Part I

Quiz - Part I


Does the scope of the UN Watercourses Convention also apply to all sources of groundwater shared between States?

Yes – Incorrect

The scope of the UN Watercourses Convention does not apply to all sources of groundwater.

For the purposes of the Convention, under Article 2(a), a “watercourse” means “a system of surface waters and groundwaters constituting, by virtue of their physical relationship, a unitary whole and normally flowing into a common terminus”.

In the ILC’s preparatory work prior to the adoption of the UN Watercourses Convention, agreement could not be reached on whether “confined” (not connected to surface waters) groundwater should be included within the scope of the Convention. Despite Robert Rosenstock’s (Special Rapporteur to the ILC) recommendation in 1992 that confined aquifers/groundwater be governed by the same rules as those applicable to international watercourses, the final text of the Convention does not directly apply to confined aquifers. Following this discussion, in 1994 the ILC adopted a Resolution on Confined Transboundary Groundwater which recognised the need for continuing efforts to create rules regarding confined transboundary groundwater and encouraged States to be guided, where appropriate, by the principles contained in the UN Watercourses Convention when regulating confined transboundary groundwater.

Additionally, under the Article 2 definition of “watercourse“, a particular aquifer containing groundwater does not have to be situated across a boundary to be covered by the Convention; it is sufficient for such groundwater to be located in one State yet connected to transboundary surface water.  Therefore, whilst the UN Watercourses Convention applies to groundwater systems, it is only to the extent that an aquifer is connected hydrologically to a system of surface waters, parts of which are situated in different States (Art 2(a) and (b)).

For further discussion on the Convention’s application to groundwater, see Fact Sheet #3.

Additional Resources: ILC Draft Articles on the Law of Transboundary Aquifers, 2008. Click here.

No – Correct

The scope of the UN Watercourses Convention does not apply to all sources of groundwater.

Under the UN Watercourses Convention’s definition of a “watercourse” – as expressed in Article 2(a) – the Convention promotes an integrated approach to systems of surface and ground waters whereby underground aquifers are included in this definition. However, “confined aquifers” (underground bodies of freshwater that are not hydrologically linked to other surface or groundwater systems) are currently an exception and hence do not fall within the scope of the Convention.  These sources of groundwater are dealt with separately by the International Law Commission’s (ILC) Resolution on Confined Transboundary Groundwater in 1994.

The exclusion of “confined aquifers” from the Convention and the Convention’s application to groundwater are discussed further in Fact Sheet #3.

Additional Resources: ILC Draft Articles on the Law of Transboundary Aquifers, 2008. Click here.

Can only individual States ratify, accept, accede to or approve the UN Watercourses Convention?

Yes – Incorrect

The UN Watercourses Convention is open to accession, approval, acceptance and ratification by individual states, as well as any “regional economic integration organization” which is authorised by its member states to do so.

Under Article 2(d) of the Convention, “‘Regional economic integration organisation’ means an organisation constituted by sovereign states of a given region, to which its member states have transferred competence in respect of matters governed by this Convention and which has been duly authorised in accordance with its internal procedures to sign, ratify, accept or accede to it“.

Therefore, inter-governmental organisations such as the European Union, the United Nations Economic Commission for Europe (UNECE) or the Southern African Development Community (SADC) are also able to become parties to the Convention if it such an organisation has been “duly authorised in accordance with its internal procedures to sign, ratify, accept or accede to it” (Art 2(d)).

For further discussion on the Convention’s application to regional agreements, see Fact Sheet #11, Fact Sheet #12 and Fact Sheet #13.

No – Correct

The UN Watercourses Convention is open to accession, approval, acceptance and ratification by individual states, as well as any “regional economic integration organization” which is authorised by its member states to do so.

Hence, under Article 2(d) of the Convention which states that “‘Regional economic integration organisation’ means an organisation constituted by sovereign states of a given region, to which its member states have transferred competence in respect of matters governed by this Convention and which has been duly authorised in accordance with its internal procedures to sign, ratify, accept, approve or accede to it“, inter-governmental organisations such as the European Union, the United Nations Economic Commission for Europe (UNECE) or the Southern African Development Community (SADC) would be able to become parties to the Convention.

