The following essay by Dr. Salman M. A. Salman is a summary of his recently published monograph (under the same title), which appears as Vol. 4(2) 2019 of Brill Research Perspectives in International Water Law. Dr. Salman is an academic researcher and consultant on water law and policy, Editor-in-Chief of Brill Research Perspectives in International Water Law, a Fellow with the International Water Resources Association (IWRA), and the co-recipient of the IWRA Crystal Drop Award in 2017. Until 2009, he served as the World Bank Adviser on Water Law. He can be reached at: salmanmasalman [at] gmail.com.
Notification of co-riparian states of planned measures on shared watercourses that may result in significant adverse effects has been widely accepted as one of the established principles of international water law. This wide acceptance of notification is now codified and elaborated by the 1997 UN Watercourses Convention, which includes one separate part, with nine articles, on notification.
The duty to notify other states of activities that may affect them stems from the international obligations of good faith, good neighbourliness, and reciprocity. It is an extension of the general obligation under international law to cooperate and to exchange data and information on shared watercourses. Such cooperation is no doubt the sine qua non for the equitable, sustainable, and efficient utilization and protection of shared watercourses.
It is worth noting that the notification requirement and its components have recently become the focus of attention and developments in a number of global fora, and have energized the debate on the details of operationalizing the notification obligation. The attention covered a number of issues including the content of the notification letter, and the different types of responses thereto.
One major development in the field of notification is the decision of the International Court of Justice (ICJ) in 2010 in the Pulp Mills case. That decision has gone beyond endorsing the notification requirement under the Statute of the River Uruguay, concluded by Argentina and Uruguay in 1975. The ICJ considered notification as a sine qua non of cooperation, in addition to being a vital method for protecting the shared watercourse.
In that same year, 2010, negotiations over the Nile River Basin Cooperative Framework Agreement (CFA) among the Nile Basin countries collapsed after more than ten years of facilitation by the World Bank and some other donors. The impasse resulted from the insistence by Egypt and Sudan on the inclusion of a specific reference in the CFA to what they considered as their ‘acquired rights’ over the Nile waters (which they termed ‘water security’), as well as provisions on notification, similar to those of the UN Watercourses Convention. The CFA includes provisions on exchange of data and information, but none on notification. Because they are inter-related, these demands have been vehemently rejected by the other Nile riparians.
Another development that has highlighted the concept of notification relates to the gradual and wide acknowledgement that harm, under international water law, is actually a two-way matter with regard to the issue of quantitative allocation of the waters of shared rivers. Just as upstream riparians can harm downstream ones through storage, diversion, and use of the waters of shared rivers, downstream riparians can also harm upstream riparians by foreclosing their future uses of the shared waters through the prior use of, and the claiming of rights to such waters, and by invoking the no harm obligation. Based on this concept of foreclosure of future uses, notification has to be from all, and to all, of the riparians of the shared watercourse.
The fourth development in the realm of notification relates to the discussion and attempts of the World Bank, since 2005, to amend the provisions on notification in the Bank Policy for “Projects on International Waterways.” Indeed, the World Bank has one of the pioneering and elaborate policies, and the only practical experience, among international organizations in this field. The Policy does not establish a threshold for notification. Rather, it requires notification, as a general rule, for all projects on international waterways, and sets forth three exceptions to the notification requirement. The purpose of the proposed amendment is to align the Bank Policy with the provisions of the UN Watercourses Convention with regard to the threshold for notification.
The monograph begins with an overview of the historical and legal origins of the notification requirement. It then examines in detail the provisions of the UN Watercourses Convention as well as those of the World Bank policies dealing with notification, including the content of notification and the different types of responses that the notifying state may receive from the notified states. The monograph discusses in detail possible objections to the planed measures from riparian states, and how such objections are addressed under the provisions of the Convention and the Bank Policy and practice.
The monograph concludes by highlighting a number of comparators and synergies between the UN Watercourses Convention and the Bank Policy and practice, including the role of environmental impact assessments, shared groundwater resources, the different responses to notification, and how to handle objections from a notified state. The conclusion also stresses the potential wider positive outcomes of notification when undertaken properly and in good faith.
The full article can be accessed here.
