Kavala Workshop 1-2 June 2006 Legal protection of Transitional Waters [in the Cadses area]: A comparative analysis Dr. Petros Patronos / Dr. Liliana Maslarova

Kavala Workshop

1-2 June 2006

Legal protection of Transitional Waters

[in the Cadses area]: A comparative analysis

Dr. Petros Patronos / Dr. Liliana Maslarova

Nomos + Physis

TWReferenceNET

Legal protection of transitional waters: A comparative analysis [1]

• No specific legislation for protection of transitional waters as such in the legal systems of the three countries studied so far (Greece, Bulgaria, Romania).

• Legal protection of transitional waters is mainly based on law for nature conservation and management of protected areas and on water management regulations.

• The transposition and implementation of directives 92/43, 79/409 and 2000/60 in the national legal orders are, in this respect, the central point of reference.

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• Constitutional provisions in the three countries lay down a general duty of the state to protect the natural environment and the natural resources; Environmental (public) rights are also recognized by the Constitutions of the countries concerned.

• The basic environmental principles of EU legislation (Arts. 2, 6, 174-176 of the EC Treaty) are also to be taken into account: sustainable development, environmental integration in sectoral policies, principle of prevention, principle of precaution, polluter pays principle.

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• The countries concerned have also ratified relevant international conventions: amongst others, – the Ramsar convention on wetlands, – the Biodiversity Convention, – the Convention on the protection and use of transboundary

watercourses, – the Espoo Convention on EIA in a transboundary context, as

well as – the Bonn Convention on migratory species, including the

ACCOBAMS agreement on cetaceans in the Mediterranean and the Black Sea, and

– the Bern Convention on European wildlife and natural habitats.

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• Important to note, main pieces of EU environmental legislation correspond to a large extent to these conventions and represent also instruments for their implementation, e.g. – Directive 2000/60 as an instrument for

implementing the Convention on transboundary watercourses and international lakes,

– Directive 92/43 (Natura 2000) as an instrument for implementing the Biodiversity Convention etc.

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• It has also to be underlined that, according to recent decisions of the European Court of Justice, those provisions of international conventions approved by the EC that are clear, precise and unconditional are directly applicable in the legal orders of the Member States, and the European Commission may control their proper implementation.

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• Account must also be taken of:– General legal provisions of environmental protection,– Environmental impact assessment (EIA) rules and

procedures (including now strategic environmental assessments (SEAs) for plans and programmes), in particular EIAs/SEAs with regard to protected areas (see in this respect article 6 of directive 92/43),

– Land use regulations, – Industrial permitting procedures (e.g. according to

directive 96/61), and– Rules for coastal zone protection and management.

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• Specific national legislative or administrative acts concern:– the establishment (status and designation) of

protected areas, – the regulation of their administration and the

establishment and operation of competent management bodies

– that issue/approve and control respective management plans as the main conservation-implementation tool.

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• National legislative and administrative acts have also been adopted in order to implement directive 2000/60 and to organize the integrated water management, on the basis of river basins and respective management plans.

• Basin district water authorities have been established and their competences have been determined. The stage of their development and functioning differs from country to country.

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• Thus, the legal framework in place consists of numerous EU environmental directives, international conventions and national legal acts.

• Despite the fact that -with the exception of WFD- specific reference to transitional waters is missing, this framework, if properly implemented, could also contribute to the protection and sustainable management of transitional waters.

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• However, there exist several shortcomings at the level of implementation and enforcement of environmental legislation, including the law on nature conservation and integrated water management.

• The reasons are, amongst others: – Lack of precision as regards environmental competences,

in particular distribution of tasks among involved environmental bodies,

– Duplication of functions, – Insufficient coordination, – Inadequate use of EU funding, – Ineffective control, – Poor or lacking integration of environmental

considerations in sectoral policies.

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Therefore, in order to strengthen protection and sustainable management of transitional waters, there is, in particular, a need for:• Promoting consistency between the different legal and institutional frameworks, e.g. protected transitional waters as part of the Natura 2000 network and as water bodies, or even as transboundary waters-lagoons.

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• Ensuring and/or improving coordination between the co-competent authorities, e.g. authorities with competence over nature protection, water management, regional development, transboundary cooperation etc. Need to improve also intra-ministerial coordination.

• Developing synergies between the management plans concerning protected areas and river basins respectively, e.g. a transboundary river basin of international importance that includes protected areas according to the Habitats and Birds directives.

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• Implementing respective international conventions in an integrated way, e.g. integrate biodiversity considerations in EIA/SEA procedures, by taking into account the respective work within the Biodiversity Convention and the Ramsar Convention.

• Setting specific monitoring parameters and avoiding duplication and fragmentation of efforts as regards the different monitoring requirements and the comparison of data.

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• Further developing the legal elements of the ICZM concept, by taking particularly into account article 6 of the EC Treaty, the environmental integration principle, e.g. ecosystem approach, precautionary principle, public participation, carrying capacity of ecosystems, legally addressing both marine and terrestrial areas of coastal zones together, etc. Provision for explicit requirements in respect of transitional waters.

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• Promoting, with the assistance and cooperation of the applied ecology science, the elaboration of specific guidelines or even legal criteria on the protection and sustainable management of (protected) transitional waters.

• It has to be noted that the objectives of both most important pieces of legislation in respect of TW (the Habitats Directive and the WFD) are to be understood first of all in ecological terms (favourable conservation status, good water quality, environmental objectives and specific monitoring requirements).

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• Therefore, the legal measures and administrative arrangements should serve these ultimate goals. The interpretation of respective provisions and the assessment of legal situations should be oriented towards the achievement of these goals. However, further clarification in this respect is needed. Such a clarification can only be achieved if the lessons of applied ecology are translated into legal terms and requirements.

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TWReferenceNET

Thank you for your interest

and attention!

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Documents

Kavala Workshop 1-2 June 2006 Legal protection of Transitional Waters [in the Cadses area]: A comparative analysis Dr. Petros Patronos / Dr. Liliana Maslarova