Part III

Quiz


Are States only obliged to notify other States regarding planned measures if it is certain that the planned measures will cause significant harm?

Yes – Incorrect

Prior to implementing, or permitting to implement, planned measures on an international watercourse, the implementing state is obliged to provide notification to any other watercourse states which may be impacted by ‘significant adverse effects’ resulting from the planned measures.

The UN Watercourses Convention provides quite detailed provisions related to the notification of planned measures. Whilst “planned measures” are not defined by the Convention, it is generally taken to mean any intended projects or programme which may cause some form of adverse effect(s) on a watercourse, either directly or indirectly, and in-turn within the territory of another watercourse state.

Moreover, explained in the UN Watercourses Convention User’s Guide:

Article 12 of the UN Watercourses Convention is the first in a series of articles on planned measures which may have a significant adverse effect upon other watercourse states. The threshold which triggers this procedural framework provided for in Articles 12 to 19 […] – the possibility of having a ‘significant adverse effect’ upon other watercourse states – is lower than that of ‘significant harm’ laid out in Article 7. The reason for setting a lower standard than the one of ‘significant harm’ was to avoid the situation where a notifying watercourse state would automatically be put in the position of admitting that a planned measure may cause significant harm to its co-riparians [emphasis added].

Hence, absolute certainty of causing significant harm or ‘significant adverse effects’ is not the threshold for notification of planned measures, rather it is the reasonable apprehension by the implementing State that such impacts may occur.

For further discussion on the obligation of prior notification and consultation, see Fact Sheet #6.

No – Correct

Prior to implementing, or permitting to implement, planned measures on an international watercourse, the implementing State is obliged to provide notification to any other watercourse States which may be impacted by ‘significant adverse effects’ resulting from the planned measures.

The UN Watercourses Convention provides quite detailed provisions related to the notification of planned measures. Whilst “planned measures” are not defined by the Convention, it is generally taken to mean any intended projects or programme which may cause some form of adverse effect(s) on a watercourse, either directly or indirectly, and in-turn within the territory of another watercourse State.

Hence, absolute certainty of causing significant harm or ‘significant adverse effects’ is not the threshold for notification of planned measures, rather it is the reasonable apprehension by the implementing State that such impacts may occur.

For further discussion on the obligation of prior notification and consultation, see Fact Sheet #6.

When notifying another State of planned measures for an international watercourse under Art 12 of the UN Watercourse Convention, does the notifying State always have to include an Environmental Impact Assessment (EIA)?

Yes – Incorrect

Official notification of planned measures to any State(s) which may be impacted by such measures must include the results of any Environmental Impact Assessment if available, but not if one has not already been conducted or the results of which are not available.

Regarding notification, Article 12 stipulates that “before a watercourse implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified state to evaluate the possible effects of the planned measures”. Hence, a notifying State is only required to provide the results of an EIA as part of official notification if and when such results are available at the time of notification.

However, whilst there is no explicit requirement to conduct EIAs under the Convention, transboundary EIAs are generally seen as an important part of the notification and assessment process for planned measures. Based on the Article 7 duty to take appropriate measures not to cause significant harm and Article 12 on notification concerning planned measures with possible adverse effects, one could argue that conducting an EIA is necessary to effectively implement the more general requirements of the UN Watercourses Convention.

Additionally, the International Court of Justice (ICJ) in the judgment of the Pulp Mills on the River Uruguay case affirmed that EIAs are an element of the due diligence requirement not to cause significant harm (see Fact Sheet #5). However the practical components within an EIA were not defined by the ICJ so this is left up to States to determine.

For further discussion on the obligation of prior notification and consultation, see Fact Sheet #6.

No – Correct

Official notification of planned measures to any state(s) which may be impacted by such measures must include the results of any Environmental Impact Assessment if available, but not if one has not already been conducted or the results of which are not available.

Regarding notification, Article 12 stipulates that “before a watercourse implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified state to evaluate the possible effects of the planned measures”. Hence, a notifying State is only required to provide the results of an EIA as part of official notification if and when such results are available at the time of notification.

However, whilst there is no explicit requirement to conduct EIAs under the Convention, transboundary EIA is generally seen as an important part of the notification and assessment process for planned measures. Based on the Article 7 duty to take appropriate measures not to cause significant harm and Article 12 on notification concerning planned measures with possible adverse effects, one could argue that conducting an EIA is necessary to effectively implement the more general requirements of the UN Watercourses Convention. This was affirmed by the ICJ in the judgment of the Pulp Mills on the River Uruguay case when stating that EIA is an element of the due diligence requirement not to cause significant harm (see Fact Sheet #5).

For further discussion on the obligation of prior notification and consultation, see Fact Sheet #6.

