Article 3

3.2.3 Scenario – Application of the Convention to existing agreements where countries party to an existing agreement are also party to the Convention

If states A and B are parties to an existing Agreement X and decide to negotiate a Protocol Y to Agreement X on a specific aspect, such as procedures for emergencies including flooding or drought. Would the Convention bind the negotiations? If the protocol is not a separate international agreement which countries must join for it to come into effect, the answer is no – however Parties should consider harmonising Protocol Y with Part IV of the Convention (Article 3 (2)). However, if the protocol is treated as a separate new agreement which countries must ratify, rather than a protocol to an existing agreement, then arguably parties are under a stronger obligation to apply and adjust the provisions of the Convention, even though it could not affect the obligations in the original agreement.170

170 E Brown Weiss, ‘The Evolution of International Water Law’ in Hague Academy of International Law (ed), Recueil Des Cours, Collected Courses, Tome 331, vol 331 (Martinus Nijhoff Publishers 2009) at 260.

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