Article 13

13.1 Commentary

The provisions of the previous Article on notification (Article 12) have two effects. Firstly, the period for reply to the notification starts to run (this Article); secondly, it imposes obligations specified under Article 14 on the notifying state.

Subparagraph (a) of Article 13 provides the notified state(s) with a period of six months for the study and evaluation of the possible effects of the planned measures. Its subparagraph (b) recognises that specific circumstances may cause the notified state to require additional time to reply. A state which has been notified and then seeks such an extension must cite the ‘special difficulty’ by which to justify the request.

During the period for reply to notification, Article 14 requires that the notifying state, inter alia, does not proceed with the implementation of its plans without the consent of the notified state. In any event, paragraph 1 of Article 15 requires the notified state to reply as early as possible, on the basis of good faith, and in the interest of the notifying state proceeding with its plans. Of course, the notified state may reply after the stipulated period has elapsed, but such a reply could not operate to prevent the notifying state from proceeding with the implementation of its plans, in view of the provisions of Article 16. The latter article allows the notifying state to proceed to implementation if it receives no reply within the six month period.

In drafting the UN Watercourses Convention, the ILC considered the option of using a general standard for the determination of the time given for the reply, such as ‘a reasonable period of time’ or ‘timely’ (see, for example, Article 12) rather than the fixed period.283 However, the ILC came to the conclusion that the six month period would ultimately be in the interests of both the state planning the measure and its coriparian(s). While a general standard would obviously be more flexible and allow for adaptation in different situations, its intrinsic uncertainty could lead to additional debates between the watercourse states.284 In acknowledging the need for watercourse states to agree upon a period of time that is appropriate to the respective case, the opening clause of Article 13 – ‘unless otherwise agreed’ – intends to encourage states to agree upon an appropriate period themselves in cases where a six month period is deemed unfeasible. Hence, the initial period for reply as well as the possible extension only applies in the absence of a specific agreement between the states concerned dealing with this matter.

283 1994 Draft Articles at 114, Article 13, para 3; see also Art 8 of the 1975 Statute of the Uruguay River (Actos Internacionales, Uruguay-Argentina, 1830-1980 (1981) 593; stipulating a six month period.

284 1994 Draft Articles at 114, Article 13, para 3.

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