Article 17

17.1 Commentary


Article 17 deals with circumstances in which there has been a communication containing a finding by the notified state that ‘implementation of the planned measures would be inconsistent with the provisions of Article 5 or Article 7’ – i.e. incommensurable with the general principle of equitable and reasonable utilisation. The first paragraph of Article 17 calls for the notifying state to enter into consultations and, if necessary, negotiations with the state making such communication ‘with a view to arriving at an equitable resolution of the situation.’ The term ‘if necessary’ was included here since some members of the ILC drew a distinction between consultations and negotiations. In some cases, consultations can already resolve the issue(s) – and thus, do not always have to be followed by negotiations.291 The ‘situation’ referred to is the finding of the notified state that implementation of the planned measures would be inconsistent with the principle of equitable and reasonable utilisation. The term ‘equitable resolution’ includes, among other things, modifications to the initial plan so as to eliminate its potentially harmful elements, adjustment of other uses being made by either of the states, or the provision by the notifying state of compensation (monetary or other) acceptable to the notified state.292

Consultations and negotiations are a requirement of a number of international agreements,293 decisions of courts and tribunals,294 and the need for such procedures has also been recognised in numerous publications by intergovernmental295 and nongovernmental organisations.296

Paragraph 2 of Article 17 concerns the manner in which the consultations and negotiations provided for in paragraph 1 are to be conducted. The text has been mainly inspired by the award of the tribunal in the Lac Lanoux Arbitration297 and by the judgment of the International Court of Justice (ICJ) in the Fisheries Jurisdiction (United Kingdom v Iceland) Case.298 The fashion in which states are to consult and negotiate was also addressed by the ICJ in another (non- freshwater-related) famous case: the North Sea Continental Shelf Case.299 Further, the term ‘legitimate interests’ has been used in Article 3 of the Charter of Economic Rights and Duties of States300 and is employed in paragraph 2 of Article 17 of the UN Watercourses Convention in order to limit the scope of ‘interests’.

Paragraph 3, then, requires the notifying state – if requested by the notified state in its communication under Article 15 – to suspend implementation of the planned measures for six months. This seems reasonable, since proceeding with the planned measures during the period of consultations and negotiations would not be consistent with the concept of ‘good faith’ required by paragraph 2. Also in line with the idea of ‘good faith,’ however, consultations and negotiations should not suspend the implementation of the planned measures for longer than is deemed reasonable. The establishment of the appropriate length of the period is subject to agreement between the states concerned, as they are in the best position to consider all the particular circumstances. Only in case they cannot reach an agreement, paragraph 3 sets a period of six months; hence the use of the term ‘unless otherwise agreed.’ After this period has expired, the notifying state may proceed with implementation of its planned measures – subject, however, to its obligations under Articles 5 and 7 (the general principle of equitable and reasonable utilisation).

 

291 1994 Draft Articles at 116, Article 17, para 2.

292 Ibid.

293 See, for example, the 1954 Convention between Yugoslavia and Austria concerning water economy questions relating to the Drava (United Nations, Treaty Series, vol. 227, p. 111), Art. 4; the 1960 Convention on the protection of Lake Constance against pollution (Legislative Texts, p. 438, Treaty No. 127), Art. 1, para. 3; the 1964 Agreement between Poland and the USSR concerning the use of water resources in frontier waters (United Nations, Treaty Series, vol. 552, p. 175), Art. 6; the 1964 Agreement Concerning the Niger River Commission and the Navigation and Transport on the River Niger (ibid., vol. 587, p. 19), Art. 12; and the 1981 Convention between Hungary and the USSR concerning water economy questions in frontier waters (referred to in Environmental Protection and Sustainable Development. Legal Principles and Recommendations (Dordrecht, Martinus Nijhoff, 1987), p. 106), Arts. 3-5.

294 See also Lac Lanoux Arbitral Award and the North Sea Continental Shelf cases (Federal Republic of Germany v Denmark, and Federal Republic of Germany v Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, especially at 46-48, paras. 85 and 87.

295 See, for example, the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (XXIX) of 12 December 1974), Art. 3; General Assembly resolution 3129 (XXVIII) of 13 December 1973 on cooperation in the field of the environment concerning natural resources shared by two or more States; the “Principle of information and consultation” annexed to the 1974 OECD “Principles concerning transfrontier pollution” (Recommendation c (74) 224 adopted by the Council of OECD on 14 November 1974) OECD, OECD and the Environment (Paris, 1966), p. 142; and UNEP’s 1978 “Draft principles of conduct” concerning shared natural resources (UNEP, Environmental Law: Guidelines and Principles: No. 2, Shared Natural Resources (Nairobi, 1978) (principles 5, 6 and 7)).

296 See, for example, the above-mentioned resolutions adopted by the Institute of International Law in 1961 (Annuaire de l’Institut de Droit International, 1961, vol. 49-II, pp. 381-384, Art. 6) and in 1979 (Annuaire de l’Institut de Droit International, 1979, vol. 58-II, pp. 196 et seq., art. VII); and the articles adopted by the ILA in 1980 (ILA, Report of the Fifty-second Conference, Helsinki, 1966, pp. 484 et seq., art. 8) and in 1982 (ILA, Report of the Sixtieth Conference, Montreal 1982, pp. 535 et seq. Art. 6).

297 See United Nations Reports of International Arbitral Awards, vol. XII, p 281.

298 See Judgment, United Nations Reports of International Arbitral Awards, Vol II at 921, para 78.

299 See Judgement, paras 85 and 87.

300 United Nations General Assembly resolution 3281 (XXIX) of 12 December 1974.

 

 

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