REGIONAL SECURITY AND INTERNATIONAL LEGAL REGULATION OF WATER PROTECTION AND USE The case of Serbia

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REGIONAL SECURITY AND INTERNATIONAL LEGAL
REGULATION OF WATER PROTECTION AND USE - The
case of Serbia -

• The NATO Advanced Research Workshop
• "Energy and Environmental Challenges to
  Security",
• The Hungarian Parliament, Budapest,
• November 21-23, 2007.
• Dr. Dragoljub Todic
• Megatrend University, Belgrade, Serbia
• Dr. Vid Vukasovic
• Senior Research fellow, Belgrade, Serbia

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The key thesis

• The key thesis of this paper is that the existing
  system of international legal regulation of
  protection and use of water resources is not
  adequate to the importance which water resources
  have or might have for relations between States.
• This applies to explicitly formulated links to
  questions of regional security, to the
  geographical coverage of certain regions and/or
  States, as well as to instruments developed by
  international law for fulfilling defined goals.

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I. The role and importance of international legal
regulation

• In this paper an effort has been attempted to
  shed some more light on the role and importance
  of international legal regulation of protection
  and use of water resources, by analysing the
  state in Serbia.
• The following three basic criteria have been
  taken into account

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Basic criteria

• 1) Characteristics of geographical position of
  Serbia in connection with the state of water
  resources especially having in mind Serbian
  dependence on transboundary watercourses.
• 2) The state of participation of Serbia in
  international agreements in the field of
  protection and use of international watercourses,
  as an indicator of participation in international
  cooperation in this field, and
• 3) The state of harmonization of national legal
  regulation in the field of protection and use of
  waters, and primarily harmonization with relevant
  provisions of international water law and
  especially with the Helsinki Convention on the
  Protection and Use of Transboundary Watercourses
  and International Lakes (1992), as one of basic
  sources of water law for the whole region of the
  UNECE.

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Provisions in multilateral agreements

• Finally, special attention in this analysis
  has been paid to the possible provisions
  concerning regional security in the three key
  multilateral agreements regulating use and
  protection of waters.

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International treaties in the field of water and
regional security

• From the general point of view, many
  international treaties could have certain
  importance for regional security.
• Or, more precisely the whole system of the
  existing treaties could be regarded as a part of
  the context of regional security.

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Provisions relevant to regional security

• Methodologically, methods of assessment of
  possible influences should be set first, and that
  needs very elaborated criteria. In a more
  meticulous analysis numerous provisions of
  certain international treaties relevant to
  regional security should be taken into account.
• There is no doubt that the impact of relevant
  provisions of multitude of treaties in the field
  of environment and water resources should be
  sought not only in concrete effects of each of
  them but also in the context of synergy and
  mutual effects.

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The three most important multilateral treaties
for Serbia are

• 1. Helsinki Convention on the Protection and Use
  of Transboundary Watercourses and International
  Lakes (1992),
• 2.Convention on Cooperation for the Protection
  and Sustainable Use of the Danube River (1994)
  and
• 3.Framework Agreement on the Sava River Basin
  (2002. Treaty on Pollution Protection of the
  Tisza River Waters and its Tributaries (1986) has
  not been implemented.

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The Helsinki Convention

• The Helsinki Convention on the Protection and Use
  of Transboundary Watercourses and International
  Lakes does not contain provisions explicitly
  mentioning regional security, as one of goals of
  the Convention. It contains, however, a number of
  provisions which are more or less relevant to
  security.
• Such provisions are, for example, duties of
  Parties to improve cooperation, mentioned in
  Preamble and Articles 1 (definitions)
  2prevention, control and reduction), 4
  (monitoring), 5 (research and development), 6
  (exchange of information) 7 (responsibility and
  liability), 9 (bilateral and multilateral
  cooperation provisions relating to the reparian
  parties), 10 (consultations), 11 (joint
  monitoring and assessment) etc.

