= Acta Juridica Hungarica Akadémiai Kiad6, 1993 35 N° 3~4, pp. 321-332 Budapest = Slavko BOGDANOVIC Legal Aspects of Danube Waters Protection” raters in a part of the Danube basin, namely, in the region of the former Socialist Federal Republic of Yugoslavia (SFRY), from the national and international aspects. It is an attempt at identifying the most important premises for the development of an - international law regime of protection of the Danube basin waters, based on sustainable _ Management of natural resources as the common heritage of mankind, In the legal system of the SFRY, the protection of the Danube basin waters was _ fegulated on the basis of federal regulations and those in force in the six republics and {wo provinces that made up the federation. The regulations brought at the level of the | SFRY related to interstate and interrepublic watercourses and served to regulate the ; fundamentals of the regime of running, spring, underground and stagnant interrepublic waters of interest to two or more republics and the basic principles of international | * This paper is a result of the researching within the Project THE DANUBE ... FROM WHOM AND TO WHAT, funded by the Equipe Cousteau, Paris, 1992. The author would like to thank to Prof. dr. Vojin ‘Dimitrijevié and Prof. dr. Jelena Vilus for their support and valuable suggestions.322 Slavko Bogdanovic The federation was responsible for making a classification of interstate and inter republic watercourses according to their use and quality levels, while the competent republic and provincial authorities were responsible for categorization of watercourses according to the established classification and in line with international treaties. In addition, federal regulation ban the discharge of hazardous and harmful substances inte the waters that are under the jurisdiction of the federation. Federal legislation regulated several other legal aspects of the protection of waters = as well as prohibition of water pollution by physical and legal persons, ban on the trale in sufficiently non-degradable substances, the enactment of specific measures against the pollution of water from ships, etc. : The regulation of the protection of the other waters in the Danube basin on the territory of the SFRY was within the jurisdiction of the republics and provinces—members. = of the federation. The monitoring of the quantitative and qualitative changes in the inter: republic and international watercourses was within the jurisdiction of several federa bodies, which however had no competence to act directly. This was so because th federal state had no instruments to directly implement its regulations, but rather th executive functions of the federation in the field of water protection were carried out through the administrative bodies of the republics and provinces. In practice, this type of, organizations of the federal executive authority proved extremely inefficient, so that eve in case of grave accidents of pollution in the Danube basin (for example, the Sava river there was no adequate institutional response either in respect (o identifying the causes of pollution and responsible polluters, or in regard to the elimination of the consequenc of the pollution. ‘This institutional aspect, which was not adequately resolved in the legal system of the SFRY, due to disintegration of the SFRY and creation of new states in the part of Danube basin on that territory, attained international dimensions. In addition, for the tim being no initiatives exist for starting negotiations on the regulations of these and o very important issues in respect to waters on the intemational level. Likewise, it may noted that the legislation of these states relating to the protection of waters are mutually harmonized, at least in the scope within which the regulations of the republics and provinces within the SFRY were coordinated. 3. Protection of Waters in the Legal System of the FRY The 1992 Constitution of the Federal Republic of Yugoslavia (FRY) establishes the sta ownership of natural resources (waters included). This constitutional concept of st ownership over water resources needs a theoretical approach to define what kind of stai ownership is the most appropriate. Namely, in a civil society, the role of the state water administration (or management) could be defined as the role of the "trustee for i citizens", steward or guardian, This role is naturally rooted in the state’s sovereignty ove water resources, regardless of whether they are declared to be state ownership or a ty of public domain or public ownership. But, this role of the state does not necessarily mean the obligatory implementation of the administrative instruments usually used iLegal Aspects of Danube Waters Protection 323 ordinary, or classical, state functions (such as military or interior functions, or foreign relation functions etc.), i.e. ius imperium. Taking on the role of a trustee, steward or guardian actually means surrendering the water administration to public control. This is basically what the principle "public-right- to-know" means. Moreover, this concept implies the wide involvement of the public and of the local autonomous bodies in the decision making process. The rigid state concept of ownership over all natural resources, without including the democratic involvement of the