad Basin Commission,161 the
River Niger Commission,162 the Permanent Joint Technical Commission for Nile
Waters,163 the Zambezi Intergovernmental Monitoring and Co-ordinating Committee,164
the Intergovernmental Co-ordinating Committee of the River Plate Basin,165 and, the
Amazonian Cooperation Council166. Indeed, Dupuy concludes that such regular
exchange of information by means of such permanent regional institutions
`seems to be the most appropriate way of establishing a reasonable and equitable use
of shared natural resources, as is required by international law. Indeed, the
equitable apportionment of such resources can best be defined by way of
negotiation, in order to harmonize the different economic, political, and social
interests existing in each concerned State as to how the resource will be utilized.
The experience provided by the management of international watercourses
abundantly illustrates such situations'.167
A further element of the duty to notify concerns the so-called `duty to warn', i.e. the duty
of States to notify others of accidents that have occurred within their territory which are
likely to result in transfrontier environmental damage. Commentators generally agree that
such a norm has either become clearly established in customary international law168 or is
158 1909 Treaty between the United States and Great Britain Respecting Boundary Waters between the
United States and Canada, 4 American Journal of International Law (Suppl.) 239.
159 International Sava River Basin Commission, established under Article 16(1)(c) of the Framework
Agreement on the Sava River Basin (Kranjska Gora, 3 December 2002).
160 1948 Convention regarding the Regime of Navigation on the Danube, and, the 1990 Agreement
concerning Co-operation on Management of Water Resources of the Danube Basin. See J. Linnerooth,
`The Danube River Basin: Negotiating Settlements to Transboundary Environmental Issues', (1990) 30
Natural Resources Journal 629-660.
161 1964 Convention and Statute Relating to the Development of the Chad Basin.
162 1963 Niamey Act Regarding Navigation and Economic Co-operation between the States of the Niger
Basin, 587 U.N.T.S. 9.
163 1959 Agreement between the UAR and the Republic of Sudan for the Full Utilization of Nile Waters,
and 1960 Protocol Establishing Permanent Joint Technical Committee.
164 1987 Agreement on the Action Plan for the Environmentally Sound Management of the Common
Zambezi River System.
165 1969 Treaty on the River Plate Basin, and the 1973 Treaty on the River Plate and its Maritime Limits.
166 1978 Treaty for Amazonian Co-operation.
167 Supra, n. 8, at 73.
168 V. Beyerlin, `Neighbour States', in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Vol.
10, 310, at 313.
24
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
in the process of emerging169 and provisions creating an obligation to warn are commonly
contained in the various international legal instruments cited above in connection with the
general notification and consultation procedures.
Clearly, the most effective means by which States sharing a transboundary resource such
as a river basin can ensure full compliance with the general obligation to co-operate, and
achieve equitable and reasonable use, is through the negotiation of bilaterial or
multilateral agreements concerning, in particular, the establishment of appropriate
institutional structures for the joint management of such a resource, the acceptance of
agreed dispute settlement mechanisms, the establishment and periodic revision of
qualitative environmental norms and quantitative pollution criteria and thresholds, co-
operation in the areas of scientific study, research and environmental monitoring, the
elaboration of emergency plans for dealing with major pollution or other incidents, and,
the elaboration of conservation plans. Of course, such cooperative inter-State institutional
machinery need not necessarily be established by formal international agreement and
even where such a body exists and functions on a less formal basis, as is the case with the
PPCC, it may provide the most effective means for ensuring full compliance with the
general obligation to cooperate.
Members of the International Law Commission, in the course of their discussions on the
subject of international watercourses, differed on whether the need for States to co-
operate was a mere aspiration or a binding legal duty. For example, Calero Rodriguez
argued that `cooperation was a goal, a guideline for conduct, but not a strict legal
obligation which, if violated, would entail international responsibility'.170 On the other
hand, Graefrath insisted that `cooperation was not simply a lofty principle, but a legal
duty'.171 However, despite disagreement over the precise legal status of the duty to co-
operate per se, most agreed that it was an `umbrella term, embracing a complex of more
specific obligations which, by and large, do reflect customary international law'.172 For
example, Reuter concluded that `[T]he obligation to cooperate was a kind of label for an
entire range of obligations'.173 Sands takes a similar view and explains that the obligation
to cooperate has `been translated into more specific commitments', including
`[R]ules on environmental impact assessment ...; rules ensuring that neighbouring
states receive necessary information (requiring information exchange, consultation
and notification) ...; the provision of emergency information ...; and transboundary
enforcement of environmental standards.'174
However, despite the misgivings of some of its members about the precise legal nature
and status of the obligation to co-operate, the International Law Commission eventually
decided to include an express reference to this duty in its 1994 Draft Articles.175 This
169 J. Schneider, `State Responsibility for Environmental Protection and Preservation', in Falk, Kratochwil
and Mendlowitz (Eds.), International Law: A Contemporary Perspective, (1985), 602, at 613.
170 [1987] Yearbook of the International Law Commission, vol. 1, at 71. See S. McCaffrey, The Law of
International Watercourses (OUP, Oxford, 2001), at 401.
171 Ibid., at 85.
172 McCaffrey, supra, n. 170, at 401.
173 [1987] Yearbook of the International Law Commission, vol. 1, at 75.
174 P. Sands, supra, n. 38, at 197-198.
175 Report of the International Law Commission (1994), at 105.
25
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
reference formed the basis of Article 8 of the 1997 UN Watercourses Convention,176
which recognises the practical importance of the duty to co-operate for the attainment of
the twin goals of optimal utilisation and adequate protection of an international
watercourse.177 Article 8 also stresses the role of joint mechanisms or commissions in
facilitating such co-operation.178
Therefore, it is readily apparent that the littoral States of the Prespa Lakes Basin are
obliged to engage in a range of cooperative activities, including in particular the
generation and regular exchange of key information required for the effective
management of the Prespa lakes ecosystem. It is equally apparent that these obligations
can only be realistically met by each State by, at a minimum, participating fully in the
work of the PPCC and actively supporting the further development of the institutional
structures required in order to facilitate such monitoring, research and information
exchange, including a Water Management Working Group.
4.
Common Management Institutions / River Basin Commissions
In seeking to better understand the nature of the obligation on the littoral States to engage
in active and good faith cooperation for the environmental protection and sustainable
development of the Prespa Lakes, it is very useful to examine the practice of the many
international joint commissions established to facilitate inter-governmental cooperation in
drainage basin planning, protection and utilisation.
While international law relating to the management of international watercourses, and to
the environmental protection of shared freshwater resources in particular, has undergone
significant development and clarification in recent years, the institutional machinery
employed by basin States in order to achieve the enhanced co-operation required has been
developing apace. It is now quite clear that the principle of `equitable and reasonable
utilisation' enjoys pre-eminence as the cardinal rule of international law relating to the
utilisation of international watercourses, and increasingly apparent that considerations of
environmental protection are of steadily growing significance as factors relevant to the
application of this principle. Indeed, it is arguable that it is the very normative
sophistication and comprehensive scope of general environmental rules that give added
`voice' to environmental concerns within the process of the determination of a reasonable
and equitable regime for the utilisation of an international watercourse.179 With the
ongoing elaboration and adoption of increasingly sophisticated regional and global
conventional arrangements, as well as myriad declaratory and codification instruments,
176 Convention on the Non-Navigational Uses of International Watercourses (New York, 21 May 1997), 36
ILM 719 (1997). Not in force.
177 Article 8(1) provides
`Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit
and good faith in order to attain optimal utilization and adequate protection of an international watercourse'.
178 Article 8(2) provides
`In determining the manner of such cooperation, watercourse States may consider the establishment of joint
mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures
and procedures in the light of experience gained through cooperation in existing joint mechanisms and
commissions in various regions'.
179 See generally, O. McIntyre, Environmental Protection of International Watercourses under International
Law, (Ashgate, 2007).
26
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
there exists greater clarity as to the normative requirements inherent in established and
emerging legal obligations and principles relating to the utilisation and environmental
protection of international freshwater resources. Such obligations and principles include,
inter alia, the due diligence obligation to prevent transboundary harm, the general duty of
States to co-operate, the obligation to conduct transboundary environmental impact
assessment, the precautionary principle, and the so-called `ecosystems approach'.
The most significant development in relation to institutional machinery has been the
increasingly widespread adoption of some form of `common management' approach,
whereby the drainage basin is regarded as an integrated whole and is managed, to a
greater or lesser extent, as an economic unit, with the waters either vested in the
community of co-basin States or divided among them by agreement, accompanied by the
establishment of international machinery to formulate and implement common policies
for the management and development of the basin. Such an approach has long been
advocated by learned associations and diplomatic conferences but has become all the
more necessary due to the complexity of modern water resources utilisation and
environmental protection obligations.
The institutional structure and purposes of common management regimes vary from basin
to basin, with different economic problem structures likely to have implications for
institutional design,180 and not all having as yet a role in environmental regulation.181
Common management is an approach to managing water problems rather than a
normative principle of international law, and as such it has been endorsed by the
international community,182 and adopted by international codification bodies, including
the Institute of International Law (IIL/IDI),183 the International Law Association (ILA),184
and the International Law Commission (ILC).185 Recommendation 51 of the Action Plan
for the Human Environment adopted at the 1972 Stockholm Conference called for the
`creation of river basin commissions or other appropriate machinery for co-operation
between interested States for water resources common to more than one jurisdiction' and
set down a number of basic principles by which such commissions should be guided.186
Significantly, the introduction to Chapter 18 of Agenda 21 provides that
180 See I. Dombrowsky, Conflict, Cooperation and Institutions in International Water Management: An
Economic Analysis, (Edward Elgar, 2007), at 37.
181 Early examples include, the International Commission for the Protection of the Rhine, (1963 Agreement
concerning the International Commission for the Protection of the Rhine, reprinted in (1963) Tractatenblad
Van Het Koninkrijk Der Nederlanden, No. 104), and the Moselle Commission, (1961 Protocol concerning
the Constitution of an International Commission for the Protection of the Moselle Against Pollution).
182 UN Committee on Natural Resources, UN Doc. W/C.7/2 Add. 6, 1-7; Economic Commission for
Europe, Committee on Water Problems 1971, UN Doc. E/ECE/Water/9 Annex II; Council of Europe Rec.
436 (1965); 1972 Stockholm Action Plan fo the Human Environment, UN Doc. A/Conf.48/14/Rev. 1, Rec.
51; Report of the UN Water Conference, Mar del Plata, 14-25 March, 1977.
183 See, for example, the 1961 Resolution on Non-Maritime International Waters, Article 9; the 1979
Resolution on the Pollution of Rivers and Lakes, Article 7(G).
184 See, the International Law Association's 2004 Berlin Rules on Water resources, Articles 64 and 65.
Indeed, the ILA's 1999 Campione Consolidation provides, in Article 45, a definition of an "international
watercourse administration" and, further, even provides guidelines on the establishment of such a body
(Bogdanovi 2001: 72-73, 78-81).
185 See, for example, (1984) Yearbook of the International Law Commission, vol. II, part 1, at 112-116.
186 Report of the United Nations Conference on the Human Environment , Stockholm 5-16 June 1972 (UN
Publication Sales No. E.73.II.A.14), Chapter II, Section B.
27
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
`The widespread scarcity, gradual destruction and aggravated pollution of
freshwater resources in many world regions, along with the progressive
encroachment of incompatible activities, demand integrated water resources
planning and development.'187
Indeed, Chapter 18 goes on to suggest what role any institutional machinery established to
effect such integrated water resources planning and development might play, by stating
that
`In the case of transboundary water resources, there is a need for riparian States to
formulate water resources strategies, prepare water resources action programmes
and consider, where appropriate, the harmonisation of those strategies and action
programmes.'188
Prominent examples of common management institutions for water resources include the
Danube Commission,189 the US-Canadian International Joint Commission,190 the Lake
Chad Basin Commission,191 the River Niger Commission,192 the Permanent Joint
Technical Commission for Nile Waters,193 the Zambezi Intergovernmental Monitoring
and Co-ordinating Committee,194 the Intergovernmental Co-ordinating Committee of the
River Plate Basin,195 and, the Amazonian Cooperation Council.196 Indeed a 1979 survey
conducted by the United Nations identified ninety common management institutions
concerned with non-navigational uses, distributed throughout every region of the
world,197 and recent estimates suggest that `well over one hundred international river
commissions have been established by states'.198
(a)
Community of Interests
The idea that a community of interests exists in international watercourses, and the related
idea that those interests can be identified and safeguarded on the basis of equity, has
received some support in the deliberations of international judicial tribunals. In the
187 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June
1992, UN Doc. A/CONF.151/26 (vol. II) (1992), at 167, para. 18.3.
188 Ibid., at 169, para. 18.10.
189 1948 Convention regarding the Regime of Navigation on the Danube, 33 UNTS 196; 1990 Agreement
concerning Co-operation on Management of Water Resources of the Danube Basin.
190 1909 Treaty relating to Boundary Waters, and Questions Arising Along the Boundary between the US
and Canada, UN Legislative Texts and Treaty Provisions, ST/LEG/SerB/12, 260; 36 Stat. 2448; Legislative
Texts, No. 79, at 260; 102 British and Foreign State Papers 137; 4 American Journal of International Law
(Suppl.) 239.
191 1964 Convention and Statute Relating to the Development of the Chad Basin.
192 1963 Act regarding Navigation and Economic Co-operation between the States of the Niger Basin, 587
UNTS 9.
193 1959 Agreement between the UAR and the Republic of Sudan for the Full Utilization of Nile Waters,
453 UNTS 51, and 1960 Protocol Establishing Permanent Joint Technical Committee.
194 1987 Agreement on the Action Plan for the Environmentally Sound Management of the Common
Zambezi River System, (1987) 27 ILM 1109.
195 1969 Treaty on the River Plate Basin, (1969) 8 ILM 905; 1973 Treaty on the River Plate and its Maritime
Limits, (1974) 13 ILM 251.
196 1978 Treaty for Amazonian Co-operation, (1978) 17 ILM 1045.
197 See, United Nations, Annotated list of multipartite and bipartite commissions concerned with non-
navigational uses of international watercourses, (April, 1979), which lists 48 entries for Europe, 23 for the
Americas, 10 for Africa, and 9 for Asia.
198 See S. McCaffrey, The Law of International Watercourses: Non-Navigational Uses (Oxford University
Press, 2001), at 159.
28
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Territorial Jurisdiction of the International Commission of the River Oder case, though
concerned with rights of navigation, the Permanent Court of International Justice (PCIJ)
referred to `principles governing international fluvial law in general' and concluded that
`[T]his community of interest in a navigable river becomes the basis of a common
legal right, the essential features of which are the perfect equality of all riparian
States in the use of the whole course of the river and the exclusion of any
preferential privilege of any one riparian State in relation to the others.'199
Indeed, in the same passage, the PCIJ refers to `the possibility of fulfilling the
requirements of justice and the considerations of utility', suggesting that the Court
anticipated a role for considerations of equity in giving effective protection to the rights of
States.200 This is suggestive of the manner in which the doctrine of equitable utilisation
functions to require the equitable balancing of factors and interests relevant to the
determination of a regime for utilisation of a watercourse. In the recent Gabcíkovo-
Nagymaros case, the International Court of Justice quoted from the above passage from
the River Oder case and stated that
`[M]odern development of international law has strengthened this principle for
non-navigational uses of international watercourses as well, as evidenced by the
adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational
Uses of International Watercourses by the United Nations General Assembly.' 201
On the basis of this principle, the Court concluded that
`Czechoslovakia, by unilaterally assuming control of a shared resource, and
thereby depriving Hungary of its right to an equitable and reasonable share of the
natural resources of the Danube ... failed to respect the proportionality which is
required by international law.'