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The Danube River Protection Convention

• The Convention on Cooperation for the Protection
  and Sustainable use of the Danube River (Danube
  River Protection Convention) also does not
  contain provisions explicitly mentioning regional
  security.
• In the Art. 12 national security is mentioned
  in the context of Exchange of information,
  similarly as in the Helsinki Convention. In Art.
  14, which relates to information to the public,
  notion public security is used, in the similar
  context as in Art. 12.
• Similarly as the Helsinki Convention, the Danube
  River Protection Convention contains numerous
  provisions concerning the duty of States to
  cooperate. Article 16 Communication, warning and
  alarm systems, emergency plans, Article 17
  Mutual assistance).

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The Sava Agreement

• Similarly as the two above mentioned conventions,
  the Framework Agreement on the Sava River Basin
  (the Sava Agreement) does not contain provisions
  explicitly mentioning regional security, but it
  also contains numerous provisions concerning the
  duty of States sharing the water course to
  cooperate.

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Some basic similarities

• There are many basic similarities between these
  three international treaties sustainable water
  management and development as objective,
  cooperation as fundamental framework, commissions
  as formal institution, joint principles of
  environmental policy, instruments and fields of
  cooperation, exchange of information,
  consultation, relations to the public,
  monitoring, reporting, provisions on dispute of
  settlements, etc.
• Besides that, characteristic of all the three
  international treaties is intention to regulate
  in a more precise way duties of states concerning
  necessary internal measures, establishing thus
  in a more concrete way the link between
  international and national law. Although
  different modalities of such formulations, as
  well as their effects in practice, could be
  discussed, there is no doubt that national legal
  regulation in such a way becomes increasingly
  directly linked to international treaties.

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II. Characteristics of the state of water
recourses of Serbia

• There are numerous determinants which, in the
  case of Serbia, limit or enhance its
  participation in international cooperation
  (geographical position, level of economic
  development, characteristics of economic
  structure, state in particular sectoral
  policies and sectoral strategies, characteristics
  of historical development, characteristics of
  political, legal and economic system,
  functioning of legal state, citizens position in
  society, international position of the country,
  state of membership in certain international
  organisations, state of the environment,
  environmental awareness, institutional built up
  in the water, energy and environmental field,
  consequences of the crises in former Yugoslavia
  during last decade of the XX century,
  consequences of the NATO intervention 1999,
  etc.).

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The state of water resources in Serbia

• The state of water resources in Serbia should be
  viewed in the context of the state of the
  environment in general.
• Serbia is moderately poor when domestic water
  resources are concerned. According to the Basic
  document for water management (Water management
  basics of Serbia), the whole territory of Serbia
  has flow of national waters of 16. 000 millions
  m3 per annum, or averagely 1600 m3 per citizen
  (it is believed that a country has enough of its
  own water if the flow is yearly more than 3000
  m3).

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Domestic and transit waters

• From these data it is possible to conclude that
  domestic waters are not sufficient in Serbia and
  that it must count on transitional waters.
• Transit waters, which flow to Serbia from other
  countries or, according to definition from the
  Helsinki Convention transboundary waters, are
  of considerable quantity (above 5.000 m3/s, or
  ten times more abundant than domestic).
• Their use is necessary for a positive water
  balance of Serbia, and they are supposed to be
  cleaner in future.

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Transboundary rivers

• Transboundary rivers belong to the catchments
  areas of the Black Sea, Adriatic, and Aegean Sea,
  the Black Sea being dominant (92 territory of
  Serbia).
• In almost all transboundary water courses Serbia
  is down stream riparian country, except in cases
  of Beli Drim, Timok and Dragovitica.
• In the case of the Danube River it is both
  downstream and up stream country.

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Ground transboundary waters

• Important ground transboundary waters are shared
  with Romania and Hungary (in Banat and Backa) and
  with Croatia (in Srem).
• Water extraction in most parts of Vojvodina is
  oriented towards these ground waters, and there
  problems of over extraction of them and of their
  poor quality.

