Article 15

15.1 Commentary


Article 15 deals with the obligations of the notified state(s) regarding their response to a notification of planned measures (see Article 12). Notified states are accordingly obliged to communicate their findings concerning possible effects of the planned measures to the latter ‘as early as possible’ – within the period provided for in Article 13. The requirement to inform the notifying state immediately of their findings can be considered as an extension of the principle of good faith (see Glossary of Terms) since it tries to, firstly, avoid any unnecessary delay of the project in case the findings conclude that the planned measures are consistent with Article 5 and Article 7. Secondly, it provides a trigger for the consultation and negotiation process (see Article 17) as soon as possible, in case the findings suggest non-compliance with the principle of equitable and reasonable utilisation.

In case a notified state ‘finds that implementation of the planned measures would be inconsistent with the provisions of Article 5 or Article 7’, it has to provide a ‘documented explanation’ of its reasoning. Hence, it must support its reply with an indication of the factual or other bases of its findings and clearly lay out the reasons for its conclusion that the implementation of the planned measures would constitute a violation of Articles 5 or 7. The 1975 Statute of the Uruguay River provides a similar requirement by stating that the communication of the notified party ‘shall state which aspects of the works or of the mode of operation may cause appreciable harm to […] the regime of the river or the quality of its waters, the technical grounds for that conclusion and suggested changes in the project or the mode of operation’.286

The term ‘would,’ rather than ‘might,’ is used to indicate that the notified state must conclude that a violation of the principle of equitable and reasonable use (Articles 5 to 7) is more than just a mere possibility.287 This rather strict obligation is due to the fact that a communication of the kind described here permits a notified state to request further suspension of the implementation of the planned measures in question (see Article 17 (3)). The strong effect of the communication, in combination with the principle of good faith, justifies the requirement that the notified state has to demonstrate its comprehensive assessment of the possible impacts of the planned measures. As noted in Section 12.1.2, the term ‘implementation’ applies to measures288 planned by both private parties and the state itself.

286 Art 11 of the 1975 Statute of the Uruguay River.

287 1994 Draft Articles at 115, Article 15, para 2.

288 Ibid.

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Notification Process for Planned Measures

 

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