Published online by Cambridge University Press: 28 October 2009
On 11 December 2008 the UN General Assembly adopted a set of draft articles on the law of transboundary aquifers which had been prepared by the International Law Commission (ILC) between 2002 and August 2008. These draft articles are the first official instrument that lays down rules of international law for the management and protection of groundwater, which makes up 97 per cent of the Earth's freshwater resources, excluding the resources locked in polar ice. This article discusses the contribution of the draft articles to the development of international water law. It first provides some background on the importance of shared groundwater resources, then describes the ILC's work on transboundary aquifers, and finally assesses in detail the draft articles and the way ahead.
1 UN Doc. A/RES/63/124 (2009).
2 J. J. Burke and M. Moench, Groundwater and Society: Resources, Tensions and Opportunities, 2000, UN Sales No. E.99.II.A 1, 7.
3 UN Doc. A/RES/63/124 (2009), para. 6.
4 S. Foster, ‘Essential Concepts for Groundwater Regulators’, in S. Salman (ed.), Groundwater: Legal and Policy Perspectives, Proceedings of a World Bank Seminar (1999), 15, at 29.
5 Austria, Croatia, Denmark, Hungary, Italy, Lithuania, and Slovenia. See E. Almássy and Z. Buzás, Inventory of Transboundary Groundwaters, UN ECE Task Force on Monitoring and Assessment (1999), 21, available at http://iwacportal.org/File//downloads/inventory_transboundary_groundwaters.pdf (identifying the percentage of groundwater in various European countries’ drinking water supplies: Austria (99 per cent), Belarus (80 per cent), Bulgaria (60 per cent), Croatia (90 per cent), Estonia (70 per cent), Finland (57 per cent), Germany (75–90 per cent), Hungary (95 per cent), Lithuania (100 per cent), Netherlands (67 per cent), Portugal (60 per cent), Slovak Republic (80 per cent), Slovenia (90 per cent), Switzerland (84 per cent), Ukraine (65 per cent)).
6 United Nations Educational, Scientific, and Cultural Organization (UNESCO) (ed.), The United Nations World Water Development Report (2003), 78.
7 F. Roudi-Fahimi, L. Creel, and R. M. De Souza, Finding the Balance: Population and Water Scarcity in the Middle East and North Africa (2002) 1, available at www.prb.org/pdf/FindingTheBalance_Eng.pdf.
8 ‘No significant contemporary recharge’ refers to average annual recharge rates that are very low compared with the overall storage capacity of an aquifer. The water in these aquifers infiltrated millennia ago under climatic conditions different from the present and has been stored underground since that time. Such resources are mainly found in large transboundary aquifer systems located in the arid and semi-arid regions of North Africa and the Arabian Peninsula, where they provide a most important source of water. S. Foster and D. P. Loucks (eds.), Non–renewable Groundwater Resources (2006), 13–14, 18–19.
11 Almássy and Buzás, supra note 5, at 10 and 64. The development of aquifer inventories for other regions of the work is ongoing work of UNESCO.
12 See the International Freshwater Treaties Database managed by Oregon State University, available at www.transboundarywaters.orst.edu/database/interfreshtreatdata.html.
13 There is also groundwater-specific regional law, namely EC Directive 2006/118/EC on the Protection of Groundwater against Pollution and Deterioration, OJ L 372, 27 December 2006, at 19, which is a daughter directive to the Water Framework Directive (EC Directive 2000/60 of 23 October 2000) Establishing a Framework for Community Action in the Field of Water Policy, OJ L 327, 22 December 2000, at 1.
14 2007 Convention relative à la protection, à l'utilisation, à la réalimentation et au suivi de la nappe souterraine franco-suisse du Genevois (hereafter Franco-Swiss Aquifer Convention), available at http://internationalwaterlaw.org/documents/europe.html#Franco-Swiss%20Genevese%20Aquifer.
15 Chad–Egypt–Libya–Sudan, reprinted in S. Burchi and K. Mechlem (eds.), Groundwater in International Law: Compilation of Treaties and other Legal Instruments (2004), 4–6.
16 Algeria–Libya–Tunisia, in ibid., at 6–8. On the setting up of a consultation mechanism for the SASS aquifer see K. Mechlem, ‘Strengthening Regional Consultation and Coordination of the SASS Aquifer’, in IUCN, Negotiate (forthcoming).
18 1997 United Nations Convention on the Non-Navigational Uses of International Watercourses, annexed to GA Res. 229, UN GAOR, 51st session, UN Doc. A/Res/51/229 (1997); repr. in 36 ILM 700 (1997) (not yet entered into force).
