Archive for November, 2020

The principle of prior notification – An instrument of implementing international water law and ensuring cooperative water diplomacy

Monday, November 23rd, 2020

The following essay by Dr. Susanne Schmeier, Associate Professor at IHE Delft, summarizes her recent article entitled “Prior notification of planned measures: A response to the no-harm dilemma?“, which appeared in the journal International Environmental Agreements: Politics, Law and Economics. Dr. Schmeier can be reached at s.schmeier [at]

Disagreements over whether a certain infrastructure scheme planned by one riparian country would have negative impacts on or even substantially harm another riparian state have occurred in numerous basins around the world. Examples include: the dispute between Mekong riparian states over Laos’ mainstream hydropower dams; the conflict between Ethiopia and Egypt over the Grand Ethiopian Renaissance Dam (GERD) on the Nile River and its potential implications for Egypt’s water security; the disagreement between India and Pakistan over a dam on the Kishenganga River, a tributary to the Indus; and the conflict between Tajikistan and downstream Uzbekistan over the Rogun Dam on the Vakhsh River, a tributary of the Amu Darya.

Construction site of the Xayaburi Dam on the Lower Mekong River in 2013. Photo courtesy of Susanne Schmeier.

The current surge in water infrastructure development – at least partly also driven by attempts to reach the Sustainable Development Goals (SDGs) and to produce clean energy in line with the commitments under the 2015 Paris Agreement – combined with increasing pressure of global climate change on water resources are likely to make such disagreements ever more common in the future. In some cases, such disagreements can grow into full-fledged conflicts, with negative repercussions on riparian states’ political and economic relations as well as regional stability as a whole.

The two key substantive principles of international water law – the principle of equitable and reasonable utilization and the principle of no significant harm – aim to guide such developments in shared basins in a way that prevents conflict and ensures sustainable development. Their translation from abstract international law principles, even if codified in specific instruments – such as the 1997 UN Watercourses Convention or the 1992 Helsinki Convention – into tangible mechanisms that riparian states implement and comply with has, however, been challenging.

This is where the procedural principle of prior notification (and often also consultation or even prior agreement) comes in. It aims at facilitating the process of implementing substantive international water law principles by providing guidance on how to do so in specific situations in which one riparian state aims to pursue a certain water infrastructure scheme that might potentially affect others. It does so by providing guidance to (potentially disagreeing) states on how to engage in pre-defined structure and cooperative exchange and negotiations over whether a project planned by one riparian state would indeed cause harm to another state, and whether that harm would be beyond the significance threshold and/or be in violation of the principle of equitable and reasonable utilization. This also helps keeping disagreements between the riparians contained, and allows for addressing disputes in a clearly defined manner, preventing escalation.

The principle of prior notification is thus not only an important principle of international water law that helps implement the two key substantive principles of the international water law framework, but also an important instrument of water diplomacy that contributes to the cooperative management of shared water resources. This is the key argument of this article, which was published as part of an entire Special Issue focusing on the current state of the principle of no significant harm in international water law.

The principle of prior notification has been enshrined in a number of basin-specific treaties, some of which pre-date global instruments that codified key principles of international water law. These include the 1964 Convention and Statutes relating to the Development of the Lake Chad Basin, the 1975 Statute of the River Uruguay, 1995 Mekong Agreement, the 2002 Framework Agreement for the Sava River Basin, and the 2003 Protocol on the Sustainable Development of the Lake Victoria Basin.

Dam near the city of Shiraz, Iran on the Rudkhaneye Khoshk (The Dry River). Photo courtesy of Susanne Schmeier.

Inspired by global and regional legal and political development, in recent years additional instruments have included the principle of prior notification in basin-specific arrangements. In Southern Africa, the 2000 Revised SADC Protocol on Shared Watercourses requires riparian states to shared watercourses in the region to implement the principle of prior notification. Accordingly, either basin treaties in the region have included the principle in their texts, or river basin organizations (RBOs) have developed subsequent instruments to ensure its implementation. In the Zambezi River Basin, for instance, Art. 16 of the 2004 Zambezi Agreement requires parties to notify other riparians of “any program, project or activity with regard to the Zambezi watercourse or which may adversely affect the watercourse or any other member state”. Shiraz iran river

In order to implement these commitments, the Zambezi Watercourse Commission developed Procedures for the Notification of Planned Measures. Likewise, the Permanent Okavango River Basin Water Commission developed Guidelines for Notification, Consultation and Negotiation despite the absence of any reference to prior notification (or any other substantive or procedural principle of international water law) in the 1994 Okavango Agreement. In other basins, such as the Congo, the Mekong and the Nile river basins, riparian states – often with the help of their basin organizations – have also developed subsequent legal or political documents that further specify notification processes (although not all have been adopted by riparian states or entered into force yet). 