This statement of the Court illustrates that `the concept of community of interest can
function not only as a theoretical basis of the law of international watercourses but also as
a principle that informs concrete obligations of riparian states, such as that of equitable
utilization'.202 Where a community of interests approach is adopted and implemented by
means of common management institutions, `[A] state's "interests" in an international
watercourse system would generally be defined by its present and prospective uses of the
watercourse as well as its concern for the health of the watercourse ecosystem'.203
In terms of State practice, the concept of community of interest is commonly traced back
to a French decree of 1792 dealing with the opening of the Scheldt River to navigation.204
The position expressed in this decree was quickly adopted in a number of instruments
concerned primarily with rights of navigation in international rivers205 The Vienna
199 Judgment no. 16 (10 Sept. 1929), PCIJ Series A, No. 23, 5-46, at 27-28.
200 McCaffrey, supra, n. 198, at 152.
201 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), (1997) ICJ Reports 7, para.
85.
202 McCaffrey, supra, n. 198, at 152.
203 Ibid., at 165.
204 Décret du 16 Nov. 1792, L. le Fur and G. Chklaver, Recueil des Textes de Droit International (2nd ed.,
Paris, Dalloz, 1934), at 67.
205 These include, the Treaty of Peace and Alliance between the French and the Batavian Republic of 16
May 1795, Article 18, 6 Martens, at 532, which concerned the Rhine, the Meuse, the Scheldt and the Hondt;
the Principal Resolution of the Imperial Deputation (Reichsdeputationshauptschluss) of 25 February 1803, 3
Martens, Supp., at 239, which concerned the portion of the Rhine shared between the Bavarian and the
Swiss Republic; the Treaty of 14 May 1811 demarcating the frontiers between Prussia and Westphalia,
Articles 7 and 9.
29
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Congress of 1815 `lead to the foundation of the Central Commission for Navigation on
the Rhine, which was not only the first international river basin organisation, but also the
first international organisation in general'.206 Indeed, Dombrowsky finds it `interesting to
note that it was the interdependence created by the use of water that gave rise to the
foundation of the first modern international organization'.207 However, some early
agreements giving expression to the concept of community of interest were not restricted
to navigational uses. For example, Article 4 of the 1905 Treaty of Karlstad between
Sweden and Norway provides that `[T]he lakes and watercourses which form the frontier
between the two States or which are situated in the territory of both or which flow into the
said lakes and watercourses shall be considered as common'. In terms of modern treaty
practice, the 1995 Protocol on Shared Watercourse Systems adopted by the Southern
African Development Community (SADC) provided in Article 2 that the Member States
are to `respect and abide by the principle of community of interests in the equitable
utilisation of [shared watercourse] systems and related resources.'208 The 2000 Revised
SADC Protocol on Shared Watercourses,209 however, which supersedes the 1995
Protocol, does not contain any corresponding provision but rather follows the approach
taken under the 1997 UN Watercourses Convention.210 Nevertheless, renewed efforts to
establish basin-wide cooperative institutions in Southern Africa, in accordance with the
Revised SADC Protocol, can be observed in the establishment of the Orange-Senqu River
Commission in 2000, the Limpopo Watercourse Commission in 2003 and the Zambezi
Watercourse Commission in 2004. Article 1(2) of the 1992 Agreement between Namibia
and South Africa on the Establishment of a Permanent Water Commission provides that
the Commission's objective is, inter alia, `to act as technical adviser to the Parties on
matters relating to the development and utilisation of water resources of common interest
to the Parties'.211 Also, in 1990, Nigeria and Niger concluded an Agreement concerning
the Equitable Sharing in the Development, Conservation and Use of their Common Water
Resources, though the text of the agreement uses the term `shared river basins'. The more
striking examples of treaties expressly employing a community of interests approach
often concern a single shared watercourse system or water resource. For example, Article
1 of the 1957 Agreement between Bolivia and Peru concerning a Preliminary Economic
Study of the Joint Utilization of the Waters of Lake Titicaca expressly refers to `the fact
that the two countries have joint, indivisible and exclusive ownership over the waters of
Lake Titicaca'.212 Indeed, these States went on to establish in the early 1990s a
Binational Authority for the implementation of the Binational Master Plan of the Titicaca-
Desaguadero-Poopo-Salar de Copaisa System. It is more usual for modern inter-State
arrangements `to treat international watercourses as being of common interest than to
refer to them expressly as common rivers or property'.213 Examples include, agreements
206 See S. McCaffrey, `International Watercourses', in R.-J. Dupuy (ed.), Manuel sur les organisations
internationals. A Handbook on International Organizations (Martinus Nijhoff, 1998) 725, at 733. See also,
Dombrowsky, supra, n. 180, at 94.
207 Ibid.
208 FAO, Treaties Concerning the Non-Navigation al Uses of International Watercourses: Africa (FAO
Legislative Study 61, 1997), at 146.
209 (2001) 40 ILM 321.
210 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses,
(New York, 21 May 1997), (1997) 36 ILM 700.
211 (1993) 32 ILM 1147 (emphasis added).
212 Legislative Texts, No. 45, at 168.
213 McCaffrey, supra, n. 198, at 158.
30
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
which entail the use of the territory of one riparian State by another for purposes such as
storage,214 and agreements which relate to the production and division of hydro-electric
power in a manner which entails an equitable division of the benefits of the shared
waters.215
Numerous commentators have advocated the principle of a community of interests in
international watercourses and use of the associated common management approach,
though few would contend that such an approach has evolved, or is likely soon to evolve,
into a requirement of general or customary international law. For example, Godana,
while observing that the notion of a community of interests in international watercourses
`is the legal principle most appropriate for a fully developed legal community', concedes
that `the international community is far from being fully developed' and that `the idea has
yet to develop into a principle of international law governing international water relations
in the absence of treaties'.216 Similarly, Kaya concludes that `[T]here is not enough
support for the theory of common management from customary international law'217 and,
further, that
`Despite the dramatic increase in the scale of international cooperation regarding
international watercourses, it does not suffice [sic] the argument for a common
management of international watercourses. In practice, states are seldom willing
to relinquish their power over a vital resource to international institutions
authorized to manage an international watercourse independently, or even
autonomously.'
Caflisch considers the merits of `denationalizing' international watercourses and
transferring their management from individual states to a joint organisation, and,
concludes that `while it is clear that a condominium could be established by treaty, one
cannot maintain that, by virtue of the rules of customary law, the whole of an
international watercourse, including its resources, forms a condominium'.218 Similarly, in
the course of her study of international agreements creating water management
institutions, Dombrowsky notes that
`While some authors have recommended basin-wide agreements, others have
argued that membership should be kept as small as possible in order to enhance
the respective agreement's problem-solving capacity. From a legal perspective,
affected parties should be able to participate as appropriate, but a basin-approach
is no strict requirement'.219
(b)
Common Management Institutions
214 Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin,
Article 6, (17 January 1961), 15 UST 1555, 542 UNTS 244; Agreement for the Utilization of the Waters of
the Yarmuk River between Jordan and Syria, (4 June 1953), 184 UNTS 15.
215 Convention between France and Switzerland for the Development of the Water Power of the Rhone,
Article 5, (Berne, 4 October 1913), Legislative Texts, No. 197, at 708; Treaty between the United States and
Canada Relating to the Uses of the Waters of the Niagara River, Article 6, (Washington DC, 27 February
1950), 132 UNTS 228.
216 B. A. Godana, Africa's Shared Water resources: Legal and Institutional Aspects of the Nile, Niger, and
Senegal River Systems (Frances Pinter, 1985), at 49.
217 I. Kaya, Equitable Utilization: The Law of the Non-Navigational Uses of International Watercourses
(Ashgate, 2003), at 205.
218 L. Caflisch, `Rčgles Générales dy Droit des Cours d'Eau Internationaux' (1992) Vol. 219 Recueil des
Cours (1989-VII), at 59-61.
219 Supra, n. 180, at 97.
31
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Common management regimes must, therefore, necessarily be voluntary arrangements,
established by international instrument concluded between basin States. The rules of
general international law will not impose a positive obligation and compel basin States to
create such regimes. According to Olmstead, `... international law limits only the state's
freedom of unilateral action but does not require joint utilization'.220 Indeed, the
commentary to Article 64 of the International Law Association's (ILA) 2004 Berlin Rules
on Water Resources, the text of which requires `[W]hen necessary' the establishment of
`a basin wide or joint agency or commission with authority to undertake the integrated
management of waters of an international drainage basin', freely concedes that
`While often basin management mechanisms will be the best or even a necessary
means for achieving equitable and sustainable management of waters, customary
international law does not specifically require such institutions be established nor
does it provide specific details for such mechanisms.'
Of course, overarching supra-national legal arrangements for regional integration may
give a fillip to the creation of transnational water management institutions. In accordance
with the requirements of the E.C. Water Framework Directive, basin-wide institutional
arrangements have recently been set up for most international rivers basins in Europe,
whether lying within or stretching beyond the boundaries of the EU.221
A number of studies examine State practice in respect of international basin management
organisations and their founding instruments in an effort to characterise a number of key
types of organisation and to identify key features of their institutional design.222 One
recent study of 86 river basin organisations, which includes a detailed review and
comparative analysis of 12 bodies selected `in order to reflect a broad spectrum of scope,
forms, functions and contexts', identifies a total of 18 different categories of water uses or
`issue areas', with which such organisations might be concerned, including: `water
quality; water quantity; hydropower; ecology; flood control; navigation; irrigation;
economic development; infrastructure; fishing; river regulation; joint management;
hydrological monitoring; erosion control; hazard prevention; melioration;
recreation/tourism; border issues and timber floating'.223 Of course, the organisational
structure of such institutions will vary greatly depending, inter alia, on the range of issue
areas covered, the powers and mandate of the institution and the degree of integration and
cooperation envisaged by the riparian States, and Dombrowsky observes that
220 C. J. Olmstead, `Introduction', in A. H. Garretson, R. D. Hayton and C. J. Olmstead (eds.), The Law of
International Drainage Basins. (Oceana, 1967), at 9.
221 Directive 2000/60/EC, (2000) OJ L327/1, Articles 3(3)(5).
222 See L. A. Teclaff, The River Basin in History and Law (Martinus Nijhoff, 1967); L. A. Teclaff, `Evolution of the
River Basin Concept in National and International Law', (1996) 36 Natural Resources Journal, 359-392; D. G.
LeMarquand, International Rivers: The Politics of Cooperation (Westwater Research Centre, University of British
Columbia, 1977); J. Hamner and A. T. Wolf, `Patterns in International Water Resource Treaties: The Transboundary
Freshwater Dispute Database', (1998) Colorado Journal of International Environmental Law and Policy (1997
Yearbook); A. T. Wolf, `Conflict and Cooperation along International Waterways', (1998) 1 Water Policy, 251-265; N.
Kliot, D, Shmueli and U. Shamir, Institutional Frameworks for Management of Transboundary Water Resources:
Volume One Institutional Frameworks as Reflected in Thirteen River Basins (Water Research Institute, Haifa, 1997);
McCaffrey, supra, n. 206; S. Burchi and M. Spreij, Institutions for International Freshwater Management, IHP-VI
Technical Documents in Hydrology, Series No. 3 (UNESCO, 2003); E. Mostert, Conflict and Cooperation in the
Management of International Freshwater Resources: A Global Review, IHP-VI Technical Documents in Hydrology,
Series No. 19, (UNESCO, 2003); Dombrowsky, supra, n. 180.
223 Dombrowsky, ibid., at 91.
32
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
`On the one end of the continuum there are organizations with a hierarchy of
decision-making organs and international secretariats in place. On the other end
are commissions and committees composed of representatives of each member
state that serve as negotiation fora without any formal administrative support'.224
However, though organisational structures may differ, all international water management
institutions would appear, formally or effectively, to employ decision-making
mechanisms requiring unanimous vote or consensus.225 It is possible to identify broad
trends indicating which international watercourses are more or less likely to benefit from
the adoption of common management arrangements. For example, joint mechanisms are
particularly likely to be established by States that use international watercourses
intensively or where the watercourse ecosystem is particularly vulnerable,226 as is clearly
the case with Prespa. In addition, though empirical evidence `seems to indicate the
likelihood that organizations are set up appears to be higher in multipartite basins than in
bipartite basins' ... `the number of multipartite river basins with strictly basin-wide
arrangements is small'.227
Though common management arrangements must be entered into by States voluntarily, it
is apparent that the accumulated practice of States in participating in such arrangements
should serve to bolster the normative status, in customary or general international law, of
the various rules comprising the general duty to co-operate, which is generally understood
as consisting of a number of specific procedural obligations, such as the duty to notify,
the duty to consult and /or negotiate in good faith, the ongoing exchange of information,
the duty to warn and duties in relation to the settlement of disputes.228 State practice in
relation to common management could, in turn, inform the normative content of such
procedural rules by making it clear that bona fide participation in common management
institutions would satisfy the obligations inherent therein. Interestingly, the 1992 United
Nations Economic Commission for Europe (UNECE) Convention on the Protection and
Use of Transboundary Watercourses and International Lakes,229 which, at the end of
2000, had 26 signatories and 32 parties, actually requires parties to `enter into bilateral or
multilateral agreements or other arrangements' which `shall provide for the establishment
of joint bodies' having a wide range of environmental tasks.230 It is worth noting that this
Convention has been formally ratified by Albania and Greece and, further, forms part of
the acquis communitaire, to which all three littoral States are legally committed.
Furthermore, it seems reasonable to assume that common management becomes a more
acceptable and attractive approach as recognition of the physical unity of the drainage
basin gains ground in international law. Indeed, the ongoing evolution and development
of the so-called `ecosystems approach' to the environmental protection of international
224 Ibid., at 108.
225 Ibid., at 111-112.
226 See McCaffrey, supra, n. 198, at 168.
227 Dombrowsky, supra, n. 180, at 95 and 99.
228 See generally, P. Okowa, `Procedural Obligations in International Environmental Agreements' (1996) 67
British Yearbook of International Law 275; P. Sands, `Environmental Protection in the Twenty-First
Century: Sustainable Development and International Law', in R. L. Revesz, P. Sands and R. B. Stewart
(eds.) Environmental Law, The Economy and Sustainable Development. Cambridge, (Cambridge University
Press, 2000) 374; McIntyre, Environmental Protection of International Watercourses under International
Law, (Ashgate, 2007), at 317-357.
