INTRODUCTION AND APPROACH

GENERAL

As explained in Chapter II, the Water Framework Directive and Floods Directive have steered requirements with regard to water management applicable to Member States along hydrological boundaries. Member States sharing the International River Basin District of the Scheldt are thus subject to these requirements. Chapter II, however, also revealed vulnerabilities in the legal framework embodying this river basin management approach.

This Chapter will examine the institutional mechanism for water management in the Scheldt, which supplements the analysis carried out in Chapter II. The feedback loop in this regard will be explained in the section 1.2 below. The knowledge gained through the “five pillars”-structure adopted in the preceding Chapter is highly relevant to the data presented in this Chapter III. Chapter II has mapped the substantive and procedural obligations applicable to Member States, and indicated which of these are a matter of best effort and a matter of result. The Chapter has shown the “ins and outs” of the institutional mechanisms for transboundary water management, which avail themselves to the Member States. A full picture emerges through a combination of theory and practice, which is why the legal knowledge gained in Chapter II needs to be supplemented by an analysis of how these requirements have been translated into the reality of a specific river basin.

For the sake of analysis, this Chapter will tease out one aspect of the umbrella concept of water quantity management, i.e. flood risk management, for reasons explained in detail in section 1.3.

APPROACH TO FINDING THE SCHELDT PUZZLE PIECES

The International River Basin District Scheldt (IRBD Scheldt) is defined as the area of land and sea, designated by the Parties to the 2002 Scheldt Treaty in accordance with the Water Framework Directive, which consists of the river basin of the Scheldt River, the related basins and the related groundwaters and coastal waters.

The IRBD Scheldt has a surface of approximately 36,500 km2, and comprises France, Belgium (the Flemish Region, Walloon Region and Brussels Capital Region) and the Netherlands. The largest part of the Scheldt River, as pictured, runs through the Flemish Region, 32.9%, and the Walloon Region, 10.3%, in Belgium, followed by France and the Netherlands. Only a marginal proportion of the river flows through the Brussels Capital Region.

INTRODUCTION

The bottleneck analysis presented in Chapter II and the evaluation of two specific river basins in Chapters III and IV allow a more normative approach in the present chapter.

Chapter I has explained that the primary focus of this book is on the European legal framework for the governance of International River Basin Districts, from the viewpoint of water quantity management. Based on the data presented in Chapters I through to IV, stemming from the review of international, European and national legislation, jurisprudence and literature, Critical Success Factors (CSF) for transboundary river basin management have be identified. These constitute the groundwork for the specific recommendations which are geared to the EU legal framework in its capacity as facilitator of IRBD management and also to IRBDs as institutional mechanisms. The CSFs will be explained in section 1.1. The next step is to apply the lessons learned to International River Basin Districts, and the underlying EU legal framework. The recommendations associated with this application can be divided into two broad categories: addressing the EU primary law approach to water management and enhancing the cooperation in International River Basin Districts. The latter aspect can be further divided into the EU secondary law and the operationalisation at IRBD levels.

The goal of this book is to improve river basin management in International River Basin Districts, using water quantity as an example. To this extent, this chapter will address the primary EU-law dichotomy between water quantity and water quality, because this is a prerequisite for achieving integrated river basin management. In contrast, the chapter will not present an exhaustive set of recommendations for amendments to water quantity provisions in EU secondary law, because this goes beyond the scope of this book. The recommendations associated with EU secondary law focus on the manners in which the EU legal framework can further facilitate cooperation in and management of International River Basin Districts.

CRITICAL SUCCESS FACTORS

EVALUATIVE COMPARISON

Before explaining the Critical Success Factors, it is relevant to recap the evaluation exercise and provide a schematic overview of the river basin management regimes analysed in this book.

INTRODUCTION AND DELINEATION OF SCOPE

This chapter analyses the European legal framework for cooperation regarding transboundary waters primarily from the viewpoint of water quantity management. As explained in Chapter I, for the purposes of readability, water quantity management is used as an umbrella term encompassing scarcity, droughts and floods. The reasons from choosing water quantity as the main lens through which transboundary water management is viewed, have been explained in Chapter I as well.

It is noteworthy that although water quantity is teased out in this Chapter, it should not only be seen as a self-standing category but also in its relation to water quality. In other words, this Chapter will set forth the role of water quantity management in the EU legal framework, as well as its link with water quality management. For example, in the discussion of the evolution of the legal basis for “quantitative management of water resources” pursuant to the EU Treaty, the comparison with the legal basis for water quality management will be highly relevant. In contrast, this Chapter will not delve into the EU-law requirements for water quality management, i.e. the requirements aimed at combating pollution of water bodies in the EU.

Analysing water quantity management in transboundary waters in the EU requires both an analysis of the EU primary and secondary law framework for the quantitative aspects of water resources, but also the mechanisms this framework provide to induce cooperation in these transboundary waters. Such a comprehensive, twofold, approach is necessary to identify the bottlenecks and in turn formulate recommendations at the end of this book.

