1. Introduction
On 11 December 2008 the 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.Footnote 1 These draft articles constitute a landmark event in the development of international law in this field. They are the first official instrument that codifies rules of international law for the management and protection of the world's underground freshwater resources. These resources are of vital social, economic, environmental, and strategic importance. They satisfy drinking water needs as well as the demands of agriculture, industry, and other sectors. However, over the last 60 years, groundwater resources and the social, economic, and environmental systems dependent on them have come under increasing stress from over-abstraction and pollution.Footnote 2 New technical, policy, and legal approaches are required to meet these challenges. The draft articles are an important step in this direction.
In 2011, at its 66th session, when some experience will have been gained with the application of the draft articles, the General Assembly will examine whether to convene a conference for the negotiation of a convention based on the articles.Footnote 3 Regardless of whether the draft articles will eventually become an international treaty or not, they should help pave the way for bi- and multilateral agreements to manage transboundary aquifers.
This article discusses the contribution of the draft articles to the protection of the world's freshwater resources. It first provides some background on the importance of shared groundwater resources, then describes the ILC's work on transboundary aquifers, and finally analyses the draft articles as a frame of reference for the negotiated interstate management of these resources.
2. Background
2.1. The importance of groundwater resources
Groundwater makes up 97 per cent of the Earth's fresh-water resources, excluding those locked in polar ice.Footnote 4 Globally, it provides about 50 per cent of the current potable water supplies; in some European countries it can be more than 90 per cent.Footnote 5 It also delivers approximately 40 per cent of the water used by industry and between 20 and 30 per cent of the water necessary for irrigated agriculture.Footnote 6 Groundwater is particularly relevant for regions with limited water resources. For instance, the most water-scarce region in the world, the Middle East and North Africa, which contains a mere 1.4 per cent of the world's renewable freshwater,Footnote 7 depends to a very large extent on water supplied from transboundary aquifers.
In this region a specific type of aquifer is highly relevant, namely aquifers that receive no, or no significant, contemporary recharge.Footnote 8 They are de facto decoupled from active surface water systems and therefore, under present climatic conditions, contain non-renewable stock resources. They are sometimes called ‘fossil aquifers’. The water in these aquifers can be hundreds or thousands of years old. An example is the Nubian Sandstone Aquifer System underneath Chad, Egypt, Libya, and Sudan, the world's greatest non-renewable aquifer. It stores an estimated 375,000 cubic kilometres of water (equivalent to about 500 years of Nile River discharge) between 210,000 and 1 million years in age,Footnote 9 not all of which is recoverable, however, due to great depths. Other examples are the North-Western Sahara Aquifer System, better known by its French acronym SASS, which is shared by Algeria, Libya, and Tunisia, and the Qa-Disi Aquifer in southern Jordan and northern Saudi Arabia. The water in these aquifers is often of remarkably good quality and constitutes a strategic resource of vital importance for sustaining life, health, and the integrity of ecosystems in some of the most arid parts of the world. Due to the lack of recharge it can be exploited only in the form of a mined resource.
Groundwater ensures the baseflow of rivers and lakes, and keeps springs flowing, vegetation growing and wetlands wet. In addition, aquifers provide a range of more exotic services, including storage or withdrawal of heat due to natural geothermal aquifer properties, storage of non-toxic fluids such as dissolved greenhouse gases for carbon sequestration, or disposal of some wastes that can biodegrade because of properties in the aquifer matrix.
Although a worldwide inventory of transboundary aquifers has not yet been compiled, the number of transboundary aquifers is estimated to be of the same magnitude as, if not greater than, the more than 260 transboundary river basins.Footnote 10 Europe alone has at least 89 transboundary aquifers.Footnote 11
2.2. Groundwater in international law
Transboundary rivers or lakes are the subject matter of more than 400 international agreements.Footnote 12 In contrast, only four agreements and arrangements have been concluded exclusively for aquifers:Footnote 13 the 2007 Convention relative à la protection, à l'utilisation, à la réalimentation et au suivi de la nappe souterraine franco-suisse du Genevois, which replaces a 1977 arrangement and deals with groundwater quality, quantity, abstraction, and recharge;Footnote 14 two short technical agreements on monitoring and data sharing related to the Programme for the Development of a Regional Strategy for the Utilisation of the Nubian Sandstone Aquifer System (NSAS, 2000);Footnote 15 and a technical agreement on the Establishment of a Consultation Mechanism for the Northwestern Sahara Aquifer System (SASS, 2002).Footnote 16
Where surface-water treaties contain aquifer-specific provisions, they are often incidental to the main subject matter and inadequate in their treatment of the use and protection of groundwater.Footnote 17 Groundwater is typically only nominally included in a treaty's scope of application, while the substantive treaty norms and the powers of joint bodies in these instruments are geared towards surface water management. The UN Convention on the Non-Navigational Uses of International Watercourses (UN Watercourses Convention)Footnote 18 illustrates this approach (see section 3.1infra).Footnote 19 Non-binding instruments address aquifers more extensively. Noteworthy are the UNECE Charter on Groundwater Management,Footnote 20 Agenda 21,Footnote 21 and the Seoul RulesFootnote 22 and Berlin Rules of the International Law Association (ILA).Footnote 23
The ILC's work thus fills a gap in international law and will ideally inspire bi- and multilateral groundwater treaties.
