Article 33

33.1.7 Fact-finding and inquiry

Inquiry and fact-finding are procedures specifically designed to produce an impartial finding of disputed facts by engaging a third-party.507 The terms ‘inquiry’ and ‘fact finding’ have often been used (sometimes interchangeably) for this type of procedure under which states refer questions to a panel of experts (commission of inquiry or a fact-finding commission) for investigation of factual or technical matters after diplomatic negotiations.508

Fact-finding and inquiry can also be undertaken by one expert alone.509Fact-finding under Article 33(3) is the only element of the Convention’s dispute settlement procedures which does not require every disputing party’s prior agreement, and may be invoked unilaterally by any of the parties to the Convention at any time after six months from the commencement of the consultations and negotiations between parties (provided the parties have not already initiated one of the legal dispute resolution processes (Arbitration and Adjudication)). The rationale of the inclusion of these provisions was to avoid stalemate in the dispute settlement and to assist parties in moving forward with data and information exchange which are essential for the operation of the principle of equitable utilisation, and to enable the resolution of a dispute in good faith.510

Article 33(4)-(9) provides for the establishment of the fact-finding commission which will have three members, one from each disputing country and one from a third country who will act as chair. The chair must be agreed upon by both parties. If the parties are unable to agree on a chairman within three months of the request for the establishment of the Commission, any party concerned may request the Secretary- General of the United Nations to appoint the chair. These provisions are intended to avoid the dispute settlement mechanism being frustrated by the lack o cooperation of one of the parties.511

Once the Commission is established it shall determine its own procedure (Article 33(6)) and the parties are to provide the Commission with the information it requires and to permit it to have access to their territories (Article 33(7)). The Commission will then prepare and adopt a report by majority vote which contains findings and ‘such recommendation as it deems appropriate for an equitable solution of the dispute’ (Article 33(8)). These recommendations are not binding but the parties must consider them in good faith. Good faith in this instance means that parties must consider the recommendations with a view to reaching a negotiated settlement.512 One of the most significant recent uses of fact-finding in water disputes is by Pakistan and India, pursuant to the Indus Waters Treaty, to resolve a ‘difference’ regarding the construction by India of the Baglihar hydropower plant (see opposite column).

507 Vinogradov, Wouters and Jones, Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law at 29.

508 Ibid.

509 United Nations Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States at 26.

510 McCaffrey, The Law of International Watercourses at 516.

511 1994 Draft Articles at 134.

512 Tanzi and Arcari, The UN Convention on the Law of International Watercourses at 284.

Indus Waters Baglihar Dam

In 2000 India proposed building the Baglihar Dam on the Chenab River, which is one of the major rivers within the Indus River system governed by the 1960 Indus Waters Treaty between India and Pakistan. Pakistan opposed the dam on the basis that it did not comply with the requirements of the Treaty. The two parties were unsuccessful in bilateral negotiations. Part IX of the Treaty deals with differences and disputes, and provides for ‘differences’ to be referred to a neutral expert. The neutral expert has extensive quasi-judicial powers, including determination of available waters, withdrawals, releases, uses, and procedures for providing each party an adequate hearing. The decision of the expert is binding. In 2005 Pakistan requested that the World Bank appoint a neutral expert to investigate the facts and settle the difference. The expert in the Baglihar difference issued a decision in 2007, which both parties accepted. Although Pakistan was not satisfied with the decision and has recently argued (in front of the Permanent Court of Arbitration during the Kishenganga Arbitration) that the Baglihar case has left Pakistan without physical protection against the manipulation of flow on the Indus system.