The analysis will be guided by the five pillars of transboundary water governance as identified by the Global Water Partnership: (i) scope, (ii) substantive provisions, (iii) procedural provisions, (iv) institutional mechanisms and (v) dispute settlement. These five pillars allow a comprehensive overview of all relevant aspects that form part of the framework. By using the pillars and the encompassing approach these enable to adopt, bottlenecks entrenched in said EU legal framework will be systematically identified. The chapter will both focus on the applicable EU regime for water quantity management, pursuant to primary and secondary law, and the manner in which this regime facilitates cooperation between EU Member States in shared waters.

OVERVIEW

Over the last two decades, there has been a tendency in the States parties to the American Convention on Human Rights, and in the institutions of the Inter- American System of Human Rights, to create rules and principles that allow domestic authorities – especially judges – to increase the effectiveness of the American Convention and other sources of international law at the domestic level. Several States have “opened the door” of their domestic legal systems, through constitutional amendments, or by decisions of their highest courts, to allow an ample incorporation of the human rights standards of the Inter- American System. The Inter-American Court of Human Rights has followed a similar tendency, ordering States to amend laws and to change practices that have been identified as structural causes of human rights violations. The States parties to the American Convention, as well as the Inter-American Court, apparently start from what could be called a truism for our times: that the effectiveness of the rights and freedoms recognized in international human rights law must lie primarily in the action of domestic institutions, not of international institutions.

The doctrine of conventionality control is one of the Inter-American Court’ s most recent efforts to increase the influence and effectiveness of the different sources of law in the Inter-American System at the domestic level. Although it is still an idea in progress, conventionality control can be defined as an international legal obligation that requires all the authorities of the States parties to the American Convention to interpret domestic law in accordance with the Inter-American Corpus Juris, which is integrated by the American Convention, treaties of similar nature (i.e. the Inter-American Convention to Prevent and Punish Torture), the interpretations of these treaties made by the Inter-American Court (in the exercise of its contentious or advisory jurisdiction) and other sources of soft law in the Inter-American System (i.e. the Inter-American Democratic Charter). In accordance with this doctrine, State authorities must avoid the enforcement of anti-conventional laws in case that no consistent interpretation is legally possible, although they must always act within their competences and the corresponding procedural regulations as defined by domestic law.

INTRODUCTION

The study of the doctrine of conventionality control must start with a clarification: there is no article in the American Convention on Human Rights that expressly recognizes an international obligation for every public authority to perform an interpretation of domestic law in accordance with the Inter- American Corpus Juris, or to refrain from the enforcement of that law if no valid interpretation is possible. The creation of the doctrine of conventionality control – and therefore of each one of its technical components – is the result of a progressive and innovative interpretation performed by the Inter-American Court of Human Rights of the “general obligations” established in Articles 1.1 and 2 of the American Convention and of Articles 26 and 27 of the Vienna Convention on the Law of Treaties (hereinafter the Vienna Convention). The progressiveness of some of these interpretations (which served as the precedents for conventionality control) started years before the case of Almonacid Arellano and others v. Chile (2006) was decided.

The judgments that constitute the precedents for conventionality control developed the content of the obligation to ensure (Article 1.1), and progressively strengthened the normative force of Article 2. These judgments modified the understanding of Article 2 from being a norm with some sort of a programmatic nature – a position that supported the view that States have freedom to decide the means to ensure the rights protected by the Convention, and therefore that the Inter-American Court had little say in the specification of these means – to a norm that prescribed international obligations in the strongest sense of the word. This theoretical position opened the door for the Inter-American Court to evaluate the conventionality of the legislative and other measures taken by the States to ensure their compliance with the American Convention.

THE COURT AND ITS CIRCUMSTANCES

In the foreword to Decisive Moments in History, Stefan Zweig reflected on how unforgettable moments in history are linked to facts that precede human actions in crucial moments, for “all excitement needs time for preparation, and every real event must undergo development”. Zweig’ s reflection applies to those moments of humanity that radically change the course of history (as those brilliantly narrated in his book), yet it also applies to those unforgettable moments that occur in the lives of individuals, societies and governments. Since from time to time, among the vast number of insignificant and mundane things that occur in life, myriad events come together in narrows spans of time, allowing individuals to take actions that – even unknown to them – alter the course of history in concrete contexts. At the risk of sounding a bit too dramatic, this might be what happened in the year 2006 in the context of the Inter-American System of Human Rights, when the Inter-American Court of Human Rights created the doctrine of conventionality control in the case of Almonacid Arellano and others v. Chile.