229 (1992) 31 ILM 1312.
230 Article 9(1) and (2).
33
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
watercourses considerably enhances legal recognition of the physical unity of drainage
basins and so highlights the need for common management institutions. Indeed, in the
context of a discussion on `the need for ecomanagement' of international watercourses,
Kaya concludes that
`Under the light of the findings of the examination of the relevant sources of
international law in the present study, it seems necessary to establish a treaty
regime with an active and continuing revisional element which can only be
achieved by setting up a joint water institution with adequate powers and means in
each basin'.231
Similarly, the 1997 UN Convention on the Law of the Non-Navigational Uses of
International Watercourses would appear expressly to encourage watercourse States to
enter into common management arrangements. Most significantly, the principle of
`equitable participation', which is set out under Article 5(2) and is closely linked to
practical implementation of the cardinal principle of equitable utilisation,232 suggests the
nature and scope of the role potentially to be played by joint mechanisms. The ILC
commentary to its 1994 Draft Articles, which preceded the Convention, explains that
Article 5(2) involves `not only the right to utilize an international watercourse, but also
the duty to cooperate actively with other watercourse States in the protection and
development of the watercourse'233 and it is persuasively argued that the provision `not
only requires co-ordination but also more significant forms of co-operation'.234 Indeed,
Tanzi and Arcari contend that a State's failure to participate actively in the procedural
requirements inherent in equitable participation `will make it difficult for that State to
claim that its planned or actual use is ... equitable under Article 5 of the Convention.'
Therefore, any invitation to join or participate in a regional water body or river basin
commission ought to be considered very carefully by riparian States. Also, in the context
of the general obligation imposed upon watercourse States by Article 8 of the UN
Convention to cooperate `in order to attain optimal utilization and adequate protection of
an international watercourse', Article 8(2) expressly proposes the use of joint mechanisms
and commissions, providing that
`In determining the manner of such cooperation, watercourse States may consider
the establishment of joint mechanisms or commissions, as deemed necessary by
them, to facilitate cooperation on relevant measures and procedures in the light of
experience gained through cooperation in existing joint mechanisms and
commissions in various regions.'
It is interesting to note that the explicit reference to `the establishment of joint
mechanisms or commissions' under Article 8(2) was not included in the 1994 ILC Draft
Articles but inserted later, perhaps signalling growing acceptance of the common
management approach and growing awareness of its merits.
231 Supra, n. 217, at 189.
232 Article 5(2) provides that
`Watercourse States shall participate in the use, development and protection of an international watercourse
in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse
and the duty to cooperate in the protection and development thereof, as provided in the present Convention'.
233 Report of the International Law Commission on the Work of its Forty-Sixth Session (1994),
A/49/10/1994, at 220. See also, (1994) 24/6 Environmental Policy and Law, at 335-368.
234 A. Tanzi and M. Arcari, The United Nations Convention on the Law of International Watercourses
(Kluwer Law International, 2001), at 109.
34
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
It is to be assumed that such arrangements would also generally be regarded as effective
in facilitating the regular exchange of data and information required under Article 9.
Article 9(1) provides that
`Pursuant to article 8, watercourse States shall on a regular basis exchange readily
available data and information on the condition of the watercourse, in particular
that of a hydrological, meteorological, hydrogeological and ecological nature and
related to the water quality as well as related forecasts.'
From the kinds of information listed under Article 9(1), it is apparent that regular and
effective exchange of such information, facilitated by common management institutions,
could have a significant role to play in determining an equitable regime for the use or
development of an international watercourse in line with the principle of equitable
utilisation as elaborated under Articles 5 and 6 of the Convention, and in ensuring that
environmental issues are anticipated, detected and understood.
In addition, Article 21 provides, in relation to the `prevention, reduction and control of
pollution' that `[W]atercourse States shall, individually and, where appropriate, jointly,
prevent, reduce and control the pollution of an international watercourse that may cause
significant harm ...' and that `[W]atercourse States shall take steps to harmonize their
policies in this connection.'235 As the `mutually agreeable measures and methods'
envisaged under Article 21 for this purpose include, inter alia, `[S]etting joint water
quality objectives and criteria',236 the potential role for technical common management
machinery is obvious. Further, Article 24, which deals with the `management' of
international watercourses, provides that `[W]atercourse States shall, at the request of any
of them, enter into consultations concerning the management on an international
watercourse, which may include the establishment of a joint management mechanism.'237
This provision would appear to suggest the efficacy of using permanent common
management institutions for the purpose of planning the environmental protection of the
watercourse in particular as it further provides that
`"management" refers, in particular, to:
(a) Planning the sustainable development of an international watercourse and
providing for the implementation of any plans adopted; and
(b) Otherwise promoting the rational and optimal utilization, protection and
control of the watercourse.'238
While the 1994 commentary to ILC Draft Article 24 notes that `States have, in practice,
established numerous joint river, lake and similar commissions, many of which are
charged with management of the international watercourses', it emphasises that it `does
not require ... that they establish a joint organization, such as a commission, or other
management mechanism', and points out that `[M]anagement of international
watercourses may also be effected through less formal means, however, such as by the
holding of regular meetings between the appropriate agencies or other representatives of
the States concerned.'239 Finally, the Convention envisages a role for common
management mechanisms in relation to the settlement of disputes concerning the
interpretation or application of the Convention, providing that
235 Article 21(2), (emphasis added).
236 Article 21(3)(a).
237 Article 24(1) (emphasis added).
238 Article 24(2).
239 Supra, n. 233, at 301.
35
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
`If the parties concerned cannot reach agreement by negotiation ... they may
jointly seek the good offices of, or request mediation or conciliation by, a third
party, or make use, as appropriate, of any joint watercourse institution that may
have been established by them ...'.240
In relation to its merits, most commentators would agree that `the notion that all riparian
states have a community of interests in an international watercourse reinforces the
doctrine of limited territorial sovereignty [and thus, equitable utilisation], rather than in
any way contradicting that doctrine' and put forward several advantages of such an
approach where it is adopted.241 For example, it `expresses more accurately the normative
consequences of the physical fact that a watercourse is, after all, a unity' and that `it
implies collective, or joint action' and `evokes shared governance'. Commentators have
for some time expressed concern that, in the absence of common management
arrangements, the traditional substantive rules of international watercourses law,
including the no-harm rule and the principle of equitable utilisation, may be of limited
avail in handling problems of water scarcity and quality.242 For example, one leading
commentator could note in 1974 in relation to equitable utilisation that
`Yet there is a narrowness in the doctrine that contains the seeds of nationalistic
inefficiency. The doctrine of equitable utilisation contemplates cutting the
resources of the river basin up into equitable shares, each share to be
independently developed by each riparian ... However, as admirable as equitable
independent development may be, independent development is not likely to make
the most productive use of the resource'.243
Similarly, according to Tanzi and Arcari,
`[I]t is against the background of such considerations that the concept of optimal
utilisation of international watercourses to be pursued by riparian States through
the integrated management and development thereof has gained widespread
acceptance in legal literature and in the international governmental fora.'244
The same authors also note that `in the modern formulation of the equitable utilisation
principle, the goal of sustainable use should be co-ordinated with the more utilitarian
paradigm of optimal utilisation', and that
`it is apparent that the sound realisation of sustainable use depends on the same
co-operation and participation among riparian States in the joint and integrated
management of the shared watercourse that we have previously indicated as
prerequisites for optimal utilisation.'
They go on to conclude that the procedural requirements inherent in the clearly
established legal obligation on States to cooperate can only be facilitated by means of
permanent technical institutional machinery:
`[I]f ... exchange of information, consultation and notification are critical for the
concrete determination of the substantive entitlement of States in the use of
international watercourses, it is patent that the long-term goals of optimal and
240 Article 33(1), (emphasis added).
241 McCaffrey, supra, n. 198, at 168.
242 See, for example, Tanzi and Arcari, supra, n. 234, at 18; Caflisch, supra, n. 218, at 139.
243 A. E. Utton, `International Water Quality Law', in L. Teclaff and A. E. Utton (eds.), International
Environmental Law, (Praeger, 1974) 154, at 182.
244 Supra, n. 234, at 18-21.
36
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
sustainable use of river waters can be adequately served only when procedural co-
operation among riparians is carried out on a permanent, rather than on an
occasional, basis.'
It would appear however that the effectiveness of establishing common management
machinery for the specific purpose of environmental management of international
watercourses in particular has been obvious for some time and is becoming ever more so.
One commentator noted in 1988 that
`The tendency to create new institutions for environmental management is not a
new one; it is inherent in the nature of the issues. Among the oldest institutions
for the management of an environmental resource are those dealing with the
allocation and use of water ...'.245
He goes on to cite early examples, including the Commission of the River Rhine
established at the Congress of Vienna246 but made operational by the 1868 Treaty of
Mannheim, the Danube Commission established in 1878, and the International Boundary
and Water Commission of the US and Mexico established in 1889. Indeed, Von Moltke
quotes at length from the concluding remarks of a report compiled during a seminar on
the work of international river basin commissions organised by the OECD in 1977, which
could then observe that
`During the last ten years, a marked strengthening of international cooperation has
been noted for solving problems of transfrontier pollution in international water
basins. More Commissions had been established and yet more were now the
subject of negotiations, with the result that there would soon be a Commission
responsible for each frontier in OECD countries where bodies of fresh water were
exposed to transfrontier pollution.'
The report proceeded to comment on the significance of one common feature of such
commissions, i.e. that they tended to possess scientific and technical expertise and were
usually in a position to provide impartial advice based on such expertise.
Therefore, although the more radical concept of `shared natural resources', which was
based on notions of common property and mooted by several international fora as a
means of describing the legal status of some transboundary natural resources,247 including
freshwaters,248 has been comprehensively rejected by States,249 some of the `basic ideas
underlying the concept of shared resources and the theory of community of interests are,
nonetheless, taking root in the field of the law of international watercourses'.250 States
are simply entering into, in the absence of legal compulsion, practical and effective
245 K. Von Moltke, `International Commissions and Implementation of International Environmental Law',
in J. E. Carroll (ed.) International Environmental Diplomacy (Cambridge University Press, 1988), at 89-91.
246 For the text of the 1815 Final Act of the Congress of Vienna, see Droit International et Histoire
Diplomatique, (Paris 1970), Vol. II, at 6.
247 See, in particular, the 1978 UNEP Governing Council's Draft Principles of Conduct in the Field of the
Environment for the Guidance of States in the Conservation and Harmonious Utilisation of Natural
Resources Shared by Two or More States, 17 ILM 1097 (1978); Article 3 of the Charter of Economic Rights
and Duties of States, UNGA Res. 3281(XXIX).
248 See, in particular, Sections G and H of the Mar del Plata Action Plan, Report of the United Nations
Water Conference, Mar del Plata, 14-25 March 1977, UN Doc. E/CONF.70/29 (1977), at 49-55.
249 S. Schwebel, Second Report on the Law of the Non-Navigational Uses of International Watercourses,
UN Doc. A/CN.4/332 and Add. 1. Reprinted Yearbook of the International Law Commission, Vol 2, No. 1,
(1980) 159, at 180-197.
250 Tanzi and Arcari, supra, n. 234, at 22-23.
37
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
arrangements which recognise the unitary nature of international watercourses or drainage
basins, and the resulting interdependence of riparian States, and the advantages of co-
operating to achieve optimal utilisation thereof. Indeed, as Cecil Olmstead could observe
in 1967:
`Since man cannot change the given geographical facts and has difficulty altering
established political boundaries, he must learn to develop co-operatively these
international resources for the maximum benefits of all. Although international
law ... does not require that such co-basin States jointly develop these waters.
However, in recognition of their common interest, increasingly such States will
voluntarily enter into joint planning and development agreements governing
international drainage basins.'251
Such bodies vary greatly in terms of their composition and function but almost all possess
considerable technical skills and resources and operate under an express mandate to
further the environmental protection of the international watercourse and, possibly, the
wider natural environment. This trend has become more marked in recent years. For
example, the 1994 Agreements on the Protection of the Rivers Meuse and Scheldt create
an international commission to facilitate co-operation between the parties for the purposes
of the environmental protection of the rivers.252 Similarly, the 1994 Convention on Co-
operation for the Protection and Sustainable Use of the Danube River253 establishes an
international commission254 to ensure co-operation in order to
`at least maintain and improve the current environmental and water quality
conditions of the Danube River and of the waters in its catchment area and to
prevent and reduce as far as possible adverse impacts and changes occurring or
likely to be caused.'255
The Danube Commission has more specific functions including, where appropriate, the
establishment of emission limits applicable to individual industrial sectors, the prevention
of the release of hazardous substances, and the definition of water quality objectives.256
The practice of the US-Canada International Joint Commission (IJC) is particularly
instructive as it is one of the longest established such agencies and provides a
comprehensive body of recorded examples of the consideration of environmental impacts
in the context of the use of shared freshwaters. The IJC was established by the 1909
Boundary Waters Treaty257 for the purpose of issuing orders of approval in response to
applications for the use, obstruction or diversion of the shared boundary waters which
may affect the natural water levels or flows,258 and may also investigate specific issues if
so requested by both States.259
251 Supra, n. 220, at 7.
252 (1995) 34 ILM 851 and 859, Article 2(2).
253 Yearbook of International Environmental Law (1994), doc. 16.
254 Article 4.
255 Article 2(2).
256 Article 7.
257 1909 Treaty between the United States and Great Britain relating to Boundary Waters and Questions
Arising between the United States and Canada, 102 British and Foreign State Papers 137.
258 Articles III and IV.
259 Article IX. See, for example, International Joint Commission, Transboundary Implications of the
Garrison Diversion Unit (1977); International Joint Commission, Water Quality in the Poplar River Basin
(1981); International Joint Commission, Impacts of a Proposed Coal Mine in the Flathead River Basin
(1988)
38
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
The potential role of such joint bodies has been considerably augmented by means of their
express mention in a number of important framework conventions relating to international
watercourses. Though it does not require the establishment of international joint
commissions, the 1997 UN Convention expressly recognises the valuable role they can
play by providing under Article 8, which contains the general duty to co-operate, that
`In determining the manner of such cooperation, watercourse States may consider
the establishment of joint mechanisms or commissions, as deemed necessary by
them, to facilitate cooperation on relevant measures and procedures in the light of
experience gained through cooperation in existing joint mechanisms and
commissions in various regions.'260
Such joint mechanisms or commissions would be particularly useful in giving effect to
the specific measures and methods for preventing, reducing and controlling pollution of
an international watercourse suggested under Part IV of the Convention.261 Indeed, the
2000 Southern African Development Community (SADC) Revised Protocol on Shared
Watercourses, which was adopted largely to give effect to key provisions contained in the
1997 UN Convention,262 sets out a very detailed institutional framework for its
implementation.263
In contrast to the 1997 UN Convention, Article 9 of the 1992 ECE Helsinki Convention,
which concerns bilateral and multilateral co-operation, expressly requires that bilateral or
multilateral agreements or other arrangements entered into by the parties pursuant to the
Convention `shall provide for the establishment of joint bodies'.264 Therefore, a binding
conventional instrument which two of the littoral States (Albania and Greece) have
ratified and which all three littoral States are obliged to respect as part of the acquis
communitaire, would appear to compel States to establish cooperative joint institutional
mechanisms. Article 9(2) goes on to state that
`The tasks of these joint bodies shall be, inter alia, and without prejudice to
relevant existing agreements or arrangements, the following:
(a) To collect, compile and evaluate data in order to identify pollution sources
likely to cause transboundary impact;
(b) To elaborate joint monitoring programmes concerning water quality and
quantity;
(c) To draw up inventories and exchange information on the pollution sources
mentioned [above];
260 Article 8(2).
261 For example, Article 21(3) proposes that watercourse States introduce the following measures and
methods:
`(a) Setting joint water quality objectives and criteria;
(b)Establishing techniques and practices to address pollution from point and
non-point sources;
(c)Establishing lists of substances the introduction of which into the waters of an international
watercourse is to be prohibited, limited, investigated or monitored.'
