Article 33

33.1.4 Joint institutions

Part IV of the Online User’s Guide (especially Section 24.1 (Commentary of Article 24)) provides an explanation of the use of joint institutions to manage transboundary waters, including their role in facilitating on-going consultation, communication and procedural obligations assisting states with strengthening bi-lateral relations and the prevention of disputes. As discussed in Section 33.1.3, what constitutes a ‘joint management mechanism’ is quite open and 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.’494Joint institutions can also provide a more formalised framework for dispute resolution (when preventative measures are unsuccessful). Article 33 of the UN Watercourses Convention encourages states to utilise joint institutions to resolve disputes where possible and this can apply during the process of initial consultations, through to formal negotiations and even as part of Court orders post Adjudication. As McCaffrey has pointed out ‘where disputes have arisen…expert bodies in particular joint commissions…are generally best equipped to conduct fact-finding…and resolve questions concerning the obligations of the states’.495

The 1960 Indus Waters Treaty between Pakistan and India is one of the most extensively examined bilateral transboundary water agreements, and provides for a joint institution, the Permanent Indus Commission (PIC) (consisting of one member from each country), and corresponding procedures for dispute resolution. The PIC serves as the initial venue where a possible conflict must first be addressed and is empowered to examine any ‘question’ which arises between the parties concerning the interpretation or application of the Treaty or the existence of any fact which, if established, might constitute a breach of the Treaty . . . [and] resolve the question by agreement’ (Article IX (1)). Issues that cannot be resolved by the PIC will be deemed ‘differences’ which may, depending on their classification, be heard by a ‘neutral expert’. The difference will be considered as a ‘dispute’ if the matter falls outside those listed in Annex F. Disputes are to be resolved through negotiation and if they are unsuccessful become subject to arbitration.496

Article 35 of the 1995 Mekong Agreement also provides for the use of joint institutions to be the first point for dispute resolution to be followed by other dispute settlement methods if unsuccessful. It reads:

‘In the event the Commission is unable to resolve the difference or dispute within a timely manner, the issue shall be referred to the Governments to take cognisance of the matter for resolution by negotiation through diplomatic channels within a timely manner. . . Should the Governments find it necessary or beneficial to facilitate the resolution of the matter, they may, by mutual agreement, request the assistance of mediation through an entity or party mutually agreed upon, and thereafter to proceed according to the principles of international law.’

494 1994 Draft Articles at 125.

495 McCaffrey, The Law of International Watercourses at 511.

496 See Vinogradov, Wouters and Jones Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law at 65.