The creation of this doctrine was precisely the result of a decision made by individuals searching for practical solutions to concrete problems, but who were also acting in a propitious context, and with ambitious future goals in mind. Paraphrasing José Ortega y Gasset, the inclusion of paragraph 124 in Almonacid, and its use in subsequent cases, was the result of “the Court and its circumstances”. Because the doctrine of conventionality control might never have been included in the body of the decision in Almonacid; or it might have passed as an extravagant occurrence of one its judges and a trusted clerk; or it might have been used only in cases of transitional justice against Chile and Peru, and then abandoned. But none of these things happened, and now conventionality control is a well-settled doctrine in the Court's case law. Why was this doctrine created and why is it still in use? To the extent that this book allows us to determine, the emergence and normative strength of conventionality control is intimately connected with four main factors.

INTRODUCTION

The critiques made of the doctrine of conventionality control could be rejected on the grounds that the interpretation of international human rights norms must be based on principles of justice, as understood by the Inter-American Court and the Inter-American Commission, rather than on the agreement of States as reflected in the text and the travaux préparatoires of the American Convention and other treaties of the Inter-American System. This position – which could be based on the ideas of prominent authors such as A.A. Cançado Trindade – would reflect a strong idealist and monist position that confines the relevance of the sovereignty of States only to the emergence of international obligations at a very abstract level (i.e. with the consent to be bound by a treaty and the acceptance of the jurisdiction of monitoring institutions), and would conceive international institutions (especially the ICtHR) as the ultimate authority to determine and expand the content of the Inter-American Corpus Juris, and of its own jurisdiction, as it considers best for the protection of human rights.

This notion would reflect the conviction that the interpretation of international human rights law (IHRL) must be based in considerations of humanity and not in the consent of States, and for that reason criticism based on positive international law has no place in the Inter-American System.

This chapter rejects both views – the positivist, explained in the previous chapter, and the idealist, explained in the previous paragraph – as solid points of departure to criticize or to sustain the validity of the doctrine of conventionality control.

INTRODUCTION

There is no doubt that the doctrine of conventionality control constitutes one of the most relevant topics in the recent jurisprudence of the Inter-American Court of Human Rights. This relevance can be observed on the multiple occasions that the Court has made reference to conventionality control since 2006, in the various concurrent opinions of several judges of the Court who have discussed the topic, on the continuous publication of articles and books written by judges and scholars in Latin America and other regions, in the use of this doctrine by domestic courts – for instance – in Argentina and Mexico, and in the several academic and professional forums organized by governments and professional institutions to inform legal practitioners and judges about conventionality control. The production of legal materials on this doctrine is such that it is possible to consider it as an autonomous international legal institution specific to the Inter-American System of Human Rights. However, notwithstanding the enormous volume of jurisprudential and academic commentary on the origins and different elements of the doctrine of conventionality control, little has been said about its controversial nature. With the exception of a few scholars who have developed short – although well-reasoned – critiques of conventionality control, no attempt has been made to seriously evaluate the legal basis of conventionality control if seen as an international institution governed by public international law.

One may ask: why do this analysis if conventionality control is a good idea and if the doctrine has been well received by some courts and scholars? Would it not be better simply to ignore those who do not agree with conventionality control, qualifying their arguments as invalid for being against the evolution of human rights and the strengthening of its mechanisms of protection? Not in my view.

One of the greatest and most persistent challenges of constructing a global system for the protection of human rights has always been how to bring international norms into a sustainable, healthy relationship with domestic constitutional systems.

It is self-evident that without strong domestic law and institutions, no global system of human rights protection could even aspire to be effective. Just as human rights pervasively get undermined and violated at local levels, so it is that they need to be protected and brought to life “in the small places, close to home,” as Eleanor Roosevelt noted. And it is equally clear that international norms and institutions by themselves, cannot simply substitute for and displace the structures and institutions and habits of local communities in the protection of human rights. Distant, limited in scope and capacity, and detached from the social contexts in which the rule of law and the protection of human rights must take root if they are to be made real, international norms and institutions alone, cannot be the guarantors of human dignity everywhere and for everyone.

Yet, since the mid-twentieth century the nations of the world and their citizens have not been content to leave the demands of human dignity to the uncertain and inconsistent vagaries of domestic authorities. Rather, we have dedicated ourselves to drawing up universal norms of human rights, translating them into positive law backed by institutions, and struggling to establish adherence to and respect for them. The experience of human wrongs, of the most egregious violations of human rights, has taught us all too clearly that local communities, even under the most favorable conditions of the constitutional rule of law, always bear within them temptations to tyranny and abuse. For their own viability and strength, they need the accountability and the constraints that can come from recognized universal standards of human rights.

This inescapable tension has played itself out over the last seven decades in the drafting of treaties and the creation of international courts no less than in the halls of constitutional assemblies and the jurisprudence of high courts around the world. It is necessarily a tension that is permanent and structural to the global protection of human rights. It is constantly open to revision and renegotiation, as dynamic as the shifting sands of law, politics and culture.