[MUSIC] [MUSIC] [MUSIC] Hello. The previous sequence dealt with the obligation to notify and we saw how, in the case of a planned measure, the State proposing the measure must notify the other riparian States. This happens when a State considers that a project is likely to cause significant damage to another State. A deadline is set within which the notifying State has to study the planned measures, assess the effect and provide a response to the notifying State. Two scenarios may arise. The first scenario is that the notified State gives its consent. In this case, the notifying State may continue without any type of procedure. But the second scenario is that the notified State rejects the proposal. In this case, the State proposing the contested measure must enter into consultations or even negotiations with the objecting State. How do these consultations and negotiations work? That is the question that we will address in this sequence. The practice of consultation and negotiation assumes that when an activity is likely to have transboundary effects, it is accepted that the State proposing the measure must consult with the other States, in good faith and in a timely manner. This process is designed to provide all parties with an opportunity to find acceptable solutions to prevent significant transboundary harm or, at least, to minimize the risk of damage. In this respect, the duty to consult and negotiate is actually an obligation of prevention. The principle is reflected in many international instruments, in particular Article 17 of the New York Convention on the Law of the Non-navigational Uses of International Watercourses. Before examining how the obligation to consult and negotiate is implemented, it is necessary to clarify the terminology. Indeed, the terms “consultation” and “negotiation” generally go hand in hand in treaty provisions. However, in international water law practice, each carries a unique meaning. In water treaties, parties refer to the term “consultation” before a dispute has arisen and refer to the term “negotiation” only if needed. In other words, the consultation phase offers the opportunity to identify potential disagreements between States. It is once these disagreements have been identified that the negotiation phase is engaged. If problems can be resolved in the initial consultation phase, there would be no need for follow-up negotiations. Now that you have the terminology, lets look at the different ways that the obligation to consult and negotiate is implemented and the process for conducting consultations and negotiations. Article 17, paragraph 1 of the 1990 New York Convention details the rules which are applied to the consultation and negotiation process. Under that article, if the State that was notified about the planned measure concluded that the planned measure is likely to cause significant damage, then the notifying State and the affected State will enter into consultations, to resolve the situation in an equitable manner. Within this provision, it is the objection by the notified State against the planned measures which has triggered the consultation and negotiation process. Two points need to be made about this. The first remark is the following: in order for the consultation and negotiation process to begin, the notified State must expressly dispute the planned measures to the notifying State. The objection cannot be implied. The second remark is that the affected State must justify its disagreement. International law does not state whether such consultations and negotiations need to take place in a formal or informal setting. In general, the framework is the same as that in which notification took place. This can be in a bilateral or a multilateral context. If the framework is not defined, consultations and negotiations are subject to certain conditions. They must respect the principle of good faith, the cornerstone of relationships between States. This requirement is set out in Article 17, paragraph 2 of the 1997 New York Convention. The procedure for exchanging views in the consultation process has been clarified in case-law beginning with the Lake Lanoux case, between France and Spain. In this case, having acknowledged the obligation to consult, the tribunal stressed that the consultation process must be genuine and not only a formality in order to learn about the objections, protests or regrets presented by the downstream State. Therefore, the State of origin, according to the rules of good faith, is obliged to consider the different interests involved and attempt to address them in a manner that is compatible with its own interests. Similarly, in the case of the Pulp Mills on the River Uruguay between Argentina and Uruguay, the International Court of Justice considered that, on the basis of the principle of good faith, the parties were obligated to undertake meaningful negotiations. A question comes up here: in the consultation and negotiation process, is there an obligation to reach an agreement? If no agreement is reached, does this mean that the planned measures cannot be implemented? At this stage, it is necessary to have a correct understanding of the notification, consultation and negotiation process. It is intended to inform, exchange and, if necessary, carry out negotiations in a way that is suitable for all. It is not obligatory to reach an agreement with the notified State or to seek their prior consent. This question was at the heart of the Lake Lanoux case between France and Spain. The tribunal should, inter alia, answer the question of whether the French Government had the right to carry out works on Lake Lanoux without prior agreement with the Spanish Government. For the arbitrators in the case, the existence of such an obligation would equate to a veto restricting the the sovereignty of States. Prior agreement can only result from a treaty. This is the case, for example, with the Charter of Waters of the Senegal River. Article 24 of the Charter lays down the principle of prior agreement for all projects that might significantly affect the river system or its health. Beyond conventional practice, the principle is that once the deadline has expired, if the notifying State has conducted the consultations and negotiations in good faith, then the planned measures may proceed. But, as the International Court of Justice has pointed out, the State acts at its own risk. In this case, States will have to resort to diplomatic and judicial procedures to settle disputes as prescribed by general international law. To conclude, remember that it is the objection formulated by the notified State that triggers the consultation and negotiation process following the notification of the planned measure. This objection must be justified and expressly formulated. Secondly, consultations and negotiations must be conducted in good faith in order to give meaning to the proceedings. However, the requirement of good faith does not mean that an agreement has to be reached. An important point to remember is that the consultation and negotiation process have a preventive aim. It defines the measures that can prevent or reduce significant damage on a transboundary level. [MUSIC] [MUSIC]