33.1.1 The nature of water disputes and justiciability
This section focuses on the diplomatic and legal processes for the settlement of disputes and the roles and functions of courts and tribunals and other institutions or individuals, in relation to dispute settlement under Article 33 of the UN Watercourses Convention. Before examining the meaning of dispute settlement under Article 33 it is important to briefly discuss several points crucial to understanding the place of Article 33 of the Convention within the broader context of international law. The first point essentially revolves around the question: What is an international dispute? And a second related question: What is the distinction between and international justiciable dispute and nonjusticiable dispute and why does the distinction matter?
The term ‘dispute’ has been defined as a ‘conflict or controversy; a conflict of claims or rights’.476 The Permanent Court of International Justice in the Mavrommatis case defines a dispute as a, ‘disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’.477 The distinction is often drawn between legal disputes (primarily involving legal issues) and any other kind of dispute. Whether a disagreement over an international watercourse is considered to be a ‘dispute’ or not has legal implications for the type of dispute settlement response.
Only disputes which are ‘justiciable’ are suitable for resolution by legal dispute settlement methods. A dispute is justiciable if, ‘first, a specific disagreement exists, and secondly, that disagreement is of a kind which can be resolved by the application of rules of law by judicial (including arbitral) processes’, otherwise a dispute is non-justiciable.478 Where disputes are non-justiciable this means they must be resolved through other methods of peaceful settlement, which are described in Sections 33.1.3 (Negotiation and Consultation), 33.1.5 (Good Offices and Mediation), 33.1.6 (Conciliation), 33.1.7 (Fact-Finding and Inquiry), 33.1.8 (Arbitration) and 33.1.9 (Adjudication). Finally, a ‘water dispute’ has been defined as ‘any conflict of views or of interests, which takes the form of opposing claims between the states, concerning the use of a transboundary water resource.’479
What is an International Dispute?
An international dispute is…
‘A conflict or controversy; a conflict of claims or rights’476
A ‘justiciable’ conflict is…
a legal dispute, i.e. with the ability to be resolved by ‘legal’ means
A ‘non-justiciable’ dispute is…
A dispute that is resolved by non-judicial methods