For further discussion on the Convention’s application to regional agreements, see Fact Sheet #11, Fact Sheet #12 and Fact Sheet #13.

Where an agreement is being negotiated on a particular watercourse, are all the watercourse States entitled to participate in the negotiations, regardless of whether they might be affected by the agreement?

Yes – Incorrect

Under the UN Watercourses Convention, only a Watercourse State (defined as a nation with a territorial boundary encompassing or touching upon an international watercourse) whose use of an international watercourse is affected by an agreement, project, programme, or use concerning all or part of that watercourse, is entitled to participate in negotiations regarding such matters to the extent that their use is affected by those matters.

Article 4(2) of the Convention provides that “[a] watercourse state whose use of an international watercourse may be affected to a significant extent by the implementation of a proposed watercourse agreement which applies only to a part of the watercourse or to a particular project, programme or use is entitled to participate in consultations on such an agreement and, where appropriate, in the negotiation thereof in good faith with a view to becoming a party thereto, to the extent that its use is thereby affected“.

More broadly, every Watercourse State may participate in the negotiation of watercourse agreements which apply to the whole international watercourse that they encompass or adjoin. On this point, Article 4(1) of the Convention stipulates that “[e]very watercourse state is entitled to participate in the negotiation of and to become a party to any watercourse agreement which applies to the entire international watercourse, as well as to participate in any relevant consultations“.

Therefore, states whose use(s) of an international watercourse is affected by other riparian states are entitled to be involved in negotiations regarding the use and management of that watercourse, but only to the extent that an agreement, programme, project or use affects their own use.

For discussion on the Convention’s negotiation process for planned measures, see Fact Sheet #6.

No – Correct

Under the UN Watercourses Convention, only a Watercourse State (defined as a nation with a territorial boundary encompassing or touching upon an international watercourse) whose use of an international watercourse is affected by an agreement, project, programme, or use concerning all or part of that watercourse, is entitled to participate in negotiations regarding such matters to the extent that their use is affected by those matters.

Article 4(2) of the Convention provides that “A watercourse state whose use of an international watercourse may be affected to a significant extent by the implementation of a proposed watercourse agreement which applies only to a part of the watercourse or to a particular project, programme or use is entitled to participate in consultations on such an agreement and, where appropriate, in the negotiation thereof in good faith with a view to becoming a party thereto, to the extent that its use is thereby affected“.

Therefore, States whose use(s) of an international watercourse is affected by other riparian States are entitled to be involved in negotiations regarding the use and management of that watercourse, but only to the extent that an agreement, programme, project or use affects their own use.

For discussion on the Convention’s negotiation process for planned measures, see Fact Sheet #6.

Must watercourse States amend existing international watercourse agreements once they become party to the UN Watercourses Convention?

Yes – Correct

Becoming a party to the UN Watercourses Convention does not affect the rights and duties of States that have existing watercourse agreements in place.

Under Article 3(1), “[i]n the absence of an agreement to the contrary, nothing in the present Convention shall affect the rights or obligations of a watercourse state arising from agreements in force for it on the date on which it became a party to the present Convention“.

The Convention goes further in dealing with existing rights and duties where some but not all States of particular international watercourse are parties to agreement(s) concerning that watercourse.

On this issue, Article 3(6) of the Convention provides that “[w]here some but not all watercourse states to a particular international watercourse are parties to an agreement, nothing in such agreement shall affect the rights or obligations under the present Convention of watercourse states which are not parties to such an agreement“.

Therefore, the rights and duties of States with existing international watercourse agreements in place are not affected if they then become parties to the UN Watercourses Convention. Although harmonisation of existing agreements is preferable.

For further discussion on the Convention’s application to other agreements, see Fact Sheet #11, Fact Sheet #12 and Fact Sheet #13.

No – Correct

Becoming a party to the UN Watercourses Convention does not affect the rights and duties of States that have existing watercourse agreements in place.

Under Article 3(1), “In the absence of an agreement to the contrary, nothing in the present Convention shall affect the rights or obligations of a watercourse state arising from agreements in force for it on the date on which it became a party to the present Convention“.