public and local communities in the process of water administration and decision making process was characteristic for the former socialist states and is now characteristic for the newly bom states on the territory of former Yugoslavia as well. The state’s organs are now the key and only spiritus movens, using the supreme power in the name of the state (or in the name of people) and in the name of its citizens. This is why a theoretical elaboration of the state’s ownership modalities is necessary. The ultimate goal is developing a theoretical water resources, law and administrative blueprint, suitable for modem civil society. ‘A careful analysis of the constitutional principles in the FRY indicates that the federal state is responsible for establishing the policy and adopting and implementing regulations which related to the protection of the watercourses which constitute boundaries or are intersected by the boundaries between the FRY and neighbour states. In the FRY, the environmental protection policy was brought at the federal level and it contains the policy on the protection of waters, while the Law on Basic Principles of Environmental Protection and the Law on the Water Regime are under preparation, These laws will fully regulate all issues connected to the protection of waters, among others, those relating to the implementation of supranational law noms. 4. International Law Aspect 4.1, International agreements When speaking of the international law aspect of the protection of the Danube basin waters, it should be noted that, up to now, no law binding international agreement or other act that exclusively regulates issues connected with the protection of waters have been concluded.! ‘These questions have more or less been regulated by several interna- tional law documents which have as their basic subject other issues such as fishery or navigation. 1 An exception is true for a part of the Danube river basin, i.e. The Agreement on the River Tisza and its Tributaries Water Pollution Protection, signed 1986, between SFRY, Hungary, Czechoslovakia, Romania and ussR.324 Slavko Bogdanovié 4.1.1. Agreement between the Governments of the Peoples Republic of Hungary and the Federal Peoples Republic of Yugoslavia on water management issues* The Agreement states that its provisions relate to the protection of the boundary waters or watercourses intersected by state border against pollution. A Joint commission was formed, and its Statute being an integral part of the Agreement, On the VII session of the Commission a Subcommission was fonned to deal with water quality issues. The Subcommission has been active since 1966, periodically measuring the water quality of the Mura, Drava, Danube and Tisa rivers, evaluating the results, and assessing the tendencies of water quality changes, Within the activities of this Subcommission the States cooperate on preventing radioactive pollution, the pollution due to warming and accidental pollution’ 4.1.2, Agreement between the Government of the Federal Peoples Republic of Yugoslavia and the Romanian Peoples Republic on hydraulic systems and boundary watercourses or those intersected by states boundaries’ The Agreement deals with hydraulic issues, measures and functioning on the hydraulic systems, watercourses and valleys that form states boundaries or are intersected by states boundaries and which could influence the change of the water regime and quality” A = Joint Commission was formed under this Agreement. This Commission enacted a Code on its proceeding," which was the legal ground? for the forming of the Subcommission 7 for water quality. 4 It is within the jurisdiction of the Subcommission'® to evaluate ‘the results of the water quality measuring, made following the Declaration of the Danube basin countries on water management issues and especially on the protection of its waters against pollu- 4 tion, and following the Agreement on the river Tisa and its tributaries water protection © against pollution, and those made under the jurisdiction of the Yugoslav-Romanian | Commission for the Iron Gate hydraulic system. Signed in Belgrade, on August 8th, 1955. Ant 1. Art. 4, Jugoslovensko-Madarska komisija za vodoprivredu, pp. 109-114, Signed in Bucharest, on April 7th, 1955. An. 1. Enacted at the First Ant 7. 10. Set up by the Yugaslav delegation’s president, 1990. ion of the Joint Commission, held from March 11-18, 1956. ee wauaennovié id the valers 1 was on of . The ity of g the in the g and slavia vurses raulic states ty7A Code ission of the inuries pollu- ection vanian | Legal Aspects of Danube Waters Protection 325 4.1.3, Agreement on fishery in the Danube waters, signed between the Federal Republic of Yugoslavia, the Peoples Republic of Bulgaria, the Romanian Peoples Republic and the ussR"" According to the Agreement, the member parties will analyze all the sources of pollution as well as activities on the protection of the Danube waters against pollution by industrial and municipal waste waters and other dangerous substances discharged into this river, which could be dangerous for fishes and other aquatic organisms.’? The Danube waters, which this tripartite Agreement bears upon to, embrace the estuary and the tributaries influenced by the waters of the Danube, lakes, deserted river beds, permanently or temporarily connected with the Danube as well the alluvium plains of the Danube river. 