262 The Revised Protocol incorporates all the key substantive provisions contained in the 1997 Convention
and its Preamble expressly refers to the Convention, stating at para. 1:
`Bearing in mind the progress with the development and codification of international water law initiated by
the Helsinki Rules and that the United nations subsequently adopted the United nations Convention on the
Law of the Non-Navigational Uses of International Watercourses.'
263 Article 5.
264 Article 9(2) (emphasis added).
39
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
(d) To elaborate emission limits for waste water and evaluate the effectiveness of
control programmes;
(e) To elaborate joint water-quality objectives and criteria ... and to propose
relevant measures for maintaining and, where necessary, improving water
quality;
(f) To develop concerted action programmes for the reduction of pollution loads
from both point sources (e.g. municipal and industrial sources) and diffuse
sources (particularly from agriculture);
(g) To establish warning and alarm procedures;
(h) To serve as a forum for the exchange of information on existing and planned
uses of water and related installations that are likely to cause transboundary
impact;
(i) To promote cooperation and exchange of information on the best available
technology in accordance with the provisions of article 13 of this Convention,
as well as to encourage cooperation in scientific research programmes;
(j) To participate in the implementation of environmental impact assessments
relating to transboundary waters, in accordance with appropriate international
regulations.'
Article 9 further provides for the participation of non-riparian States directly and
significantly affected by transboundary impact in the activities of multilateral joint bodies
established by riparians265 and for the co-ordination of the activities of joint bodies where
two or more exist in the same catchment area.266 Indeed, the 1992 Convention even
provides a definition of a `joint body' which it describes as `any bilateral or multilateral
commission or other appropriate institutional arrangements for cooperation between the
Riparian Parties'.267
Therefore, it is quite clear that the PPCC falls squarely within the notion of a `joint body'
as envisaged under the 1992 Helsinki Convention and, further, that the functions of a joint
body enumerated under the Convention would require the establishment of expert
subordinate organs such as that proposed in the form of the Prespa Water management
Working Group. Further, it is apparent that practical application of normative principles
involving `multi-layered complexity'268, such as `equitable utilisation' and `sustainable
development' which are, almost by definition, somewhat legally indeterminate, can be
greatly assisted by means of expert institutional machinery. In a discussion of so-called
`sophist principles', among which he includes equitable utilisation, Franck observes that
they `usually require an effective, credible, institutionalized, and legitimate interpreter of
the rule's meaning in various instances ...'.269 Therefore, by establishing and supporting
a technically-competent inter-governmental body with responsibility for identifying in
detail the environmental effects of any ongoing or planned uses of an international
watercourse, and a formal procedural mechanism for presenting its findings and
recommendations in this regard, the increasingly common practice of establishing
international technical joint commissions almost inevitably serves promote environmental
protection of a shared basin.. Although States cannot be bound to adopt a community of
265 Article 9(3) and (4).
266 Article 9(5).
267 Article 1(5).
268 T. M. Franck, Fairness in International Law and Institutions (Clarendon, Oxford, 1995), at 67.
269 Ibid., at 81-82.
40
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
interests approach to inter-State cooperation on the management of international
freshwater resources, or to join or participate in related institutional machinery of
common management such as permanent technical drainage basin commissions, States
increasingly volunteer to do so, which assists them in establishing compliance with their
legal obligation to cooperate in the management of the shared waters. Though such
institutional arrangements have much to commend them, it seems that potentially one of
their most significant contributions is to the effective environmental protection of
international watercourses.
In addition, it becomes clear from the above examination of technical institutions for the
common management of shared water resources that one of the key functions routinely
assigned to such institutions and one of their key contributions to the effective
environmental protection of shared waters relates to the conduct of transboundary
environmental impact assessments. In relation to transboundary environmental impact
assessment, it is worth noting that all three Prespa littoral States have ratified the UNECE
Convention on Environmental Impact Assessment in a Transboundary Context,270which
expresses the determination of the Parties to enhance international cooperation271 and
requires prompt notification of States Parties likely to be affected272 by a development
project and the entry into inter-State consultations with such States Parties.273 Clearly
such requirements suggest the use of technically competent international institutional
machinery and Article 8 on `Bilateral and Multilateral Cooperation' states that
`The Parties may continue existing or enter into new bilateral or multilateral or
multilateral agreements or other arrangements in order to implement their
obligations under this Convention. Such agreements or other arrangements may
be based on the elements listed in Appendix VI.'
Appendix VI in turn provides that `Concerned Parties may set up, where appropriate,
institutional arrangements or enlarge the mandate of existing institutional arrangements'
and goes on to list `Elements for Bilateral and multilateral Cooperation', including, inter
alia:
- `Institutional,
administrative and other arrangements ...;
-
Harmonization of their policies and measures for the protection of the
environment in order to attain the best possible similarity in standards and
methods related to the implementation of environmental impact
assessment;
-
Developing, improving and/or harmonizing methods for the identification,
measurement, prediction and assessment of impacts, and for post-project
analysis;
- Developing
and/or
improving
methods and programmes for the collection,
analysis, storage and timely dissemination of comparable data regarding
environmental quality in order to provide input into environmental impact
assessment;
-
The establishment of threshold levels and more specified criteria for
defining the significance of transboundary impacts related to the location,
nature or size of proposed activities, for which environmental impact
270 (Espoo, 1991).
271 Preamble, para. 3.
272 Article 3.
273 Article 5.
41
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
assessment in accordance with the provisions of this Convention shall be
applied; and the establishment of critical loads of transboundary pollution;
-
Undertaking, where appropriate, joint environmental impact assessment,
development of joint monitoring programmes, intercalibration of
monitoring devices and harmonization of methodologies with a view to
rendering the data and information obtained compatible.'
These key functions, identified under the 1991 Espoo Convention as facilitative of
transboundary environmental impact assessment, reflect more generally the key elements
of transboundary cooperation for environmental protection of shared drainage basins and
their dependent ecosystems, and further demonstrate the commitment of the three Prespa
littoral States to trilateral cooperation and to the development of appropriate institutional
structures.
Similarly, the UNDP-GEF Project Document commits the littoral States and the PPCC to
promoting the active participation of the public in respect of the environmental protection
of the Prespa Lakes ecosystem and to consultation with interested stakeholders at the
catchment basin level.274 In this regard, it is worth noting that all three littoral States have
ratified the 1998 U.N.E.C.E. Aarhus Convention,275 which anyway now forms part of the
environmental acquis. Clearly, the three States can more easily and effectively meet their
binding legal obligations as regards providing public access to information and ensuring
adequate consultation in respect of the environmental protection of Prespa by means of a
technically competent water management working group with clear responsibility for the
compilation and dissemination of available information and for liaising with the relevant
stakeholders and potentially affected interested parties.
5.
Practice under the PPCC
It is quite clear that the trilateral inter-State cooperation required under international law
has, since 2000, been conducted by means of the PPCC, which includes representatives of
the national environmental authorities, the relevant local authorities and interested
national NGOs. Pursuant to the commitments made in the Prime Ministers' Declaration,
an International Working Meeting was held in Tirana in October 2000, attended by
representatives of the national environmental authorities of the three littoral States among
others,276 at which a proposal was adopted to establish the PPCC as a provisional
institutional mechanism pending the conclusion of a formal ministerial agreement at a
later stage.277 Therefore, in the absence of such an agreement, which the PPCC has made
every effort to promote,278 the PPCC constitutes the de jure and de facto institutional
mechanism for trilateral cooperation in respect of the Prespa Lakes basin. The decision /
recommendation adopted by the International Woking Group required the three
274 Output 4.2.
275 Convention on Access to Information, Public participation in Decision-Making and Access to Justice in
Environmental Matters (Aarhus, 25 June 1998).
276 See, for example, Bogdanovic, supra, n. 1, at 42-43, who reports that in the available documents
providing a record of the International Working Meeting,
`it was stated that "official delegations of the Governments of Albania, Greece and FYR of
Macedonia ..." met in Tirana'.
277 See further, Bogdanovic, supra, n. 1, at 30-44.
278 See, for example, the draft Tripartite Agreement on the Protection and Sustainable Development of the
Prespa Park Area, prepared by the PPCC.
42
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Governments to nominate the members of the PPCC as soon as possible and set out the
structure, mandate, responsibilities and operational guidelines of the Committee. The
membership is to include one representative from each of the national environmental
authorities, one local community (municipality) representative from each littoral State,
one representative of environmental NGOs from each State, and one international
observer from the Bureau of the Ramsar Convention. Therefore, the PPCC is clearly
intended to represent national interests and to facilitate articulation of national
perspectives and concerns.
Under this decision / recommendation, the PPCC's role is largely one of technical
cooperation and information management. At its First Regular meeting, held in Skopje in
January 2001, the PPCC adopted an Operational Arrangement, setting down a number of
rules of procedure to guide the functioning of the Committee. In addition, at its Second
Regular Meeting, in Psarades on 19-20 November 2001, the PPCC adopted Terms of
Reference and Operational Arrangements for the PPCC Secretariat, which described the
Secretariat as a `technical organ' and `subsidiary organ' of the PPCC, whose `primary
task is to initiate, support and facilitate the joint activities in the framework of the
trilateral Prespa Park process'.279 Among the specific tasks assigned to the Secretariat
under under these documents are included:
-
Preparation and provision of assistance with regard to trilateral political
and technical meetings and scientific symposia ...;
-
Preparation and provision of assistance with regard to consultations on
policy and other relevant matters between stakeholders and with regard
to consultations at the policy-preparing and technical level of the
framework of working groups, expert groups ...;
-
Collection, dissemination and assessment of information, including on
follow-up of joint projects and compilation, evaluation and promotion of
scientific research;
Therefore, it is quite clear that since the inception of the PPCC, it was understood that
technical working groups, such as the proposed Prespa Water Management Working
Group, would be necessary for the effective operation of the PPCC and were envisaged
within its evolving institutional structure. The recent establishment of the Monitoring and
Conservation Working Group (MCWG) further testifies to this intention.
By June 2007, the PPCC has held ten Regular Meetings and two Extraordinary Meetings
and in June 2003 adopted a comprehensive Strategic Action Plan for the Sustainable
Development of the Prespa Park, the preparation of which it had facilitated. In addition, it
has taken a number of ad hoc decisions regarding its own operating procedures.280 Most
importantly, at its Fourth Regular Meeting, the PPCC decided to extend its own interim
term of operation, a decision that the PPCC Chairman was requested to notify to the
environmental authorities in the three littoral States. It is quite clear, therefore, that
despite the failure of the States to conclude a formal international agreement providing a
clear legal basis for the PPCC, the States have acquiesced to its continued operation as the
only institutional mechanism for trilateral cooperation in respect of Prespa.
279 Bogdanovic, ibid., at 35.
280 See Bogdanovic, ibid., at 38.
43
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Furthermore, the environmental authorities of each State have agreed to act as the
implementing partners for the current UNDP-GEF Project and have approved the key role
of the PPCC in the Project Steering Committee. As well as providing evidence of the
implicit recognition of the transboundary coordinating role of the PPCC in the State
practice of each of the littoral States, this function shows that international inter-
governmental institutions, such as UNDP, recognise the PPCC's capacity and de facto
mandate to act in this trilateral coordinating role.281 While various fora exist to facilitate
cooperation at a variety of levels of public administration282 and on the basis of specific
sectoral interests,283 these initiatives are largely supported and coordinated by the PPCC.
In the light of the consistent cooperative practice of the three littoral States by means of
the process established under the PPCC, one is reminded of the comments of Schwebel in
relation to the formation of custom, that `what states do is more important than what they
say'.284 Indeed, the extent of ongoing trilateral cooperation over Prespa Lakes was
recognised at the side event on Transboundary Water Cooperation in South Eastern
Europe, organised by UNECE during the 6th Ministerial Conference on `Environment for
Europe', held in Belgrade in October 2007, where the concluding remarks noted that
`Progress has been made in recent years [on transboundary water cooperation].
Champions should be identified and experiences and lessons learned should be
disseminated. The very successful cooperation in Sava and Danube Rivers as well
as in Prespa Lake should be further enhanced, solidified and replicated.'285
Thus, while the meeting acknowledged the progress made on international cooperation
over Prespa, it also calls for such cooperation to be enhanced. Therefore, it is abundantly
clear from the practice of the States that each considers itself obliged to comply with the
customary duty to cooperate in respect of the Prespa Lakes ecosystem. The establishment
of the Prespa Water Management Working Group is merely a logical and necessary step
in ensuring the effective operation of the PPCC, and thus effective inter-State
cooperation.
6. Obligations under E.C. Law
All three Prespa littoral States are bound, to a greater or lesser extent, by the requirements
of the E.C. Water Framework Directive,286 which include, inter alia:
281 See Bogdanovic, ibid., at 68, who describes the UNDP-GEF Project as evidence of `a new commitment
of the three Prespa lakes Littoral States to cooperate'.
282 For example, the 2007 Protocol on Collaboration, signed by the Mayors of the Municipalities of Liqenes
(Albania), Prespa (Greece) and Resen (FYR-Macedonia).
283 For example, the regular annual meetings of fishery stakeholders in order to set fishing / closed seasons.
284 S. M. Schwebel, `The Effect of Resolutions of the U.N. General Assembly on Customary International
Law, (1979) Proceedings of the American Society of International Law, at 304. See, in support of this view,
A. A. d'Amato, The Concept of Custom in International Law, (New York, 1971), at 88-91. See generally,
H. Meijers, `On International Customary Law in the Netherlands' in I. F. Dekker and H. H. G. Post (eds.),
On The Foundations and Sources of International Law (T.M.C. Asser Press, The Hague, 2003) 77, at 83-
84.
285 See Letter from Ms. Myrsini Malakou, Director SPP, and Mr. Demetres Karavellas, CEO WWF Greece,
to Mr. Helmut Bloech, DeputyDirector of the Protection of Water & marine Environment Directorate, DG
Environment, European Commission, dated 25 July 2008. (Emphasis added)
286 Directive 2000/60/EC establishing a framework for Community action in the field of water policy, OJ
L327/1 (2000), 22 October 2000.