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Hydroelectric potential

• When energy is concerned, it should be stressed
  that most important energy renewable recourse in
  Serbia is hydroelectric potential (cca 17000
  GWh), from which today is already used about
  10000 GWh.
• So, the total remaining technically usable
  hydroelectric potential of Serbia is about 7000
  GWh, and that amounts to 8.6 of consumption of
  final energy in 2003.
• This remaining potential, for construction of
  bigger electric plants (above 10 MW) is mainly in
  Morava catchment area (2300 GWh), Drina and Lim
  (1900 GWh) and Danube (1000 GWh) and it could
  yield annual production of about 5200 GWh.
• On around 900 potential locations on Serbian
  rivers it is possible to build small electric
  plants (under 10 MW), with possible annual
  production of about 1800 GWh. When practical
  possibilities for building hydroelectric plants
  are considered, it must be kept in mind that non
  energy criteria play important role, as for
  example use of waters in other purposes,
  agreements with neighbouring countries etc

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III. Status of Serbia in relevant international
treaties

• General characteristic of position of Serbia,
  when relevant international treaties are
  concerned, is lagging behind other countries of
  the Region, what is usually explained as a result
  of legacy of the past, the crisis in nineties,
  international sanctions, etc.
• Besides the formal participation in international
  treaties, more important is the question of
  interpretation and implementation of them, but
  that is not the topic of this paper.

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The treaties in which Serbia is a Contracting
Party (I)

• Probably most important, of the treaties in
  which Serbia is a Contracting Party, are
  following
• Treaty on Fishery in the Danube River Waters
  between Government of FNRJ, Peoples Republic of
  Bulgaria, Romanian Peoples Republic, and USSR
  (1958)
• Convention on Wetlands of International
  Importance Especially as Water flow Habitat
  (1971)
• International Convention for Compensation for Oil
  Pollution Damage (1971)
• Convention Concerning the Protection of the World
  Cultural and Natural Heritage (1972)
• Convention on Long-range Transboundary Air
  Pollution (1979)
• Protocol to the 1979 Convention on Long Range
  Transboundary Air Pollution on Financing of the
  Co-operative Programme for Monitoring and
  Evaluation of the Long-range Transmission of Air
  Pollutants in Europe (EMER) (1984)

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The treaties in which Serbia is a Contracting
Party (II)

• The Basel Convention on the Control of
  Transboundary Movements of Hazardous Wastes and
  their Disposal (1989)
• UN Framework Convention on Climate Change (1992)
  
• Treaty between the Federal Government of FRY and
  Government of the Russian Federation on
  Cooperation on Environmental Protection (1996)
• Convention on Biological Diversity (1992),
• Convention on the Environmental Impact Assessment
  in a Trans-boundary Context (1992)
• Convention on Co-operation for the Protection and
  Sustainable Use of the Danube River (1994)
• Framework Agreement on the River Sava, (2002)
• Convention on Environment Protection and
  Sustainable Development of the Carpathians, Kiev,
  2003.

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Recent ratifications

• Recently Serbian Parliament ratified the
  following international treaties
• United Nations Convention to Combat
  Desertification in Countries Experiencing Serious
  Drought and/or Desertification, particularly in
  Africa,
• Convention on the Conservation of European
  wildlife and natural habitats,
• The Convention on the Conservation on Migratory
  species of wild animals,
• Convention on Environmental Impact Assessment in
  a Transboundary Context,
• Framework Convention on the Protection and
  Sustainable Development of the Carpathians.

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Treaties still not ratified (I)

• As it is obvious from the given list Serbia did
  not ratify the Helsinki Convention on the
  Protection and Use of Transboundary Watercourses
  and International Lakes, the treaty of key
  importance.
• Besides that, when one makes conclusions
  concerning the position of Serbia in
  international cooperation in the field of use and
  protection of waters, one should take into
  account status of other countries in important
  international treaties. This is especially
  important when neighbouring countries are in
  question.
• So, for example, Contracting Parties of the
  Helsinki Convention on the Protection and Use of
  Transboundary Watercourses and International
  Lakes are Albania (1994), Croatia (1996),
  Hungary (1994), Bulgaria (2003) and Romania
  (1995).
• Bosnia and Herzegovina and FYR Macedonia are not
  Parties of the Convention.

