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FAQs part 5

5. Principles and Obligations

The Frequently Asked Questions (FAQs) about the Water Convention include the replies to over 50 questions grouped in seven thematic parts. The FAQs are also available as a publication.

 

5.1 What are the main obligations under the Water Convention?
5.2 What are the obligations of a Party to the Water Convention vis-à-vis non-Parties?
5.3 Would a country with already existing bilateral or multilateral agreements or other arrangements need to revise them in order to become a Party to the Water Convention?
5.4 Is it mandatory for Parties to the Water Convention to enter into bilateral or multilateral agreements to implement the Convention?

The obligation of Riparian Parties, i.e. Parties sharing the same transboundary waters, to enter into agreements or other arrangements (Article 9) is a mandatory requirement under the Water Convention. The obligation to enter into agreements or other arrangements exists only for the Riparian Parties with respect to other Riparian Parties, i.e. the Convention does not create such an obligation for the Riparian Parties with respect to States that are not Parties to it.

At the same time, it is well understood that the legal and institutional basis for transboundary water cooperation of Parties to the Convention evolves gradually. Agreements on transboundary waters among Parties have commonly started from a narrow functional area (e.g. selected water uses) and limited geographical scope (e.g. boundary waters rather than entire catchment areas) and have progressively moved towards more comprehensive cooperation.

The Water Convention, as part of its programme of work , offers assistance to countries in facilitating the negotiations of transboundary water agreements. The Convention has already played a helpful and neutral role in initiating and facilitating such negotiations in several basins, for example, the Chu-Talas, the Dniester, the Drin and the Kura river basins. In addition, the Implementation Committee  established under the Convention can provide assistance to facilitate the implementation of the obligation to enter into agreements or arrangements by the Parties.

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5.5 Are the tasks of joint bodies listed in the Water Convention mandatory for all joint bodies established by its Parties? Do joint bodies created under the Water Convention issue legally binding decisions or recommendations?
5.6 Does the Water Convention apply when a planned activity upstream will disrupt or reduce the flow downstream?

The relevant provisions of the Water Convention applicable in such a case may include the notion of the transboundary impact (Article 1(2)), the obligation to prevent, control and reduce transboundary impact (Article 2(1)), the equitable and reasonable utilization principle (Article 2(2)(c) and 2(5)(c)), the principle of cooperation (Article 2(6)) and the obligation to hold consultations (Article 10). The exact determination of the obligations involved would depend on the specific circumstances of a case.

The Water Convention does not include detailed provisions on notification and consultations in the case of planned measures, but such consultations are encompassed in the general obligation to hold consultations between the Riparian Parties on issues covered by provisions of the Convention at the request of any such Party (Article 10). Guidance on planned measures can be found in the 1997 Watercourses Convention, which provides a detailed regulatory framework on notification procedures, including the issues of notification and reply, and the absence of a reply to notification.

Furthermore, many Parties to the Water Convention are also Parties to the 1991 Espoo Convention  which provides a comprehensive framework and procedures to implement the obligation of States to undertake EIA in case of planned activities likely to have transboundary impact and to ensure participation in the process of the potentially affected Parties. The Espoo Convention can also provide legal guidance in the field for those Parties of the Water Convention that are not Parties to the Espoo Convention, insofar as its standards become customarily followed general practice. The relevance of the Espoo Convention has greatly increased in the past decade following the finding by the International Court of Justice (ICJ) in the Pulp Mills case  (2010) that the carrying out of an EIA of the potential effects of a major project on an international watercourse is now a generally applicable requirement of customary international law.

Last but not least, the Implementation Committee established under the Water Convention can be asked to provide practical assistance to Parties aimed at settling any differences or disputes concerning planned measures.

See reply to the related question:
What is the role of the Implementation Committee under the Water Convention? [6.5]

Additional resources:

5.7 Does the polluter-pays principle mean that a Party to the Water Convention has to provide compensation to its neighbours for the pollution of transboundary waters originating from its territory?
5.8 Is a Party to the Water Convention obliged to make sure that no pollution reaches transboundary waters?
5.9 Is a Party to the Water Convention obliged to build wastewater treatment plants to treat polluted transboundary waters?

The Water Convention does not include an obligation to build wastewater treatment plants as such. The Convention requires taking “appropriate measures” such as the application of the best available technology to reduce nutrient inputs from industrial and municipal sources (Article 3(1)(c) and 3(1)(f)). It also requests that “at least biological treatment or equivalent processes are applied to municipal waste water, where necessary in a step-by-step approach” (Article 3(1)(e)).