19 See Eckstein on the shortcomings of the UN Watercourses Convention in regard to groundwater. G. Eckstein, ‘A Hydrogeological Perspective of the Status of Ground Water Resources under the UN Watercourse Convention’, (2005) 30 Columbia Journal of Environmental Law 525.
20 Charter on Groundwater Management, adopted by the UN ECE at its forty-fourth session (1989) by Decision E (44), UN Doc. E/ECE/1197 ECE/ENVWA/12.
21 Agenda 21, Report of the United Nations Conference on Environment and Development, UN Doc. A/Conf.151/26/Rev.1 (Vol. 1), Vol. 1, Ann. II, 1992.
22 Seoul Rules, reprinted in ILA, Report of the Sixty-Second Conference Held at Seoul (1987), 251.
23 Berlin Rules on Water Resources, reprinted in ILA, Report of the Seventy-First Conference Held at Berlin (2004), 337.
24 ‘Report of the Commission to the General Assembly on the Work of its Forty-Sixth Session’, (1991) II (2) Yearbook of the International Law Commission 65, paras. 48–51. S. McCaffrey, ‘Seventh Report on the Law of the Non-Navigational Uses of International Watercourses’, (1991) II (1) Yearbook of the International Law Commission 45, para. 6. S. McCaffrey, The Non-navigational Uses of International Watercourses (2003), 417.
25 Report, (1991) Yearbook of the International Law Commission, para. 48. See also the 1966 Helsinki Rules, which introduce a system approach to international water law by using the concept of a ‘drainage basin’. ILA, Report of the Fifty-Second Conference Held at Helsinki (1967), 484.
26 R. Rosenstock, ‘Second Report on the Law of Non-Navigational Uses of International Watercourses’, (1994) II (1) Yearbook of the International Law Commission 113; Report of the Commission to the General Assembly on the Work of Its Forty-Sixth Session, UN GAOR 49th Sess., Supp. No. 10, UN Doc. A/49/10 at 90. See ‘Summary Records of the Meetings of the Forty-Sixth Session, 2 May–22 July 1994’, (1994) I Yearbook of the International Law Commission 172.
27 R. Stephan, ‘Evolution of International Norms and Values for Transboundary Groundwater Governance’, in A. R. Turton et al. (eds.), Governance as a Trialogue: Government – Society – Science in Transition (2006), 147, at 150.
28 The ILC called non-renewable aquifers ‘confined’ transboundary aquifers, which is misleading as in scientific terms confined aquifers are understood differently. This is evident from the preamble of the resolution in which the ILC defined ‘confined groundwater’ as ‘groundwater not related to an international watercourse’. See also X. Fuentes, ‘The Utilization of International Groundwater in General International Law’, in G. Goodwin-Gill and S. Talmon (eds.), The Reality of International Law – Essays in Honour of Ian Brownlie (1999), 177, at 180. In hydrogeological terms, a confined aquifer is an aquifer overlain and underlain by an impervious or almost impervious formation, in which water is stored under pressure. UNESCO/World Meteorological Organization, International Glossary of Hydrology (1992), 56.
29 ILC, Resolution on Confined Transboundary Groundwater, Art. 1, in Report of the Commission to the General Assembly on the Work of its Forty-Sixth Session, (1994) II (2)Yearbook of the International Law Commission, at 135.
32 Eckstein, G. and Eckstein, Y., ‘A Hydrogeological Approach to Transboundary Ground Water Resources and International Law’, (2003) 19 American University International Law Review 201, at 213Google Scholar.
33 Whereas the majority of the groundwater associated with the Danube terminates, like the river, in the Black Sea, a small portion reappears as the source of the river Aach, which is a tributary of the Rhine. This phenomenon was the object of the dispute. Staatsgerichtshof für das Deutsche Reich, Land Württemberg und Land Preußen gegen das Land Baden betreffend die Donauversinkung, Decision of 18 June 1927, Entscheidungen des Reichsgerichts in Zivilsachen, Vol. 116, App., at 18. Interestingly, the common-terminus requirement had already been discarded in the earlier (1986) Seoul Rules, supra note 22 (Art. 1).
35 S. McCaffrey, Comments on the International Law Commission's Draft Articles on the Law of Transboundary Aquifers (2006), 30 March 2008, 3, available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1114988.
37 Report of the International Law Commission to the General Assembly on Its Fifty-Fourth Session, UN GAOR, 57th Sess., Supp. No. 10, UN Doc. A/57/10 (2002), 243, para. 518.
