FAQs part 5

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?

The Water Convention has a three-pillar normative structure: i) the due diligence obligation to prevent, control and reduce significant transboundary impact (“no-harm rule”); ii) the equitable and reasonable utilization principle; and iii) the principle of cooperation as the catalyst for the realization of the two prior pillars.

The objectives of the Convention are to be achieved through a two-tiered approach, which reflects the two main categories of obligations. The first set of obligations, contained in Part I, is more general and applies to all Parties to the Convention. The second set of obligations, contained in Part II, is more specific and applies to Riparian Parties, i.e. Parties sharing the same transboundary waters. The second category includes obligations to conclude agreements or arrangements, establish joint bodies, hold consultations, exchange information, establish warning and alarm systems, and provide mutual assistance upon request.

In order to facilitate implementation of the obligations under the Convention, the Guide to Implementing the Water Convention has been developed by the Convention’s Legal Board and adopted by the Meeting of the Parties in 2009. The Guide includes explanations of the Convention’s requirements and examples of their practical application.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39).
• The Water Convention: responding to global water challenges (ECE/MP.WAT/52).

5.2 What are the obligations of a Party to the Water Convention vis-à-vis non-Parties?

Generally speaking, Parties to the Water Convention have no obligations towards non-Parties. More specifically, a Party to the Water Convention that shares transboundary waters with a non-Party has no obligations towards the non-Party by virtue of the Convention; however, customary international law is still applicable in this case.

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?

The Water Convention requires Parties to “adapt existing [agreements], where necessary to eliminate the contradictions with the basic principles of this Convention”. This obligation is meant to ensure that existing agreements between Parties do not contravene the fundamental provisions of the Convention.

When existing agreements do not contradict the “basic principles” of the Convention, there is no need to revise them. The reference to basic principles clearly means that countries do not have to revise agreements to reflect every single provision of the Convention.

The experience of the current Parties to the Convention shows that in most cases a revision of existing agreements upon becoming a Party to the Convention is not required as the vast majority of agreements is anyway based on international water law. Nevertheless, accession to the Convention can provide an opportunity to review existing agreements and can prompt their update.

The obligation to adapt existing agreements exists only with respect to agreements concluded with other Riparian Parties, i.e. the Convention does not require a Party to adapt existing agreements concluded with States that are not Parties to the Convention.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 241–242.

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.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 235–239, 249–254.
• Libert, Bo (2015). The UNECE Water Convention and the development of transboundary cooperation in the Chu-Talas, Kura, Drin and Dniester River basins. Water International, Vol. 40, No. 1, pp. 168–182. 

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?

The Water Convention (Article 9(2)) provides for a non-exhaustive list of the tasks to be performed by a joint body created by Parties to the Convention sharing the same transboundary waters (Riparian Parties). This list reflects the core set of tasks any joint body should be responsible for performing. However, Riparian Parties remain free to adjust the priorities of their joint bodies according to their specific needs. This is in line with the framework character of the Convention, which allows Riparian Parties to tailor their institutional framework for cooperation to their specific needs in a given basin.

Furthermore, the list of tasks provided for in the Convention is “without prejudice to relevant existing agreements or arrangements”. This means that the list of tasks provided for in the Convention is complementary to the tasks of a joint body under existing agreements between Riparian Parties at the time of the entry into force of the Convention for the Riparian Parties concerned.

The Water Convention does not include any requirements with regard to the legal effect of decisions of the joint bodies created under the Convention. Such legal effect is to be determined by Riparian Parties in their agreements, which provide for the establishment of joint bodies. The Principles for Effective Joint Bodies for Transboundary Water Cooperation adopted by the Meeting of the Parties to the Convention in 2015 synthesize the lessons learned from the experience of joint bodies for transboundary water cooperation. The Principles emphasize that joint bodies should have an organizational structure and mechanisms that allow not only for developing and adopting decisions but also for implementing them.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 256–268.
• Principles for Effective Joint Bodies for Transboundary Water Cooperation (ECE/MP.WAT/50).

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:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 79–85, 91–98, 99–110, 136–148, 269–275.
• Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), 1989 U.N.T.S. 309, 30 I.L.M. 800.
• Owen McIntyre, The Water Convention and other UNECE Environmental Treaties (2015). In: Tanzi, Atilla et al., eds. The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes - Its Contribution to International Water Cooperation. Leiden, NL: Brill / Nijhoff. pp. 73–87.

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?

The polluter-pays principle does not mean that a Party to the Convention has to compensate its neighbours for pollution originating from its territory.

The polluter-pays principle is a regulatory tool for domestic public administrations to internalize the cost of pollution prevention, control and reduction in case of routinely conducted polluting activities, as well as the cost of controlling and reducing water pollution from an accidental discharge. The polluter-pays principle is applicable in the relationship between public authorities and polluters (companies or individuals). The principle has primarily a domestic nature, i.e. it regulates relationships within the territory of a Party rather than between Parties. It does not provide legal grounds to claims for the payment of compensation for water pollution between Parties. If Parties agree, they can include compensation mechanisms in their transboundary water agreements, but this would not be based on the polluter-pays principle as envisaged by the Convention.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 122–135.

5.8 Is a Party to the Water Convention obliged to make sure that no pollution reaches transboundary waters?

The Water Convention does not include a blanket prohibition of any pollution of transboundary waters. The Convention includes the obligation to prevent, control and reduce transboundary impact (the so called “no-harm rule”). Transboundary impact is defined by the Convention as “significant adverse effect on the environment”, including on human health, climate, landscape, physical structures, cultural heritage or socioeconomic conditions. The threshold of the “significant adverse effect on the environment” to be prevented is to be assessed on a case-by-case basis. To this end, consultation and cooperation between the countries involved may be held upon request from one of the Riparian Parties. Such consultations will involve the interpretation and application of the “no-harm rule”, together with the equitable utilization principle, to the specific circumstances of each given case. Furthermore, the obligation to prevent, control and reduce transboundary impact under the Convention is a due diligence obligation, meaning that Parties are obliged to take “all appropriate measures” to prevent transboundary impact, i.e. implement measures that are proportionate to their capacity and level of economic development.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 60–68, 79–83, 91–98.

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.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 91–98, 156–171, 181–189.

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.

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 281–296.
• Guidelines on Monitoring and Assessment of Transboundary Groundwaters. UNECE, 2000.
• Guidelines on Monitoring and Assessment of Transboundary Rivers. UNECE, 2000.
• Guidelines on Monitoring and Assessment of Transboundary and International Lakes. UNECE, 2002.
• Strategies for Monitoring and Assessment of Transboundary Rivers, Lakes and Groundwaters. UNECE, 2006.
• Lipponen, Annukka and Lea Kauppi (2015). Monitoring and Assessment and the Duty of Cooperation under the Water Convention: Exchange of Information Among the Riparian Parties. In: Tanzi, Atilla et al., eds. The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Its Contribution to International Water Cooperation. Leiden, The Netherlands: Brill | Nijhoff, pp. 249–267.

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]

Additional resources:

• Guide to Implementing the Water Convention (ECE/MP.WAT/39), paras. 353–365.