FAQs part 3

3. Relationship with the 1997 Watercourses Convention

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.

3.1 To what extent do the norms and provisions of the 1992 Water Convention complement or contradict the norms and provisions of the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (1997 Watercourses Convention)?

The two global water Conventions are fully compatible and are not contradictory. In fact, the two Conventions are in many ways mutually complementary, for example:

The 1997 Watercourses Convention complements the 1992 Water Convention by:
- Detailing the factors relevant to equitable and reasonable utilization (Article 6 of the 1997 Watercourses Convention).
- Specifying the procedures for notification and consultations on planned measures (Part III of the 1997 Watercourses Convention).
- Describing the consequences of the occurrence of transboundary impact (Article 7(2) of the 1997 Watercourses Convention).
Conversely, the 1992 Water Convention complements the 1997 Watercourses Convention by:
- Prescribing the content of specific agreements and tasks of joint bodies (Article 9 of the 1992 Water Convention).
- Detailing the information subject to joint assessment and exchange (Articles 11 and 13 of the 1992 Water Convention).
- Providing detailed guidance on water quality objectives and best available technology (Annexes I–III of the 1992 Water Convention).

There are however some differences between the two Conventions:

The 1992 Water Convention obliges Riparian Parties to enter into agreements and establish joint bodies for their shared waters, whereas the 1997 Watercourses Convention only recommends watercourse States to conclude specific agreements and cooperate through joint institutions. Nevertheless, both Conventions rely heavily on agreements and joint bodies for their successful implementation.
The 1992 Water Convention provides for the obligation to adapt existing agreements where necessary to eliminate contradiction with the “basic principles” (i.e. fundamental provisions) of the Convention, but it does not require to revise existing agreements to reflect all the provisions of the Convention. The 1997 Watercourses Convention encourages harmonizing existing agreements with the “basic principles” of the Watercourses Convention.
The 1992 Water Convention establishes an institutional mechanism to support its implementation, i.e. an intergovernmental platform based on the Meeting of the Parties and its subsidiary bodies, whereas the 1997 Watercourses Convention does not provide for such a cooperation mechanism.
Whereas the 1997 Watercourses Convention leaves confined groundwaters outside its scope, the 1992 Water Convention covers all transboundary groundwaters, including confined aquifers.
The 1992 Water Convention allows Riparian Parties to limit the exchange of information between them on the basis of intellectual property rights, whereas the 1997 Watercourses Convention does not allow for such a limitation.

These differences do not however imply that the implementation of one Convention would impede the implementation of the other. They can be reconciled by way of interpretation in order to reinforce and strengthen the implementation of both instruments. In fact, these differences are instead a strength, allowing both instruments to be seen as a full package of norms where the more detailed provisions in one instrument can inform the implementation of the other. That complementarity was recognized by the former United Nations Secretary-General Ban Ki-moon who stressed in 2012 that “[t]hese two instruments are based on the same principles. They complement each other and should be implemented in a coherent manner.” In 2018, the United Nations Secretary-General António Guterres called upon Member States “to join both Conventions and to strive for their full implementation”.

3.2 Can a country that is already Party to the 1997 Watercourses Convention accede to the 1992 Water Convention? What are the benefits for Parties to the 1997 Watercourses Convention to accede to the 1992 Water Convention?

According to the 1969 Vienna Convention on the Law of Treaties, two or more treaties on the same subject matter may be simultaneously applicable to the same Parties provided that there is mutual compatibility between their provisions. As the two global water Conventions are fully compatible, complement each other and are not contradictory, countries can accede to both instruments. In fact, many countries are already Parties to both Conventions (as at mid-2020, they are Chad, Denmark, Finland, France, Germany, Ghana, Greece, Hungary, Italy, Luxembourg, Montenegro, the Netherlands, Norway, Portugal, Spain, Sweden and Uzbekistan).

Key advantages of accession to the 1992 Water Convention for Parties to the 1997 Watercourses Convention are associated with the availability of the institutional mechanism under the 1992 Water Convention, which supports implementation. The Water Convention offers an intergovernmental platform that is centred around its Meeting of the Parties, as well as the tools and activities that support countries in implementing the Convention and that foster cooperation at the political and technical level. Such support may be instrumental in initiating the development of cooperation in specific basins. Other advantages may be derived from the differences between the two Conventions. For example, the mandatory nature of the obligation to enter into agreements and establish joint bodies under the Water Convention may be considered an advantage in a basin where cooperation of riparian countries has long suffered from an absence of a legal framework.

3.3 Which of the two global water Conventions is a better choice for a country that is not Party to either?

Building on the compatibility and complementarity of the two global water Conventions, the most strategic decision for a country that is not a Party to either Convention is to join both instruments, as recommended by two United Nations Secretaries-General, Ban Ki-Moon in 2012 and 2015, and António Guterres in 2018.

Being a Party to both Conventions allows a country to benefit from their strong legal frameworks. Differences between the two legal texts can be seen as useful complementary elements, as one Convention can enrich and help in the interpretation of the provisions of the other.

Another argument in favour of the ‘two Conventions package’ is that participation in both instruments provides a country with more opportunities to advance the development and application of international water law at the global level, and to influence the future development and synergetic implementation of the two instruments.

Additional resources:

3.4 What happens if one riparian country joins one global water Convention and the other riparian country joins the other global water Convention? Are they bound by any obligations towards each other?

When one riparian country joins one global water Convention and the other riparian country joins the other global water Convention, each riparian country would be bound only by the provisions of the Convention to which it is Party and not by the provisions of the other Convention. The notions of a “Watercourse State” under the 1997 Watercourses Convention and a “Riparian Party” under the 1992 Water Convention both aim to secure that the rights and obligations established by the respective Convention apply exclusively in relation to its Parties. A riparian country that is a Party to one global water Convention would therefore have no obligation towards the riparian country that joined the other global water Convention, and vice-versa. Only the principles of customary international law would be applicable in this case.

Although such a situation would mean an absence of legal obligations between riparian countries (other than those stemming from customary international law), it may be expected that common sense would lead the countries to cooperate as the rights and obligations of the two Conventions are essentially the same. Nevertheless, such a situation is an additional argument for countries considering becoming a Party to one or the other of the two global water Conventions to join both Conventions.

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