Convention Provides Inter-State Arbitration and Private Rights of Action for Transboundary Water Disputes
The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses entered into force today. This is the first global treaty to govern transboundary water use and establish mechanisms for resolving international water disputes.
The Watercourses Convention represents a game changer in international water law for three reasons:
First, it firmly establishes in international law, key water law principles developed on a national level, including the principles of “equitable and reasonable utilization and participation” and the “obligation not to cause significant harm.”
Second, companies and individuals now have the right of equal access to foreign States’ courts and administrative proceedings for redress for transboundary water pollution and other water-related harms.
Third, it creates a robust framework for inter-State dispute prevention and resolution ranging from negotiation, to the establishment of an independent commission to ascertain the facts of a dispute and recommend solutions, to binding arbitration or adjudication.
The Convention Offers Global Application
The Watercourses Convention applies to the transboundary lake and river basins (and their hydrologically-connected groundwater) of its 35 States Parties. At present, these States Parties are located largely in Europe and Africa, but more in Asia and the Americas are expected to join.
Before the Watercourses Convention went into effect, only 40% of the world’s 276 transboundary freshwater lake and river basins were governed by international agreements. Among those agreements, 80% involved only two States, even though in many cases other States share those basins. The Watercourses Convention therefore holds the promise of covering a great number of international waterways not previously subject to international agreement, regulation, or dispute resolution.
Rules for Use of Transboundary Waters
The Watercourses Convention sets out key principles applicable to States Parties’ use of transboundary waters. States Parties must:
Use transboundary waters in an “equitable and reasonable manner” (Arts. 5 & 6);
“Prevent the causing of significant harm to other watercourse States” (Art. 7);
Cooperate in good faith to “attain optimal utilization and adequate protection” of international watercourses (Art. 8);
Regularly exchange hydrological, meteorological, hydrogeological and ecological information and forecasts (Art. 9);
When planning dams or other waterworks or measures that may adversely affect transboundary waters, notify other relevant States and engage in consultations and negotiations if requested (Arts. 11 to 19).
“[P]rotect and preserve” watercourse ecosystems and cooperate in the management and regulation of watercourses. (Arts. 20 to 26)
Enforcement of Convention by Companies and Individuals
One of the most important innovations of the Convention is the requirement that States Parties provide foreign companies and individual claimants who reside in one State and are harmed by treaty violations in another State, with access to domestic remedies, through domestic courts and administrative bodies, and with the right of access to environmental information, without discrimination on the basis of nationality, residence or the place where the damage occured (or is likely to occur). (Art. 32) This is a significant new source of remedies for those harmed by, for example, transboundary pollution or improper water diversions.
Convention Enforcement by States Parties
A violation of the Watercourses Convention also triggers inter-State Party dispute resolution procedures. Any such dispute that cannot be resolved within six months through negotiation, mediation or another nonbinding method, may be submitted by any affected Party to an independent Fact-Finding Commission. (Art. 33)
A Fact-Finding Commission has substantial powers to assist it in resolving a dispute. While the States Parties are not bound by its recommendations, the Commission determines its own procedures, may compel disclosures and site inspections, and makes legal and factual findings. Its recommendations are directed at achieving an “equitable solution of the dispute.” This Convention provides that the Parties "shall consider in good faith” the recommendations.
As an alternative to a Fact-Finding Commission, Parties may agree to be subject to binding arbitration or adjudication by the International Court of Justice. So far, three Parties -- Hungary, Montenegro, and the Netherlands -- have agreed to do this in advance.
The Watercourses Convention promises robust and innovative enforcement and dispute resolution provisions for States Parties, foreign companies and individuals, and represents a significant advance for the management and protection of the world's transboundary waters.
About Draper & Draper LLC
Draper & Draper is a law firm devoted to natural resources litigation and international arbitration. We have extensive experience litigating transboundary water disputes between States of the United States before the U.S. Supreme Court and appearing before international arbitral tribunals in natural resources disputes. We also have experience advising both foreign investors and States in investor-State disputes under trade and investment treaties. For more information about our firm, click here.
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