4.1.4. The Convention on the Danube navigation regime’ In this Convention there are no provisions pertaining to water protection. However, the Danube Commission, set up to implement the Convention, launched its Recommendations on the water pollution control of the Danube caused by the navigation.’ ‘The Recommendations deal with the protection of the Danube waterways and waters in the Danubian ports and other unloading and loading locations.'® Newly built vessels, and those that are repaired and modernized have to meet the requirements stated in the Recommendations. Technical equipment must be available to prevent water pollution by . oils, and/or waste waters.'” ‘The proposed measures state that it is forbidden to throw, release or discharge in any form objects, substances or oi] products which could thwart or endanger navigation or pollute waters. All kinds of litter should be stored on board and unloaded in special port installations or incinerated.'* 11 Signed in Bucharest, on January 29th, 1958. 12 Ar7. 13. An. 3. 14 The Convention was signed in Belgrade on August 18th, 1948, between the USSR, the Peoples Republic of Bulgaria, the Hungarian Republic, the Romanian Peoples Republic, the Ukraine Soviet Socialist Republic, “+ the Czechoslovakian Republic and the Federal Peoples Republic of Yugoslavia. 18 Doe. CD/SES 44/23. Approved by the decision made on the Sth session on April 21st, 1968. ‘The Recommendations are based on the documents of the Danube Commission, on the opinions, regulations and provisions of the Danube basin countries, on documents of the working group for transport by waterways of the Inland Transport Committee of the UN ECE, relating to the water pollution control in waterways caused bby navigation—Resolution No. 21 and its annexes 1 and IITRANS/SC 107, Annex 1. 16 An. 111 17 An 112. 18 An. 21326 Slavko Bogdanovié Although an attempt was made by the federal Law on intesrepublic and interstate wa- ters! to regulate several issues of this kind, it must be seen only as an initial positive impulse, later not supported by the participation of the SFRY in the Danube Commission Recommendations on the water pollution contol of Danube river waters caused by the navigation” | 4.1.5, Agreement on the River Tisza and its Tributaries | Protection Against Pollution Signed Between the Governments of the SFRY, | Czechoslovakia, Hungary, Romania and the USSR In this Agreement there are several obligations which the States have to fulfil. They should: 1) bring their programs into accord and implement a uniform monitoring program and methodology for conducting water quality analysis and evaluating the state and changes of the water quality of the river Tisa and its tributaries at the border profiles 2) make a list of the border profiles and the water quality parameters; 3) monitor the quality of the waters according to the uniformed programs and methodology. The sessions of the States representatives in charge of the issues are to be held when necessary, but at least once in two years. The issues they do not resolve will be brought out before the representatives of the States. 4.1.6. Other Agreements There are also several more Agreements, dealing with water protection signed by the FPR of Yugoslavia, as follows: 1) Agreement between the FPR of Yugoslavia’s Government and the Austrian Government on water management questions;?° 2) Agreement between the FPR of Yugoslavia and Austria on water management issues relate to the Mura border sector and the waters of the river Mura;?” 3) Agreement between the FPR of Yugoslavia and Hungary on fishery in state boundary waters; 19 Its not in force auy more, and the draft of new one is under the preparation. 20 Yugoslav representatives in the Danube Commission did not accept the Recommendations. 21 Signed in Segedin, on May 1986, under the aegis of CMEA. 22 Ar. 4st 3. 23° Art. 4st. 4, 24 An. 4. 25° Art. 9. 26 Signed in Geneva in 1954. The Interstate commission set up under this Agreement dealt with the protection against pollution of the river Drava. 27. Signed in Vienna in 1954. A permanent commission was in charge of dealing with water pollution issues. 28 Signed in Belgrade in 1957.novié | Legal Aspects of Danube Waters Protection 327 © wa- 4) Agreement on water management issues between the FPR of Yugoslavia’s sitive Government and the Government of Bulgaria;” ission | 5) Agreement between the Govemment of the FPR. of Yugoslavia and the Government ry the s and when ‘ought eFPR istrian issues indary otection a issues. of Romania on fishery in state boundary waters.” 4.2. Present initiatives At the moment, initiatives have been launched to adopt two conventions pertaining to the water protection of the Danube River. 4.2.1. Convention on Water Management Cooperation for the Protection of the Danube River™ According to this Draft Convention the Parties shall strive on achieving the goals of af environmentally sustainable, sound and equitable water management, including the conservation and the rational use of the Danube River and of the waters within its catchment area. ‘The Draft comprises articles which stated the scope and form of intemational cooperation, measures for the prevention, control and reduction of transboundary impact, the norms on emission limitation, water quality objectives and criteria, emission inventories, action programs and progress reviews, supplementary measures, monitoring programs, exchange of information and consultations, information to the public etc. Ttis planned to set up an international commission for implementing the objectives and provisions of this Convention. 