3. The ILC's work on transboundary aquifers
3.1. The ILC's early work: groundwater in the UN Watercourses Convention
From 1971 to 1994 the ILC prepared draft articles on the law of the non-navigational uses of international watercourses, which became the basis of the UN Watercourses Convention. The focus of its attention was surface water. Although the ILC's working definition of the term ‘watercourse’ included ‘related groundwater’, a definite decision to include groundwater to some extent in the scope of its draft articles was taken only in 1991 – that is, after 20 years of work when the substantive articles had already been developed.Footnote 24 The ILC's decision was motivated by the sheer quantity of groundwater and the fact that watercourses are systems where surface and groundwater are interdependent and interrelated.Footnote 25 The UN Watercourses Convention thus defines a watercourse as a ‘system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus’ (Art. 2(a)). It is international if parts of the watercourse are situated in different states (Art. 2(b)).
As the main focus of the UN Watercourses Convention and its preparatory articles is on rivers and lakes, this definition deliberately excludes aquifers that are not hydraulically linked to surface water bodies – that is, those containing non-renewable groundwater. When in 1992 Robert Rosenstock as Special Rapporteur suggested the inclusion of all groundwater, including non-renewable groundwater, in the scope of the draft articles, his proposal was rejected.Footnote 26 The ILC did not want to broaden the scope of its work to include a resource that it had not considered while formulating its articles.Footnote 27 Aware of the fact that an important category of aquifers was left out, the ILC adopted a resolution in which it addressed specifically non-recharging aquifers, which it called misleadingly ‘confined transboundary groundwater’.Footnote 28 In this resolution the ILC recommended that states ‘be guided by the principles contained in the draft articles on the non-navigational uses of international watercourses, where appropriate, in regulating transboundary groundwater’.Footnote 29 The resolution also recognized a ‘need for continuing efforts to elaborate rules pertaining to confined transboundary groundwater’.Footnote 30 It constitutes the backdrop to the renewed interest of the ILC in transboundary freshwater resources.
Non-recharging aquifers were, however, not the only types of aquifers excluded. The requirement of a ‘system of surface waters and groundwaters’ renders the UN Watercourses Convention inapplicable to aquifers that are recharged solely from rain and discharge either into the sea or into another aquifer or where the aquifer itself is the end point due to evaporation. Examples are the Rus Aquifer shared by Saudi Arabia and Qatar which terminates in marine springs in the Persian GulfFootnote 31 or the Mountain Aquifer underlying Israel and the West Bank, which is recharged solely by precipitation in the highlands of the Judean Mountains.Footnote 32 Finally, the ‘common terminus’ element of the definition of a watercourse makes it impossible to apply the UN Watercourses Convention to the many cases in which aquifers have multiple termini in adjacent river basins – a phenomenon known from the 1927 Donauversinkung case before the German Staatsgerichtshof.Footnote 33
With respect to groundwater the ILC's work on international watercourses thus resulted in a fragmented system. The UN Watercourses Convention applies to groundwater to some extent, but its rules do not pay attention to the specific regulatory challenges posed by groundwater, such as the unique vulnerability of aquifers and the lack of knowledge about the extent and characteristics of many aquifers.Footnote 34 Non-renewable aquifers are addressed by the above-mentioned non-binding resolution. For aquifers that are covered by neither the UN Convention nor the resolution no legal rules were developed.
Given these limitations of the ILC's earlier engagement with freshwater resources, the view that the work of the ILC on transboundary aquifers is unnecessary because most transboundary aquifers are covered by the UN Watercourses ConventionFootnote 35 cannot be accepted. And the suggestion that the law of international freshwater would be complete if the 1994 ILC Resolution on Confined Groundwaters were approved as a protocol to the UN Watercourses Convention does not convince either.Footnote 36 Rather, a new legal instrument on transboundary groundwaters is necessary if all types of aquifer are to be addressed by legal rules that pay specific attention to the characteristics of this resource.
