10.5 Dispute settlement
157
consideration of instances of non-compliance, response to instances of noncompliance (assistance or penalties) and the formal resolution of disputes (UNEP
2007).
10.5.2 Mechanisms of Transboundary Water Dispute
Settlement in International Law
The general obligation of states to settle their disputes peacefully stems from the
Charter of the United Nations (Art. 2.3.). The Charter also enumerates a number of
mechanisms states may seize in their effort to resolve their differences pacifically.
These include “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their
own choice” (Art. 33.1.). While countries remain free to choose the means of settlement that best suit their specific circumstances, they are not free to undertake any
action that might aggravate the situation (Shaw 2003).
In that spirit the UN Watercourses Convention regulates dispute settlement extensively. In the first place, it calls upon states to resolve their differences over the
interpretation or application of the Convention by way of negotiations. Should negotiations fail to materialise or produce a mutually acceptable outcome, the affected
riparians may jointly seek the involvement of a third party, be it a mediator, conciliator or any joint basin organisation (Art. 33.2.). Alternatively, if no agreement is
reached after six months following the request for negotiations any of the parties may
trigger an investigation by a mandatory fact-finding commission. This commission
has broad powers to establish the facts and to formulate recommendations as it sees
fit for the resolution of the dispute in an equitable manner. While such recommendations are not legally binding, the parties concerned are required to “consider [them]
in good faith” (Art. 33.2-8.). Finally, parties may accept the mandatory jurisdiction
of the International Court of Justice or an arbitral tribunal established in accordance
with the detailed rules laid down by the Convention (Art. 33.10.). While most of the
mechanisms outlined by the Convention are standard treaty practice, the mandatory
fact-finding mechanism represents a true outlier. The choice of the Convention’s
draftsmen to include this procedure was celebrated by some authors as a progressive
step towards mandatory dispute settlement. It was also criticised, however, as a major
deterrent against ratification, contributing to the grossly delayed entry into force of
the Convention (Tanzi and Contartese 2015).
Major regional and basin treaties usually also contain provisions on dispute settlement. The SADC Revised Protocol on Shared Watercourses provides for a mandatory
court procedure before the Tribunal established under the Treaty on the Southern
African Development Community, should parties fail to resolve their dispute under
the Protocol through non-judicial means (Art. 7.1.). The Statute of the River Uruguay
between Argentina and Uruguay also provides for mandatory judicial settlement by
way of stipulating the automatic jurisdiction of the International Court of Justice.
157
consideration of instances of non-compliance, response to instances of noncompliance (assistance or penalties) and the formal resolution of disputes (UNEP
2007).
10.5.2 Mechanisms of Transboundary Water Dispute
Settlement in International Law
The general obligation of states to settle their disputes peacefully stems from the
Charter of the United Nations (Art. 2.3.). The Charter also enumerates a number of
mechanisms states may seize in their effort to resolve their differences pacifically.
These include “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their
own choice” (Art. 33.1.). While countries remain free to choose the means of settlement that best suit their specific circumstances, they are not free to undertake any
action that might aggravate the situation (Shaw 2003).
In that spirit the UN Watercourses Convention regulates dispute settlement extensively. In the first place, it calls upon states to resolve their differences over the
interpretation or application of the Convention by way of negotiations. Should negotiations fail to materialise or produce a mutually acceptable outcome, the affected
riparians may jointly seek the involvement of a third party, be it a mediator, conciliator or any joint basin organisation (Art. 33.2.). Alternatively, if no agreement is
reached after six months following the request for negotiations any of the parties may
trigger an investigation by a mandatory fact-finding commission. This commission
has broad powers to establish the facts and to formulate recommendations as it sees
fit for the resolution of the dispute in an equitable manner. While such recommendations are not legally binding, the parties concerned are required to “consider [them]
in good faith” (Art. 33.2-8.). Finally, parties may accept the mandatory jurisdiction
of the International Court of Justice or an arbitral tribunal established in accordance
with the detailed rules laid down by the Convention (Art. 33.10.). While most of the
mechanisms outlined by the Convention are standard treaty practice, the mandatory
fact-finding mechanism represents a true outlier. The choice of the Convention’s
draftsmen to include this procedure was celebrated by some authors as a progressive
step towards mandatory dispute settlement. It was also criticised, however, as a major
deterrent against ratification, contributing to the grossly delayed entry into force of
the Convention (Tanzi and Contartese 2015).
Major regional and basin treaties usually also contain provisions on dispute settlement. The SADC Revised Protocol on Shared Watercourses provides for a mandatory
court procedure before the Tribunal established under the Treaty on the Southern
African Development Community, should parties fail to resolve their dispute under
the Protocol through non-judicial means (Art. 7.1.). The Statute of the River Uruguay
between Argentina and Uruguay also provides for mandatory judicial settlement by
way of stipulating the automatic jurisdiction of the International Court of Justice.