Article 16

16.1 Commentary

Article 16 concerns cases where the notifying state, during the period for reply (see Article 13), receives no communication under Article 15. Here, the notifying state may proceed with the implementation, or permit the implementation, of the planned measures. However, such a move is subject to two conditions: firstly, the plans must be implemented ‘in accordance with the notification and any other data and information provided to the notified states’ (see Article 12 and Article 14); and, secondly, the implementation of the planned measures must be consistent with the obligations of the notifying state under the principle of equitable and reasonable utilisation and the ‘no-significant harm’ rule (Article 5 and Article 7).

While the arguments for the second condition are obvious, the reason for the first one is that the silence of a notified state with regard to the planned measures can only be regarded as tacit consent with regard to matters which were brought to its attention by the notifying state. Allowing the planned measures to progress in a specific case is an important element of the attempt to balance the interests of both notifying and notified states.289

Paragraph 2 of Article 16 establishes that the costs incurred by the notifying state, which relies on the absence of a reply from the notified state, in continuation with its planned measures can be offset against any future claims by a notified state which has failed to reply. In drafting the Convention, the ILC decided that to explicitly allow for counter claims by a notifying state could prove overly troublesome in some cases.290

289 1994 Draft Articles at 115, Article 16, para 2.

290 Ibid, para 3.

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