3.2. The ILC's work leading to the draft articles (2002–2008)
In 2002 the ILC included the topic ‘Shared Natural Resources of States’ in its long-term programme of work,Footnote 37 and appointed Chusei Yamada as Special Rapporteur. It decided to deal with oil, gas, and ‘confined’ transboundary groundwaters – in the sense of non-renewable or fossil groundwaters unconnected to surface water – under this heading.Footnote 38 The ILC prioritized the study of transboundary groundwater and focused on developing a legal regime for these resources independent of the rules it might develop at a later stage for oil and gas.Footnote 39 It thereby implicitly rejected suggestions that the international law of transboundary groundwater might follow rules on oil and gas. Also early on the ILC decided to broaden the topic from ‘confined’ groundwaters to all transboundary aquifers – containing groundwater renewable as well as non-renewable.Footnote 40
Between 2003 and 2008, the Special Rapporteur presented five reports.Footnote 41 In 2006, the ILC adopted on first reading nineteen draft articles and commentaries thereto.Footnote 42 In 2008 it completed the second reading and on 5 August 2008 it adopted the draft articles of what could become an international framework convention on transboundary aquifers and commentaries thereto.Footnote 43 During the drafting process the ILC received comments and observations from 47 governments. An overwhelming majority of states supported the priority the ILC was giving to groundwater and the ILC's general approach. Views were divided on whether the draft articles should lead to a binding convention or a non-binding set of guidelines, and an article proposed by the Special Rapporteur on the relationship between the articles and other treaties was therefore not included (see section 4.7infra).Footnote 44
The ILC suggested to the UN General Assembly the two-step approachFootnote 45 which had been adopted in 2001 for the draft articles on the Responsibility of States for Internationally Wrongful Acts.Footnote 46 It recommended to the General Assembly that it take note of the draft articles in a resolution, annex them to the resolution, and recommend that states make appropriate arrangements bilaterally or regionally for the proper management of transboundary aquifers on the basis of the principles enunciated in the draft articles. The ILC further recommended that the General Assembly consider, at a later stage, the elaboration of a convention on the basis of the draft articles.Footnote 47 The General Assembly followed these suggestions.
4. Overview and criticism of the draft articles
The draft articles consist of a preamble and 19 articles organized into four parts: (I) Introduction, (II) General Principles, (III) Protection, Preservation and Management, and (IV) Miscellaneous Provisions.Footnote 48 The structure and content of the UN Watercourses Convention clearly inspired the ILC's approach to the draft articles, but they were adapted to the specific characteristics of groundwater resources.
The draft articles are preceded by a preamble, added on second reading, which provides a contextual frame.Footnote 49 The preamble follows precedents elaborated by the ILC, in particular on the draft principles on Prevention of Transboundary Harm from Hazardous ActivitiesFootnote 50 and the draft principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities.Footnote 51
4.1. Application and scope of the draft articles
The draft articles apply to ‘transboundary aquifers’. An aquifer is defined as ‘a permeable water bearing formation underlain by a less permeable layer and the water contained in the saturated zone of the formation’ (Art. 2(a)). Thus it is a rock formation – a ‘container’ – and the water contained in it (groundwater). In order to regulate the uses and protection of groundwaterFootnote 52 – a term not used by the draft articles – it was necessary to focus both on the water itself and on the rock formation whence many groundwater-related problems result, such as compaction and resulting changes in the storage capacity of the rock or water pollution caused by pollutants that cannot be washed out of the geological strata. To opt for ‘aquifer’ rather than ‘groundwater’ as the topic of the draft articles thus signifies a marked improvement over the UN Watercourses Convention and one of the few instruments dealing exclusively with groundwater, the ILA's Seoul Rules, which address ‘the waters of international aquifers’. The draft articles cover single transboundary aquifers and transboundary aquifer systems consisting of a series of two or more hydraulically connected aquifers (Art. 2(b)).Footnote 53 Both renewable and non-renewable groundwater resources are included in their scope.
Given the ILC's mandate of ‘shared natural resources’, the draft articles apply only to transboundary aquifers. This theoretically clear criterion can pose problems in practice, because the outer limits of an aquifer cannot always be determined easily and their determination depends on the use of technical methods such as drilling and isotope tracing. In some instances it is not yet fully established whether or not an aquifer is transboundary, and the same aquifer may be regarded as transboundary by one country but not by the other possibly sharing it.Footnote 54 Excluded from the scope of the ILC's work are entirely domestic aquifers whether or not they are connected to transboundary surface waters. The draft articles do not apply, for instance, to an aquifer that is situated entirely in one state but contributes water to a river that flows from that state into another state. In contrast, a river that flows entirely in one state but contributes to a river that crosses a boundary is covered by the UN Watercourses Convention because it is part of an ‘international watercourse’ (see section 3.1supra). This approach of the UN Watercourses Convention is preferable to the more limited perspective of the draft articles. The limitation results not from oversight, but is a deliberate exclusion as is mentioned by the Special Rapporteur in an addendum to his first report.Footnote 55 It renders the draft articles clearer and reduces overlap with the UN Watercourses Convention, but it also exempts an important constellation from their lex specialis rules, so that only more general rules of international law apply.
The focus on transboundary aquifers also evidently excludes purely domestic groundwaters with no connection to an international system. The draft articles are thus narrower than other recent freshwater and environmental law instruments such as the UNECE Protocol on Water and Health,Footnote 56 the Carpathian Framework Convention,Footnote 57 the African Convention on the Conservation of Nature and Natural Resources,Footnote 58 and the Berlin Rules of the ILA,Footnote 59 all of which cover purely domestic as well as transboundary resources. Their focus is also different, being not primarily on the protection of freshwater resources but first and foremost on rights and obligations in interstate relations.
