Article 28

28.1 Commentary


Article 27 and Article 28 of the UN Watercourses Convention are closely related. However, while the purpose of Article 27 is to prevent and mitigate harmful conditions in advance of such events occurring, Article 28 deals with the roles and responsibilities of watercourse states when such events actually happen. As with Article 27, Article 28 covers both natural and human induced events or a combination thereof, including floods, the breaking up of ice, landslides or earthquakes, and industrial accidents. Tanzi and Arcari therefore observe that, ‘the same factual situation, being susceptible to escalation, may, in different points in time, fall within the purview of both provisions.’409 The inclusion of ‘other States’ in Article 28(1) recognises that some ‘watercourse-related’ emergencies may affect non-watercourse States, such as a chemical spill that is transported via an international watercourse to the sea and beyond.410

Article 28(2) provides an obligation upon watercourse States to notify others of any emergency originating within its territory without delay. ‘Without delay’ has been interpreted as meaning ‘upon learning of the emergency’; and ‘by the most expeditious means available’ can be defined as ‘the most rapid means of communication that is accessible.’411 Pursuant to Article 28(2) both watercourse and non-watercourse States must be notified, if potentially affected, and the inclusion of ‘competent international organisations’ within the articles relates to those ‘competent to participate in responding to the emergency by virtue of its constituent instrument.’412

Article 28(3) requires states to take all ‘practicable measures’ to prevent, mitigate and eliminate harmful effects’, which might be jointly undertaken if necessary. The qualification ‘practicable’ seeks to cover those measures that are ‘feasible, workable and reasonable’.413 Additionally, Article 28(4) calls for anticipatory measures in order to clearly set out the roles and responsibilities of states and competent international organisations in the eventuality of an emergency situation. The use of the term ‘where necessary’, recognises that in certain circumstances, ‘some watercourse States and international watercourses may not justify the effort and expense involved in the development of contingency plans.’414 Within the context of transboundary harm, the ILC has commented that:

‘…the duty to prevent environmental disasters obligates States to enact safety measures and procedures to minimise the likelihood of major environmental accidents, such as nuclear reactor accidents, toxic chemical spills, oil spills or forest fires. Where necessary, specific safety or contingency measures are open to States to negotiate and agree in matters concerning management of risk of significant transboundary harm, such safety measures could include:

(a) adoption of safety standards for the location and operation of industrial and nuclear plants and vehicles;

(b) maintenance of equipment and facilities to ensure ongoing compliance with safety measures;

(c) monitoring of facilities, vehicles or conditions to detect dangers; and

(d) training of workers and monitoring of their performance to ensure compliance with safety standards. Such contingency plans should include the establishment of early warning systems.’415

409 A Tanzi and M Arcari, The United Nation Convention on the Law of International Watercourses, 223.

410 1994 Draft Articles at 130.

411 Ibid.

412 Ibid.

413 Ibid.

414 Ibid.

415 Ibid.

Industrial Accidents and the International Watercourses

In Europe, a number of industrial accidents prompted an evolution in the applicable law and policy. A release of dioxin at Seveso in Italy in 1976 led to the adoption of the first piece of legislation to prevent and control such accidents, the Seveso Directive 85/501/EEC of the European Community in 1982. In 1999, Council Directive 96/82/EC on the control of major-accident hazards updated the Seveso Directive. January 2000 witnessed another industrial accident in Romania, which had a severe transboundary impact on the Danube river basin. The mining company, Baia Mare in Northern Romania, spilled over 100,000 cubic meters of cyanide-polluted water into a tributary of the Danube river basin. These incidents also motivated the UNECE to develop laws relating to transboundary industrial accidents, namely the Convention on the Transboundary Effects of Industrial Accidents, and Protocol on Civil Liability, to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes.

For more information see: http://www.unece.org/env/teia/welcome.html

International Law Association Flood Rules

Article 4

1. Basin States should communicate amongst themselves as soon as possible on any occasion such as heavy rainfalls, sudden melting of snow or other events likely to create floods and dangerous rises of water levels in their territory.

2. Basin States should set up an effective system of transmission in order to fulfil the provisions contained in para. 1, and should ensure priority to the communication of flood warnings in emergency cases. If necessary a special system of translation should be built up between the basin States.

 

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