Transboundary Pollution of Water and Analysis of the Case of Pollution of the River Spreca

Iris Bjelica Vlajić1

 

1 Faculty of Maritime Academic Studies, Belgrade Serbia; E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 

Abstract

Surface and groundwater are complex systems that contain biological communities that are vulnerable to pollutants from different sources, but at the same time water resources may be shared between different countries, determining their boundaries or passing through them. Therefore, a number of international legal acts prescribe protection of waters and prohibit their pollution. A particular problem is trans-boundary water pollution, in which a pollutant source is located in one country and the consequences of pollution are evident in other countries. Due to the interconnectedness of trans-boundary pollution with public and environmental health, activities aimed at eliminating/reducing pollution and its harmful consequences are considered. By analyzing these acts and the laws of the Republic of Serbia and Bosnia and Herzegovina, we come to the concrete rights and obligations of polluters and the damaged. In addition, the paper analyzes the most recent case of pollution of water that originated in Bosnia and Herzegovina and ended in the Republic of Serbia, as well as a proposal for ratification of a new international instrument that would strengthen protection against this type of pollution.

Keywords: water, trans-boundary pollution, damage, liability, polluter pays principle, international sources, domestic legislation.

Introduction

 

Natural water resources may be divided it in three main categories: atmospheric, surface and underground waters. Their contamination is caused by different factors, but pollution of either of these may lead to severe public health and environmental consequences. In this paper, we will look at the pollution of surface and groundwater by substances that are hazardous to the natural environment and health, which resulted due to the violation of the mandatory water protection measures set forth by international legal acts that include trans-boundary pollution. The aim of this paper is to present an occurrence with all its accompanying elements and to propose solutions for its avoidance and subsequent application of legal measures if such incidents should occur.

Water pollution occurs when harmful chemical compounds are released into the environment without any means of neutralizing them. Pollution can be deliberate or unintentional, conscious and unconscious. Pollution has a negative impact on the biological community associated with that water body because it changes the biological, chemical and physical characteristics of water.

According to the definition contained in the Convention on Cooperation for the Protection and Sustainable Use of the Danube River, "cross-border impact means any significant negative impact on the rivers and environment resulting from a change in water status resulting from human activity which extends to an area beyond the jurisdiction of a Contracting Party. These changes can affect life and property, the security of existence and related ecosystems."1 Pollution most frequently occurs when certain hazardous substances are released into surface or groundwater. By definition, the term "dangerous substances" means substances having a toxic, carcinogenic, mutagenic, teratogenic or bio-accumulative effect, especially those that are non-degradable and significantly affect living organisms2. In doing so, they are substances that are hazardous to water, meaning substances whose harmful potential for water resources is extremely high and that handling them requires special preventive and protective measures3. A similar definition of water pollution is given by the Law on Waters of the Republic of Serbia in Article 3, item 29). "Pollution is direct or indirect infiltration, as a result of human activity, substance or heat in the air, water or soil that can be harmful to human health or the quality of aquatic ecosystems or sub-ecosystems directly dependent on aquatic ecosystems (coastal ecosystems), causing damage to material goods or diminishes or obstructs normal and other legitimate uses of the environment." In addition, it states that the pollutant is any substance that causes pollution, and which is listed as such in relevant regulation4.

Domestic and international documents predicted the possibility of waste crossing state borders. Among the international documents, the most important is the Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and Their Disposal5. In this case, it is waste consisting of the same physical and chemical properties, which is shipped to the same destination at the same border crossings, which presupposes an intended activity requiring the appropriate permits of the countries whose borders are crossed, regardless of whether it is an export, import or transit. Waste can, in this way, move in multiple shipments, but only after receiving all the permits of the states that are involved in this movement. No permits are issued for the movement of non-hazardous waste, and especially non-hazardous waste up to 25 kg of weight, intended for laboratory purposes.

Trans-boundary pollution should be distinguished from organized and reported waste movement in which waste in any form moves with international waters and crosses state borders. Prevention, control and reduction of trans-boundary pollution watercourses is the most important goal in promoting international cooperation in the field of protection and use of cross-border watercourses.

Establishing quality monitoring is strategically the most important measure in preventing water pollution and any trans-boundary impact. Strengthening of institutions and the entire water resources management system is indivisible from the strengthening of state monitoring of water quality.

 

Materials and Method

In preparation of this paper, the author has used a combination of various scientific methods. The main terms relating to the subject as well as the main problem being elaborated have been defined at the very beginning.