Interestingly, the draft articles address both aquifer and non-aquifer states. For instance, Article 11(2) provides that all states in whose territory a recharge or discharge zone is located, and which are not aquifer states with regard to that aquifer, shall co-operate with the aquifer states to protect the aquifer and related ecosystems. This provision is necessary because the recharge and discharge zones are excluded from the ILC's definition of an aquifer. Without it an industrial activity in a recharge zone located in one state which pollutes an aquifer located in another state would not be covered by the draft articles. It is, however, questionable whether non-aquifer states will become party to an instrument that primarily imposes obligations but bestows only very limited rights on them.Footnote 60 Given that there are only very few cases in which a recharge zone but not part of the aquifer is located in a third state, this seems, however, a rather theoretical problem.
The scope of the draft articles covers (a) the utilization of transboundary aquifers; (b) other activities that have or are likely to have an impact upon those aquifers; and (c) measures for the protection, preservation, and management of transboundary aquifers (Art. 1).
The utilization of an aquifer has the most direct impact on the resource. Typically the utilization of an aquifer implies groundwater abstraction. However, also the geological rock formation can be used. For instance, the Franco-Genevese Aquifer System is artificially recharged with water from the River Arve. The functioning of the aquifer produces high-quality water and treats the waters more cost-effectively than building a water treatment installation.Footnote 61
To include non-utilizing activities that have or are likely to have an impact on aquifers (Art. 1(b)) is an important innovation compared with the UN Watercourses Convention.Footnote 62 The ILC recognized the need to protect aquifers from pollution caused by industry or agriculture and other activities that do not use an aquifer directly but can still have significant negative effects on it.Footnote 63 For instance, pollution of the Mountain and the Coastal aquifers underlying Israel and the Palestinian Territories is caused mainly by agricultural practices (notably the use of inorganic fertilizers, pesticides, and herbicides), localized industrial activities (organic pollutants, heavy metals), and inadequate or improper disposal of wastewater and solid waste (including hazardous materials).Footnote 64
The draft articles thus deal with aquifers instead of only with groundwater and cover a significantly broader range of activities compared with the UN Watercourses Convention, which greatly enhances their effectiveness at protecting aquifers.Footnote 65
4.2. General principles
Four general principles, which are developed in seven articles, govern the use and protection of transboundary aquifers: sovereignty, equitable and reasonable utilization, no significant harm, and co-operation.
Equitable and reasonable utilization, no significant harm, and co-operation are the three main principles of customary international water law. New compared with the UN Watercourses Convention is the emphasis on sovereignty, which is the first principle listed: ‘Each aquifer state has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory’ (Art. 3). Aquifer states must exercise their sovereignty in accordance with international law and the draft articles (Art. 3). Article 3 is complemented by a reference in the Preamble to GA Resolution 1803 (XVII) of 14 December 1962 on Permanent Sovereignty over Natural Resources.Footnote 66 The commentary points out that many states reaffirmed a need to have an explicit reference to sovereignty and that many treaties and other legal instruments refer to sovereignty of states over natural resources, and regards Draft Article 3 as an appropriately balanced text.Footnote 67
The emphasis on states’ sovereignty and its prominent position has provoked criticisms. According to Stephen McCaffrey, a former Special Rapporteur of the ILC on the law of the non-navigational uses of international watercourses, the use of the concept of sovereignty will reinforce the historic tendency of states to claim absolute sovereignty over the portion of even transboundary surface waters within their territories (the now discredited ‘Harmon Doctrine’Footnote 68), may give a state the idea that it has absolute discretion over the water contained in a transboundary aquifer when in fact and in law it does not, and raises the problem of how the sovereignties of the states sharing the groundwater are to be reconciled.Footnote 69 McCaffrey emphasizes that the UN Watercourses Convention, the ILA, and the ICJ in the Gabčikovo-Nagymaros case have all rejected the concept that a state has sovereignty over the portion of shared freshwater resources located within its territory. The ICJ instead referred to a ‘community of interest’ in a watercourse.Footnote 70
States’ interest in having an article on sovereignty has to be viewed in the context of the vast areas of land underlain by some transboundary aquifersFootnote 71 and the fact that – parallel to ownership over groundwater in domestic lawFootnote 72 – groundwater was historically regarded as belonging to the state where it was found. Whereas Article 3 clearly qualifies states’ sovereignty and refers to the limitations imposed by international law in general and the draft articles in particular, a less prominent position in the draft articles and a more attenuated formulation would have been preferable in order to reinforce emphasis on equitable utilization, no harm, and co-operation instead of on sovereignty.Footnote 73
4.3. Equitable and reasonable utilization and no significant harm
Article 4 on Equitable and Reasonable Utilization and Article 6 on the Obligation not to Cause Significant Harm address the core of international water law. The quest to find a compromise for the irreconcilable views of upper and lower riparians on the extent of use rights and the degree of permissible harm caused by the utilization of a watercourse significantly delayed the ILC's work on the draft articles of the UN Watercourses Convention. The relationship between the two principles was thus an important challenge for the ILC in its work on transboundary aquifers.
