The Joint Governance of Transboundary River Basins - Some Observations on the Role of Law

Abstract

This paper sheds a light on the need for a managerial and integrated governance approach for transboundary river basins, thereby taking the development of international River Commissions for two Western-European rivers, the Meuse and the Rhine, as illustrative cases.

Traditional legal approaches like command and control policies and dispute settlement by courts seem not fit for the governmental management of transboundary river systems. Lawyers should be reluctant in recommending typical legal solutions for the management of those river basins. While international standard setting can provide important minimum norms for the protection of rivers, additional consensual and flexible approaches with regard to the management of the rivers are expected to facilitate even more effective results. Typical single-issued liability procedures can offer important back ups for reaching (more holistic) agreements through the managerial approach. Even a kind of a bargaining approach through issue-linking should not be excluded. Putting too much or even single emphasis on legal values, specifically legal certainty and the need for legally binding standards might in fact even hinder the effectiveness of a multinational governmental approach. Moreover, the need for an integrated river management disqualifies to a certain extent the quite rigid legal command and control instruments. Besides the typical legal focus on improving binding rules, liability arrangements, and, moreover, the search for supranational institutions with far-going legal competences, attention to a flexible but accountable and transparent governance approach is important too. For lawyers, the democratic accountability with regard to the implementation of the Treaty provisions is in this respect a focal point. This concerns on the one hand the accountability of the acts of an international river basin commission, and, on the other hand, the national democratic accountability mechanisms. The latter concern the democratic control of the national delegates to the river basin commission, as well the control of the national authorities responsible for the implementation of the recommendations of the Commission within the Member States - and how this relates to the 'managerial control' executed by the international Commission.

Keywords: Managerial approach, water basins, supranational water management, water management plans, integrated governance, consensual approaches, bargaining

JEL Classification: K19, K32, K33, H77, Q38