44
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
-
the requirement to characterise the drainage basin in terms of pressures,
impacts and economic analysis;287
-
the requirement to establish a monitoring network;288
-
the preparation of river basin management plans;289
-
the operationalisation of programmes of measures;290
-
the requirement to meet the environmental objectives of the Directive.291
Article 13(3) envisages geographical boundary situations such as that of the Prespa Lakes
Basin and provides that
`In the case of an international river basin district extending beyond the
boundaries of the Community, Member States shall endeavour to produce a single
river basin management plan ...'.
Clearly, the nature and extent of transboundary cooperation required to jointly prepare
and adopt a single river basin management plan strongly suggests the use of highly
evolved transboundary institutional machinery to facilitate such cooperation. It is also
important to note the core objectives of the Water Framework Directive as elaborated
upon in the Recitals to the Directive. Recital 23 states that one of the objectives of the
Directive is `to contribute to the control of transboundary water problems, to protect
aquatic ecosystems, and terrestrial ecosystems and wetlands directly depending on them',
while Recital 33 provides that
`The objective of achieving good water status should be pursued for each river
basin, so that measures in respect of surface water and groundwaters belonging to
the same ecological, hydrological and hydro geological system are coordinated'.
Most significantly, Recital 35 provides that
`Within a river basin where use of water may have transboundary effects, the
requirements for the achievement of the environmental objectives established
under this Directive, and in particular all programmes of measures, should be
coordinated for the whole of the river basin district. For river basins extending
beyond the boundaries of the Community, Member States should endeavour to
ensure the appropriate coordination with the relevant non-member States. This
Directive is to contribute to the implementation of Community obligations under
international conventions on water protection and management, notably the United
Nations Convention on the protection and use of transboundary water courses and
international lakes, approved by Council Decision 95/308/EC and any succeeding
agreements on its application.'
This Recital links the purposes of the Water Framework Directive with implementation of
the 1992 UNECE Helsinki Convention, Article 9 of which requires States parties to
establish or participate in institutional machinery for the common management of shared
water resources and provides an indicative list of the functions, largely technical, of such
institutional mechanisms.
Looking at the text of the Directive itself, Article 1(e) includes among the purposes of the
Directive `achieving the objectives of relevant international agreements'. Further, Article
3(5) states
287 Article 5.
288 Article 8.
289 Articles 11 and 13.
290 Article 11.
291 Article 4.
45
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
`Where a river basin district extends beyond the territory of the Community, the
Member State or Member States concerned shall endeavour to establish
appropriate coordination with the relevant non-Member States, with the aim of
achieving the objectives of this Directive throughout the river basin district.'
In addition, Article 3(6) provides that `Member States may identify an existing national or
international body as competent authority for the purposes of this Directive.'
The Common Strategy on the Implementation of the Water Framework Directive292
recognises the critical importance of close cooperation with candidate countries from
Central and Eastern Europe on shared river basins and specifically mentions the
international conventions for the Danube, Elbe and Oder Rivers. The document suggests
that these conventions and the institutional arrangements established thereunder `may be
used as a platform for the co-ordination of the [Directive] implementation activities'.293
Similarly, a 2006 Decision of the Council of the European Union expressly recognises the
particular importance of basins shared between Greece, FYR of Macedonia and Albania
and provides:
`In order to improve cooperation in European river basins shared between certain
Member States and Third Countries, the Commission will participate ... in the
negotiations aiming at the conclusion of international river basins agreements in
relation to river basins:
(b) shared between Greece on the one hand and Albania, FYROM ... on the other
hand'
Further, the Annex to the Decision, which sets out `Negotiating Directives' for any such
negotiations provides, inter alia, that `The Commission shall ensure that the agreements
are consistent with relevant Community legislation', which would obviously include the
terms of the Water Framework Directive. While this Decision only applies directly to the
conclusion of formal river basin agreements, it clearly illustrates the priority placed by the
Community institutions on the approximation of policies on transboundary waters with
the requirements of the Water Framework Directive.
Therefore, at least as regards Greece, as a long-standing Member State of the E.U., there
exists a clear and binding obligation under Community law to actively cooperate with
Albania and FYR of Macedonia in respect of the protection of the Prespa Lakes
ecosystem and, in particular, to support and contribute to the operation and development
of the existing institutional structures which can facilitate such cooperation. Having
regard to the tendency of the European Court of Justice to look to the recitals of directives
to establish their true purpose, with a view to taking a purposive approach to their
interpretation and application, and to the Court's willingness to find Member States in
`systemic' non-compliance for failing to comply with the `spirit and intent' of
Community law,294 it is not unreasonable to suggest that Greece could conceivably be
found to be in systemic non-compliance with aspects of the Water Framework Directive if
it were to fail to actively support the work of the PPCC and its necessary ongoing
institutional development.
292 Jointly developed by the Member States and the European Commission and adopted by EU Water
Directors (Stockholm, 2 May 2001).
293 Ibid., para. 3.4.
294 See, for example, CaseC-216/05, Commission v. Ireland, re `persistent and general' failure to comply
with the Waste Framework Directive.
46
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Equally, both Albania and FYR of Macedonia, though not yet E.U. Member States, are
candidate countries and have concluded Stabilisation and Association Agreements with
the E.U.295 which require gradual approximation with the requirements of the
environmental acquis communitaire.296 For example, Article 68(1) of the Stabilisation
and Association Agreement concluded between FYR of Macedonia and the E.U.
provides:
`The Parties recognise the importance of the approximation of the existing and
future laws of the Republic of Macedonia to those of the Community. The
Republic of Macedonia shall endeavour to ensure that its laws will be gradually
made compatible with those of the Community.'
Article 68 goes on to describe the stages for the transition and the process for defining the
modalities for the monitoring of the implementation of legislative approximation.
More specifically, Article 103 of the Stabilisation and Association Agreement concluded
between FYR of Macedonia and the E.U. states unequivocally that `The Parties shall
develop and strengthen their cooperation in the vital task of combating environmental
degradation, with a view to support environmental sustainability'.297 Article 103(2)
further elaborates on the sectoral priorities for such cooperation and states:
`Cooperation could centre on [inter alia] the following priorities:
-
combating local, regional and cross-border pollution (air, water quality,
including waste water treatment and drinking water pollution) and
establishing effective monitoring;
-
the environmental impact of agriculture; soil erosion and pollution by
agricultural chemicals;
-
the protection of forests, the flora and fauna; the conservation of
biodiversity;
-
continuous approximation of laws and regulations to Community
standards;
-
international Conventions in the area of environment where the
Community is Party [including, for example, the 1992 UNECE Helsinki
Convention];
-
cooperation at regional level ...'.
Article 103(3) further provides that
`cooperation could include [inter alia] the following areas:
-
exchange of the outcome of scientific and research development
projects;
-
mutual monitoring, early notification and warning systems on hazards
disasters and their consequences'.
Therefore, it is quite clear that any national legislation on water resources adopted by
FYR of Macedonia subsequent to conclusion of the Stabilisation and Association
Agreement would be required to be compatible with the key requirements of the Water
295 Stabilisation and Association Agreement between the European Communities and their member States of
the One Part, and the Former Yugoslav Republic of Macedonia of the Other Part (26 March 2001);
Stabilisation Agreement between the European Communities and their Member States, of the One Part, and
the Republic of Albania, of the Other Part (22 May 2006).
296 On Stabilisation and Association Agreements generally, see further A. Gugu, `Main Features of
Stabilization and Association Agreements and the Differences with Europe Agreements', available at
http://www.acit-al.org/publications/Research_papers/dec_2003_A_Gugu.pdf
297 Article 103(1).
47
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Framework Directive and, in the case of any ambiguity, should be interpreted as being
consistent with the Directive.
Indeed, the Stabilisation and Association Agreement would appear to clearly commit
FYR of Macedonia to transboundary cooperation in respect of shared water resources
and, accordingly, Articles 9-11 of the new Macedonian Law on Waters298 expressly
provides for such Cooperation. In particular, draft Articles 9 and 10 cover transboundary
river basin planning with Article 9 providing:
`For the purpose of establishment and management of international river basin
districts with the relevant neighbouring states for river basins which extend
beyond the territory of the republic of Macedonia, the state administrative body
competent for the area of environment in cooperation with the state administrative
body competent for foreign affairs shall seek to establish international river basin
districts with the relevant neighbouring states ...'.
Article 10(1) provides that `management of transboundary river basin districts and
transboundary waters shall be performed ... in accordance with the international treaties
ratified by the Republic of Macedonia', while, of even greater relevance for the obligation
to cooperate, Article 10(2) provides that
`In order to achieve compliance with the objectives of this Law, the state
administrative body competent for the area of environment shall undertake
activities to coordinate the plans for the management of international river basin
districts and the programmes of measures, with the competent authorities of
neighbouring states that belong to the same river basin district.'
Similarly, Article 70(1) states that, in respect of a transboundary river basin, `the state
administrative body competent for environment shall cooperate with the competent
authorities of the relevant countries for the purpose of developing common transboundary
river basin management plan'.299 Therefore, anything less than full cooperation on the
part of FYR of Macedonia with the PPCC in respect of basin management planning for
the Prespa Lakes, arguably including support for the establishment and working of the
PWMWG under the auspices of the PPCC, might be regarded as a breach of its
commitments under the Stabilisation and Association Agreement and might even be
actionable under Macedonian domestic law, once the proposed Law on Waters has
entered into force.
Albania has signed a substantively similar Stabilisation and Association Agreement with
the E.U.300 and even pre-existing relevant national statutory provisions would appear to
commit it to pursuing transboundary cooperation in the management and protection of
transboundary water resources. For example, Article 20(2) of the 2003 Albanian Law on
the Protection of Transboundary Lakes requires that
298 Proposal dating from October 2007.
299 (Emphasis added).
300 Supra, n. 295. Article 70 commits Albania to the gradual approximation of its laws with the acquis
communitaire, while Article 108 expressly requires the Parties to cooperate in the field of environment, and
particularly `on priority areas related to the Community acquis in the field of environment'. See further, V.
Kuko, `Stabilisation and Association Process in Albania and Institutional Framework', available at
http://www.acit-al.org/publications/Research_papers/dec_2003_V_Kuko.pdf
48
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
`The management plans should comply with the international conventions on the
lake protection and management, as well as be in compliance with the agreements
signed with the neighbouring countries.'301
As Albania is a party to the 1992 UNECE Convention on the Protection and Use of
Transboundary Watercourses and International Lakes and a signatory to the 1997 U.N.
Watercourses Convention, it is quite clear that Albanian law requires the State to
cooperate with the other littoral States and, to this end, to establish and participate in the
requisite institutional machinery.
In addition to the obligations imposed, directly or indirectly, upon all three Prespa littoral
States by the requirements of the Water Framework Directive, a range of further
Community measures impose obligations, with which the establishment and functioning
of the PWMWG under the auspices of the PPCC can be expected to assist in facilitating
compliance. Such measures include the Wild Birds Directive,302 the Habitats
Directive,303 the EIA Directive,304 the SEA Directive,305 the Directive on Public Access
to Environmental Information,306 and the Directive on Public Participation.307
7.
Conclusions on the Legal Mandate of the PWMWG
In relation to the legal mandate for the Prespa Water Management Working Group
(PWMWG), one needs only to consider the central role of the PPCC in facilitating
trilateral cooperation on water management on the basis of the Water Framework
Directive including, for example, the holding of the first meeting of the respective water
authorities in Albania in Autumn 2006 as a side event to the 9th Regular Meeting of the
PPCC. At this meeting, the participants agreed on the need for the establishment of a
trilateral working group on water management issues, which would include, inter alia,
water management authority officials from each littoral State.308 This meeting also agreed
on the need to develop a transboundary monitoring system in the Prespa basin, which is
now in operation by means of the MCWG. The same letter points out that the current
UNDP-GEF project foresees a number of outputs in respect of water management,
including
`the strengthening of institutional cooperation on water issues, the development of
water management plans in the two recipient countries [Albania and FYR of
Macedonia] and the formulation of an integrated water management plan for the
basin'.309
Clearly, these outputs, which have been agreed by the authorities in the three littoral
States, strongly suggest the need for and key functions of the proposed PWMWG. In
addition, the first meeting of the Greek-Albanian permanent commission on
301 Law No. 9103 (10 July 2003). See Bogdanovic, supra, n. 1, at 68-69.
302 Dir. 79/409/EEC, 2 April 1979.
303 Dir. 92/43/EEC, 21 May 1992.
304 Dirs. 85/337/EEC, 27 June 1985 and 97/11/EC, 3 March 1997.
305 Dir. 2001/42/EC, 27 June 2001.
306 Dir. 2003/4/EC, 28 January 2003.
307 Dir. 2003/35/EC, 26 May 2003.
308 See Letter from Ms. Myrsini Malakou, Director SPP, and Mr. Demetres Karavellas, CEO WWF Greece,
to Mr. Helmut Bloech, DeputyDirector of the Protection of Water & marine Environment Directorate, DG
Environment, European Commission, dated 25 July 2008.
309 Ibid.
49
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
transboundary freshwater issues, established under a Greek-Albanian Agreement ratified
in October 2005, took place in April 2008. Obviously, for all the reasons set out above,
this commission is required to undertake transboundary water management on the basis of
the requirements of the Water Framework Directive, including joint river basin
management planning, which suggests the need for a technical working group, such as the
proposed PWMWG, with accumulated expertise on the Prespa basin.
50
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
SITUATIONAL ANALYSIS OF WATER MANAGEMENT IN THE PRESPA
LITTORAL STATES
A number of studies have been conducted on the unique hydrological and ecological
system of the Prespa-Ohrid drainage basin, but the Prespa Lakes have been less well
scientifically researched than Lake Ohrid and such studies as have examined Prespa
Lakes system have tended to focus on how much water its contributes to Lake Ohrid.
Therefore, a number of uncertainties persist despite some useful research including,
projects funded by the World Bank and UNESCO and, in particular, the Traborema
Project and the ongoing trilateral NATO-funded Project on `Sustainable Management of
International Waters Prespa Lake'. For example, it is not entirely clear how much water
loss is due to human activities, including agricultural irrigation and the abstraction of
groundwater, and how much due to natural conditions, such as geological or climatic
changes (including evaporation). It would appear that measuresment of groundwater
abstraction and of precipitation in the basin is entirely inadequate. Also, though
eutrophication is occurring, it is not clear to what extent this is due to decreasing water
levels or to pollution from agricultural run-off and inadequately treated waste water.
Similarly, despite the ongoing granting of fishing concessions and some illegal fishing,
there is no systematic monitoring of fish populations or analysis of fish caught. In
addition, there is a marked lack of data in respect of the socio-economic vulnerability of
the Prespa communities should sectoral interests, such as tourism, fisheries or agriculture,
be adversely affected. For example, Prespa is the second busiest tourist destination in
FYR of Macedonia after Ohrid.
The fact that a number of major projects have recently been mooted with possible impacts
on the Prespa Lakes ecosystems, such as the Maharishi University project, Aqua Pura
project or plans to rehabilitate the irrigation channel in order to divert waters from the
Devoli River to the Korce Plains for agricultural purposes, it is imperative that a fuller
understanding of the dynamics and vulnerability of the ecosystem de developed.
