Article 33

33.1.3 Negotiation and Consultation

Negotiation between the parties is the first stage of the process set out in Article 33(2) and can take different forms, including (but not limited to) bilateral talks and diplomatic correspondence to international conferences.483 Diplomatic negotiations are sometimes preceded by the meetings of experts (such as occurred between Israeli and Jordanian water experts prior to formal negotiations over the 1994 Peace Treaty).484 Parties are under the obligation to conduct negotiations in good faith and in a manner that ‘the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating modification of it’ as stipulated by the ICJ in Gabcíkovo-Nagymaros and the North Sea Continental Shelf Case.485 Most disputes are able to be settled by negotiation and, if this is the case, parties should record the terms of settlement – this often takes the form of a non-legally binding Memorandum of Understanding (MOU).486 Of course parties can also mutually agree to formalise the agreed outcome and render the MOU as legally binding.For several interesting examples of a demonstrative negotiation process, see the 2002 agreement between the United States and Mexico regarding the Rio Grande River, which resulted from negotiations between the two countries under the auspices of the International Boundary and Water Commission (IBWC).487 Also see the negotiations leading to the 1995 Mekong Agreement488 and the negotiations over the Nile Basin.489 Extensive study shows that there is a state preference to negotiate at the bilateral level,490 although it is multilateral treaties involving participation by all riparians to a transboundary river which will normally be the most equitable and sustainable for the countries sharing transboundary resources.

Formal negotiations are often preceded by consultations, which usually involve the exchange of views and information. Consultation is normally an ad hoc procedure, but it can also be provided for in any watercourse agreement either within an institutional mechanism (the Convention specifies that parties should make use of any existing joint institutions) or as a dispute prevention and resolution tool.491 Article 33 does mention consultation but it is provided for elsewhere in the Convention (including in Article 4Article 6, Article 7, Article 8, Article 17, Article 18, Article 19, Article 24, Article 26 and Article 30) and these provisions attempt to avoid having to utilise dispute settlement provisions under Article 33. The Nile River Basin Initiative can be considered as an on-going multilateral consultation.492 If states cannot resolve their issues through negotiation then Article 33(2) provides that they ‘may’ seek to settle issues in a non-binding way through good offices, mediation or conciliation by a third party, any joint watercourse institutions that may have been established by them, or states can opt for a binding method of dispute settlement by agreeing to submit the dispute to the binding arbitration or to the International Court of Justice. The characteristics of each dispute including subject matter and disputants will affect the choice of settlement method. It is suggested that when disputes involve more than one type of competing water use and important actors in addition to states, the diplomatic methods used for dispute resolution are more favourable.493 Finally if parties are unable to agree on a solution using these mechanisms they must submit the dispute, at the request of any party, to factfinding as per Article 33(3).

This statement is of course qualified at the beginning of Article 33(3) by the words ‘subject to the operation under paragraph 10’ which means that if parties choose to use either of the two legally binding dispute resolution methods (Arbitration or Adjudication) then the decision in both these methods is binding and not appealable. The dispute will be considered closed after either of these processes has finished and it is only in circumstances where the decision making body, such as the International Court of Justice, makes an order to the parties that negotiation or fact-finding might resume.

The dispute resolution mechanisms are summarised in Figure 6.8.

483 Vinogradov, Wouters and Jones, Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law at 27. Also A Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press 2001) at 353

484. 1994 Treaty of Peace between the state of Israel and the Hashemite Kingdom of Jordan (signed October 26 1994). For discussion see Vinogradov, Wouters and Jones, Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law at 27.

485 Gabcíkovo-Nagymaros para 14, quoting from North Sea Continental Shelf Case at para 85.

486 Aust, Modern Treaty Law and Practice at 353.

487 S McCaffrey, ‘Water Disputes Defined: Characteristics and Trends for Resolving Them’ in International Bureau of the Permanent Court of Arbitration (ed), Resolution of International Water Disputes : Papers Emanating from the Sixth Pca International Law Seminar, November 8, 2002 (Kluwer Law International 2003) at 76.

488 G Browder, ‘An Analysis of the Negotiations for the 1995 Mekong Agreement’ (2000) 5 International Negotiation 237.

489 A Dinar and S Alemu, ‘The Process of Negotiation over International Water Disputes: The Case of the Nile Basin’ (2000) 5 International Negotiation 331; J Brunnée and SJ Toope, ‘The Changing Nile Basin Regime: Does Law Matter?’ (2002) 43 Harvard International Law Journal 105.

490 N Zawahri, S Dinar and S Mitchell, ‘Fragmented Governance of International Rivers: Negotiating Bilateral versus Multilateral Treaties’ (2011) 55(1) International Studies Quarterly 835.

491 Vinogradov, Wouters and Jones, Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law at 28.

492 Dinar and Alemu ‘The Process of Negotiation over International Water Disputes: The Case of the Nile Basin’, at 331.

493 Brown Weiss, ‘The Evolution of International Water Law’ at 207.

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