These provisions further specify the obligation to take all appropriate measures to prevent, control and reduce transboundary impact (Article 2(1)). While this obligation is aimed to prevent significant harm being caused to other riparian States, measures to treat polluted industrial and municipal wastewater clearly bring direct benefits to the domestic population.

Since the obligation to take all appropriate measures to prevent, control and reduce transboundary impact is a due diligence obligation, the conduct of each Party shall be proportional to the degree of risk of transboundary impact. The ‘appropriateness’ of the measures also means that the measures depend on the capacity of the Party concerned, i.e. on the level of its economic development, and technological and infrastructural capacity.

The “appropriate measures” are therefore to be determined on a case-by-case basis. Similarly, the notion of the “best available technology” takes into account not only technical availability but also the financial affordability of a specific technology for a Party. The Convention also recognizes that the economic implications of applying biological treatment to all municipal wastewater might require “a step-by-step approach”.

Hence, with regard to the question posed, in one case the “appropriate measures” to be taken could include the construction of a new wastewater treatment plant or the application of advanced wastewater treatment technology, while in another case they could include a refurbishment of existing wastewater treatment facilities, the deployment of alternative wastewater treatment systems or the introduction of policies and legislation to improve wastewater management.

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5.10 Can a Party to the Water Convention limit the exchange of information only to some Parties and decide not to share information with all Parties?

The Water Convention includes a general obligation of its Parties to exchange information on issues covered by the provisions of the Convention (Article 6), and a specific obligation of Riparian Parties (i.e. Parties sharing the same transboundary waters) to exchange reasonably available data and provide information upon request (Article 13).

The general obligation to exchange information set out in Article 6 is supported by the Convention’s intergovernmental framework, namely the Meeting of the Parties and its subsidiary bodies, which provides for the exchange of information through several fora and activities. Exchange of information between Riparian Parties as set out in Article 13 should take place within the framework of the relevant agreements or other arrangements concluded by the respective Riparian Parties.

Under Article 6, information and data should be exchanged with all other Parties. Information and data exchange under Article 13 should take place with all other Riparian Parties (subject to data being “reasonably available” and other conditions set out in Article 13). The Convention allows Parties to protect information related to industrial and commercial secrecy, including intellectual property, or national security, subject to conditions set out in Article 8.

The exchange of information and data under Article 6 of the Convention in practice is fully demand- and needs driven. In other words, the Meeting of the Parties and its subsidiary bodies initiate the exchange of information on specific topics or issues requiring attention (e.g. as part of the reporting on the implementation of the Convention or in the framework of the preparation of a soft law instrument under the Convention). The exchange of information and data between the Riparian Parties under Article 13 of the Convention is also to some degree subject to the actual needs and areas of cooperation, and is likely to vary depending on the situation. Extensive guidance has been developed under the Convention to enable Parties to benefit most from harmonized approaches and good practices in the area of monitoring and exchange of information and data.

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5.11 Is there an obligation for Parties to the Water Convention to settle their disputes only through the International Court of Justice or arbitration in accordance with the procedure set out in the Convention?

The Water Convention is fully in line with Article 33 of the United Nations Charter which provides for the obligation of States to settle their disputes peacefully, while ensuring the freedom of choice with respect to the means of dispute settlement.

Article 22(1) of the Water Convention provides that if a dispute arises between two or more Parties about the interpretation or application of the Convention, they shall seek a solution through negotiation or any other means of dispute settlement acceptable to them. Such other means are mediation, inquiry, conciliation, arbitration, judicial settlement or recourse to regional arrangements or agencies, or other peaceful means of the choice of the Parties, including good offices.

With respect to a dispute that could not be resolved in accordance with paragraph 1 of Article 22, paragraph 2 of the same article provides for an ‘opt in’ formula for compulsory arbitration or adjudication by the International Court of Justice. Arbitration and adjudication are therefore not compulsory under the Convention, and remain optional (i.e. a country has to ‘opt in’). Several Parties to the Convention have submitted declarations opting for arbitration and/or adjudication.

In order to strengthen dispute prevention under the Convention, its Meeting of the Parties established an Implementation Committee  in 2012 as part of the mechanism to support implementation and compliance. The mechanism to support implementation and compliance is without prejudice to Article 22 of the Convention on the settlement of disputes. This means that there is no requirement to apply any or exhaust all of the means of dispute settlement before bringing the matter to the attention of the Implementation Committee and, conversely, there is no requirement to address the Implementation Committee prior to invoking any of the means of dispute settlement indicated in Article 22 of the Convention.

See reply to the related question:
What is the role of the Implementation Committee under the Water Convention?[6.5]

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Last update date: February 6, 2021