31.1.1 Limitations to the obligation to exchange data and information
Article 31 creates a very narrow exception to the requirements of articles 9 to 19 – with the effect that states are not required to release information concerning a watercourse which is ‘vital to their national defence or security’. What is considered ‘vital information to national defence or security’ is not defined by the Convention but refers mainly to strategic or military types of information.441
This exception is limited by the corresponding obligation that a watercourse state that may experience adverse effects from the planned measures of another state should not be left entirely without information concerning those possible effects.442 Additionally, Article 31 requires a state which is withholding information for national defence and security reasons to continue to ‘cooperate in good faith’ with the other watercourse states with a view to providing ‘as much information as possible under the circumstances’.443 The obligation to provide ‘as much information as possible’ could be fulfilled in most cases by providing a general description of the manner in which the measures would alter the condition of the water or affect other states.’444
It is important to emphasise that the ILC intended good-faith445 cooperation to be the guiding principle of Article 31. The prominence of this principle can be ‘explained by the discussion within the ILC that the concept of what information could potentially be withheld as a state secret was open to abuse and therefore needed to be safeguarded.’446
The 1992 UNECE Helsinki Convention and the 1998 Aarhus Convention each contain similar provisions to Article 31 of the UN Convention. The obligation to exchange information under Article 13 of the UNECE Helsinki Convention may be subject to ‘protection of information’ limitations. Article 8 allows parties in accordance with their national legal systems and applicable supranational regulations to protect information related to industrial and commercial secrecy, including intellectual property, or national security.447 Although commentary to the Helsinki Convention says parties should apply Article 8 restrictively with regard to requests for information from other parties, especially when these concern data relating to discharges into transboundary waters. Article 4 (4) of the Aarhus Convention sets out a framework through which members of the public can gain access to environmental information from public authorities and, in some cases, from private parties. Public authorities could refuse to give information on the basis of ‘proceedings of public authorities, international relations, national defence or public security, course of justice, commercial and industrial confidentiality, intellectual property rights, personal data, voluntary information, and protecting the environment’.
Of particular interest to our understanding of Article 31 of the UN Convention is the definition of the terms ‘international relations’, ‘national defence’ or ‘public security’ – however the Aarhus Convention does not define these terms, but suggests that the definition of such terms will be determined by the parties, consistent with international law, and it does provide examples of state practice in this area.448 Essentially the grounds of refusing access to information in both these Conventions are to be interpreted in a restrictive way, particularly when the data requested relates to emissions into the environment.449
An important comparative observation – the exception in Article 31 of the UN Watercourses Convention only applies to information vital to national defense or security and does not include the right to withhold commercial or industrial information that is deemed confidential, making this provision is much narrower than the exceptions within both the Aarhus and UNECE Conventions.