Article 24

24.1 Commentary


Article 24(1) can be seen as an extension of a number of articles contained within the Convention, most notably at the general level, the obligation to cooperate (Article 8) and the obligation of equitable participation in Article 5(2). ‘Joint management mechanisms’ may also be the most appropriate instrument to implement a range of specific provisions contained within the Convention, such as the need to regularly exchange data and information (Article 9), the requirement to notify and consult on planned measures (Part III, Articles 11- 19), the obligation to protect and preserve ecosystems(Articles 20-23), regulate flow (Article 25), prevent and mitigate harmful conditions (Article 27), address emergency situations (Article 28), and settle disputes peacefully (Article 33).

The obligation contained in Article 24, consistent with Article 8, is to ‘enter into consultations’, concerning the management of an international watercourse, ‘which may’ include the establishment of a joint management mechanism. The result of any consultations is therefore left open, and there is no explicit obligation to actually establish such mechanisms. The UN Watercourses Convention therefore falls short of the stricter requirement contained in the 1992 UNECE Water Convention which, pursuant to Article 9(2), explicitly requires riparian parties to establish ‘joint bodies’.378

However, in his sixth ILC report as Special Rapporteur, McCaffrey observed that, ‘the management of international watercourse systems through joint institutions is not only an increasingly common phenomenon, but also a form of cooperation between watercourse States that is almost indispensable if anything approaching optimum utilisation and protection of the system of waters is to be attained’ [emphasis added].379 Similar sentiments were voiced by the ILA, which observed that, ‘the need for an institutionalised co-ordination of competitive and concurrent needs and interests is deeply felt by the international community and is evidenced by the considerable number of agreements concluded in this respect.’ 380 Effective implementation of the Convention will therefore almost invariably rest on some degree of joint institutional arrangement being established between watercourse states.

What might constitute a ‘joint management mechanism’ is also quite open. In its commentary, the ILC suggested that the term ‘joint management mechanism’ might encompass not only formal organisational arrangements, but less formal means such as, ‘the holding of regular meetings between the appropriate agencies or other representatives of the States concerned.’ 381 The ILA adopted alternative terminology when it considered ‘international water resource administrations’, which were defined as, ‘any form of institutional or other arrangement established by agreement among two or more Basin States’, thus recognising the need to formalise the relationship. In adopting the latter approach, the ILA commented that, ‘it is not possible in the abstract to suggest any particular type of administrative institution such as a single or several, ad hoc or permanent, technical or political, joint international, co-ordinating, policymaking, operational or regulatory commissions, committees, boards, authorities or agencies’.382 Pursuant to the 1992 UNECE Water Convention, ‘Joint Bodies’ are defined as, ‘any bilateral or multilateral commission or other appropriate arrangements for cooperation between the riparian parties.’383 The Guide to Implementing the Convention goes further by describing ‘joint commissions’ as, ‘a collective term meant to cover also, for example, “joint water authority”, “committee”, “joint working group”, etc’.384

Article 24(2) of the UN Watercourses Convention sets out the common features of ‘management’ including planning and implementation. Most of the specific terms contained in Article 24(2) are included in other provisions of the Convention, which can be read as an explicit attempt to align management activities with the substantive Articles 5-7. The ILC goes on to observe that, ‘management’ would include the functions of, ‘planning of sustainable, multipurpose and integrated development of international watercourses; facilitation of regular communication and exchange of data and information between watercourse states; and monitoring international watercourses on a continuous basis’ (see Figure 20.8).385

The UNECE’s Implementation Guide identifies some common features of commissions, including:

(i) a permanent body meeting reasonably regularly;

(ii) compromised of representations of riparian states, including officials from water and water-related authorities from national, regional and local authorities;

(iii) with decision-making, executive and subsidiary bodies, such as working or expert groups, monitoring, data collection and processing unites; and

(iv) often including a secretariat.386

In its Guidelines for the Establishment of an International Water Resources Administration, the ILA goes further by recommending that such institutions serve a range of functions, including

(i) advisory, consultative, co-ordinating, or policy-making;

(ii) executive, such as carrying out studies, exploration, investigation and surveys, preparation of feasibility reports, inspection and control construction, operation, maintenance and financing;

(iii) regulatory function, including implementation of decisions of the administration, as well as law-making;

(iv) judicial, including arbitration and final dispute settlement. In terms of objects and purposes, the ILA Guidelines suggest that such institutions should:

(i) collect and exchange information and data;

(ii) formulate, coordinate and exchange joint and national plans;

(iii) construct, operate and maintain waterworks;

(iv) control one or more beneficial uses of water;

(v) control the harmful effects of water;

(vi) control water quality.

Similarly, the 1992 UNECE Water Convention provides specific tasks that joint bodies must carry out.

 

378 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1992, entered into force 6 October 1996), (1992) 31 International Legal Materials 1312.

379 ILC, ‘Sixth Report on the Law of the Non-navigational Uses of International Watercourses, by Mr Stephen C McCaffrey, Special Rapporteur’, UN Doc A/CN.4/436 and Corr 1, para. 7.

380 S Bogdanovic (ed), International Law of Water Resources – Contribution of the International Law Association (1954-2000), 251.

381 1994 Draft Articles at 125.

382 S Bogdanovic (ed), International Law of Water Resources – Contribution of the International Law Association (1954-2000), 253.

383 UNECE, Draft Guide to Implementing the Convention, (31 August 2009), UN Doc ECE/MP.WAT/2009/L.2, 88-92

384 Ibid.

385 1994 Draft Articles at 125.

386 UNECE, Draft Guide to Implementing the Convention, 89.

Roles and Responsibilities of ‘Joint Bodies’ under the 1992 UNECE Water Convention

The 1992 UNECE Water Convention identifies a

number of tasks that ‘joint bodies’ should conduct,

including,

(a) To collect, compile and evaluate data in order to identify pollution sources likely to cause transboundary impact;

(b) To elaborate joint monitoring programmes concerning water quality and quantity;

(c) To draw up inventories and exchange information on the pollution sources;

(d) To elaborate emission limits for waste water and evaluate the effectiveness of control programmes;

(e) To elaborate joint water-quality objectives and criteria, and to propose relevant measures for maintaining and, where necessary, improving the existing water quality; Roles and Responsibilities of ‘Joint Bodies’ under the 1992 UNECE Water Convention

(f) To develop concerted action programmes for the reduction of pollution loads from both point sources (e.g. municipal and industrial sources) and diffuse sources (particularly from agriculture);

(g) To establish warning and alarm procedures;

(h) To serve as a forum for the exchange of information on existing and planned uses of water and related installations that are likely to cause transboundary impact;

(i) To promote cooperation and exchange of information on the best available technology, as well as to encourage cooperation in scientific research programmes;

(j) To participate in the implementation of environmental impact assessments relating to transboundary waters, in accordance with appropriate international regulations.

For more information see ‘UNECE, River basin commissions and other institutions for transboundary water cooperation’ (2009),

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