Part VI

Quiz


Pursuant to the UN Watercourses Convention, can an individual citizen potentially claim compensation for injury within the national courts system of a State in which jurisdiction transboundary harm to an international watercourse was caused?

Yes – Correct

Article 32 of the UN Watercourses Convention may potentially grant an individual citizen a right to compensation for injury within the national courts system of a state in which jurisdiction transboundary harm to an international watercourse was caused.

Under Article 32 of the Convention, ‘[u]nless the watercourse states concerned have agreed otherwise for the protection of the interests of persons, natural or juridical, who have suffered or are under a serious threat of suffering significant transboundary harm as a result of activities related to an international watercourse, a watercourse state shall not discriminate on the basis of nationality or residence or place where the injury occurred, in granting to such persons, in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief in respect of significant harm caused by such activities carried on in its territory‘. Therefore, an individual citizen would fall within the scope of ‘natural’ persons and subsequently may be able to use this right as contained under the Convention to claim compensation for transboundary harm within the state whose activities caused the harm.

However, it must be noted that the scope of this right and thus its availability to individual citizens is limited by several different factors. Where Article 32 stipulates that ‘[u]nless the watercourse states concerned have agreed otherwise’ this means that co-riparian States may have previously entered into an agreement to limit this right. Additionally, different legal jurisdictions may have laws and regulations limiting the total amount of compensation for such claims which could impact this right.

For further discussion on the related Rule of No Significant Harm, see Fact Sheet #5.

No – Incorrect

Article 32 of the UN Watercourses Convention may potentially grant an individual citizen a right to compensation for injury within the national courts system of a state in which jurisdiction transboundary harm to an international watercourse was caused.

Under Article 32 of the Convention, ‘[u]nless the watercourse states concerned have agreed otherwise for the protection of the interests of persons, natural or juridical, who have suffered or are under a serious threat of suffering significant transboundary harm as a result of activities related to an international watercourse, a watercourse state shall not discriminate on the basis of nationality or residence or place where the injury occurred, in granting to such persons, in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief in respect of significant harm caused by such activities carried on in its territory‘. Therefore, an individual citizen would fall within the scope of ‘natural’ persons and subsequently may be able to use this right as contained under the Convention to claim compensation for transboundary harm within the State whose activities caused the harm.

However, it must be noted that the scope of this right and thus its availability to individual citizens is limited by several different factors. Where Article 32 stipulates that ‘[u]nless the watercourse states concerned have agreed otherwise’ this means that co-riparian States may have previously entered into an agreement to limit this right. Additionally, different legal jurisdictions may have laws and regulations limiting the total amount of compensation for such claims which could impact this right.

For further discussion on the related Rule of No Significant Harm, see Fact Sheet #5.

Under Art 33(3) of the UNWC, in a dispute between two or more co-riparian States, is a grant of permission by only one State required to establish a third-party fact-finding commission?

Yes – Correct

In a dispute between two or more co-riparian states, Art 33(3) stipulates that a grant of permission by any of the States is sufficient in order to establish a third-party fact-finding commission.

Regarding disputes between states, under Art 33(3),’[i]f after six months from the time of the request for negotiations referred to in paragraph 2, the parties concerned have not been able to settle their dispute through negotiation or any other means referred to in paragraph 2, the dispute shall be submitted, at the request of any of the parties to the dispute, to impartial fact-finding in accordance with paragraphs 4 to 9, unless the parties otherwise agree’. Therefore, any watercourse State involved in a dispute may unilaterally grant permission for a fact-finding commission.

For further discussion on the Convention’s dispute settlement procedures, see Fact Sheet #8.

No – Incorrect

In a dispute between two or more co-riparian states, Art 33(3) stipulates that a grant of permission by any of the States is sufficient in order to establish a third-party fact-finding commission.

Regarding disputes between states, under Art 33(3) ‘If after six months from the time of the request for negotiations referred to in paragraph 2, the parties concerned have not been able to settle their dispute through negotiation or any other means referred to in paragraph 2, the dispute shall be submitted, at the request of any of the parties to the dispute, to impartial fact-finding in accordance with paragraphs 4 to 9, unless the parties otherwise agree’. Therefore, any watercourse State involved in a dispute may unilaterally grant permission for a fact-finding commission.

The UN Watercourses Convention Online User’s Guide emphasises this point by stating that:

Fact-finding under Art 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 is 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 and reasonable utilisation, and to enable the resolution of a dispute in good faith’.