Mainly, the content analyses combined with the gap analyses of the positive domestic and international laws and contracts texts as well as texts of EU legislation were used. The historical method was used to set the chronology of events as well as their development, cause and consequences. In presenting the results of these analyses rules of the deduction, description and classification were applied. To determine a resolution to the problem, a variety of documents were analyzed and presented.

 

Analyses of the International and Domestic Legal Framework

International legal acts dealing with the protection of water flows from pollution and of relevance to the waters that flow through Bosnia and Herzegovina and the Republic of Serbia are of regional and universal character.

Directive 2000/60/EC establishes a framework for the European Union's action in the field of water policy by comprehensive protection of all waters by applying the principle of integrated water resources management to surface waters, mixed waters and coastal waters6. It defines the framework for the control of pollution hazardous substances as defined by Directive 76/464/EEC, which is why the earlier Directive should be repealed when the relevant provisions of the new Directive are fully implemented. The basic goals are the preservation, protection and improvement of the quality of the environment, the reasonable and rational use of natural resources based on the precautionary principle and the principles of preventive action to correct the damage to the environment at the source, and that the polluter pays for the pollution it causes. The idea of integral river basin management is introduced, even across administrative and international borders, including river basin management plans and coordinated monitoring programs. In order to reduce the entry of hazardous substances into water, the so-called "Combined approach" regarding standards for emission limits values and environmental quality, which would lead to all European waters within 15 years of its adoption, should have a good status7. This Directive should provide mechanisms for identifying obstacles in the process of improving the status of waters for those beyond the scope of Community legislation, bearing in mind the development of appropriate Community strategies to overcome them8. Member States shall ensure that a river basin covering the territory of more than one Member State is designated as an intergovernmental river basin district. The European Commission will facilitate the establishment of such interstate water areas at the request of the participating Member States, while each Member State shall ensure appropriate administrative arrangements, including the designation of appropriate competent authorities, for the application of the provisions of the Directive to the part of each interstate waterway within its territory9. For the countries of the Western Balkans, it is of particular importance that the river basins where water use can have trans-boundary impacts, the requirements for achieving the environmental objectives set forth by the Directive, and in particular all measures of measures, should be coordinated for the entire catchment area (river basin) of the river basin. This means that for basins that extend beyond the borders of the Community, Member States shall endeavor to ensure appropriate coordination with relevant non-member countries. Pollution due to discharge, emission or loss of priority hazardous substances must be suspended or phased out. The European Parliament and the Council should, on a proposal from the Commission, agree on substances that are considered as priority for undertaking actions leading to reduction or suspension of their emissions as well as on specific measures to be taken against pollution of water by these substances, taking into account all significant sources contamination with the identification of an economically justified and appropriate level and combination of controls10. In identifying priority hazardous substances, the precautionary principle should be taken into account, relying in particular on the determination of any potentially harmful effects of the product, with a scientific risk assessment. Member States should adopt measures to eliminate pollution of surface waters with priority substances and progressively reduce pollution by other substances. Each program of measures will include "basic" measures and, where necessary, "supplementary" measures, whereby "basic measures" constitute the minimum requirements to be respected, and "supplementary" measures are the measures envisaged and applied with basic measures with the intent of reaching established goals11. Member States may extend the list of supplementary measures to provide additional protection to the waters covered by this Directive, including the incorporation of the relevant international agreements referred to in Article 1. It is also necessary to adopt technical guidelines as part of this Directive in order to ensure coherent access within the Community. Criteria for assessing water status are an important step forward. Harmonization of technical elements with technical development as well as standardization of monitoring, sampling and analytical methods should be adopted in accordance with the Committee procedure. In order to promote full understanding and consistent application of the criteria for the characterization of river basin areas and the assessment of water status, the Commission may adopt guidelines for the application of these criteria.

The Convention on Cooperation on the Protection and Sustainable Use of the Danube River (Sofia Convention, 1994) has put particular emphasis on the prevention of trans-boundary pollution of the Danube River since 200312. In accordance with their commitments, "Parties shall develop, adopt and implement appropriate legal, administrative and technical measures and provide national prerequisites and the necessary basis for ensuring effective protection of water quality and sustainable development, and thus also to prevent, control and reduce the cross-border impact". And in particular or together, will monitor the conditions of natural water resources in the Danube River Basin using the agreed parameters for quantity and quality, including appropriate technologies, and adopt a legal unit for requirements that include time limits for wastewater disposal, that is, legal provisions for the handling of water-hazardous substances, as well as provisions for reducing the release of nutrients or dangerous substances from non-naturally occurring sources, in particular for the use of nutrients as well as substances for the protection of plants and pesticides in agriculture13. "The undertaking of these measures aims at avoiding cross-border impacts of waste and hazardous substances, in particular those resulting from transport. All disputes arising in connection with the application of obligations under the Convention shall be settled by the contracting parties either by mutual agreement or by the initiation of an arbitration procedure, informing the International Commission for the dissemination of the dispute and the request for arbitration to forward information to all Contracting Parties to this Convention14. The arbitrate tribunal shall make decisions under the rules of international law and, in particular, the rules of the Convention. During the arbitration proceedings, the arbitrate tribunal may impose sub-measures15. Reports of regular monitoring of water quality are cited in the annual report on water quality control in the Danube basin.