38 Ibid., at para. 519. Some members of the ILC would have preferred to include also such resources as migratory birds and animals; others would have preferred to deal solely with groundwater. Report of the International Law Commission on the Work of Its Fifty-Eighth Session, UN GAOR, 61st Session, Supp. No. 10, 2006, UN Doc. A/61/10, 192.
39 C. Yamada, Fifth Report on Shared Natural Resources: Transboundary Aquifers, UN Doc. A/CN.4/591 (2008), 2, para. 4.
40 Report of the International Law Commission to the General Assembly on Its Fifty-Sixth Session, UN GAOR, 56th Sess., Supp. No. 10, 2004, UN Doc. A/59/10, 126–7, paras. 89–92.
41 C. Yamada, Shared Natural Resources: First Report on Outlines, UN Doc. A/CN.4/533 and Add.1 (2003); C. Yamada, Second Report on Shared Natural Resources: Transboundary Groundwaters, UN Doc. A/CN.4/539 and Add.1 (2004); C. Yamada, Third Report on Shared Natural Resources: Transboundary Groundwaters, UN Doc. A/CN.4/551 and Corr.1 and Add.1 (2005); C. Yamada, Fourth Report on Shared Natural Resources: Transboundary Groundwaters, UN Doc. A/CN.4/580 (2007); Yamada, Fifth Report, supra note 39.
42 Report of the International Law Commission on the Work of Its Fifty-Eighth Session, UN GAOR, 61st Sess., Supp. No. 10 (A/61/10) (2006) (hereafter ILC 58th Session), 184, para. 72.
43 Report of the International Law Commission on the Work of Its Sixtieth Session, UN GAOR, 62nd Sess., Supp. No. 10 (A/63/10) (2008) (hereafter ILC 60th Session), 17, paras. 46, 47.
46 Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 and Corr. 1 (2001), at 25, paras. 72 and 73.
48 For a detailed discussion of the draft articles as adopted after the first reading, see G. Eckstein, ‘Commentary on the UN International Law Commission's Draft Articles on the Law of Transboundary Aquifers’, (2007) 18 Colorado Journal of International Environmental Law and Policy 537.
50 Report of the International Law Commission on the Work of Its Fifty-Third Session, (2001) II (2)Yearbook of the International Law Commission, at 146, para. 97.
52 The term groundwater is not defined in the draft articles. Groundwater can be defined as ‘subsurface water occupying the saturated zone’ (UNESCO/World Meteorological Organization (WMO), International Glossary of Hydrology (1992), 133) or as ‘all water which is below the surface in the ground in the saturation zone and in direct contact with the ground or subsoil’ (Art. 2(2) of EC Directive 2000/60 of 23 October 2000 Establishing a Framework for Community Action in the Field of Water Policy, OJ L. 327, 22 December 2000, 1, and Art. 2(3) of the 1999 [UN Economic Commission of Europe] Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, London, 1999, UN ECOSOC Doc. MP.WAT/AC.1/1999/1 of 24 March 1999 (hereinafter UN ECE Protocol on Water and Health)). Water in the unsaturated zone, such as soil moisture, is not groundwater. The saturated zone is part of the water-bearing material in which all voids, large and small, are filled with water (UNESCO/WMO, 257).
53 For convenience the remainder of this article only refers to transboundary aquifers, which is intended to comprise transboundary aquifer systems.
57 2003 Framework Convention on the Protection and Sustainable Development of the Carpathians, www.carpathianconvention.org/text.htm.
58 (Revised) 2003 African Convention on the Conservation of Nature and Natural Resources, www.africa-union.org/root/au/Documents/Treaties/Text/Convention_Nature%20&%20Natural_Resources.pdf.
59 Berlin Rules on Water Resources, reprinted in ILA, Report of the Seventy-First Conference Held at Berlin (2004), 337.
60 The principle of equitable and reasonable utilization applies only to aquifer states (Art. 4).
62 While land use also has an impact on surface water quality, the problem is of greater magnitude regarding groundwater. Different views exist on whether the Watercourses Convention applies to land areas adjacent to watercourses, and there are strong indications that it is not the case. See A. Nollkaemper, ‘The Contribution of the International Law Commission to International Water Law: Does It Reverse the Flight from Substance?’, (1996) 27 Netherlands Yearbook of International Law 39, at 63, but also McCaffrey, International Watercourses, supra note 24, at 256 (who argues in favour of this assumption).
