Article 12

12.1.3 Timely


The requirement of ‘timely’ notification is intended to allow for a thorough evaluation of the possible effects of planned measures by the co-riparian states at an early stage in the planning process; and thus provide the basis for meaningful consultations and negotiations in case they are deemed necessary (see Article 17).

This view has recently been shared by the ICJ in the Pulp Mills Case, where the Court stated in its judgement that notification should have taken place at a very early stage prior to the authorisation of the project on the Uruguay River.270 Arguing in line with the due diligence requirements of the obligation not to cause significant (transboundary) harm, the Court rejected Uruguay’s reasoning that ‘the requirement to inform […] cannot occur in the very early stages of planning, because there would not be sufficient information available to the Commission for it to determine whether or not the plan might cause significant damage to the other state’ and also denied that the point in time when the required information would be available ‘may even be after the state concerned has granted an initial environmental authorisation’.271 In its judgement the ICJ also distinguished between the duty to inform and a subsequent (and more extensive) duty to notify – as required by the treaty relevant in the case 272 – and concluded that Uruguay had to ‘inform CARU [Administrative Commission of the River Uruguay] as soon as it is in possession of a plan which is sufficiently developed to enable CARU to make the preliminary assessment’, even though ‘the information provided will not necessarily consist of a full assessment of the environmental impact of the project’.273

270 Pulp Mills Case Judgement, para 99.

271 Ibid para 100.

272 Ibid para 104.

273 Ibid para 105 referring to Art 7 of the 1975 Statute.

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Notification Process for Planned Measures

 

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