The Framework Agreement for the Sava River Basin and the Sava River Shipping Protocol is based on international documents that seek to protect the Danube River and its conservation, as well as Directive 2000/60/EC known as the EU Water Framework Directive16. Therefore, the provision of Article 5 of the Framework Agreement according to cooperation with the International Commission for the Protection of the Danube River, the Danube Commission, the United Nations Economic Commission for Europe and the institutions of the European Union is foreseen. In addition to the Sava River, all the rivers of its catchment area are included in the Framework Agreement17. The International Sava River Basin Commission was established, which is also known as the Sava Commission, which makes binding decisions for the contracting parties18. Disputes between the Contracting Parties shall be settled by peaceful means, by arbitration or by a panel of experts of fact-finding bodies.

The Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes of the United Nations (Helsinki Convention on Waters) is in principle binding to the Contracting Parties, although specific obligations derive from bilateral and multilateral agreements with interested neighboring countries and international organizations19. The Convention defines cross-border waters as "surface and ground waters that form the boundaries between two or more states, cross the borders or are located on them."20 Also, the Convention provides a definition of cross-border impact, as "any significant detrimental impact on the environment the consequence of the change in the status of overflow waters caused by human activity whose physical origins are wholly or partly located in an area under the jurisdiction of one of the Parties, resulting in adverse effects in the area under the jurisdiction of the other State."21 Under the adverse impact on the environment include impacts on health and the safe performance of people, flora and fauna, as well as land, water, air, historically monuments and cultural heritage, or the consequences of these changes. The contracting parties undertake not only to refrain from all the activities they bring to trans-boundary pollution, but also commits to restoring the ecosystem to its original state. The three basic principles of the Convention are contained in Article 2:

  • the precautionary principle for the prevention of trans-boundary pollution,
  • the polluter-pays principle, according to which the costs of prevention, control and reduction of pollution are borne by the polluter, and
  • the principle of water resource management so as not to jeopardize the use of these resources for future generations.

In order to adequately implement this protection, it is foreseen to establish a warning and alert system, as well as regular meetings of the Council of Representatives of the Contracting States22. Its implementation implies the implementation of various measures, including: concluding bilateral agreements with neighboring countries on issues regulated by the Convention on Waters; adoption of new domestic regulations, primarily in the water sector; building and strengthening capacities of competent institutions related to the prevention, control and reduction of pollution and cross-border impacts, water and environmental monitoring, research and development, and the like.

The Protocol on Civil Liability and Compensation for Damage Caused by Trans-boundary Effects of Industrial Accidents in Trans-boundary Waters under the 1992 Convention on the Protection and Use of Trans-boundary Waters and International Lakes and the Convention on Trans-boundary Waters in Industrial Accidents of 1992 applies to damage caused by cross-border effects caused by industrial accidents on trans-boundary waters23. The Protocol itself has not entered into force, since the ratification of the 16 signatory states is necessary, but has only been ratified by Hungary for the time being24. However, due to very good solutions and precise definitions, it is included in the considerations in this paper. The basic idea of the Protocol is that the polluter bears the responsibility for the damage, with possible exceptions if the polluter provides sufficient evidence25. The damage itself is defined as: loss of life or personal injury; loss or damage to property, other than assets held by a person responsible in accordance with the Protocol; the loss of revenue that results directly from the impairment of the legally protected interest for any use of trans-boundary waters for economic purposes, resulting from the deterioration of trans-boundary waters, taking into account savings and costs; the cost of measures to re-establish cross-border trans-boundary waters, limited to the costs of measures actually undertaken or to be undertaken; and, the cost of response measures, including any loss or damage caused by such measures, to the extent that the damage was caused by the trans-boundary effects of an industrial accident on cross-border waters26.