4.2.2, Danube Basin Ecological Convention”? The purposes that are to be attained through adoption and implementation of this Convention and related Agreements, include the wish of Parties that technologies created by mankind in the Danube basin will not endanger human health and safety, air, water, soil, climate, landscape, flora, fauna and living communities, including their biological diversity and possible role as bioindicators, as well as other environmental elements like subsurface water resources or their interactions. Besides the articles regulating institutional agreements (Conference of the Parties, Sci. Council, Secretariat), monitoring of environment, environmental impact assessment, R & Detc,, the Draft contains several worthwhile items. It is foreseen that, in order to achieve the purposes of the Convention, the Parties shall adopt related Agreements on 29° Signed in Sofia in 1958. 30 Signed in Timisoara in 1961. ‘3M Draft of this Convention was prepared by Austria in 1991. 32. Draft of this Convention was made by the Temporary Secretariat of the National Authority for Nature Conservation of the Hungarian Ministry for the Environment and Regional Policy, 1991.328 Slavko Bogdanovi¢ mining, processing of row materials, energetics, metallurgy chemical, glass, food pro- cessing, textile, leather, paper and pulp), infrastructure including water management) and transport, It is foreseen that the Parties adopt related Agreements on cooperation in basic research, environmental monitoring and environmental impact assessment, as well Moreover, in an article it is stated that Parties shall~gradually, if hecessary—introduce controls, limitations or bans on the technologies utilized by the activities referred above, which have an adverse impact or risk of an adverse impact, according to the specific environmental conditions of each subregion of the Danube basin: This Draft Convention is very interesting as an effort to achieve a wide inter- connection between the Danube basin states and to establish sectorial regional cooperation based on the principles defined in an ecological convention, This ambitious Convention we could call “umbrella convention”. ‘ detailed control and regulation of (among others) agriculture, forestry, industries (like | i i 4.3. An example on the “soft law" instrument In the consideration of the methods for the establishment of international law on environmental protection, the fact should be bome in mind that the existing methods are, | as pointed in theory, "slow, vague, expensive, uncoordinated and insufficiently defined” New methods are proposed for the establishment of international law, and preference is increasingly being given to "soft law"? The effectiveness of such an approach is illustrated by the Declaration of the Danube basin countries on water management issues and especially on the protection of its waters against pollution. The representatives of Danube basin countries have stated among other in the Declaration that preventing the pollution of the Danube waters and controlling the quality of these waters is an inseparable part of national policies in the environmental field. In view of the fact that the Danube waters are used for supplying drinking water, the Declaration expresses the commitment of the Governments of these countries to take measures to prevent the pollution of the Danube river, in the interest of | present and future generations, in accordance with their existing national legislation, and within their technical-economic possibilities. In this context, special attention should be # devoted to the prevention of pollution with hazardous and radioactive substances and to a gradual reduction of pollution levels, taking into account the ecological conditions of the Danube River. Unlike international agreements, conventions or weaties,, this Declaration is not legally binding. This is a document expressing the good will of the Danubian countries Governments to undertake measures and activities designed to produce tangible results where the protection of the Danube waters against pollution is concerned. However, 33. Sir PALMER, G. p. 259. ‘M4 Adopted in Bucharest, on December 13th, 1985, after more thau ten years of the preparation.inter- ration :ntion Ww on sare, ned". Ice is inube raters nong and fn the lying sst of yand ld be to 1s of not tries. sults aver, Legal Aspects of Danube Waters Protection 329 although it is of the "soft" law character, it was only after the signing of the Declaration that the continued monthly monitoring of the Danube water quality in border areas, appiying similar analytical methods, was introduced for the first time ever (as of 1989). 4.4, Activities of international and transnational organizations A number of international organizations, such as UN ECE, as well transnational organizations, such as ILA, are intensively studying the international law aspects of water resources. The results of the often long-term activities of these organizations are a valuable basis for regulating international relations in the field of water protection. Certain organizations, like professional NGO’s in the Rhine basin, have been developing the new cooperative relations. 