63 See also Art. 3 UN ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (hereinafter Helsinki Convention), (1992) 31 ILM 1312; Seoul Rules, supra note 22, Rule 2.3; Berlin Rules, supra note 59, Rule 41; Art. 6 (b) Convention on Cooperation for the Protection and Sustainable Use of the Danube River (hereinafter Danube Convention), 1994, OJ L 342, 12 December 1997, at 19.
64 UNEP, Desk Study on the Environment in the Occupied Palestinian Territories, available at www.unep.org/GC/GC22/Document/INF-31-WebOPT.pdf, at 35 and 39.
65 T. Stitt, ‘Evaluating the Preliminary Draft Articles on Transboundary Groundwaters Presented by Special Rapporteur Chusei Yamada at the 56th Session of the International Law Commission in Geneva, May 2004’, (2004–5) 17 Georgetown International Environmental Law Review 333, at 348.
66 Third preambular para.
70 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997,  ICJ Rep. 7, at 56, para. 85.
71 It is estimated that the Guaraní Aquifer System, for instance, has a total surface of 1,190,000 sq km, with 225,000 sq km in Argentina, 850,000 sq km in Brazil, 70,000 sq km in Paraguay, and 45,000 sq km in Uruguay. OAS, Guarani Aquifer System, available at www.oas.org/dsd/Events/english/Documents/OSDE_7Guarani.pdf.
72 S. Hodgson, Modern Water Rights: Theory and Practice (2006), 16–18.
73 Proposals had been made to address sovereignty only in the preamble. ILC 58th Session, supra note 42, at 202.
77 Art. 4(c) together with Art. 5 have been characterized as a typical example of an agreement ‘to agree on a continued negotiation with the reference to contextual deal-striking stressing the role of technical experts, and lifting functional interests to decisive position’. M. Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, (2007) 70 Modern Law Review 1, at 11.
79 A similar list can be found in Art. 6 of the UN Watercourses Convention.
80 For the purposes of negotiating the UN Watercourses Convention the Sixth (Legal) Committee of the General Assembly convened as the ‘Working Group of the Whole’.
81 Report of the Sixth Committee convening as the Working Group of the Whole, Document A/51/869 (1997), para. 8.
82 See, for instance, Committee on Economic, Social and Cultural Rights, General Comment No. 15 on the Right to Water, UN Doc. E/C.12/2002/11 (2002); UN High Commissioner for Human Rights, Report on the Scope and Content of the Relevant Human Rights Obligations Related to Equitable Access to Safe Drinking Water and Sanitation under International Human Rights Instruments, UN Doc. A/HRC/6/3 (2007).
84 A. Tanzi, ‘The UN Convention on International Watercourses as a Framework for the Avoidance and Settlement of Water Law Disputes’, (1998) 11 LJIL 441, at 453.
85 Commentaries to the draft articles on Prevention of Transboundary Harm from Hazardous Activities, (2001) II (2) Yearbook of the International Law Commission, para. 98; Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, UN GAOR, 61st Sess., Supp. No. 10 (A/61/10), para. 67.
86 ILC 60th Session, supra note 43, at 47, para. 5. In contrast, Art. 7(2) of the UN Watercourses Convention mentions compensation.
87 Stitt, for instance, argues that the no harm principle should have been significantly strengthened because of the specific vulnerability of aquifers. Stitt, supra note 65, at 353–6.
88 Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin (Columbia River Treaty). Opened for signature 17 January 1961, United States–Canada, 542 UNTS 244 (entered into force 16 September 1964); Protocol to the Columbia River Treaty, in Secretary Martin to Secretary Rusk, ‘Ann. to an Exchange of Notes Dated January 22, 1964, between the Governments of Canada and the United States Regarding the Columbia River Treaty’  Department of State Bulletin 202. The Columbia River Treaty explicitly recognizes that the construction and operation of three treaty projects in Canada would increase both the useable energy and dependable capacity of power plants in the United States, as well as provide irrigation and flood control benefits in the United States, all of which would not be possible at the same cost without the three projects. In return for building these projects in Canada, the treaty specifically entitles Canada to a lump sum payment for various downstream (flood control) benefits, as well as half of the additional power generated by power plants in the United States that resulted from storage across the border in Canada. R. Paisley, ‘Adversaries into Partners: International Water Law and the Equitable Sharing of Downstream Benefits’, (2002) 3 Melbourne Journal of International Law 280, at 287–8. See also Paisley for other examples of sharing downstream benefits.