For further discussion on the Convention’s dispute settlement procedures, see Fact Sheet #8.

Where States which are parties to a dispute cannot reach a suitable solution themselves, can they be required, under the UN Watercourses Convention, to submit the matter to the International Court of Justice (ICJ) for adjudication?

Yes – Correct

States which are parties to a dispute to which an agreement cannot be reached may be required under the Convention to submit the dispute to the ICJ if they had declared upon joining the Convention their express willingness to submit an unresolved dispute to the ICJ for adjudication as a final default procedure.

Under Art 33(2) of the UN Watercourses Convention,’[i]f the parties concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them, or agree to submit the dispute to arbitration or to the International Court of Justice’. Therefore, Art 33(2) allows for the ICJ to be one of several dispute resolution forums of the Convention which is available to disputing States if no agreement can be reached. Moreover, the state parties to a dispute must also grant express permission in order to have the dispute submitted to the ICJ for it to be adjudicated upon and a resolution reached.

However, this provision does make it compulsory process for all disputes under the Convention and it will only be available if both parties to a dispute grant express permission to the ICJ to hear the matter. This is why Art 33(2) must be read in conjunction with Art 33(10) of the Convention which stipulates that ‘[w]hen ratifying, accepting, approving or acceding to the present Convention, or at any time thereafter, a party which is not a regional economic integration organisation may declare in a written instrument submitted to the depositary that, in respect of any dispute not resolved in accordance with paragraph 2, it recognises as compulsory ipso facto and without special agreement in relation to any party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice;

(b) And/or arbitration by an arbitral tribunal established and operating, unless the parties to the dispute otherwise agreed, in accordance with the procedure laid down in the annex to the present Convention’.

Hence, state parties which had upon joining the Convention provided a declaration expressing their willingness to be bound to submit an unresolved matter to the ICJ if other dispute settlement procedures stipulated in the Convention had failed are thereafter obligated to submit the matter by default to the ICJ in order to reach a resolution.

For further discussion on the Convention’s dispute settlement procedures, see Fact Sheet #8.

No – Incorrect

States which are parties to a dispute which cannot reach agreement may be required under the Convention to submit the dispute to the ICJ if they had declared upon joining the Convention their express willingness to submit an unresolved dispute to the ICJ for adjudication as a final default procedure.

Under Art 33(2) of the UN Watercourses Convention,’[i]f the parties concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them, or agree to submit the dispute to arbitration or to the International Court of Justice’. Therefore, Art 33(2) allows for the ICJ to be one of several dispute resolution forums of the Convention which is available to disputing States if no agreement can be reached. Moreover, the state parties to a dispute must also grant express permission in order to have the dispute submitted to the ICJ for it to be adjudicated upon and a resolution reached.

However, this provision does make it compulsory process for all disputes under the Convention and it will only be available if both parties to a dispute grant express permission to the ICJ to hear the matter. This is why Art 33(2) must be read in conjunction with Art 33(10) of the Convention which stipulates that ‘[w]hen ratifying, accepting, approving or acceding to the present Convention, or at any time thereafter, a party which is not a regional economic integration organisation may declare in a written instrument submitted to the depositary that, in respect of any dispute not resolved in accordance with paragraph 2, it recognises as compulsory ipso facto and without special agreement in relation to any party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice;

(b) And/or arbitration by an arbitral tribunal established and operating, unless the parties to the dispute otherwise agreed, in accordance with the procedure laid down in the annex to the present Convention’.

Hence, state parties which had upon joining the Convention provided a declaration expressing their willingness to be bound to submit an unresolved matter to the ICJ if other dispute settlement procedures stipulated in the Convention had failed are thereafter obligated to submit the matter by default to the ICJ in order to reach a resolution.

The Online User’s Guide highlights this element of the dispute resolution procedures in so far as:

‘Most importantly for the procedural purposes of this Guide, Article 33(10)(b) of the UN Convention provides for the submission of a dispute to the ICJ with the agreement of all states concerned. At the time of becoming a contracting party to the Convention or at any time after, a state party may declare in a written instrument submitted to the depositary that, in respect of any dispute not resolved in accordance with Article 33(2) and where both parties to a dispute have declared their willingness, either party can unilaterally submit their dispute to the ICJ‘.

For further discussion on the Convention’s dispute settlement procedures, see Fact Sheet #8.

 

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