4.4.1, Code of Conduit on Accidental Pollution of Transboundary Inland Waters’ This Code of Conduit is the first collective response by ECE member Governments to the need to reinforce intemational cooperation in preventing and combating accidental pollution, which have occurred in the ECE region resulting in adverse impacts on inland waters and aquatic ecosystems often extend beyond the country of origin. The emergency situations which developed have in many cases revealed a degree of unpreparedness at both national and international levels. Their occurrence has underscored gaps in existing legislation or lack of measures and procedures to cope efficiently with emergencies and their transboundary environmental impacts.” The Code intended to guide Governments in the protection of transboundary inland waters against pollution resulting from hazardous activities in case of accident or natural disasters and in mitigating their impacts on the aquatic environment. It deals especially with transboundary effects of such pollution, It is aimed at the harmonization of national measures to be taken in this field and at the formulation of basic frames of international cooperation. Its objective is also to increase the state of preparedness to respond efficiently to such incidents.* One of the basic functions of the Code is to serve as a reference point, particularly until such time as countries have entered into relevant bilateral or multilateral agree- ment.” 35 HOCK, B.: Administrative Aspects of the Water Quality Management of the Hungarian Danube; Rhine- Danube Workshop, University of Technology Delft—According to Iijas, p. 6. 36 Adopted by the Economic Commission for Europe at its 45th session (1990) by decision (45). The Code ‘was prepared under the auspices of the Senior Adviser to ECE Governments on Environmental and Water Problems and funded under ECE/UNEP Project FP/5201-87-04. 37 CODE OF CONDUIT ..., p. iii 38 PLL 39 Ibid.330 Slavko Bogdanovié 4.4.2. The work of ILA As it is well known ILA adopted The Helsinki Rules on the Uses of the Waters of Inter- national Rivers.“° According to Helsinki Rules, a "basin State" is a state the territory of which includes a portion of an international drainage basin,’ and the term "water pollution" refers to any detrimental change resulting from human conduct in the natural composition, content, or quality of waters of ai international drainage basin.” A basin State must prevent any new form of water pollution or any increase in the degree of existing water pollution in an intemational drainage basin which would cause substantial injury in the territory of a co-basin State, and should take all reasonable measures to abate existing water pollution in an international drainage basin to such an extent that no substantial damage is caused in the territory of a co-basin State. In elaboration of Helsinki Rules there were approved several articles on, water pollution in an international drainage basin.’ So, there were, among others, approved provisions according which States shall not discharge or permit the discharge of sub- stances generally considered to be highly dangerous into the waters of an international drainage basin, and shall enact all necessary laws and regulations and adopt efficient and adequate administrative measures and judicial procedures for the enforcement of these laws and regulations. Basin States shall consult one another on actual or po- tential problems of water pollution in the drainage basin so as to rich, by methods of their own choice, a solution consistent with their rights and duties under intemational law.” An article applies to the international administrative machinery for the entire basin, aimed to coordinate or pool scientific and technical research basin states programs to combat water pollution, to establish harmonized, coordinated, or unified networks for permanent observation and pollution control, and establish jointly water quality objectives and standards for the whole or part of the basin.* 4.4.3, International non-governmental organizations in the Rhine basin Intemational (non-governmental) organizations of water agencies (RIWA, ARW, AWBR and their umbrella association JAWR), have had a positive experience with activities aimed at remedying the widely reported pollution of the Rhine River, which was at its peak between 1950 and 1975, These organizations set up an extensive network of water 40 Approved at the 52nd Conference, held in Helsinki, 1966, 41 An. 1. 2 Art. IX. 43° Art. X. 44° Approved on the 60th Conference held in Madrid, 1982. 45° Art.2. 46 An.3. a7 An.6. 