Upper riparian state A shares an international watercourse with lower riparian state B. State A is planning to authorise the construction of a large dye-work plant in close proximity to a wetland shared with state B. While state A acknowledges the risk the plant may pose on this pristine natural resource, in its view the economic benefits outweigh the potential environmental drawbacks. State A hopes that further companies will follow the dye-work plant and a new industrial park will eventually emerge – contributing to the economic prosperity of the region.

During a presentation at a meeting of the regional economic integration organisation, which both heads of state attend, the delegation of state A reveals the basic points of the plan and indicate that work will begin within the next three months.

After the rather surprising presentation, state B exchanges an official communiqué with state A, claiming that state A did not respect its international obligations. According to state B, state A has failed to comply with various provisions of Article 12 of the UNWC:

(1) oral notification cannot be perceived as sufficient;

(2) giving notice only three months before the beginning of work is not ‘timely’;

(3) an Environmental Impact Assessment (EIA) must be carried out and its findings have to be communicated to state B;

(4) and a land-use plan should accompany the information to see the extent and type of industrial settlement planned in the area.

In its response, state A argues that the UN Watercourses Convention does not prescribe any form of notification, and thus its oral presentation of the planned measures was sufficient. It was also timely, since the planning agency only recently finalised the details of the plan. Furthermore, an EIA would drive up the costs, making the whole project less viable economically. According to state A, such a complicated and time-consuming assessment will not be necessary, since state B can fully trust state A’s judgement. State A further argues that the UN Watercourses Convention does not even require that an EIA be carried out; it merely requires that the results of such an assessment should be shared if it had been undertaken voluntarily. Finally, state A suggests state B buy a copy of the landuse plan, since its conception was rather expensive.

1. The argument of state A regarding its oral notification will not hold. While it is correct that Article 12 does not mention a requirement for notifications concerning planned measures to be in writing, a presentation at a conference, or even a phone call, would (most likely) not suffice in communicating all relevant facts regarding any planned measure. Treaty practice supports this.303
2. The reasoning of state A that it wanted to wait until all relevant data and information was available is equally weak. The requirement of ‘timely’ does not allow for delaying the notification; it rather tries to allow for a thorough evaluation of the possible impacts by all watercourse states at an early stage in the planning process; which is a prerequisite for meaningful consultations between the states. This line of argument has been strengthened by the ICJ in the judgement of the Pulp Mills Case,304 where the court stated that notification should take place at a very early stage and distinguished between the duty to inform and a subsequent (and more comprehensive) duty to notify, even though the initial information provided might not include all relevant data. Given the fact that Article 13(a) of the Convention allows the notified state a period of six months during which the possible effects of the planned measures have to be evaluated, the three months before the start of construction works are clearly too short.
3. While state A is correct in stating that the Convention does not specifically require the planning state to conduct an EIA; according to various scholars and recently also the ICJ, such an assessment is now an obligation under customary international law whenever a project may have adverse transboundary effects. This obligation is particularly clear in the case at hand, as the planned measure might have a significant adverse effect upon the wetland.
4. Furthermore, state A will not be able to charge state B for the copy of the land-use plan, since state A has to submit all available technical data and information; and the land-use plan clearly falls into this category since it has already been finalised. The term ‘available’ points to cases where a state which has been notified requests more data or information that is not readily available and can only be gathered by the notifying state. It is only in such instances where it is deemed appropriate for the former to cover the expenses for the additional information.

After consulting with its international lawyers, state A – reluctantly – accepts the four points, conducts an EIA, and sends all technical data and information to its downstream neighbour state B. Five months into the evaluation process, state B requests an extension of the six months period for its reply – as provided for in Article 13(b) of the UN Watercourses Convention – arguing that the assessment of all the data and information ‘poses special difficulty’ due to translation problems, a mismatch in the approach of evaluating the EIA, and a lack of staff available to analyse the data. A lack of staff capable of evaluating the shared data alone would surely not qualify as posing ‘special difficulty.’ However, the two other grounds, i.e. different languages and variations in the standards of EIAs, may well suffice in reasoning for extending the review period for another six months – depending on the specific complexity of each case. This does not mean, however, that state B can use Article 13 for delaying tactics, since Article 15 demands the reply to be communicated to the notifying state (here state A) as early as possible.

While state A understands its obligation under Article 14 not to implement the planned measures without the consent of state B, it nevertheless begins work on the infrastructure for the industrial area. Realising this, state B requests state A immediately puts all construction projects on hold, until the two states have agreed on the terms of the planned measures. State A in turn argues that the infrastructural facilities (mainly roads at this stage) will have no impact on the transboundary watercourse and that state A will of course respect state B’s period for reply during which time state A will not begin with the construction of the actual ‘planned measure’ – the dye-work plant. Here, state A’s argument is convincing. Article 14(b) does not oblige state A to stop any works on its territory – only the implementation of the actual planned measures which may have a significant adverse (transboundary) effect. However, it would be wise for state A to await the outcome of state B’s evaluation of the shared data and information and the potential following negotiations between the states. Otherwise, state A takes the risk that its infrastructure does not match the final project. Furthermore, state A has to be aware that Articles 5-7 of the Convention, i.e. the principle of equitable and reasonable utilisation, apply in any case – regardless of the notification and reply process.

Nine months after state A shared the data and information with its downstream neighbour, state B claims in its reply that the carrying capacity of the transboundary watercourse and the linked wetland is much lower than estimated by state A and demands the designated area for the industrial park to be scaleddown considerably. According to state B, if state A would proceed with the original plan, it would violate the principle of equitable and reasonable utilisation. State A on the other hand argues that the proposed dye-work plant and the planned industrial area are in line with the sustainable management of the river; and thus comply with Articles 5-7 of the Convention.

A consultation and negotiation process follows according to Article 17 of the UN Convention. Both watercourse states have to try to reach an ‘equitable resolution’ of the conflicting views, based on the principle of good faith (see Glossary of Terms). Their ultimate goal is to arrive at a point where both states agree that the planned measure is consistent with Articles 5-7 – e.g. by amending the initial plan or paying compensation. In the case at hand one could think of downscaling the size of the dye-work plant, imposing strict environmental regulation or standards on the industrial development in the area, or payment by state A for environmental protection measures in the transboundary wetland.

303 See, for example, Art XII (3) of the Columbia River Basin Treaty.

304 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para 99, citing art 7 of the 1975 Statute.

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Notification Process for Planned Measures