142
10 The Resilience of Transboundary Water Governance …
a requirement under general international law to undertake an environmental impact
assessment where there is a risk that the proposed […] activity may have a significant
adverse impact in a transboundary context”.
37
Other international legal instruments also lay down procedures of prior notification. E.g. the SADC Revised Protocol contains exactly the same general obligations,
procedural steps and timelines as those outlined in the UN Watercourses Convention
(Art. 4.1.). Several basin treaties actually set up a collective system of notification
and authorisation through the competent basin organisation. For example, the Charter of Waters of the Senegal River requires any party planning an intervention with
significant impacts on the basin to notify the project to other riparian states through
the High Commissioner. Projects of a magnitude that can permanently change the
basic characteristics of the river (e.g. flow volume, navigability, etc.) require the
prior approval of all riparian states (Art. 26.). The Mekong Cooperation Agreement
also goes beyond the basic rules contained in the UN Watercourses Convention as
it lays down a collective notification and evaluation procedure coordinated by the
Joint Committee of the Mekong River Commission (Art. 26.). Under this mechanism—whose detailed rules are specified in a side agreement
38 —notifications of
planned measures are to be made by the state of origin not to the other affected states,
but directly to the Joint Committee, which is tasked with the distribution of information and soliciting comments by the affected riparian states. With a view to ensuring
a consensus around all planned projects, the Joint Committee is tasked to reconcile
all differences in advance and to adopt a decision on every project subject to notification. Another example for prior notification mechanisms is the Statute of the River
Uruguay
39 between Argentina and Uruguay that calls for the notification of planned
projects and the relating consultations through the Administrative Commission of
the River Uruguay. The Statute aims to ensure consensus among the riparian states
concerning each planned project. Consequently, if differences remain between the
parties as to the acceptability of the project in question, any party may—following a
conciliation procedure—trigger the mandatory jurisdiction of the International Court
of Justice, as it actually happened in the Pulp Mills case (Art. 7–13.).
10.3.3 Cooperation Over Planned Measures in the European
Union
Cooperation among EU member states over planned interventions affecting water
quality or quantity in other member states is regulated by the parallel (in fact almost
identical) international environmental impact assessment regimes of the EU and the
37 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgement, ICJ
Reports 2010, 14, para 204.
38 Procedures for Notification, Prior Consultation and Agreement (PNPCA), adopted by the Council
of the Mekong River Commission, 2003.
39 Statute of the River Uruguay, Salto, 26 February 1975.
10 The Resilience of Transboundary Water Governance …
a requirement under general international law to undertake an environmental impact
assessment where there is a risk that the proposed […] activity may have a significant
adverse impact in a transboundary context”.
37
Other international legal instruments also lay down procedures of prior notification. E.g. the SADC Revised Protocol contains exactly the same general obligations,
procedural steps and timelines as those outlined in the UN Watercourses Convention
(Art. 4.1.). Several basin treaties actually set up a collective system of notification
and authorisation through the competent basin organisation. For example, the Charter of Waters of the Senegal River requires any party planning an intervention with
significant impacts on the basin to notify the project to other riparian states through
the High Commissioner. Projects of a magnitude that can permanently change the
basic characteristics of the river (e.g. flow volume, navigability, etc.) require the
prior approval of all riparian states (Art. 26.). The Mekong Cooperation Agreement
also goes beyond the basic rules contained in the UN Watercourses Convention as
it lays down a collective notification and evaluation procedure coordinated by the
Joint Committee of the Mekong River Commission (Art. 26.). Under this mechanism—whose detailed rules are specified in a side agreement
38 —notifications of
planned measures are to be made by the state of origin not to the other affected states,
but directly to the Joint Committee, which is tasked with the distribution of information and soliciting comments by the affected riparian states. With a view to ensuring
a consensus around all planned projects, the Joint Committee is tasked to reconcile
all differences in advance and to adopt a decision on every project subject to notification. Another example for prior notification mechanisms is the Statute of the River
Uruguay
39 between Argentina and Uruguay that calls for the notification of planned
projects and the relating consultations through the Administrative Commission of
the River Uruguay. The Statute aims to ensure consensus among the riparian states
concerning each planned project. Consequently, if differences remain between the
parties as to the acceptability of the project in question, any party may—following a
conciliation procedure—trigger the mandatory jurisdiction of the International Court
of Justice, as it actually happened in the Pulp Mills case (Art. 7–13.).
10.3.3 Cooperation Over Planned Measures in the European
Union
Cooperation among EU member states over planned interventions affecting water
quality or quantity in other member states is regulated by the parallel (in fact almost
identical) international environmental impact assessment regimes of the EU and the
37 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgement, ICJ
Reports 2010, 14, para 204.
38 Procedures for Notification, Prior Consultation and Agreement (PNPCA), adopted by the Council
of the Mekong River Commission, 2003.
39 Statute of the River Uruguay, Salto, 26 February 1975.