In the Republic of Serbia, the Law on Waters envisages a set of measures and activities that protect and improve the quality of surface and groundwater. This improvement and protection of waters include the reduction of the impact of cross-border pollution27. The goal is to preserve human life and health, as well as to reduce pollution and prevent further deterioration of the state of water, which enables the provision of safe and unhindered use of water for various purposes. In order to prevent deterioration in the quality of water and the environment, emission limit values for certain groups or categories of pollutants are determined, and which, on the proposal of the competent minister, are determined by the Government28. In addition, on the proposal of the competent ministry, the Government makes a Plan for the Protection of Waters from Pollution and harmonizes it with the Strategy and the Water Management Plan29. The Ministry submits regular biennial reports on the implementation of the plan. Similar provisions also contain entity laws, whereby in the Federation of BaH, management is divided into the management of the watersheds of the Sava and the Adriatic Sea, with its headquarters in Sarajevo and Mostar30. At the same time, in the Republic of Srpska, the basic water management unit is the regional river basin district (district), where there are two regions: the regional river basin of the Sava River and the regional river basin of the Trebišnjica River31. Water Laws of the Republika Srpska and the Federation of BaH state the definition of trans-boundary waters, but do not have a specifically defined objective of reducing trans-boundary pollution32. Instead, the goals which are set by BaH's acceptance of international treaties and conventions, which, bearing in mind the aforementioned international agreements signed by BaH, also points to the prevention and reduction of cross-border pollution. In order to protect the water quality, it is forbidden to discharge into surface and groundwater, waste water containing hazardous and polluting substances above the prescribed emission limit values that can lead to deterioration of the current state, or substances that can cause the threat to good ecological or chemical status of standing water or other materials which can pollute the water33. Finally, hazardous substances that can negatively affect or damage the water purification plant must not be discharged into the public sewerage34. A legal entity, an entrepreneur, or a natural person who discharges or disposes of substances that can pollute the water, is obliged to ensure that these substances are partially or completely removed before being discharged into the public sewage system or the recipient, or if they discharge wastewater directly into the recipient waste water shall be treated up to a level that corresponds to emission limit values, or to a level that does not violate the quality of the recipient's environmental quality (combined approach), taking a more rigorous criterion of the two35. The act on the discharge of waste water into public sewerage is passed by the competent authority of the local self-government unit, in order to control the quality of wastewater. The quarterly measurement report is submitted to the public water management company, the ministry responsible for environmental protection and the Environmental Agency36. If there is an imminent danger of pollution, i.e. pollution of surface and groundwater by a legal entity, entrepreneur, or natural person referred to in Article 98 of this Law, or Articles 64 of the Law on Waters of the Republic of Srpska and 61th Law on Waters of Federation of BaH, is obliged to undertake measures for prevention, i.e. for reduction and remediation of water pollution and to plan resources and deadlines for their realization. If a legal entity, entrepreneur, or natural person does not undertake measures for reduction and remediation of water pollution from paragraph 1 of this article, these measures are undertaken by a public water undertaking, at its own cost37. In the port, dock, marina and winter bed, devices must be installed for the removal of waste mineral oils, oil mixtures, wastewater and other waste materials from vessels, in accordance with a special law38.

Any person who notices pollution of water in a watercourse or lake, shall inform without delay one of the competent authorities (port authority, the ministry responsible for environmental protection or the ministry in charge of internal affairs or a public water undertaking)39.

The quality of wastewater testing can be carried out by a legal person authorized by the Ministry responsible for environmental protection to perform these tasks. A list of these persons is published on the Ministry's website40.

In the event of a hazardous water pollution occurrence, the Republic Hydro-meteorological Affairs Authority (RHMZ) is obliged to notify the Ministry in charge of water management, the Ministry in charge of health affairs, the Ministry in charge of environmental protection, the ministry competent for internal affairs, the Environmental Protection Agency, the public water management company and local self-government unit on whose territory the pollution occurred. The Republic Organization for Hydro-Meteorological Affairs (RHMZ) is obliged to continuously monitor the movement of the waves of the aquatic pollution along the watercourse until the end of the aquatic pollution, and issues notifications41. Due to the division of competencies in BaH, inter-entity cooperation between water inspections is envisaged. In the case of a joint inspection by water inspectors from the Federation and Republika Srpska, the minutes shall be drawn up and taken by appropriate administrative measures by the inspector in the area in which the incident occurred or if the object or activity subject to the inspection is located on its territory42. Water inspector on whose territory the pollution made evident impacts can make an official note, with the obligatory exchange of a copy of the minutes, notes and other appropriate documents43. A fee is payable for direct or indirect pollution of water. The payer of water pollution charges is a legal entity, an entrepreneur, or a natural person who owns a floating object that has polluted the watercourse or is otherwise responsible for pollution of water44. The fee is paid as a percentage of the price of compulsory insurance of the floating object, when it is registered, i.e. according to the quantity (m³), type and characteristics of the emission from the source of pollution (produced or imported fertilizers and chemicals for plant protection and weed destruction). Exceptionally, compensation may be reduced if wastewater is purified. According to Article 105 of the Law on Waters of the RS, the Minister authorizes a legal person to examine the quality of wastewater by the decision, if he has:

  1. accreditation by the competent accreditation body;
  2. records of successful performance of these tasks.

Funds generated from water pollution charges come from the budget of the Republic of Serbia and are used for this purpose through the Environmental Protection Fund45. Additional monitoring is carried out after the accident report.

 

Case Analysis

On April 27th 2018, the dam at the "Sisecam Soda" factory in Lukavac, Bosnia and Herzegovina waste dump site "White Sea" collapsed. A large amount of base substances was released onto the surrounding arable land and into the river Spreča. This material, then, flows into the streams of the Bosna, Sava and Danube rivers which has resulted in pollution of water in the Republic of Serbia. As cross-border waters means any surface or groundwater they mark, cross over or are located at the borders between two or more states, and the Sava River is the boundary between these two countries, it is a trans-boundary pollution created in one country, while harmful consequences are borne by another state. In this case, it is an industrial accident, because that term means an event that arises from uncontrolled development during:

  • production, use, storage, handling or disposal;
  • transport at the site of hazardous activity or transport outside the entire facility through the pipeline.

As the term 'dangerous activity' implies any activity in which one or more hazardous substances are present or may be present in quantities that are above the threshold quantities and which may cause cross-border effects on trans-boundary waters and their use of water in the event of an industrial accident46. The responsible authorities in the Federation of Bosnia and Herzegovina, as well as the legal entity that owns the installation that caused the pollution, is expected to take adequate measures. Response measures include all reasonable measures taken after an industrial accident to prevent, reduce or mitigate possible loss or damage or environmental clean-up. Domestic law can specify who will be entitled to take such measures. Responsible persons from the soda factory are expected to undertake measures of restitution. This implies any reasonable measure aimed at restoring damaged or destroyed components of trans-boundary waters that would exist if an industrial accident did not occur or, where appropriate, equivalent components to cross-border waters. If the polluter avoids the fulfillment of his obligations, the injured State has the right to file a claim for compensation within the specified deadlines from the date of the industrial accident. If an industrial accident consists of a series of events of the same origin, the time limits established in accordance with this Article shall be governed by the date of the last such event. If an industrial accident consists of a continuous occurrence, such time limits will occur from the end of that continual occurrence.

Compensation claims may be submitted to the national courts of the State which has suffered the damage or the court of the State in which the industrial accident occurred or of the country in which the polluter is habitually resident or, for legal persons, the place where he has his principal place of business, his statutory seat or central administration. In the above case, the request may be submitted to the competent courts of the Republic of Serbia, the Federation of Bosnia and Herzegovina or Turkey.

 

Conclusion

Water management has undergone changes in the last century. First of all, the attitude about the understanding and importance of watercourses has changed. Also, after the disappearance of the SFRY, the then inter-republican watercourses got a new, interstate, status that led to the establishment of international water cooperation. This cooperation was achieved through the conclusion of bilateral and multilateral agreements. The parties to these agreements cooperate on important water management issues and take appropriate legal, administrative and technical measures to maintain and improve the current state of the environment and water quality.

The analysis of the positive legislation of the Republic of Serbia and both entities of Bosnia and Herzegovina shows that the states have formally fulfilled the obligations related to the adoption of the Strategies and Water Management Plans, and that the water laws contain obligations that must be undertaken by the person responsible for pollution of water, but also the competent state bodies. Also, the Laws accept the principle that polluters bear the cost of damage.

Comparing these domestic regulations with ratified international agreements shows that in both states the legislation is in conformity with international acts regulating the issue of waters and cooperation on their conservation. This applies in particular to the principles of "polluter pays" and the precautionary principle, which form the basis of all measures aimed at the protection of the Danube and the Danube River basin in the Danube basin47. In addition, attention is paid to the prevention of pollution through the adoption of water protection measures. All water protection measures can be divided into three groups. The first implies elimination of the causes of pollution, that is, all those activities that are aimed at ending the pollution. The second set of measures aims to reduce the amount of harmful substances. These measures are a very important aspect of the fight against pollution and involve the installation of appropriate filters and special precipitation systems at locations where waste water is discharged. Also, it is necessary to cool the warm waters before discharging them into the river, all with the aim of reducing the amount of pollutants that reach the water courses. Finally, the third group consists of special water purification measures. This means that water pollution can be purified by chemical and biological means48.