Therefore, the rights and duties of States with existing international watercourse agreements in place are not affected if they then become parties to the UN Watercourses Convention. However, States should aim to harmonise existing agreements.

For further discussion on the Convention’s application to other agreements, see Fact Sheet #11, Fact Sheet #12 and Fact Sheet #13.

Does the use of the term “watercourse” in the UN Watercourses Convention mean that it adopts a narrower approach than other legal instruments that use the term “drainage basin” (such as the 1966 ILA Helsinki Rules)?

Yes – Incorrect

Whilst this is still the subject of some debate, it can be reasonably argued that the term “watercourse” indeed makes the UN Watercourses Convention more expansive in scope than other legal instruments that utilise the term “drainage basin”.

The UN Watercourses Convention uses the term “international watercourse” – meaning a “watercourse, parts of which are situated in different States (Art. 2(b)). A “watercourse” is defined as “a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus” (Art. 2(a)).

This definition differs from the approach of the International Law Association’s (ILA) Helsinki Rules on the Uses of the Waters of International Rivers, which uses the term “international drainage basin” – defined as “a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus“.

It has been maintained by some States and experts that, through its use of the term “drainage basin“, the scope of the Helsinki Rules is more expansive than that of the UN Watercourses Convention. A question has therefore been raised over whether the approach of the Convention is restrictive in only applying to the waters, whereas the Helsinki Rules adopted a seemingly more expansive definition of the entire drainage area meaning the land and water of a river basin.

The use of the term “watercourse” should be considered within the wider context of the Convention, which is focused on the protection, preservation and management of international watercourses.  The concept of an “international watercourse“, as derived from Art. 2(a) and (b), means the Convention applies to “watercourse systems” that cross international boundaries, including major watercourses, their tributaries, and connected lakes and aquifers, even when these components are entirely located within a single State. Generally, components of freshwater systems that may fall under this concept, when connected to one another, include rivers, lakes, aquifers, glaciers, reservoirs, and canals, wetlands and floodplains. In many situations, it may therefore be necessary to consider land-based activities beyond the watercourse itself in order to ensure its protection, preservation and management.

Leading academics thus refute the argument that the concept of “international watercourses” is less expansive than “international drainage basin“, stating that Art. 1(1) of the Convention “applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters.” This means that the Convention indirectly applies to land-based activities taking place within the river basin when and to the extent that such activities might be relevant for the use, protection, and management of an international watercourse.

For further discussion on the difference in scope between these terms, see Fact Sheet #1 and Fact Sheet #2.

No – Correct

Whilst this is still the subject of some debate, it can be reasonably argued that the term “watercourse” indeed makes the UN Watercourses Convention more expansive in scope than other legal instruments that utilise the term “drainage basin“.

It has been maintained by some States and experts that, through its use of the term “drainage basin“, the scope of the International Law Association’s (ILA) Helsinki Rules on the Uses of the Waters of International Rivers is more expansive in scope than that of the UN Watercourses Convention. However, the use of the term “watercourse” should be considered within the wider context of the Convention, which is focused on the protection, preservation and management of international watercourses

The concept of an “international watercourse“, as derived from Art. 2(a) and (b), means the Convention applies to “watercourse systems” that cross international boundaries, including major watercourses, their tributaries, and connected lakes and aquifers, even when these components are entirely located within a single state. Generally, components of freshwater systems that may fall under this concept, when connected to one another, include rivers, lakes, aquifers, glaciers, reservoirs, and canals, wetlands and floodplains. In many situations, it may therefore be necessary to consider land-based activities beyond the watercourse itself in order to ensure its protection, preservation and management.

Leading academics thus refute the argument that the concept “international watercourses” is less expansive than “international drainage basin“, stating that Art. 1(1), of the Convention “applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters.” This means that the Convention indirectly applies to land-based activities taking place within the river basin when and to the extent that such activities might be relevant for the use, protection, and management of an international watercourse.

For further discussion on the difference in scope between these terms, see Fact Sheet #1 and Fact Sheet #2.

 

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