Clearly, there is a need for systematic trilateral coordination of projects, in order to ensure
that overlap or duplication is avoided and that critical gaps in the available data are
addressed.
FYR of Macedonia
The new Water Law was adopted in April 2008. The first phase of implementation
commenced with the entry into force on 4 July 2008 of Chapter III on planning and
Chapter XI on organisational / institutional set-up, will transfer responsibility for water
resources management from the Ministry of Agriculture to the Ministry of Environment
and Physical Planning (MEPP), with full responsibility to be transferred by February
2010. Under this phase, the National Water Council will be established and will have
responsibility for adopting the National Water Strategy. Adoption of the National Water
Strategy will pave the way for subsequent preparation of the Water Master Plan, which is
due to be adopted within four years of entry into force of the Law. Nominations for the
National Water Council are currently pending from the relevant Ministries. In addition,
four River Basin Management Districts (RBMDs) have been identified, which will be
administered by three River Basin Management Bodies (RBMBs). The RBMBs will
51
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
replace the existing local level water management organisations which are very heavily
indebted. RBMBs must be established within four years of the adoption of the Water
Law and each RBMB will prepare a River Basin Management Plan, which must be
finalised within six years of the adoption of the Water Law. It will also be possible,
where appropriate, to prepare sub-basin management plans. As regards RBMPs for
transboundary basins, it is proposed to prepare a draft RBMP for the River Vardar basin,
shared between FYR of Macedonia and Greece, which would pilot the transboundary
river basin management planning process and serve as a template for the development of
further transboundary RBMPs, including one for the Prespa / Ohrid basin. The Water
Law will come fully into force on 1 June 2010 and will facilitate full transposition of the
E.C. Water Framework Directive and approximation with seven further E.C.
environmental and water related directives, including the Nitrates Directive, the Bathing
Waters Directive, the Drinking Water Directive, etc. GTZ is currently assisting the
Government of FYR of Macedonia to compile a compendium of by-laws necessary for
and relevant to the Water Law.
Spatial plans have already been adopted for most of the territory of FYR of Macedonia,
including the four RBMDs. Each spatial plan contains specific provisions in respect of the
protection of natural and cultural heritage requiring that these values are taken into
consideration in the preparation and adoption of RBMPs. In this regard, the RBMBs will
be required to coordinate closely with the Spatial Planning Unit within the MEPP.
Currently, the Regional Spatial Plan (RSP) for the Prespa / Ohrid Region is nearing
completion. The draft makes express reference to the need to gather further data on water
resources in the region and to develop further methodologies for the collection of such
data. Also, the Local Spatial Plan for the Municipality of Resen, which is due to be
completed during 2009, is currently being developed in parallel with the RBMP.
According to the Spatial Planning Law and the Water Law, all spatial plans must require
that the objectives of any RBMP be taken into account and given effect in spatial
development policies and decisions. Conveniently, it would appear that the area of the
Prespa / Ohrid basin within the territory of the FYR of Macedonia corresponds almost
exactly with the boundaries of one of the provisionally proposed RBMDs.
Existing institutional structures for protection of water quality are generally regarded as
sound. The water quality monitoring system has been established for many years and
monitors a range of parameters, including chemical and bacterial pollutants and metals.
There is a need for this monitoring system to be coordinated with the development of the
National Water Strategy and the Water Master Plan. However, it is necessary to develop
a national institutional capacity to analyse water samples, as there is no authorised
laboratory in FYR of Macedonia currently. In respect of water monitoring and analysis,
funding is a constant constraint. Even if monitoring or analysis equipment were to be
donated, significant funding would be required for maintenance and recalibration of such
equipment and training of operatives. Though the new Water Law assigns responsibility
for particular activities to certain institutions, no funding for such institutions is
prescribed under the legislation. Similarly, National Parks in FYR of Macedonia are
expected to be self-financing, which limits the range and extent of conservation activities
in which they can afford to become involved Also, fund-raising becomes a distraction
and diverts resources and energy away from core conservation activities. This seriously
affects the sustainability of donor-funded conservation projects.
52
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
As regards transboundary cooperation, Articles 9-11 and 70 of the new Water Law
commits FYR of Macedonia to cooperate with co-basin States in respect of transboundary
waters. These provisions give legislative effect to requirements in respect of
transboundary cooperation contained in Articles 1 and 3 and the Recitals of the Water
Framework Directive, to which FYR of Macedonia has committed to approximate its
laws under Articles 68 and 103 of its Stabilisation and Association Agreement with the
EU. Though FYR of Macedonia has not yet ratified the 1992 UNECE Helsinki
Convention, it is clearly committed to ratification and recognises that the Convention
forms part of the environmental acquis, to which it is committed under the Stabilisation
and Association Agreement. The Government of FYR of Macedonia would appear to be
solidly committed to transboundary cooperation in respect of shared waters. For example,
in 2004 it concluded an agreement with Albania relating to Lake Ohrid establishing the
Lake Ohrid Watershed Committee (LOWC), which includes representatives of central
government (including the Ministries of Environment, Agriculture and Foreign Affairs),
local government, the scientific community, and the NGO community. The LOWC is
assisted by a number of supporting bodies. including the Watershed Management
Committee, the Monitoring Taskforce, and a joint Secretariat. It facilitates a high level of
technical cooperation, including annual joint monitoring and analysis of the water quality,
in respect of which the LOWC has adopted two Joint Protocols on Monitoring. However,
financial sustainability remains a problem for the LOWC. In addition, FYR of
Macedonia remains committed at the ministerial level to the 2002 draft tripartite
Agreement on the Protection and Sustainable Development of the Prespa Park Area,
prepared by the PPCC. There are earlier agreements related to transboundary water
resources entered into by the former Yugoslavia with Albania in 1956 and with Greece in
1972, as well as a bilateral agreement concluded between FYR of Macedonia and Greece
on cooperation in the field of environment, but these have fallen into disuse and the
institutional structures provided for thereunder have not entered into operation. In recent
weeks, the Ministry of Environment has announced plans to establish a technical working
group on Prespa Lakes to be chaired and coordinated by the Deputy Minister for
Environment. The establishment of this working group could certainly help to facilitate
transboundary cooperation and communication in respect of protection of the Prespa
Lakes ecosystem.
Greece
Under the previous legal regime (1987 Water Law), responsibility for water resources
management in Greece was fragmented, with the Ministry for Development having
responsibility for issues of water quantity and the Ministry of Environment and Public
Works having responsibility for issues of water quality. Under the 2003 Water Law (Law
3199/2003), all responsibility for water passes to the Ministry of Environment and Public
Works, which has established a new body, the Central Water Agency (CWA), to take
overall responsibility for water policy. However, though the 2003 Water Law is intended
to transpose and facilitate implementation of the E.C. WFD, it appears that the
constitutional basis of the CWA remains somewhat unclear and that it suffers from a lack
of capacity pending the transfer of staff from the Ministry for Development. The
Ministry of Development has commenced the process of preparing Water Management
Plans (WMPs), but this has not been carried out exactly in accordance with the
53
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
requirements of the E.C. WFD. For example, the draft WMP for the region of Western
Macedonia is incomplete as it includes a description of water uses but contains no
programme of measures and says little about transboundary water management. Also, it is
now unclear which Ministry / Agency will have overall responsibility for the completion
and adoption of the WMPs.
At the regional level, Regional Water Directorates are established under the chairmanship
of the General Secretary of the Region, which have the key role in the implementation of
the WFD. Currently, the Regional Water Directorate for Western Macedonia is working
with old water management plans but by the end of 2009 the new Water Management
Plan for Western Macedonia is expected to have been adopted, which will facilitate the
designation of river basin districts, identified on the basis of the requirements set out in
the E.C. WFD, and the subsequent adoption of River Basin Management Plans.
Generally, this will involve taking a larger view of basin areas than had been taken under
the old water management plans. However, it is not at all certain that adequate RBMPs,
containing programmes of measures regarding remediation, restoration, nature
conservation, etc., can realistically be adopted by the end of 2009. Under the draft new
Water Management Plan for Western Macedonia, Greek Prespa / Prespa Park will
constitute a single river basin district. The new Water Management Plan will consist
mainly of measurements, targets and objectives, and data on the state of waters, levels and
nature of water uses, the water available and waters allocated. It will be used by the
Regional Water Directorate as the basis for issuing permits in respect of water pollution
and water abstraction. While some data and studies will be collated by the Regional
Water Directorates, other data will be collated by the Central Water Agency, which will
have overall responsibility for compiling all such data and making it available to the
Regional Water Directorates in order that they can prepare River Basin Management
Plans on the basis of such data. The Central Water Agency has overall responsibility for
water policy under the 2003 Water law and will provide Regional Water Directorates with
a format / template, to which the River Basin Management Plans will have to correspond.
The Regional Water Directorates retain legislative responsibility for adoption of RBMPs
but, as some RWDs were making poor progress in this regard, the CWA has stepped in to
ensure effective and consistent implementation of the WFD. Also, it is recognised that
there exist wide discrepancies between RWDs in terms of the capacity to prepare
RWMPs, with the RWD for Western Macedonia among the less well resourced. The
CWA has very recently issued guidance to RWDs on effective WFD implementation
having regard to local conditions. However, it is generally acknowledged that there is
inadequate funding to implement the 2003 Water Law effectively. In particular, the
resources are not yet in place to provide critical infrastructure, to ensure comprehensive
measurement of water conditions or to implement necessary projects and studies.
In relation to Prespa waters, the key institutional body is the Management Body for
Prespa National Forest, which includes a Wetland Management Committee which makes
decisions in respect of the water levels for Mikri Prespa. The wetland Management
Committee provides evidence of cross-sectoral and inter-ministry coordination as it
includes representatives of the Society for the Protection of Prespa (SPP), of the Regional
Water Directorate for Western Macedonia, which operates under the authority of the
Ministry for Environment, and of the Management Body for Prespa National Forest,
which operates under the authority of the Ministry for Development. The targets for
54
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
maximum and minimum water levels in Mikri Prespa are agreed with all stakeholders,
taking account of a range of needs, including human needs, agricultural irrigation and
environmental / ecological requirements. The Management Body for Prespa National
Forest is also engaged in a five-year plan to purchase / expropriate a number of littoral
fields / sites in order to restore ecologically important wet meadows.
A system of monitoring exists in Greek Prespa, with samples collected in Megali Prespa
every three months from three points and from border points in the middle of the lake,
and samples collected every three months from two points in Mikri Prespa. The samples
are analysed for a range of organic compounds and toxic wastes by the Management
Body for Prespa National Forest / Prefecture of Florina, who report to the Ministry for
Environment and the Ministry of Foreign Affairs in Athens. However, there is no formal
mechanism for sharing this data with the other littoral States, though informal
communication takes place through SPP. There is an acknowledged need for early
exchange and efficient of such information, early notification of problems arising, and
early and proactive cooperation, in order for the littoral States to be able to take effective
mitigating measures. It is also accepted that more monitoring stations are required at
strategic points throughout the lakes and that better equipment and infrastructure would
improve monitoring significantly. As part of the ongoing reform of the water sector in
order to implement the E.C. WFD, a comprehensive monitoring system is planned for all
surface water bodies. The details of this monitoring programme are due to be published
before the end of 2008 by the Hellenic Centre for Marine Research.
In respect of fisheries, there are 20-25 licensed fishermen / enterprises in Greek Prespa,
who may fish all year round except for a 40 day closed season which corresponds with the
spawning season. The closed season is normally agreed at an annual meeting with the
relevant authorities for the other littoral States but no such meeting was held this year on
account of the difficult political situation existing between Greece and FYR of
Macedonia. There are no restrictions as to `total allowable catch' but restrictions to apply
to professional fishermen as regards the size of fish taken. These restrictions do not apply
to those fishing for sport / pleasure. The management of fisheries is the responsibility of
the Agriculture Department of the Prefecture of Florina but there are no dedicated full-
time staff or resources allocated to this function. Though the general state of fisheries is
regarded as quite good, there is no established process for monitoring fisheries and the
authorities rely on fishermen to report any problems. No such problems have been
reported in recent years.
As regards agricultural practices, progress has been made in the last 10 years in respect of
the management of the use of fertilisers and related nutrient run-off. There has been a
significant increase in recent years in the use of drip-irrigation for bean production and
there is a plan to extend this practice to all bean production over the next few years. There
has also been an increase in organic farming practices. Generally, the Greek authorities
do not perceive there to be any significant tension between the existing bean farming and
the ecological requirements of the Prespa Lakes system.
In respect of water pollution caused by untreated waste water, the Greek authorities are
currently building one waste water treatment plant and waiting for two more treatments
plants to receive approval. The lack of waste water treatment infrastructure which
55
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
corresponds to international / European standards in the other littoral States is perceived
to be a problem by the Greek authorities.
A number of threats to the Prespa ecosystem are presented by activities carried out in
Greek Prespa. For example, the excavation of sand from the isthmus presents a risk that
the isthmus might be washed away due to hydo-pressure, as Mikri Prespa is 10 metres
higher than Megali Prespa. Also, the building of small hydropower stations in the Prespa
basin has been discussed on occasion.
The Greek authorities would appear to be involved in transboundary cooperation on an ad
hoc basis. For example, a meeting of the Greek / Albanian Bilateral Commission on
Transboundary Waters was convened recently by the Greek Ministry of Foreign Affairs to
discuss management of the Devoli River. Clearly, refurbishment of the existing irrigation
canal could cause significant silting up of Mikri Prespa, as it has done in the past. Also,
there are plans in place to cooperate with Bulgaria, as an E.U. Member State, in respect of
transboundary waters. Therefore, Greece would appear to be more prepared to enter into
arrangements for bilateral cooperation than trilateral cooperation. Also, under the 2003
Water Law, the National Water Committee is tasked with taking decisions on pursuing
cooperation with third States over water resources, but this body has never convened,
despite being required to do so every year under the 2003 Water Law. There would
appear to be no concrete plans for transboundary cooperation in respect of Prespa, over
and above the ongoing cooperation facilitated by the Prespa Park Coordination
Committee (PPCC). Whereas the Regional Water Directorate has responsibility for
using all relevant data and studies in the preparation of the River Basin Management Plan,
it only has access to some studies from Albania and none from FYR of Macedonia. In
respect of Prespa, it would require data on meteorological conditions, water levels,
groundwater resources, point and diffuse pollution sources, etc. from each of the littoral
States. Despite the requirement in the E.C. WFD for member States to cooperate with co-
basin States, there is no provision relating to such cooperation in the draft new Water
Management Plan for Western Macedonia.
56
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
Albania
A draft of a new Water Law for Albania has been prepared and has been distributed to
key stakeholders for comment. It is expected that comments will be received and the
draft finalised by the end of 2008 in order that the Law can be presented to Parliament in
early 2009. The new Water law will replace the existing legal regime created by Law
80/93 on Water Resources. The draft Water Law has been prepared pursuant to Albania'a
pre-accession commitments and is intended to facilitate full transposition and
implementation of the E.C. WFD. Responsibility for water resources management has
already been transferred from the Ministry of Public Works and the Ministry of
Agriculture to the Ministry of Environment, but some uncertainty remains in relation to
the allocation of key functions. Ultimate responsibility for water policy rests with the
National Water Council, appointed and chaired by the Prime Minister.