Preventing, controlling and reducing pollution of cross-border watercourses is the most important goal in promoting international cooperation in the field of protection and use of cross-border watercourses. Establishing quality monitoring is strategically the most important measure in preventing water pollution and any trans-boundary impact. Strengthening of institutions and the entire water resources management system is indivisible from the strengthening of state monitoring of water quality. However, the most important way of preventing water pollution is the special protection of sources, i.e. prevention of harmful substances entering into the water49. Ratification of the Protocol on Civic Responsibility is the next step in creating a clear and sound framework for the protection of water resurces.

 

References

Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:l28002b)

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Zakon o vodama [Law on Waters]. Službeni glasnik RS br. 30/10 i 93/12

Zakon o izmenama i dopunama Zakona o vodama [Amendments to Law on Waters]. Službeni glasnik RS br. 101/16

Zakon o vodama [Law on Waters]. Službeni glasnik Republike Srpske br.50/06, 92/09 i 121/12

Zakon o izmenama i dopunama Zakona o vodama [RS Amendments to Law on Waters]. Službeni glasnik Republike Srpske br. 74/17

Zakon o vodama Federacije Bosne i Hercegovine [FBaH Law on Waters]. Službene novine FBiH br. 70/06

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Zakon o potvrđivanju Protokola o vodi i zdravlju uz Konvenciju o zaštiti i korišćenju prekograničnih vodotokova i međunarodnih jezera i Amandmana na čl. 25. i 26. Konvencije o zaštiti i korišćenju prekograničnih vodotokova i međunarodnih jezera [Law on Confirmation of water and health Protocol] Službeni glasnik RS – Međunarodni ugovori, broj 1/2013-39

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Protokol o upravljanju nanosom uz Okvirni sporazum o slivu reke Save, [Protocol on Coating Management in Sava River Basin] Službeni glasnik RS - Međunarodni ugovori, br.10/2017-41.

Protokol o građanskoj odgovornosti i naknadi za štetu prouzrokovanu prekograničnim efektima industrijskih akcidenata u prekograničnim vodama uz Konvenciju o zaštiti i upotrebi prekograničnih voda i međunarodnih jezera iz 1992. godine i Konvenciju o prekograničnim vodama u industrijskim akcidentima iz 1992. godine od 21. maja 2003. godine [Protocol on Civil Liability and Damage Fees for Trans-boundary Efects in Industrial Incidents in Cross Border Waters] (https://treaties.un.org/doc/source/RecentTexts/27_16E.pdf)

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1 (Convention on Cooperation for the Protection and Sustainable Use of the Danube River 2003), Article 1, item c)

2 (Convention on Cooperation for the Protection and Sustainable Use of the Danube River 2003) item d)

3 (Convention on Cooperation for the Protection and Sustainable Use of the Danube River 2003) item e)

4 (Republic of Serbia Law on Waters 2016), Article 3, item 30

5 The Law on the Confirmation of the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal began to apply in 2000. For the purpose of applying the Basel Convention, the following laws and by-laws were adopted: Law on Environmental Protection (Official Gazette of RS, No. 135/2004 and 36/2009): License for import, export and transit of waste is issued by the Ministry of Environment and Spatial Planning in accordance with by law and other regulations (Rulebook in the Official Gazette of the Republic of Serbia, No. 60/2009), Law on Waste Management (Official Gazette of RS, No. 36/2009), Decree on the determination of certain types of hazardous waste that can be imported as secondary raw materials).

6 Directive 2000/60/EC with 10 annexes was adopted by the European Council and Parliament October 23rd 2000, and came into force on December 22nd same year. One of the objectives of the Directive is to contribute to the implementation of Community obligations under international conventions on water conservation and, in particular, the United Nations Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes, approved by Council Decision 95/308/EC and all agreements that have followed based on its application.

7 The achievement of a good water status as an objective should apply to all river basins, so that coordinated measures are in place for surface and groundwater belonging to the same ecological, hydrological and hydro-geological system.

8 (Law on Waters of the Republic of Srpska 50/06, 92/09, 121/12 and 74/17) Article 4 directly refers to the provisions of Annex 8 of the Directive 2000/60/EC

9 (Directive 2000/60/EC) Article 5

10 Hazardous substances means substances or groups of substances that are toxic, persistent and susceptible to bio-accumulate other substances or groups of substances that give rise to an equivalent level of consideration.

