Article 26

26.1 Commentary

Article 26 of the UN Watercourses Convention concerns ‘installations, facilities and other works’ which are defined by the ILC as including, ‘dams, barrages, dykes and weirs.’397 As stipulated in Article 26(1), and consistent with the due diligence obligations (see Glossary of Terms) found elsewhere in the Convention, states are under an obligation to employ their ‘best efforts’ to maintain and protect installations, facilities and other works. The question of whether or not a state has fulfilled this obligation will therefore rest on examination of its capacity. As noted by the ILC:

‘A watercourse state should exercise due diligence to maintain a dam, that is to say, keep it in good order, such that it will not burst, causing significant harm to other watercourse states. Similarly, all reasonable precautions should be taken to protect such works from foreseeable kinds of damage due to forces of nature, such as floods, or to human acts, whether wilful or negligent. The wilful acts in question would include terrorism and sabotage, while negligent conduct would encompass any failure to exercise ordinary care under the circumstances which resulted in damage to the installation in question.’398

Article 26(2) requires states to enter into consultations, where one state has ‘reasonable grounds’ to believe that they may suffer significant adverse effects. As noted above,399 in the use of the term ‘may suffer significant adverse effects’, the threshold is set at a lower level than significant harm. Article 26(2) envisages two scenarios in which consultations might arise. Firstly, in relation to operation and maintenance; and secondly, where ‘wilful or negligent acts or forces of nature’ arise. This Article should be contrasted with Article 28 dealing with emergency situations. While the latter Article deals with imminent threats, Article 26 would be more preventative in nature.

397 1994 Draft Articles at 127.

398 Ibid, at 128.

399 See Section 3.1.3 for an explanation of significant adverse effects.

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