Six River Basin Districts have already been identified and designated under Albanian law
but the new Water Law is intended to facilitate the functioning of the River Basin
Authorities in accordance with the requirements of the WFD. Each River Basin Authority
is headed by the Prefect of the relevant Region and has representation from local
authorities and the business community. The Semani River Basin Authority, which
includes the area of Albanian Prespa, is chaired by the Prefect of Elbasan. Therefore, the
River Basin Authorities can be expected to enjoy considerable political and administrative
authority. The River Basin Authorities currently have responsibility for administering the
utilisation of water resources, some water quality and environmental issues, the
excavation of aggregates, etc. In discharging their functions, they must cooperate closely
with the Regional Directorates of Irrigation and Drainage. However, it is acknowledged
that they are currently not adequately financed as they are not income-generating. The
area of Albanian Prespa falls within the Semani River Basin District. Also, the various
responsibilities of the River Basin Authorities have been described as vague and unclear
under the current law. However, it is not unlikely that implementation of the new Water
Law might experience delays. The new Law is based on the National Water Strategy,
implementation of which has not yet commenced 10 years after its adoption.
However, somewhat confusingly, the Albanian Prespa National Park Management
Committee comes under the management of the Forestry Directorate of the Regional
Council of Korce, and has responsibility for all aspects of a 5,000 hectare area of land and
water, including the management of water resources, forestry resources, etc. Similarly,
fisheries are managed by the Directorate of Fisheries, under the Ministry of Environment.
Likewise, cultural amenities are the responsibility of the Ministry of Culture, which
currently permits tourists to visit certain sites against the wishes of the Prespa National
Park Management Committee, due to nature conservation concerns. Therefore, there is
obvious potential for conflict among these various agencies.
The River Basin Authorities have no responsibility for transboundary cooperation under
the current Albanian Water Law (Law 80/93) or the Law on Transboundary Lakes. Water
quality issues in respect of transboundary waters are the responsibility of the Regional
Environment Agencies / Inspectorates. Also, the River Basin Authorities have no formal
relationship with the currently existing bilateral commissions, on which Albania is only
represented at central government level. However, Article 20(2) of the 2003 Albanian
Law on the Protection of Transboundary Lakes requires the Albanian authorities to ensure
57
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
that management plans for such water bodies must be compliant with the requirements of
general international conventions and of any existing bilateral or multilateral agreements.
As regards transboundary cooperation, there had been an international agreement between
the former Yugoslavia and Albania relating to cooperation on shared waters, but this
arrangement has fallen into disuse. The Albanian Vice-Minister for Environment has
recently sought to reactivate and renew this process with FYR of Macedonia. The Greek /
Albanian bilateral commission on transboundary waters met in November 2007 to discuss
the Devali River. Albania favours the conclusion of two separate bilateral agreements
with Greece and FYR of Macedonia, which would be general in character covering all
transboundary water management issues arising. Albania envisages the initial
establishment of informal bilateral commissions, which would coordinate with a body
such as the PPCC over issues relating to Prespa, and that representatives of the PPCC
would participate in each commission. Though such commissions are not yet functioning,
Albania believes that it has secured clear commitments from each of the other littoral
States. Once functioning, each commission would draft and propose a formal agreement
to be approved by the relevant Parliaments. Since 2001, Albania has developed and
circulated model draft agreements to the two other littoral States, but Greece suggested
that it would be better to first establish a commission to develop an agreement on the
basis of its functions and experiences. One difficulty with this approach is that the Greek
/ Albanian Joint Commission has no dedicated funding. The 2001 draft agreement
currently serves as the basis for negotiations with other neighbouring States, including
Bosnia Herzegovina and Montenegro. Therefore, a total of three bilateral commissions
exist in theory Albania / FYR of Macedonia, Albania / Greece, Albania / Montenegro
but, although members have been nominated, they are not yet functioning and two have
not yet met. The Albania / Greece joint commission has met once, in November 2007, in
relation to the Devoli River. It is not entirely clear whether the new Water Law would
authorise new bilateral or trilateral cooperation initiatives. Also, there is a severe shortage
of personnel in the Ministry of Environment, including a mere three people in the Water
Department, to assign to bilateral / trilateral cooperation initiatives.
Increased agricultural production in the vicinity of Albanian Prespa is contributing to the
nutrient loading of Megali Prespa. Also, since 1990 unregulated tree felling and a lack of
regeneration of forests has impacted the waters of Megali Prespa, though the position has
improved somewhat since 1999. In recent years fishing has been regulated quite
effectively in Albanian Prespa.
58
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
TERMS OF REFERENCE FOR THE PRESPA WATER MANAGEMENT
WORKING GROUP (PWMWG)
Background
At a general level, the three States in the Prespa Lakes Basin have agreed to jointly
address transboundary water management priorities both at the national and
transboundary level. Further, through endorsement of the UNDP-GEF Prespa regional
project, the States called for regular exchange and assessment of available water
management information, including: data on monitoring and quantification of water
resources; data on current use and impacts on water quality and quantity; the
identification of water quality, quantity and in-stream flow objectives; and identification
of a programme of measures to achieve these objectives (Output 1.3.1). It also requires
the promotion of best practice in respect of identifying and recommending environmental
/ ecosystems flow requirements and fishery management policies (Outputs 1.2.1 and
1.2.2). In addition, it calls for the improvement of watershed management and
coordination capacity at municipal and commune level through the provision of support to
national cross-sectoral resource management bodies, i.e. Prespa Watershed Management
Council (FYR of Macedonia), Prespa Park Management Body (Greece), and Prespa
National Park Management Committee (Albania) (Output 1.4). Each of these outputs
strongly suggests the need for a subordinate technical body to support the work of the
PPCC.
More specifically, the Project Document calls for the production of a detailed plan for the
PPCC's institutional maturation on the basis of `international lessons learned on
transboundary water management' (Output 4.1.1). International experience in respect of
transboundary cooperation over shared international waters and the coordinated and
effective management of such waters points clearly to the central role of permanent
technical institutional machinery. The Project Document further calls on the project to
`bolster the PPCC's capacity by strengthening the collaboration among sub-groups of
PPCC members' (Output 4.1.2) and to `strengthen the PPCC members' capacity to
organize discussions, guide deliberations, and come to informed decisions' (Output
4.1.3).
Accordingly, the Project Document stipulates the establishment of the Prespa Water
Management Working Group (PWMWG), which will operate under the auspices of the
PPCC and will seek to assist the implementation of the principles of integrated river basin
management contained in the E.C. Water Framework Directive (Output 4.2). An
indicative list of functions is provided, including to:
(a) Discuss the necessary measures and activities for the implementation of the EU
Water Framework Directive (2000/60) and adjust to the specific local needs,
conditions, and environmental objectives of the Prespa Basin;
(b) Promote the active participation of the public and carry out consultations with the
interested stakeholders at the catchment basin level;
(c) Prepare a work plan towards joint water management in the Prespa Park Area;
(d) Identify and propose the appropriate operational arrangements and necessary
supportive structures and processes for each country to implement an agreed work
plan;
59
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
(e) Propose a programme of measures in each country for integrated lake basin
management;
(f) Propose and prepare joint projects and identify suitable European and National
funding sources.
The Project Document provides that GEF funding `will catalyse the operation of this
group for the first three years, whereupon the PPCC will have secured another source of
funding for the working group'.
The current proposal for terms of reference specifies the role and functioning of the
PWMWG during the course of the UNDP-GEF Project. However, it is envisaged that the
PWMWG will continue to play a significant role in support of the PPCC beyond the
lifetime of the Project. The PWMWG's subsequent evolution will be determined during
the course of the Project, having regard to the institutional maturation of the PPCC. The
current proposal for terms of reference is based on a variety of sources, including:
-
the Terms of Reference of the PPCC Monitoring and Conservation Working
Group (MCWG);
-
the PWMWG functions identified in the UNDP-GEF Project Document;
-
the Terms of Reference of the River Basin Management Expert Group (RBM
EG) of the International Commission for the Protection of the Danube River
(ICPDR);
-
the Terms of Reference of the Pressures and Measures Expert Group (PM EG)
of the ICPDR;
-
the Rules of Procedure of the Sava Commission;
-
Articles 5-9 of the Agreement for the Protection and Sustainable Development
of Lake Ohrid and its Watershed (re the Lake Ohrid Watershed Committee);
-
the tasks identified in respect of joint bodies established for the management
of shared drainage basins under Article 9(2) of the 1992 UNECE Convention
on the Protection and Use of Transboundary Rivers and Lakes.
60
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
TERMS OF REFERENCE
PRESPA WATER MANAGEMENT WORKING GROUP (PWMWG)
Principles
1.
In the exercise of its functions, the PWMWG shall respect and be guided by the
principles of sovereign equality, territorial integrity, joint benefit to the littoral
States, good faith, mutual respect for national laws, institutions and organisations,
and shall act in accordance with the requirements of the acquis communitaire.
PWMWG practice and procedure shall at all times be based on relevant
international best practice.
2.
The PWMWG shall confine itself to discussion of technical issues concerning
water management identified in these Terms of Reference or referred to it by the
PPCC.
3.
The PWMWG shall adopt an `ecosystems approach' to water management issues
in the Prespa Basin.
4.
Individual members of the PWMWG shall endeavour at all times to act in good
faith and independently of national, local or sectoral interests in furtherance of the
environmental protection and sustainable development of the Prespa ecosystem.
Individual members shall avoid and/or disclose any conflict of interest arising
where they are in any way directly or indirectly interested in any matter being
considered by the PWMWG.
Responsibilities
5.
The PWMWG is an expert body of the PPCC and operates under the auspices and
authority of the PPCC. These Terms of Reference provide a mandate to the
PWMWG to take action in the areas described below. These Terms of Reference
also provide guidance to the work, which the PWMWG is expected to undertake,
and to its general working arrangements.
6. The
overall
responsibility
of the PWMWG will be to provide expert technical
support to the PPCC, primarily by ensuring that all available water management
information required by the PPCC for the carrying out of its functions is presented
to the PPCC in an agreed and accessible manner having regard to international
best practice and the requirements of the E.C. Water Framework Directive. The
PWMWG will also assist the PPCC in identifying and obtaining the water
management information required for policy-making purposes.
7.
The overall objective of the PWMWG is to provide guidance and coordination to
PPCC activities related to the implementation of the E.C. Water Framework
Directive in the Prespa Basin and those related objectives of the PPCC.
61
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
8.
Specifically, the PWMWG will:
(a) Support the work of the Prespa Park Coordination Committee in the
preparation of discussion / decision papers for PPCC members, which set out
issues for discussion in clear language (Output 4.1.3);
(b) Assist relevant national competent authorities with implementation of the E.C.
Water Framework Directive in the context of the specific local needs,
conditions, and environmental objectives of the Prespa Basin (Output 4.2),
including provision of support to national and transboundary river basin
management planning, pursuant to the requirements of the E.C. Water
Framework Directive;
(c) Promote active participation of the public and consult with interested
stakeholders at the catchment basin level (Output 4.2);
(d) Facilitate, in cooperation with the MCWG, the regular and ongoing exchange
and assessment of available water management information (Output 1.3.1),
including:
a. Data on monitoring and quantification of water resources
b. Data on current water use and discharge and impacts on water quality
and quantity
(e) Elaborate appropriate joint emission limits for waste water and joint water
quality, quantity and in-stream flow objectives. Identify programmes of
measures to achieve these objectives, including action programmes for the
reduction of pollution from both point sources (e.g. municipal and industrial
sources) and diffuse sources (particularly from agriculture). Evaluate the
effectiveness of such programmes.
(f) Facilitate, in cooperation with the MCWG, the establishment of data sharing
mechanisms and agreements, including:
a. Drawing up inventories on pollution sources
b. Establish warning and alarm procedures
c. Mechanisms to facilitate cooperation and exchange of information on
best available technology and international best practice
d. Mechanisms to facilitate cooperation in scientific research programmes
(g) Participate in the implementation and evaluation of environmental impact
assessments relating to transboundary waters, in accordance with appropriate
international standards.
(h) Operate as a forum to share information on existing or planned uses and
current or potential issues that could affect the ecological character of the
Prespa Basin so as to cause transboundary impact, and discuss possible
remedial actions and solutions.
(i) Support the work of the PPCC Monitoring and Conservation Working Group
(MCWG) by identifying key risks to the Prespa Lakes ecosystem and priority
areas for action, as well as gaps in currently available data.
(j) Liaise with and support national cross-sectoral resource management bodies
(Output 1.4), including:
a. Prespa Watershed Management Council (FYR of Macedonia)
b. Prespa Park Management Body (Greece)
62
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
c. Prespa National Park Management Committee (Albania)
(k) Liaise in respect of technical matters with the Lake Ohrid Watershed
Committee.
(l) Identify and recommend environmental / ecosystems flow requirements
(Output 1.2.1)
(m) Identify and propose fishery management policies (Output 1.2.2)
(n) Assist in preparation of a work plan towards joint water management in the
Prespa Basin area (Output 4.2), which would, inter alia:
a. Identify and propose appropriate operational arrangements and
necessary supportive structures and processes for each littoral State to
implement an agreed work plan;
b. Propose a programme of measures in each littoral State for integrated
lake basin management;
c. Propose and prepare joint projects and identify suitable European,
national and international funding sources.
(o) Facilitate better understanding of the law and policy context for water
management activities, including analysis of and exchange of information on
relevant E.C. legislation, national law, international law and standards on
transboundary waters and protected areas.
(p) Facilitate, in a spirit of cooperation, transboundary fact-finding missions in
order to assess issues or activities that may pose a threat to the Prespa Basin
ecosystem.
(q) Identify options for the sustainability and institutional maturation of the
PWMWG beyond the lifetime of the project if deemed necessary.
Membership
9.
The PWMWG will consist of a total of 17 members, including:
a. one government representative (central government or, preferably, regional
authority / directorate) of each littoral State,
b. one local authority (commune / municipality) representative from each
littoral State,
c. one representative from the NGO sector from each littoral State,
d. one representative of sectoral interests (agriculture, forestry, fishing,
tourism or industry) from each littoral State, and
e. one representative of national cross-sectoral resource management bodies
from each littoral State:
o Prespa Watershed Management Council (FYR of Macedonia)
o Prespa Park Management Body (Greece)
o Prespa National Park Management Committee (Albania)
f. one representative of MedWet
g. the ITA during the lifetime of the UNDP-GEF Project
10.
Nominations for representatives under each category shall be made by the
corresponding national representatives on the PPCC, who should endeavour as
much as possible to identify the most suitable candidates based on:
a. technical expertise of the individual nominee, in terms of such areas as
natural resources management, environmental sciences, water policy,
63
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
sectoral policies or practices, etc.
b. the overall range and diversity of expertise among the PWMWG members
as a group;
c. the nature and extent of the individual nominee's connection to the Prespa
basin, which should mitigate towards candidates living in the Prespa area
and/or with a long-standing interest in and knowledge of the area.