4.3.1. Equitable and reasonable utilization
The chapeau of Article 4 establishes that aquifer states shall utilize a transboundary aquifer according to the principle of equitable and reasonable utilization.
The draft articles interpret equitable utilization to mean utilization of an aquifer in a manner that is consistent with the equitable and reasonable accrual of benefits from the aquifer (Art. 4(a)). Noteworthy is the ILC's focus on benefits and not just on an allocation of amounts of water. As is generally accepted in international water law, equitable utilization does not imply equal utilization.Footnote 74 It should be noted that the amount of water available for equitable allocation may be significantly less than the total volume of water contained in an aquifer, as not all waters are exploitable at reasonable economic cost. Finally, there is also a temporal element in equitable utilization: what is equitable today may no longer be equitable in the future if the resource available for utilization changes or other uses become necessary.Footnote 75
Paragraphs (b)–(d) mainly develop the principle of reasonable utilization.Footnote 76 Central is the aim of maximizing the long-term benefits to be derived from the use of aquifer waters (Art. 4(b)). In order to achieve this goal, states must establish, individually or jointly, comprehensive utilization plans, taking into account present and future needs and alternative water sources (Art. 4(c)).Footnote 77 States are also required not to utilize a recharging aquifer at a level that would prevent the continuance of its effective functioning (Art. 4(d)). Unlike, for instance, the Danube Convention or the ILA's Berlin Rules, the draft articles do not speak explicitly of sustainable utilization, even in regard to renewable aquifers.Footnote 78
Article 5 of the draft articles gives guidance as to which factors a state has to consider when determining whether an actual or potential use is equitable and reasonable by assembling an indicative, non-weighted and non-comprehensive list. Comprised are the population dependent on the aquifer (Art. 5(1)(a), social, economic, and other needs (Art. 5(1)(b)), natural characteristics (Art. 5(1)(c)), the contribution to the formation and recharge of the aquifer (Art. 5(1)(d)), existing and potential utilization of the aquifer (Art. 5(1)(e)), actual and potential effects of the utilization (Art. 5(1)(f)), the availability of alternatives to a particular existing and planned utilization (Art. 5(1)(g)), the development, protection, and conservation of the aquifer (Art. 5(1)(h), and the role of the aquifer in the related ecosystem (Art. 5(1)(i)).Footnote 79 In order to ensure that its use is equitable and reasonable a state has to take these and other factors relevant in the specific case into account, not only with regard to its own territory, but also with regard to the whole of the transboundary aquifer.
The only use singled out by Article 5 is the satisfaction of vital human needs. According to Article 5(2) special regard shall be given to vital human needs in weighting different kinds of utilizations of an aquifer. While the draft articles stop short of giving priority to vital human needs, they clearly attach special weight to them. During the negotiations of the UN Watercourses Convention, the Working Group of the WholeFootnote 80 took note of the following statement of understanding pertaining to the expression ‘vital human needs’ contained in the corresponding article of the UN Watercourses Convention: ‘In determining “vital human needs”, special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation.’Footnote 81 From the perspective of contemporary human rights law and against the backdrop of significant developments with respect to a right to waterFootnote 82 since the adoption of the UN Watercourses Convention, the ILC's approach is disappointing. The ILC addresses the topic from the perspective of needs rather than rights, and it fails to prioritize clearly the satisfaction of such vital human needs as access to drinking water and food over other needs for the satisfaction of which water is required.
4.3.2. Obligation not to cause significant harm (Art. 6)
Aquifer states are under a due diligence obligation ‘to take all appropriate measures to prevent the causing of significant harm to other aquifer states or states in whose territory a discharge zone is located’ (Art. 6(1)). This obligation reflects the established maxim of international law sic utere tuo ut alienum non laedas (‘use your own property so as not to injure that of another’). The draft articles cover significant harm caused through an aquifer's direct utilization (Art. 6(1), e.g. through excessive water abstraction) and caused by other activities that affect and cause harm to or through the aquifer (Art. 6(2), e.g. pesticide or industrial pollution seeping into the aquifer). The relevant threshold is ‘significant’ harm, which is to be understood as being more than detectable but not necessarily serious or substantial harm.Footnote 83
During the drafting process the ILC engaged in considerable debate about whether, in view of the unique vulnerability of aquifers, the threshold of ‘significant harm’ would be sufficient or whether a lower threshold would be more appropriate. For instance, a small amount of a pollutant can cause greater harm to an aquifer than it may create in surface water and, in contrast to surface waters, it is often almost impossible to clean an aquifer once polluted. Also, during the drafting of the UN Watercourses Convention the threshold of relevant harm had been a controversial issue both in the ILC and later during state negotiations.Footnote 84 Finally, with regard to both international watercourses and transboundary aquifers, significant harm was considered to be a sufficiently appropriate and flexible concept. ‘Significant harm’ also has the advantage of cohering with the ILC's work on the prevention of transboundary harm from hazardous activities and on the allocation of loss in the case of transboundary harm arising out of hazardous activities, where the same term has been used.Footnote 85 A noteworthy factual problem in this context is that because of slow flow patterns or the time needed for a contaminant to percolate down through the soil into an aquifer there can be significant delays between an activity and the manifestation of harm.
