|Article 3(1) of the UN Watercourses Convention preserves the contractual freedom of watercourse states. In this sense, the Convention does not affect the rights and duties of states that become parties to it arising from existing freshwater-related agreements. Neither does the Convention impose a duty on states to adopt future basin-specific treaties compatible with its provisions where none exist. The Convention rather encourages states to consider harmonising existing agreements with its basic provisions, as well as to adopt new agreements that apply and adjust the general principles of the Convention to the characteristics and uses of a particular watercourse (Article 3(2) and (3)).
Whilst parties are negotiating new agreements the Convention performs a ‘guideline function’. The Convention is therefore mostly drafted in general terms so it can be applied to a range of different river basins. However some of its provisions are more precise and specific than the provisions of many existing sub-regional agreements and parties do have the freedom to adjust these more specific provisions to the characteristics of a particular watercourse. At the conclusion of any new agreement,147 the Convention will not alter the rights and obligations contained in the new agreement. This means, for example, that an existing agreement between states A and B is not affected mandatorily by the Convention unless the states agree otherwise. If, however, both states were party to the Convention and it was in force, the Convention would likely have a significant influence on the negotiation of subsequent water agreements between the countries.
A large number of states have adjusted their existing multilateral or bilateral agreements to better reflect the basic provisions of the Convention, as well as adopting new agreements that apply the general principles of the Convention to the characteristics and uses of a particular watercourse. The original SADC Protocol on Shared Watercourse Systems was replaced by a second agreement closely modelled on the Convention’s final text.148 The recent Nile River Basin Cooperative Framework Agreement (NRBCFA) contains general principles and rules which clearly draw from the Convention.149
Comprehensive regional and basin assessments have been conducted as part of the 1997 UN Watercourses Global Initiative which examine how the Convention can play a supplementary role to existing agreements in specific existing regional and basin legal frameworks which do not comprehensively define the rights and obligations of the parties they are applicable to. Results from these studies demonstrate that in specific river basins including the Congo and Amazon, as well as a multitude of basin and regional agreements across Central Asia, Southern Africa, West Africa, East Africa, Central America and South-east Asia, agreements could individually and collectively be strengthened by applying and adjusting particular provisions of the Convention to their existing frameworks.150 For example, in Central Asia the legal architecture of transboundary water cooperation in the Aral Sea Basin (ASB) is composed of numerous agreements at bilateral, sub-regional, regional and global levels, many of which have been adopted without consideration of the relationships between each other and also which do not always incorporate the principles of the law of international watercourses or best water management practices.151 In this context, the Convention can make a contribution to improving the legal framework for transboundary water cooperation in the ASB and assist countries in building and maintaining effective and peaceful management systems for their shared resources. Some of the gaps that the Convention can fill relate to issues of scope, substantive rules, procedural rules, institutional mechanisms and dispute settlement. For example the agreements in the ASB region contain no explicit provisions on equitable and reasonable use (the central substantive rule of international water law) and dispute settlement mechanisms are lacking.152 The contribution that the Convention can make to strengthen the legal frameworks in other basins, regions or sub-regions is discussed throughout this guide as each Article is examined in depth.
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