[Note: It was suggested that the NGO representatives from each littoral State
might apply / submit an expression of interest for membership of the PWMWG,
and the PPCC would select from among the applicants on the basis of the above
criteria]
Where a nomination for a representative to the PWMWG under any category is
not received from the corresponding national representative on the PPCC, that
corresponding national representative on the PPCC shall serve as a member of the
PWMWG in the role of that category of representative.
11.
The overall membership of the PWMWG as a group shall be approved by a formal
decision of the PPCC.
12.
In the event that the PWMWG lacks sufficient technical expertise on a relevant
issue or specific thematic area on an agenda item, a relevant expert from one of
the littoral States may be invited to participate in the meeting(s) as an ad hoc
member, upon the approval of the PWMWG Chairperson.
Procedural Arrangements
13.
The business of the PWMWG shall be conducted in accordance with these Terms
of Reference subject to such modification as the PPCC may, at any time, expressly
agree upon, unless such modification prejudices the interests of any littoral State
or is inconsistent with accepted international practice.
14.
Decisions of the PWMWG will be based on consensus. Decisions of the
PWMWG will ordinarily focus on the adoption and submission to the PPCC of
technical reports and recommendations and the identification of new initiatives
and priority areas of study. Where consensus cannot be reached among the
members of the PWMWG on a particular issue, a technical report or
recommendation may still be submitted to the PPCC making clear the existence,
nature and extent of any dissent with regard to its conclusions.
15.
A quorum is reached when a minimum of two representatives from each State are
present. If a quorum is not reached after one attempt to convene a meeting, then
the PWMWG will proceed to meet regardless of the number or identity of
members present.
16.
Sub-groups will contribute to the work of the PWMWG as and when required.
Where necessary, the PWMWG may propose to the PPCC the establishment of
time-limited ad hoc Task Groups to provide input necessary to fulfil the tasks
listed above. The PWMWG would guide the work of such Task Groups.
64
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
17.
The venue of the PWMWG meetings will be based on a rotational basis between
the three littoral States. The PWMWG will convene four times per year. Two of
the meetings will take place in the days / weeks immediately prior to the two
annual PPCC meetings in order that the PWMWG can effectively support the
work of the PPCC. The exact dates of the meetings for each year, including the
date of the first meeting of the following year, will be agreed at the first meeting
of each year. These dates cannot be changed, except in the case of very grave
reasons, and with the agreement of all members of the PWMWG.
18.
The PWMWG will be chaired by the ITA during the timeframe of the UNDP-GEF
Project / by the governmental focal point of the State hosting the PWMWG
meeting. The powers and duties of the Chair shall be to:
a.
Convene the regular meetings of the PWMWG.
b.
Prepare the draft agenda for the meeting in consultation with the members.
Any member may propose agenda items. The first item on each agenda
shall be the `adoption of the agenda'.
c.
Preside over each meeting of the PWMWG.
d.
Open and close each meeting of the PWMWG.
e.
Sign the report / minutes of each meeting.
f.
Ensure the observance of these Terms of Reference.
[Perhaps a Chair elected / appointed on rotation for a period of 2/3 years would
ensure some institutional memory, consistency, follow-through???]
19.
The official working language of the PWMWG is English. Members who do not
feel capable of functioning effectively in English will make their own
arrangements for translation.
20. Internal
communication
among
members of the PWMWG may be conducted
through electronic means (preferably e-mail). Certain issues intended for wider
dissemination and discussion may be posted on the Prespa Project web-based
discussion forum.
21.
During the lifetime of the transboundary component of the UNDP-GEF Project,
costs for travel and accommodation of PWMWG members will be covered from
GEF funds. Invited observers are expected to cover their own costs. In
exceptional cases, costs for selected observers / specialists may be covered subject
to written approval from the Transboundary Component of the UNDP-GEF
Project.
22.
Subject to the availability of financial resources, a part-time international expert
may be retained over the timeframe of the UNDP-GEF Project, with responsibility
for facilitating the functioning of the PWMWG.
23.
For each meeting of the PWMWG, the transboundary unit of the UNDP-GEF
Project will initiate the preparations. The host State will designate an official
responsible for organising the meeting with support from the National Project
Offices of the UNDP-GEF Project.
65
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
24.
The PWMWG will develop internal mechanisms to monitor its performance on an
annual basis. These mechanisms will be approved by the PPCC.
25.
The PWMWG will report annually to the PPCC on the implementation of ongoing
activities, on proposed activities and the results achieved.
26.
The inception of the PWMWG is a result of the UNDP-GEF Project. It is
anticipated that the PWMWG will continue to function beyond the limited lifetime
of the GEF Project. To avoid stagnation, the role of the PWMWG in relation to
the overall institutional maturation of the PPCC will be reviewed and assessed on
an annual basis as part of its evolution process. As part of this process, the
PWMWG will review its Terms of Reference annually and propose amendments
for approval by the PPC. Appropriate financing strategies will also be developed
under the guidance of the Chair.
[But rotating Chair not conducive to the development of effective financing
strategies!]
66
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
DETAILED IMPLEMENTATION PLAN FOR THE PRESPA WATER
MANAGEMENT WORKING GROUP (PWMWG)
Establishment
It is envisaged that the PPCC could approve the establishment of the PWMWG at its
November 2008 Regular Meeting and thereby commence the process for the
identification and approval of its membership. Whereas the PPCC may decide to amend
the proposed Terms of Reference for the PWMWG, the approval of an amended, final
version of the Terms of Reference would not require a dedicated meeting of the PPCC,
but could be finalised by e-mail communication. Therefore, the Terms of Reference
could be finalised by the end of January 2009.
Nominations / Approval
It is envisaged that each PPCC member would nominate and communicate with the
corresponding member(s) of the PWMWG in early 2009 (February April), in time for
the overall membership of the PWMWG to be approved by the PPCC at its first Regular
Meeting of 2009 (May 2009). The PWMWG could hold its inaugural meeting in June
2009.
[This timeframe would also allow adequate time for representatives of national NGOs to
submit an expression of interest in membership of the PWMWG, for such expressions of
interest to be considered by the PPCC, and for appointments to be approved in June 2009]
Tasks
Output 1.3.1:
Regular / ongoing exchange and assessment of available water
management information:
-
prepare a background study of international best practice in
respect of inter-State information sharing mechanisms
[Phase 1];
-
prepare and agree basic principles, a procedure and a
methodology for sharing data on, inter alia, water
monitoring, quantification of water resources, current water
use, current discharges to Prespa waters, impacts on water
quality and quantity, etc. [Phase 2];
-
prepare and agree basic principles for cooperation in
scientific research programmes [Phase 1];
-
draw up an inventory on principal pollution sources [Phase
1];
-
establish appropriate and effective warning and alarm
procedures [Phase 1];
-
identify and agree priority issues for joint projects [Phase
1].
[Given the significance of this task and the need to establish a
firm working relationship with the MCWG, this task should
67
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
take priority and Phase 1 should be completed by December
2009 and Phase 2 by June 2010]
Output 1.2.1/2:
Identification of best practice re ecosystems flow requirements and
fishery management practices:
-
prepare a background study of international best practice in
respect of adoption of an ecosystems approach to
transboundary waters and identification of related
ecosystems flow requirements [Phase 1];
-
identify and recommend ecosystems flow requirements
[Phase 2];
-
prepare recommendations in respect of optimal / sustainable
fishery management practice [Phase 2]
-
identify and agree priority issues for joint projects [Phase
1].
[Phase 1 should be completed by December 2009 and Phase 2
by December 2010]
Output 1.4:
Improvement of watershed management and coordination capacity
at municipal and commune level:
-
prepare technical guidance and a checklist for effective
implementation of the WFD [Phase 1];
-
identify and agree an outline programme of measures at
each national level for integrated lake basin management
and implementation of the WFD [Phase 2].
[Given the significance of this task for all littoral States, and the
fact that implementation of the WFD represents a common,
urgent challenge to all the Prespa littoral States, this task should
take priority and Phase 1 should be completed by December
2009 and Phase 2 by June 2010]
Output 4.1.1/2/3:
Strengthening the functional capacity of the PPCC:
-
identify and agree a list of priority data gaps to be addressed
in order to facilitate transboundary cooperation [Phase 1];
-
prepare a background study of international best practice in
respect of the conduct of public participation exercises
[Phase 1];
-
prepare and agree a basic procedure for ensuring public
participation, including preparation of a critical distribution
list of key stakeholders, activists and correspondents [Phase
2];
-
prepare a background study of international best practice in
respect of transboundary environmental impact assessment
of projects impacting transboundary waters [Phase 1];
-
prepare and agree basic principles and a procedure for the
review of the transboundary environmental impact
assessment of projects impacting transboundary waters
[Phase 2];
68
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
-
prepare a background study of international best practice in
respect of independent fact-finding in the context of
differences over shared transboundary waters [Phase 1];
-
prepare and agree basic principles and a procedure for the
conduct of independent fact-finding [Phase 2];
-
identify and agree priority issues for joint projects [Phase
1];
[Phase 1 should be completed by December 2009 and Phase 2
by December 2010]
69
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
TERMS OF REFERENCE
70
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
71
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
72
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
ANNEX I
LIST OF MEETINGS CONDUCTED
18 September 2008
Mr. Alvin Lopez, UNDP
UNDP CO, Skopje
8.00-10.00
GEF Regional Project,
International
Transboundary Advisor
18 September 2008
Mr. Dejan Panovski, State Ministry of Environment
10.00-11.00
Secretary, Ministry of
and Physical Planning,
Environment and Physical Skopje
Planning (MEPP), FYR of
Macedonia
18 September 2008
Ms. Darinka Jantinska,
Ministry of Environment
11.10-12.10
Bilateral Cooperation
and Physical Planning,
Dept.; Mr. Ylber Mirta,
Skopje
Water Dept., MEPP, FYR
of Macedonia
18 September 2008
Mr. Vladimir Stavric,
UNDP CO, Skopje
13.30-15.30
UNDP; Prof. Svetislav
Krstic, Faculty of Natural
Sciences; Prof. Cvetanka
Popovska, Faculty of Civil
Engineering / Hydrology;
Ms. Stanislava Dodeva,
SDC Water Management
Expert; Mr. Bojan Durnev,
Dept. of Water, Ministry
of Agriculture and
Forestry, Skopje
18 September 2008
Mr. Josif Milevski, Hydro- UNDP CO, Skopje
15.45-18.00
Meteorological Institute;
Prof. Todor Anovski,
NATO Project
`Sustainable Management
of International Waters
Prespa Lake'
19 September 2008
Dr. Trajce Naumovski,
Institute of Hydrobiology,
9.30-10.30
Institute of Hydrobiology,
Ohrid
Ohrid
19 September 2008
Mr. Andon Bojadzi and
KfW Office, Ohrid
10.45-11.45
Ms. Tanja Dzamtoska,
KfW Galicica Project
19 September 2008
Mr. Alvin Lopez, UNDP-
UNDP Prespa Project
17.00-18.00
GEF Project, ITA
Office, Resen
21 September 2008
Ms. Vivi Roumeliotou,
Agios Germanos
20.00-22.00
Society for Protection of
Prespa
73
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
22 September 2008
Ms. Myrsini Malakou,
SPP Offices, Agios
8.30-9.30
Executive Director,
Germanos
Society for Protection of
Prespa
22 September 2008
Ms. Gabriela Scheiner,
Prespa Cultural Triangle
10.30-11.00
Director, Prespa Cultural
Office, Agios Germanos
Triangle
22 September 2008
Mr. Ioannis Voskopoulos,
Offices of Prefecture of
12.00-13.30
Ms. Leto Papadopoulo,
Florina
Management Body of
Prespa National Forest;
Ms. Novatsidou, Mr,
Pavlidis, Mr. Grouios,
Prefecture of Florina
22 September 2008
Mr. Lazaros Nalpanditis,
Offices of Prefecture of
14.00-15.00
Mayor of Prespa
Florina
22 September 2008
Ms. Anastasia Tzagaridou, Regional Council Offices,
16.00-18.00
Mr. Kianos Sterios,
Kozani
Regional Water Council
23 September 2008
Mr. Plessas, Ms. Katerina
Ministry of Environment
09.00-11.00
Stylogianni, Ministry of
and Public Works, Athens
Environment and Public
Works / Central Water
Agency
23 September 2008
Dr. Panagiota Maragou,
WWF Offices, Athens
15.00-17.00
WWF Greece; Mr. Miltos
Gletsos SPP, Ms. Daphne
Mantziou, SPP
23 September 2008
Mr. Thymio Papayannis,
Office of Mr. Thymio
18.00-20.00
Mr. Adnan Budieri,
Papayannis, Athens
MedWet
24 September 2008
Mr. Skender Hasa, Head,
Ministry of Environment,
10.00-11.00
Water Resources Unit,
Tirana
Ministry of Environment;
Dr. Violeta Zuna, UNDP
Prespa Park project
24 September 2008
Mr. Thimaq Lako and Dr.
Tirana
11.00-12.00
Molinar Kolaneci, Institute
of Energy, water and
Environment.
24 September 2008
Mr. Zamir Dedej, Institute Tirana
13.00-14.00
for Nature Conservation in
Albania
24 September 2008
Mr. Platon Gani, Semani
Elbasan
16.00-17.00
River Basin Authority
25 September
Mr. Pellumb, Director of
Korca
09.00-10.00
Agriculture and Food,
Regional Council of Korca
74
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland
Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece
25 September 2008
Mr. Kristaq Shore,
Korca
10.00-11.00
Forestry Specialist
25 September 2008
Ms. Eva Dhimitri,
Korca
11.00-12.00
Regional Council of Korca
of Korce
25 September 2008
Mr. Artur Agolli, Mayor
Korca
12.30-13.30
of Commune of Proger;
Mr. Ilia Milo, Chairman,
Regional Council of Korca
25 September 2008
Mr. Vasil Sterjovski, Vice- Liqenas
15.00-16.00
Mayor, Commune of
Liqenas
25 September 2008
Mr. Pande Kostofski,
Resen
17.00-18.00
Director, Prespa National
Park (Albania)
26 September 2008
Ms. Jadranka Ivanova,
Ministry of Environment
10.00-12.00
Head, EU Dept., Ministry
and Physical Planning,
of Environment and
Skopje
Physical Planning, (Mac)
26 September 2008
Mr. Nikoli *** and Mr.
UNDP CO, Skopje
12.00-13.00
Dhimitri ***, UNDP
26 September 2008
Mr. Alvin Lopez, UNDP
UNDP CO, Skopje
16.00-17.00
GEF Regional Project,
International
Transboundary Advisor
26 September 2008
Ms. Anita Kodzoman,
UNDP CO, Skopje
16.00-17.00
Environment Practice
Coordinator, UNDP FYR
of Macedonia
75
Dr. Owen McIntyre
TRANSBOUNDARY WATER MANAGEMENT
Faculty of Law, University College Cork
REPORT
National University of Ireland