4.3.3. The balance between equitable utilization and no harm
The difficult question of how to balance the principles of equitable utilization and no significant harm, an unresolved and highly disputed issue in international water law in general, is not directly addressed. Article 6(3) states that where significant harm is caused the state causing such harm shall, in consultation with the affected state, take all appropriate response measures to eliminate or mitigate such harm, having due regard for the provision of Articles 4 and 5 (Art. 6(3)). The question of compensation for such harm is not dealt with in the draft articles, as it is governed by rules of international law relating to state responsibility or international liability for acts not prohibited by international law.Footnote 86
By referring back to Articles 4 and 5, Article 6(3) connects the principle of equitable and reasonable utilization with the obligation not to cause significant harm. While the relationship between the two remains vague and no clear indication of priority is given, it can be inferred from Article 6(3) that the right to equitable utilization means that some harm has to be accommodated. Arguably, the right to equitable utilization thus takes priority over the obligation not to cause significant harm, although some would have hoped for a different outcome.Footnote 87
4.4. Co-operation
In practice, the difficulties surrounding the reconciliation of the two principles can often be resolved by applying another principle – the principle of co-operation. The draft articles address co-operation in three articles: they refer to co-operation generally (Art. 7); more specifically to the exchange of data and information, where particular attention is paid to the fact that knowledge about the nature and extent of a transboundary aquifer is often inadequate (Art. 8); and to the conclusion of bilateral and regional agreements (Art. 9).
Article 6 provides a general obligation to co-operate. Aquifer states shall co-operate to attain reasonable and equitable utilization and appropriate protection of transboundary aquifers. Co-operation can significantly enhance the benefits reaped by all states sharing transboundary freshwater resources, as a number of mutually beneficial river treaties such as the Columbia River Treaty between Canada and the United States demonstrate.Footnote 88 For aquifer use and protection co-operation can be essential, for instance when recharge occurs primarily in one state whereas extraction is much easier and cost-efficient in another state.Footnote 89
Article 7(2) calls on states to establish joint mechanisms of co-operation. Such mechanisms include commissions, authorities, and other institutions. Their mandates may include the exchange of data and information, monitoring, management, and research and development. For transboundary aquifer management only very few mechanisms have been established to date. Among them are the Franco-Swiss Commission for the Genevese AquiferFootnote 90 and a consultation mechanism for the SASS.Footnote 91 For the Iullemeden Aquifer negotiations have been initiated.Footnote 92 Institutions set up for rivers and lakes may, however, be taken as foreshadowing future aquifer developments. Watercourse agreements include more often than not the creation of a permanent interstate institution with a mandate to manage co-operation and to broker the reconciliation of the interests at stake on a continuing basis. These mechanisms have helped to avoid or even resolve disputes.Footnote 93 Generally, the more formalized the co-operation the greater the assurance that all partners are abiding by the rules.Footnote 94 Joint authorities ensure an ongoing process of exchange on a technical level (as opposed to a high-level political or diplomatic one) that helps to keep conflict potential low. The Israeli–Palestinian context provides an interesting example of the vital role such institutions can play: the Israeli–Palestinian Joint Water Committee established under Oslo IIFootnote 95 continues to meet and to issue licences to drill wells, monitor aquifer depletion, make decisions, and resolve disputes, despite the almost complete breakdown of all other political structures created under the Oslo accords.Footnote 96
The draft articles emphasize joint mechanisms by mentioning them in two articles. In addition to Article 7(2), which calls for the establishment of joint mechanisms for the purposes of co-operation in general, Article 14 sets out – in the context of an obligation to establish and implement plans for the proper management of a transboundary aquifer – an obligation to establish, wherever appropriate, a joint management mechanism. Whereas in Article 7 the establishment of a joint mechanism is an option, the creation of the mechanisms mentioned in Article 14, with the narrower mandate, is obligatory, although this obligation is substantially weakened by the qualifier ‘wherever appropriate’.
The regular exchange of data and information, the topic of Article 8, is a prerequisite to determine whether an activity constitutes equitable and reasonable use of a resource or causes significant harm. At the same time it is a crucial element of co-operation that often paves the way for joint activities. Article 8(1) provides that states shall exchange readily available data and information on the condition of a transboundary aquifer, in particular of a geological, hydrogeological, hydrological, meteorological, and ecological nature and related to the hydrochemistry of the aquifer as well as related forecasts (Art. 8(1)). Article 8(2) is important and new compared with the UN Watercourses Convention, providing that, given that knowledge about the nature and extent of transboundary aquifers is often inadequate, particularly in developing countries, aquifer states shall employ their best efforts to collect and generate more complete data and information. Articles 8(3) and (4) deal with requests for data and information and the way data and information are processed.