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Treaties still not ratified (II)

• Serbia is not member of the several other
  multilateral environmental agreements such as
• Convention on the Trans-boundary Effects of
  Industrial Accidents. Helsinki, 1992,
• Convention on Access to Information, Public
  Participation in Decision-making and Access to
  Justice in Environmental Matters. Aarhus, 1998,
• Rotterdam Convention on the Prior Informed
  Consent for Certain Hazardous chemicals and
  Pesticides in International Trade, 1998,
• Convention on Persistent Organic Pollutants
  POPs. Stockholm, 2001, as well as protocols to
  the relevant agreements.

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Bilateral agreements

• Besides the mentioned multilateral treaties,
  there are several bilateral agreements with
  neighbouring states which regulate cooperation
  concerning waters.
• It should be added that some of the existing
  bilateral agreements were inherited from the
  Former Yugoslavia and that they are rather
  obsolete and not in accord with contemporary
  tendencies in the field of water resources
  management and protection.
• Several international bilateral agreements,
  concerning water use and protection, are in the
  process of being prepared.
• Of special importance for Serbia are agreements
  with neighbouring countries (Croatia, Romania,
  Bulgaria, Bosnia and Herzegovina etc.).

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The Energy Community

• The Treaty establishing the Energy Community
  (2005) deserves special attention. It is one of
  most important international agreements to which
  Serbia has recently become a party, both in
  fields of energy (electricity and natural gas)
  and environmental protection.
• This document contains a number of measures
  concerning efficient management of energy
  systems, environmental protection, and use of
  alternative sources of energy.
• It is important to stress that in this document,
  EU Acquis communautaire is applied both in energy
  and environmental fields and that the countries
  of South Eastern Europe, including Serbia, have
  in such a way directly been linked to the EU in
  two important fields.

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IV. National legal regulation

• When national legal regulation relevant for
  implementation of international treaties is
  analysed, it is important to keep in mind the
  existing state of the regulation as well as the
  activities aimed at harmonization of national
  regulations with international standards.
• One of most important characteristics of present
  state of the legal system of Serbia as a whole is
  the process of transition towards international
  standards in general and especially towards
  harmonization with the EU standards.
• This general remark applies to legal regulation
  concerning waters, energy and environment, and
  one should, when analyzing them, always keep in
  mind that these three fields are in the process
  of intensive transformation, both when adoption
  of new legislation is concerned and when the
  change of newly adopted regulation is being done.

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Preparing new legislation

• The best example that illustrates this is draft
  of the new Law on waters, which is being prepared
  already for quite considerable time, and which
  will be the basis for a number of important sub
  legal acts.
• Besides this law, several other legal acts are
  expected to be adopted in near future, for
  example
• Law on amandement of Law on energy, Law on waste
  management, Law on nature protection, Law on air
  protection, Law on packaging and packaging waste,
  Law on protection from ionizing radiation, Law on
  protection from nonionizing radiation and on
  nuclear safety, Law on food safety, etc.

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Some criticism

• A part of existing Serbian legal regulation
  concerning waters is obsolete, has many legal
  lacunae, is not well conceptually harmonised and
  is not efficiently harmonised with other relevant
  sectors etc.
• According the National Sustainable Development
  Strategy, problems in water sector are related to
  the lack of plan for implementation of the EU
  Water Framework Directive, insufficient
  institutional and other capacities, inadequate
  funding of water management, low price for water
  and services, lack of economic incentives,
  insufficient percentage of connection to public
  systems of water supply, lack of rational use of
  water and bad quality of water in certain areas,
  bad quality of water in certain water courses and
  insufficient protection of water quality.