11 Part B of the Directive contains an additional list of such measures.

12 (The Sofia Convention) Article 3

13 (The Sofia Convention) Article 5

14 The request for arbitration shall contain the subject matter, including in particular the articles of this Convention, the interpretation or application of the member relating to the dispute.

15 Arbitration rules are contained in Annex V of the Sofia Convention

16 The Framework Agreement was signed in Kranjska Gora on December 3rd 2002, while the Agreement on Amendments to the Framework Agreement and the Protocol was signed in Ljubljana on April 2nd 2004. The signatories are the Republic of Slovenia, the Republic of Croatia, Bosnia and Herzegovina and the Federal Republic of Yugoslavia. The agreement prescribes rules relating to the regular use of the river and its tributaries by exchanging information on the water regime of the Sava River Basin, the navigation regime, regulations, organizational structures and administrative and technical practices referred to in Article 4. The most important activities are the coordination of activities that relate to: water management in the Sava River Basin for all purposes; protection against harmful effects of water; prevention of water pollution; extraordinary impacts on the water regime; use and use of water, including the exploitation of the hydroelectric potential of the Sava River Basin; issuing legal acts in the field of water.

17 The framework agreement refers to the navigation of rivers Kupa, Unom, Vrbas, Bosnia, Drina and Kolubara, while protection of waters refers to all surface and ground waters of the Sava River Basin.

18 According to the provisions of Article 16 of the Framework Agreement on the Sava River Basin, the Sava Commission shall adopt:

  1. decisions aimed at securing the conditions for safe navigation;
  2. decisions on financing conditions for the construction of waterways and their maintenance;
  3. decisions about their work, budget and procedures;
  4. recommendations on all other issues pertaining to the implementation of this Agreement.

19 The Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes of the United Nations, also known as the Helsinki Water Convention and its 4 annexes, was adopted on March 17, 1992, and entered into force on October 6, 1996, after 16 signatories ratified. Amendments to Articles 25 and 26 and two Protocols (Protocol on Water and Health and Protocol on Civil Liability) were adopted with the Convention. The Republic of Serbia has ratified the Convention, Amendments and Protocol on Water and Health. The Protocol on Water and Health is the first international treaty whose main goal is the protection of human health and the well-being of better water management, including the protection of aquatic ecosystems, prevention, control and control of water related diseases. The WHO Regional Office for Europe and the United Nations Economic Commission for Europe (UNECE) jointly coordinate and coordinate activities on its implementation. The Protocol was adopted and adopted in 1999 at the Third Ministerial Conference on Environment and Health in London, where the United Nations Economic Commission for Europe and the Ministers of Health and Environmental Protection of the member countries of the WHO Regional Office for Europe met. The Protocol was open for signature in London on June 17th and 18th 1999 during the Third Ministerial Conference on Environment and Health, and subsequently at the United Nations Headquarters in New York by June 18th 2000. The Republic of Serbia ratified the Protocol in April 2013, agreeing, like the other signatories, with the establishment of a comprehensive national and / or local surveillance and early warning system to prevent and respond adequately to water-related diseases.

20 (Helsinki Water Convention), Article 1

21 Helsinki Water Convention

22 Pursuant to the provisions of Article 17 of the Convention, the first meeting of the Council will be held one year after the Convention enters into force, and every three years thereafter, and the affairs of the secretariat will be carried out by the Executive Secretary and the Secretariat of the UN Economic Commission for Europe (UNECE).

23 Article 3 of the Protocol provides for the application of all damages suffered by some of the contracting parties other than the State in which the industrial accident occurred, but it is contaminated by a cross-border flow.

24 It has been adopted because of the clearer awareness of the risk of harm to human health, property and the environment caused by the trans-boundary effects of industrial accidents, and the belief in the need to provide third party responsibility and environmental responsibility in order to ensure adequate and urgent compensation.

25 The polluter shall be relieved of his responsibility if he proves that the damage resulted from: armed conflict, hostility, civil war or restlessness; that it is the result of a natural phenomenon, of exceptional, immutable, unpredictable and inevitable character; that in its entirety is the result of compliance with the mandatory measures imposed by the public authority of the Contracting State in which the accident occurred, or in its entirety as a result of deliberate misconduct by a third party.

26 (Protocol 1992), Article 2

27 (Law on Waters of the Republic of Serbia), Article 92
In BiH a regulation in which the listed values are passed by the entity governments unless such a regulation has been adopted by the Council of Ministers of BiH.