The final article in this part, Article 9, encourages states to enter into bilateral or regional agreements with respect to an entire aquifer, or any part thereof or a particular project, programme, or utilization of an aquifer. By stressing the importance of such agreements the ILC comes to the same conclusion as the PCIJ in 1957 in regard to rivers in the Lake Lanoux case, when it stated,
States today are well aware of the importance of the conflicting interest involved in the industrial use of International rivers and of the necessity of reconciling some of these interests with others through mutual concessions. The only way to achieve these adjustments of interest is the conclusion of agreements on a more and more comprehensive basis.Footnote 97
Given the dearth of aquifer treaties (see section 2.2supra), it seems, however, that there is still a long way to go before treaties are fully appreciated as better tools than unilateral action for framing the management of transboundary aquifers.
4.5. Protection, preservation, and management
Part III of the draft articles is dedicated to protection, preservation, and management. It deals with the protection and preservation of ecosystems (Art. 10); recharge and discharge zones (Art. 11); the prevention, reduction, and control of pollution, including by taking a precautionary approach (Art. 12); monitoring (Art. 13); management (Art. 14); and planned activities, including a notification requirement (Art. 15).
The fact that protection and preservation are dealt with after questions of utilization indicates that they are not the main focus of the draft articles. Article 10 provides in a rather generally worded provision that aquifer states shall take all appropriate measures to protect and preserve ecosystems within, or dependent upon, their transboundary aquifers, including measures to ensure that the quality and quantity of water retained in an aquifer as well as that released through its discharge zones are sufficient to protect and preserve such ecosystems. The formulation ‘to take all appropriate measures’ was introduced to give states the flexibility to change an ecosystem in some appreciable way by using the aquifer.Footnote 98 Utilization of aquifers may thus take priority over the protection of ecosystems such as wetlands or oases dependent on aquifer discharge. Article 11(1) adds that aquifer states shall identify recharge and discharge zones and take appropriate measures to prevent and minimize detrimental impacts on the recharge and discharge processes. Article 12 addresses the specific problem of pollution. It provides that aquifer states shall prevent, reduce, and control pollution, and calls on states to take a precautionary approach to pollution. The expression ‘precautionary approach’ instead of ‘precautionary principle’, which is included in a number of other water treaties,Footnote 99 was chosen because of the still contested status of this principle in customary international law.Footnote 100
On management the draft articles emphasize management plans, provide for an obligation to enter into consultations concerning the management of a transboundary aquifer at the request of any aquifer state, and oblige states to establish joint mechanisms wherever appropriate (Art. 14).
The last article of this section, Article 15, addresses planned activities. States must, as far as is practical, assess the possible effects of planned activities which may affect a transboundary aquifer and thereby may have a significant adverse effect on another state (Art. 15(1)). They must notify the possibly affected neighbour and provide available technical data, including any environmental impact assessment (Art. 15(2)). In contrast to the very detailed provisions of the UN Watercourses Convention, these obligations remain relatively vague. They neither suggest specific time limits for replies, consultations, and so on, nor provide explicitly for a suspension of the planned activity during a reply period or during negotiations. Also unlike the UN Watercourses Convention, they do not establish obligatory pre-activity fact-finding.Footnote 101 It remains to be seen to what extent they will be able to provide actual guidance to states in the case of planned activities. The fact that states are not obliged to carry out environmental impact assessments when planning new activities bears out the moderate importance that the draft articles attach to environmental issues, despite the fact that the Preamble reaffirms the principles and recommendations of the Rio Declaration and Agenda 21.Footnote 102 The flexibility offered by the draft articles contrasts with tendencies in international environmental law, where, for instance, the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) requires an environmental impact assessment in cases where 10 million cubic metres or more of groundwater are planned to be abstracted annually.Footnote 103
4.6. Miscellaneous provisions
The final section of the draft articles addresses miscellaneous issues such as technical co-operation with developing states (Art. 16), emergency situations (Art. 17), protection in times of armed conflict (Art. 18), and data and information vital to national defence or security (Art. 19).
4.7. Open questions
During the negotiations of the UN Watercourses Convention, three issues were most controversial: the balance between equitable utilization and no harm, dispute settlement, and the relationship between the Convention and other treaties. In the course of the development of the draft articles for transboundary aquifers the same issues were contested. The draft articles address only the first issue, in Articles 4 and 6, and leave the other two to be resolved by negotiating parties if a convention is to be developed. Addressing them was regarded as related to the draft articles becoming a convention and thus as premature.Footnote 104 A proposal by the Special Rapporteur to include an article dealing with the relationship between the draft articles and other treaties was rejected.Footnote 105
In negotiations for a convention two related questions concerning this issue will have to be resolved. The first is what the relationship with the UN Watercourses Convention should be in respect of a transboundary aquifer that is hydraulically connected to an international watercourse and thus subject to both the draft articles and the UN Watercourses Convention. The second is what the relationship should generally be with other treaties which regulate wholly or in part matters concerning transboundary aquifers.Footnote 106 With regard to the UN Watercourses Convention it seems that the draft articles would take priority as lex specialis. Concerning bilateral or regional aquifer treaties, it can be expected that an aquifers convention would leave existing bilateral and regional treaties untouched and establish that new treaties apply, and possibly adjust their principles regarding a specific aquifer.
