Article 9

9.1 Commentary

The obligation to regularly exchange data and information directly flows from the general obligation to cooperate in Article 8 of the Convention. The need for information exchange on the conditions of a transboundary watercourse is obvious, since, in most cases, it constitutes the first step in the process of cooperation between co-riparians in general, and in the determination of the relevant factors and circumstances pursuant to Article 6.237 Thus, it is designed to ensure that all riparian states possess the facts necessary to enable them to utilise the transboundary watercourse in an equitable and reasonable manner. It is also necessary in order to enable co-riparians to take all appropriate actions for the fulfillment of the due diligence obligation not to cause significant harm (see Article 7). Furthermore, the collection and sharing of fundamental data is a precondition for the realisation of higher degrees of cooperation – especially where no joint body is in charge of this task. The obligation laid out here is also closely linked to Article 11 and Article 12 on information and notification concerning planned measures.

In demanding a ‘regular’ exchange of data and information, this Article requires a continuous process following systematic procedures; which differs from the ad hoc provision of information concerning planned measures contained in Article 11 of the Convention.238 The use of the term ‘readily available’ indicates that the legal obligation of a state is limited to the kind of data and information which is already at its disposal (e.g. has been collected for its own use) or is easily accessible.239 Determining whether data is ‘readily available’ depends on evaluating the effort and cost its provision would entail taking into account the specific factors and circumstances of each case.

The data and information that have to be transmitted concern the ‘condition of the watercourse.’ The list of conditions in paragraph 1 – hydrological, meteorological, hydrogeological and ecological – is by no means exhaustive, as it rather serves as an illustration of potentially important kinds of data for achieving an equitable and reasonable utilisation.240 Furthermore, data and information should not only relate to the current conditions, but could also include forecasts – e.g. changing weather patterns with longterm effect on present uses.

Article 9(2) determines that a state which has been asked to provide data or information which is not readily available has to employ its ‘best efforts to comply with the request’ – i.e. act in good faith and in the spirit of the general obligation to cooperate. This implies, for example, not stalling for time with the transmission of the information; and not to overwhelm the requesting state with data which is not linked to the request. While transboundary watercourse states are under no obligation to process the data and information they exchange, Article 9(3) requires them to employ their best efforts to ‘facilitate[s] its utilisation by the other watercourse state’ – i.e. provide the data and information in a form which is usable for the receiving states.

237 See Article 6

238 1994 ILC Draft Articles, Art 9 at 108, para 4.

239 See also the commentary to Article XXIX of the 1966 Helsinki Rules.

240 1994 Draft Articles, Art 9 at 108, para 8.

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