28 (Law on Waters of the Republic of Serbia), Article 93 divides the pollutants into the group's groups:

  1. technological wastewater prior to their discharge into public sewerage;
  2. technological and other waste water directly discharged into the recipient;
  3. water that is released from the public sewage system to the recipient after purification;
  4. wastewater discharged into the recipient from septic and collecting pit.

29 Article 94 foresees that the plan for protection of waters against pollution shall contain in particular: measures for controlling, preventing, interrupting and reducing the introduction into the surface and groundwater of hazardous substances; measures to prevent the introduction and disposal of waste and other substances in areas where this may affect the deterioration of water quality; wastewater treatment measures; measures to prevent and control the introduction of bulk pollution to prevent their impact; measures for the protection of aquatic ecosystems and other ecosystems that are directly dependent on aquatic ecosystems of hazardous and priority substances, including priority hazardous substances; manner of implementation of intervention measures in certain cases of pollution; bodies and legal entities that are obliged to implement certain measures and works; deadlines for reducing water pollution; responsibilities and powers related to the implementation of water protection, construction of facilities, with accompanying wastewater treatment facilities and other measures necessary for the protection and improvement of water quality.

30 (FBiH Law on Waters 2006), Articles 25 and 152

31 (Law on Waters of the Republic of Srpska 2017), Article 23

32 (FBiH Law on Waters 2006), Article 3 and (Law on Waters of the Republic of Srpska 2017), Article 4

33 For the same reason, it is prohibited to use fertilizers or plant protection products in the coastal zone up to 5 m in order not to cause their release into the water.

34 (Republic of Serbia Law on Waters) Article 97 and (FBiH Law on Waters) Article 54

35 (Republic of Serbia Law on Waters) Article 98

36 (Republic of Serbia Law on Waters) Article 99

37 (Republic of Serbia Law on Waters) Article 101

38 (Republic of Serbia Law on Waters) Article 102

39 (Republic of Serbia Law on Waters) Article 104

40 According to Article 61 of the Law on Waters of FBiH, in case of pollution detection, every person is obliged to inform "police administration, water inspection, environmental inspection, water area agency or civil protection operational center." According to Article 64. Law on Waters of the Republic of Srpska, the closest police station, water inspection or water agency shall be informed of the pollution.

41 The minister's decision is finally and an administrative dispute can be initiated against him.

42 (Republic of Serbia Law on Waters) Article 106

43 Law on Waters of FBiH, Article 199 and Article 200: "Water inspectors of the Federation have the right to joint inspection with the Water Inspection of the Republic of Srpska in the following cases:

  1. if there has been incidental pollution on waters and water resources, the consequences of which are evident on the territory of the Federation and the Republic of Srpska,
  2. if it is established that the object, installation or activity that is located or is taking place on the territory of the Republic of Srpska has negative effects on the waters in the territory of the Federation,
  3. if it is established that the facility, installation or activity that is located or is taking place on the territory of the Federation has negative effects on the waters in the territory of the Republic of Srpska,
  4. when agreed upon by the main water inspectors of the Federation and the Republic of Srpska."

44 According to Article 165 of the Republic of Serbia Law on Waters, the responsibility for water pollution includes: discharge of waste water into its own sewerage, watercourse, canals, lake, accumulation and the like; collection, discharge and treatment of wastewater and atmospheric water through a public sewage system; discharge to agricultural, construction or forest land contaminants that directly or indirectly contaminate water; production, or import of fertilizers and chemicals for the protection of plants and the destruction of weeds, as well as detergents based on phosphate.

45 (Republic of Serbia Law on Waters), Article 167

46 Legal deadlines date from the day the accident happened. There are objective and subjective deadlines. Objective time means obsolescence from the moment of an accident regardless of when the injured person learned of the pollution and, as a rule, is 15 years old. The term of the term is related to the victim's knowledge of the accident and, as a rule, is 3 years from the date of the knowledge of the damage.

47 (Sofia Convention) Article 2

48 Chemical agents are various chemicals that are introduced into the water and neutralize dangerous substances. Biological measures are most effective because they are based on the natural laws and activities of living beings. Thanks to the activities of members of biocenosis, and especially the workings of plants and microorganisms, aquatic ecosystems have a powerful natural self-purification power.

49 This refers to the planning and placement of fertilizers and landfills away from watercourses, reducing the use of fertilizers and pesticides in agriculture, forestation and conservation of soil from erosion and the like.