In addition to the aforementioned questions of substance the most important issue yet to be determined is the final fate of the draft articles (see section 3.2supra). Different suggestions have been made, including leaving them in non-binding form or, more specifically, adopting them as a Guide to Practice similar to what the ILC plans for its work on Reservations to Treaties,Footnote 107 turning them into a protocol to the UN Watercourses Convention,Footnote 108 or using them as the starting point for a self-standing international treaty.
Among these options, a self-standing treaty is the most attractive. Although non-binding instruments can also inspire compliance,Footnote 109 only a treaty establishes binding and reliable rights and obligations and offers more than primarily policy guidance.
The adoption of the draft articles as a protocol to the UN Watercourses Convention instead of as an independent framework convention would be problematic. During the more than ten years since its adoption the UN Watercourses Convention has attracted only 18 of the 35 ratifications required for its entry into force.Footnote 110 The ratification process is very slow and it is still unclear whether the Convention will ever become binding law. Therefore the fate of the draft articles should not be tied to that of the UN Watercourses Convention. Adopting them as a protocol would also not do justice to the equivalence in importance between surface and groundwater. A protocol is generally a treaty that supplements a previous treaty to amend the latter or to add additional and often more detailed provisions, whereas the principal rules applying to a field are regulated in the main instrument, often a framework convention.Footnote 111 The regulation of groundwater is, however, not the regulation of a specific question of detail to which the principles of the mother treaty, the UN Watercourses Convention, should apply. Rather, the draft articles develop their own principles and set them out in a manner that is suitable for a framework convention due to their abstract and encompassing nature. Whereas the principles are derived from those of the UN Watercourses Convention, the whole purpose of drafting an instrument on transboundary aquifers was to adapt them to these specific resources, whose factual importance is as significant as that of surface waters. It is conceded that one joint and coherent legal regime for surface and groundwater would have been the best solution, as surface and groundwater are one and the same resource at different stages in the hydrological cycle. Given the existence of the UN Watercourses Convention, a fresh start on surface water, however, is highly unlikely.
The most promising way forward is towards an independent framework convention at a later stage. Until such a convention is adopted, international law in the area can develop and specific rules and principles can emerge on the basis of the draft articles. The question remains whether such a convention would be more likely to enter into force than the UN Watercourses Convention. This might well be the case. In contrast to surface water, where many rivers and lakes are already covered by specific treaties and where ratification of a framework convention is therefore of little interest to the parties concerned, treaties for specific aquifers are very rare. In addition, whereas in the case of rivers the upper and lower riparians and their interests can typically be clearly identified and contrasted, these factors are not so clear in the case of aquifers, where flow patterns change at different parts of the aquifer naturally and depending on the aquifer's use, so that a greater interest in co-operation from all parties involved can be expected. Finally, the use of transboundary aquifers has intensified only recently, following improvements in drilling technology, so that many problems related to aquifer management are still relatively new.
5. Conclusion and outlook
With the draft articles on transboundary aquifers the ILC has completed its work on freshwater resources, begun in 1971 when it included the topic ‘non-navigational uses of international watercourses’ in its programme of work. The resulting convention, the UN Watercourses Convention, has provided the basis from which the ILC elaborated in just a few years the draft articles at hand. The attention of the ILC to transboundary aquifers is timely because groundwater resources have come under increasing stress globally and there is increasing demand for solutions to address groundwater quality and quantity decline. Despite their shortcomings, in particular their relatively weak regard for environmental protection, the draft articles represent a significant step ahead in the protection of one of the world's most important natural resources vital for human survival. They strike a good compromise between building on the accepted rights and obligations of international water law and devising new rules that take adequate account of the specific characteristics of groundwater resources.
The ILC's decision to recommend that the General Assembly adopt a resolution supporting the draft articles and consider convening a negotiating conference at a later stage is to be commended. This approach reduces the risk of rushing prematurely towards a convention, which at this stage might not attract the necessary number of ratifications. Instead, it allows for a period during which the impact of the draft articles on relations between states can be evaluated and during which they could become a catalyst and frame of reference for the development of general or aquifer-specific bilateral, multilateral, or regional treaties. Such treaties will be indispensable for the adequate management of specific shared aquifers, and the litmus test for the draft articles – whether or not they ever become a convention – will be whether they can contribute to shaping such agreements.
In the longer term, the draft articles would ideally become a binding framework convention. As aquifer-specific treaties are largely absent and customary international law is not yet very developed, such a convention would represent the only source of binding international law specific to transboundary aquifers and would thereby contribute to legal certainty concerning the rights and obligations of states sharing groundwater resources. Even when more aquifer-specific treaties are concluded in the future, a binding framework convention, which sets out general principles, can usefully guide and complement such treaties. Such a synergistic relationship has developed in the area of international watercourses, for instance, through the mutually supportive dynamic between the UN Economic Commission for Europe's Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki Convention)Footnote 112 and the numerous treaties on rivers within the geographical scope of the Helsinki Convention.