89 For instance, recharge of the Mountain aquifer occurs primarily within the West Bank, while most of the aquifer's high-quality water naturally flows into Israel. UNESCO, International Hydrological Programme, Internationally Shared (Transboundary) Aquifer Resources Management, 2001, at 15, available at www.isarm.net/dynamics/modules/SFIL0100/view.php?fil_Id=152. Groundwater extraction is relatively easy over the foothills and lower slopes of the mountains towards the Mediterranean Sea, the major portion of which is within Israel; while it is technically possible to drill from the mountain tops of the West Bank, this would necessitate deeper wells that would produce lower yields at a higher cost. H. Shuval, ‘A Proposal for an Equitable Resolution to the Conflicts between the Israelis and the Palestinians over the Shared Water Resources of the Mountain Aquifer’, (2000) Arab Studies Quarterly 2, available at http://findarticles.com/p/articles/mi_m2501/is_2_22/ai_65653663/pg_2?tag=content;col1.
93 See, for instance, the examples provided by the International Joint Commission between Canada and the United States established by the 1909 Boundary Treaty (Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States, 11 January 1909, United Kingdom and United States, available at http://faolex.fao.org/faolex/index.htm, last accessed 12 February 2003), such as the High Ross Dam case and the Garrison Diversion case, available at http://bwt.ijc.org/index.php?page=model-cooperation&hl=eng.
95 1995 Interim Agreement on the West Bank and Gaza Strip, Isr.–Palestine Liberation Org., (1997) 36 ILM 551, Ann. III, App. 1, Art. 40, ss. 11–15. The Joint Water Committee is composed of an equal number of Palestinian and Israeli members (s. 13).
96 A. Tal, ‘New Trends In Israel's Water Legislation and Implications for Cooperative Transboundary Management’, available at www.ipcri.org/watconf/papers/alon.pdf; Burleson, E., ‘Middle Eastern and North African Hydropolitics: From Eddies of Indecision to Emerging International Law’, (2006) 18 Georgetown International Environmental Law Review 385, at 395, 396Google Scholar.
97 ‘Lake Lanoux Arbitration (France v. Spain), Award of 16th November 1957’, (1959) 24 ILR 101, para. 13 (emphasis added).
99 Among the water law treaties that contain the precautionary principle are the Helsinki Convention, supra note 63 (Art. 5(2)(a)); the UN ECE Protocol on Water and Health, supra note 52 (Art. 5(a)); the Danube Convention, supra note 63 (Art. 2(4)); the 1999 Convention on the Protection of the Rhine, OJ L 289, 16 November 2000, at 31 (Art. 4(a)); the 2003 Convention on the Sustainable Development of Lake Tanganyika (Art. 5(2)(a)), available at FAOLEX (FAO legal database online, http://faolex.fao.org/faolex/); and the 2003 Convention on the Sustainable Development of Lake Victoria Basin (Art. 4(2)(f)), available at http://faolex.fao.org/faolex/).
101 See UN Watercourses Convention, Art. 33(3).
102 Preamble, Fourth Preambular para.
103 Art. 2(3) and App. I Nr. 12 [UN ECE] Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 1991, (1991) 30 ILM 800.
104 ILC 60th Session, supra note 43, at 29, para. 3 (on dispute settlement), (2008) ILC Rep. para. 39 (on the relationship with other treaties).
106 For examples of such a clause see the proposal made by the Special Rapporteur, ibid.; Watercourses Convention, Art. 3; 1982 UN Convention on the Law of the Sea, 1833 UNTS 3, Art. 311.
107 This has been suggested by McCaffrey, Comments, supra note 35 at 3. On the ILC's plans see, e.g., Report of the International Law Commission on the Work of Its Fifty-Ninth Session, UN GAOR, 62nd Sess., Supp. No. 10 (A/62/10) (2007), 15, para. 37. The Guide to Practice will consist of a set of draft guidelines with commentaries some of which are accompanied by model clauses.
108 J. Dellapenna and F. Loures, ‘Forthcoming Developments in International Groundwater Law: Proposals for the Way Ahead’, (2007) Water 21, at 58.
109 See, for instance, D. Shelton (ed.) Commitment and Compliance – The Role of Non-binding Norms in the International Legal System (2003), in particular E. Brown Weiss, ‘Understanding Compliance with Soft Law’, 535.
110 UN Watercourses Convention, Art. 36.
111 For instance, the 1992 United Nations Framework Convention on Climate Change (UNFCCC, 1771 UNTS 107) established a framework for the development of binding greenhouse gas emission limits, while the 1997 Kyoto Protocol ((1998) 37 ILM 22) contained the specific provisions and regulations later agreed upon.