Prior notification does not come without challenges. Often reflecting underlying disagreements between a project planning and potentially affected states, various issues of discontent have arisen in basins that have undergone prior notification processes in the past. These relate, first and foremost, to the question: which projects require prior notification? There tends to be different views, especially by the project planning state and potentially affected states, on which projects fall under notification requirements, sometimes becoming a source of disagreement itself. Other questions relate to issues of timing (when to notify), the information to be provided to other riparian states and/or the basin organization, the process for doing so and for determining whether a project is likely to lead to significant harm, and whether or not the project should be pursued.

However, when implemented in shared basins, in the case of specific and often contested infrastructure development plans, the principle has proven to be of considerable value in supporting substantive water law principles. It has also served to contain disagreements among riparian states and encourage cooperation and exchange of perspectives. Thus, beyond its value in international water law – where exact interpretation and implementation remains contested in various basins – the principle of prior notification has undeniably fulfilled an even more important function: it provides riparian states in a shared basin with a mechanism for addressing disagreement over some of the most conflictual matters of sharing transboundary basins and, thus, for dispute prevention and mitigation that align water law with water diplomacy aims and approaches.

You can access the article here.

The Agreement on the Guarani Aquifer enters into force: what changes now?

Monday, November 16th, 2020

The following essay is by Dr. Pilar Carolina Villar, Professor at Federal University of São Paulo (UNIFESP). She can be reached at pcvillar [at]

The Agreement on the Guarani Aquifer (Portuguese, Spanish, English unofficial), ratified by Argentina, Brazil, Paraguay, and Uruguay, will enter into force on November 26, 2020. After a lengthy waiting process, the countries have finally and officially determined that they can now resume their efforts to pursue cooperation. The Guarani Aquifer was the focus of a long cooperative process that began within the epistemic community in the 1990s. That focus was transferred to the four Guarani States and international organizations between 2000 and 2009, which culminated in August 2010 with the signing of the agreement in San Juan, Argentina.

Guarani Aquifer

The water community extensively celebrate this achievement for the following reasons: a) it was a specific agreement for a transboundary aquifer, which is rare in the global context; b) the agreement specifically referenced United Nations General Assembly Resolution 63/124 (2008) pertaining to the Draft Articles on the Law of Transboundary Aquifers, thereby emphasizing the importance of this document; c) it included the main principles of international water law reinforcing their applicability to aquifers; d) it was the first specific agreement for a transboundary aquifer in Latin America and could encourage the conclusion of other similar agreements; e) it represented the continuity of the cooperative process established between the countries within the scope of the Guarani Aquifer System Project; and f) it was an example of preventive diplomacy, without conflicts over the use of groundwater.

However, over the past decade, the initial optimism for this treaty to enter into force had cooled down. Article 21 determined that the agreement would enter “into force on the thirtieth day following the date of deposit of the fourth instrument of ratification” with the Federative Republic of Brazil, which was assigned as the custodian of the agreement and the instruments of ratification. Argentina and Uruguay ratified the treaty by enacting Law No. 26,780/2012 and Law No. 18,913/2012, respectively. Brazil recognized it through Legislative Decree No. 52/2017 and Paraguay through Law No. 6037/2018. However, Paraguay’s instrument of ratification was not deposited with Brazil until October 2020.

The entry into force of this agreement allows the promised innovation initiated in 2010 to be implemented; however, the delay in the process raises the question of when and if this cooperative process will come to fruition. The agreement, which focuses on the transboundary water resources of the Guarani Aquifer System (SAG), represents a flexible cooperation tool and obligates the four aquifer States to manage them in accordance with the rules of international law. Table 1 shows the main characteristics of the agreement.

Table 1. Key elements of the Guarani Aquifer Agreement

The entry into force of the agreement will allow the Guarani States to deepen the cooperation process presupposing the following steps: a) creation of a commission for the Guarani aquifer (art. 15); b) defining the arbitration procedure for settling disputes by issuing an Additional Protocol (art. 19); c) implementing groundwater cooperation programs (art. 12) and d) identifying critical areas, especially in border areas where the flow is transboundary. Of these actions, the most urgent undoubtedly is the creation of the commission, which is responsible for coordinating cooperation in compliance with the principles and objectives of the agreement. Without the creation of the commission with a statute to define its structure and powers, the agreement will have limited effectiveness in the regional context.

The realization of the international project Implementation of the Guarani Aquifer Strategic Action Program: Enabling Actions – with the participation of the four countries, the Global Environmental Facility as financier, and UNESCO as the executive agency, and with technical support from the Regional Center for Groundwater Management (known as CeReGAS) – can encourage the Guarani States to implement the agreement and establish the commission.