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Acts regulating energy

• The basic legal act regulating energy production
  and consumption is Law on energy (Off. Jour. of
  RS, No. 84/04), which is believed to be mostly
  harmonised with contemporary trends in this
  field.
• When energy is concerned, other acts must be
  taken into account, which still need
  harmonisation. For example the Law on mining
  (Off. Jour. of RS, No. 44/95, 85/05), the Law
  on forestry (Off. Jour. of RS, No. 46/91,
  83/92, 54/93, 60/93, 53/93, 67/93, 48/94, 54/96),
  as well as some sub legal acts.

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Basic legal acts in the field of environmental
protection

• Environmental protection is regulated with a
  considerable number of legal and sub legal acts.
  Most important are those adopted recently because
  a serious effort has been done to harmonise them
  with international standards.
• Four basic legal acts in the field of
  environmental protection, important for water use
  and protection, as well as for the impact of
  energy production and consumption on environment,
  adopted in 2004 are following
• Law on environmental protection,
• Law on environmental impact assessment,
• Law on strategic environmental impact assessment,
  
• Law on integrated pollution prevention

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Sub legal acts

• On the basis of these laws a number of sub legal
  acts have been adopted.
• However, numerous others environmental legal
  regulation are expected to be adopted and some of
  them are directly relevant for implementation of
  international treaties.

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Some other regulations

• Other regulations of Serbia, which are relevant
  for ratification and implementation of
  international treaties, are following Law on
  concessions, Law on local self-government, Law on
  foreign investments, Law on planning and
  construction, Law on spatial plan of RS, Law on
  elementary disasters, Law on public enterprises,
  Law on public procurement, Law on agricultural
  land, etc.

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V. Conclusions and Proposals (I)

• Three for Serbia most important international
  treaties do not contain explicit provisions
  concerning regional security, but contain
  different provisions which are of direct
  importance for regional security and they should
  be interpreted in such a way. According to this
  conclusion, one of basic criteria for assessing
  the state of regional security should be the
  level and quality of inter state cooperation in
  the field of sustainable water management and
  protection.
• The mentioned international treaties contain
  precisely described and elaborated forms of
  cooperation, what should be understood as
  prerequisite and mechanism for strengthening the
  regional security.

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Conclusions and Proposals (II)

• Certain controversy of the position of Serbia
  stems from misbalance between the high dependence
  from transboundary water courses and the present
  state of participation in international treaties,
  which is still unsatisfactory seven years after
  the normalisation of relations with international
  community.
• The fact that Serbia has not yet concluded water
  bilateral agreements with all neighbouring
  countries (which would be based on the
  contemporary principles of water management and
  protection) could be, in unfavourable
  circumstances, a challenge for regional security.
  The relation between national security and
  regional security and the nature of this
  challenge is, however, not easy to assess and
  quantify.

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Conclusions and Proposals (III)

• There is no doubt that the unsatisfactory
  participation of Serbia in international treaties
  could be an obstacle for normal cooperation.
• The fact that Serbia has not bilateral agreements
  concerning use and protection of waters, based on
  contemporary principles of water management, with
  neighbouring countries, certainly does not
  contribute to regional security.

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Conclusions and Proposals (IV)

• From the fact that the existing international
  treaties concerning water use and protection are
  not sufficiently applied in Serbia, and specially
  from the fact that Serbia is still not a Party to
  the Helsinki Convention, it could be concluded
  that the contemporary system of legal regulation
  of water use and protection in Serbia can not
  function properly and that it needs further
  improvement.
• The fact that legal regulation of water use and
  protection in a country is still not sufficiently
  harmonised with EU legal regulation and with
  international treaties, can cause problems in
  functioning of the system as a whole, thus
  influencing negatively regional security.

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Conclusions and Proposals (V)

• Existing international treaties, and mechanisms
  of cooperation prescribed by them, do not cover
  adequately all geographical sub regions to which
  Serbia belongs (Danube, Sava, Carpathians, Black
  Sea, Southeast Europe, etc),
• Due to that, there is the need for introduction
  of new specific instruments of cooperation in
  South Eastern Europe. A regional agreement for
  South Eastern Europe should be concluded and
  supported - which will regulate international
  cooperation in the field of environmental
  protection within the context of improvement of
  regional security.