Article 31

31.2 Application


State A and state B share an international watercourse – state A is a wealthy upstream country with significant technological advancement in hydropower. State A wants to test a new method for generating hydropower, with the hope of securing intellectual property rights in this new technology. The testing may cause harm and affect downstream state B which is a developing country with low levels of technological advancement. State B has received news that it may be affected by a new unknown water use from state A. A dispute has arisen between the two states over the extent of the obligation to exchange data and information under Articles 9-19 of the UN Convention. State A considers that the exception under Article 31 of the UN Watercourses Convention also applies to commercial and industrial information and therefore exempts it from the obligation to give out the information to state B about how the testing of the technology will affect the watercourse.

The exception in Article 31 only provides an exception for withholding information vital to national defence or security and does not include the right to withhold commercial or industrial information that is deemed confidential. That is to say in this case ‘the common interest in the management and protection of the international watercourse as a shared natural resource has an overriding relevance in the Convention over unilateral interests of economic value.’456

Even if the new technology was also arguably vital to national defence, state A would still be under an obligation to cooperate in good faith with state B with a view to providing ‘as much information as possible under the circumstances’ which would include providing a general description of the manner in which the shared watercourse would be affected by any proposed use.

456 Gabcíkovo-Nagymaros Case at 37.

 

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