After the stipulated period of six months to reply to notification for planned measures (Art 13) has expired, can the notified State then request an additional six months to reply?

Yes – Correct

If the six month period after notification poses ‘special difficulty’ for the notified state to study and evaluate the planned measures proposed, it may request an additional six months in order to reply.

Notification essentially triggers a process of consultation and potentially negotiation. Once a state has been notified of a planned measure, the notified state has six months to evaluate the data and information. This period can be extended for a further six months where necessary as provided under Art 13(b) which stipulates that, ‘Unless otherwise agreed: This period shall, at the request of a notified state for which the evaluation of the planned measures poses special difficulty, be extended for a period of six months’.

Thus, the notified state is entitled to request from the notifying state a further six months to reply to notification if evaluating the planned measures poses ‘special  difficulty’ within the initial six month period of reply. If the request is based on valid grounds, the reply period must be extended for six months, unless otherwise agreed between the states concerned.

For discussion on the Convention’s negotiation process for planned measures, see Fact Sheet #6.

No – Incorrect

If the six month period after notification poses ‘special difficulty’ for the notified state to study and evaluate the planned measures proposed, it may request an additional six months in order to reply.

Notification essentially triggers a process of consultation and potentially negotiation. Once a state has been notified of a planned measure, the notified state has six months to evaluate the data and information. This period can be extended for a further six months where necessary as provided under Art 13(b) which stipulates that, ‘Unless otherwise agreed: This period shall, at the request of a notified state for which the evaluation of the planned measures poses special difficulty, be extended for a period of six months’.

Thus, the notified state is entitled to request from the notifying state a further six months to reply to notification if evaluating the planned measures poses ‘special difficulty’ within the initial six month period of reply. If the request is based on valid grounds, the reply period must be extended for six months, unless otherwise agreed between the states concerned.

There are some important final points to note regarding the period of reply. As the Online User’s Guide highlights:

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.

For discussion on the Convention’s negotiation process for planned measures, see Fact Sheet #6.

During the period of notification and consultation for planned measures, unless otherwise agreed, is the notifying State obliged to refrain from implementing the planned measures for six months?

Yes – Correct

Unless otherwise agreed, the notifying State must not go ahead with implementing the planned measure during the six month period after notification (including a further six months where an extension is granted during that initial period based on a valid request).

Under the Convention, Art 14(b) provides that, ‘[d]uring the period referred to in Article 13, the notifying state shall not implement or permit the implementation of the planned measures without the consent of the notified states‘. Hence, a state must not conduct activities or authorise any activities towards the implementation of the planned measures in question for at least six months after notification during the period for reply, unless the consent of the notified state has been obtained.

Furthermore, under Art 14(a) of the Convention, an additional obligation is placed on the notifying state during the period of reply whereby they ‘[s]hall cooperate with the notified states by providing them, on request, with any additional data and information that is available and necessary for an accurate evaluation’.

Finally, under Article 15, within that period the notified state must reply to the notifying state stating whether they find the planned measure to be consistent with the obligations under the Convention. If states cannot agree on this point, they should enter into further consultation and negotiation, pursuant to the dispute settlement mechanisms set out in Article 33 of the Convention.

For discussion on the Convention’s negotiation process for planned measures, see Fact Sheet #6.

No – Incorrect

Unless otherwise agreed, the notifying State must not go ahead with implementing the planned measure during the six month period after notification (including a further six months where an extension is granted during that initial period based on a valid request).

Under the Convention, Art 14(b) provides that ‘[d]uring the period referred to in Article 13, the notifying state shall not implement or permit the implementation of the planned measures without the consent of the notified states’. Hence, a state must not conduct activities or authorise any activities towards the implementation of the planned measures in question for at least six months after notification during the period for reply, unless the consent of the notified State has been obtained.

As stated in the Online User’s Guide:

The obvious reason for the second obligation imposed by Article 14 is to help with the compliance of the general principle of equitable and reasonable utilisation. If the notifying state was to proceed with the planned project before the notified state has an opportunity to assess the potential impacts of the measures (and informs the notifying state of its findings), the notifying state would most certainly not be in a position – due to a lack of sufficient information – to determine whether it was in compliance with Articles 5 to 7.

Furthermore, under Art 14(a) of the Convention, an additional obligation is placed on the notifying state during the period of reply whereby they ‘[s]hall cooperate with the notified states by providing them, on request, with any additional data and information that is available and necessary for an accurate evaluation’.

Finally, under Article 15, within that period the notified state must reply to the notifying state stating whether they find the planned measure to be consistent with the obligations under the Convention. If states cannot agree on this point, they should enter into further consultation and negotiation, pursuant to the dispute settlement mechanisms set out in Article 33 of the Convention.

For discussion on the Convention’s negotiation process for planned measures, see Fact Sheet #6.

 

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