48 An. 7. (Perera RNAgdanovié of Inter- Titory of a “water e natural se in the tld cause asonable such an e mn water proved of sub- ‘national efficient ment of 1 or po- ‘of their law.” v basin, ams to orks for vjectives AWBR Ctivities as at its of water Legal Aspects of Danube Waters Protection 331 quality measuring at all relevant points, established close cooperation with national Governments, chemical industry, etc. In cooperation with other organizations engaged in water protection, these activities proved a great success, as the water quality of the Rhine River clearly shows.” This example is certainly a formula to emulate the protection of the Danube catchment area waters as well. 4.5, New tendencies concerning state sovereignty over natural resources In legally regulating the protection of the Danube waters at the intemational level, the fact should be acknowledged that environmental protection problems transcend state borders, ie. the confines of absolute sovereignty of states over natural resources. ‘Awareness of this and the increasingly frequent need for harmonized and coordinated action by states in addressing global and regional problems, also require new approaches to certain traditional institutes of international law. For instance, the theory of intergenerational equity, the cornerstone of which is a global ethos making it incumbent on present generations to treat all natural systems as the common heritage of mankind to be managed in a sustainable manner in the interest of present and future generations. This requires a change of the traditional perception of state sovereignty over natural resources and its relaxation to meet intergenerational equity requirements. Under this theory, every generation has the right to use natural resources within state sovereignty, but not to destroy, every generation has the right to use natural resources within state sovereignty, but not to destroy them and make them uscless for the coming generations.” ‘This requirement to respect the rights of future generations entails the responsibility of states for the exercise of their sovereign rights over the natural resources they possess, responsibility for their own future generations is only one dimension of the overall responsibility involved. But, given the oneness of natural systems and their mutual (transboundary) interconnection, that responsibility features an international law dimension. Hence the traditional perception of state sovereignty set out in Harmon’s well-known doctrine, is increasingly seen as a factor limiting and slowing down the development and application of the finest civilization concepts of sustainable development of nations. States are accordingly expected to waive their sovereignty to a certain extent to the competent supranational organizations in the interest of present and future generations with a view to the more efficient, sustainable, management of natural resources." 49 SUELICH, p. 3. 50 WEISS, p. 290. 51. Sir PALMER, G. proposed the creation a new specialized UN agency, or extending UNEP functions, p. 280. At the 1968 Buenos Aires ILA Conference, CAPONERA, D. pointed out that “an international administration was necessary in order to secure the integrated development of international drainage basins, deciding on priorities among various projects, settlement of disputes, implementation of investment and reimbursement policies, allocation of benefits deriving from international water resources development andLG aT 332 Slavko Bogdanovié 5. Concluding Remarks ‘The intemational law regime pertaining to water protection in the Danube basin should be looked into and carefully analyzed again, since several former countries in the basin do not exist anymore while new ones are now in existence. What more, there is also an urgent need for the joint and coordinated response of all the member states in the Danube basin tegarding the water protection issues. When regulating these issues between the states on the territory of former Yugoslavia and in the entire Danube basin as well it is important to bear in mind; — that environmental pollution issues have been overgrowing the borders of only one state; — the interest of future (as well as present) generations demands the ever greater responsibility of the state when managing its national resources and passing on its respon- sibilities to supranational entities which would ensure the better management of transboundary natural resources; — the importance of international cooperation and the inter-regional linking of countries; — that professional NGOs could achieve important results in the field of environmental protection through linkage at the regional or subregional level. Tt is also important to make use of the results achieved by international and trans- national organizations conceming the study of the relevant law and administrative aspects of international water resources. When choosing the methods for regulating these issues, it is a suitable way to use not only the traditional methods but also the advantages of the "soft law". And last, but not least important, all the interested states must be included into the process. 6. Proposal for Future ILA Acti Bearing in mind what has been said so far, one can conclude that there are serious reasons for a comprehensive analysis concerning all the national codes and intemational bilateral and multilateral agreements relating to the water protection in the Danube basin. Such an analysis done by an ILA working group, for example, could be starting point in the development of a wide concept for regulating these issues in the Danube basin. Clearly, water protection problems should be seen as the part of a comprehensive Danube basin management policy. conservation activities, and for many other related aspects" —The work of the International Law Association on the Law of International Water Resources, p. 166.