The United Nations General Assembly (UNGA) established Resolution 63/124 on the "Law of Transboundary Aquifers" on December 11, 2008, which took noted the 19 Draft Articles (Draft Articles or DAs) on the Law of Transboundary Aquifers.
Since 2008, there has been relatively little movement toward finalization of the DAs as part of the development of an international legal instrument for transboundary aquifers. This article examines the scientific, legal, political, and socio-economic factors preventing finalization of the DAs. In addition to drawing from sources that identify reasons why there are so few agreements between nations that share transboundary aquifers (TBAs), the article draws from sources that identify challenges to surface water transboundary agreements, as many of these challenges are applicable to challenges associated with TBAs.
The finalization of the DAs, and the development of international law as it applies to groundwater resources, must be grounded in hydrogeologic principles. A shortlist of the most basic hydrogeologic principles is presented, which leaders of nations/politicians, and policymakers, must understand in order to sustainably manage TBAs. Experts in this field have identified in great detail the important hydrogeologic principles; however, a shortlist is needed for non-technical participants.
In an effort to effectively bridge science and policy, the following hydrogeologic principles should be applied in the implementation of the essential international water law tenets of cooperation between states; equitable and reasonable utilization of the resource; infliction of no significant harm; ongoing information sharing; prior notification of activities that will affect the resource; and the completion of environmental impact assessments prior to initiating an aquifer-related project:
1) Aquifers are finite resources, meaning they can be depleted if mismanaged.
2) Aquifer depletion can occur through overpumping, and the effects of overpumping may not be evident until one or more years after overpumping is initiated.
3) Recharge zones collect the water stored in aquifers, and must be protected.
4) The pollution of aquifers is either impossible to clean up, or cleanup will take years and great cost, unlike surface water bodies, which can often be reasonably cleaned up in a matter of months.
5) Early definition of aquifer characteristics is needed (spatial extent and contained water volume), but this is usually not done due to high cost.
Therefore, ongoing well water level readings and pumping rates should be recorded and shared amongst neighboring states so the resource is not depleted.
6) Most of the world's accessible groundwater is moving. Therefore, the resource is similar to surface water and an individual state cannot reasonably declare an absolute sovereign right to the entire resource by accessing that resource through wells located within their boundaries.
7) Aquifers are of two types: Those that are replenished by surface water, and those that have no connection to surface water (called fossil aquifers).
This summary is intended to assist decision makers and policy makers, and raise awareness of those involved in the management of TBAs.
In 1996, Peru and Bolivia created an Autonomous Binational Authority of the Lake Titicaca (ALT) - Desaguadero River - Lake Poopo - Coipasa Salt Lake System (TDPS System), to regulate water resources. Bolivian and Peruvian mineral extraction and exploitation constitute an important part of the economy. States regulate mining permissions giving grants to extractive companies on lands. However, without any efficent regulation, mining contaminates surface waters and groundwaters. As water transcends borders and a large number of indigenous communities live around Lake Titicaca, in case of contamination, indigenous peoples' lands are contaminated even if mineral extraction is not located on indigenous lands. Hence, this paper assesses indigenous peoples' rights to lands and natural resources beside mining companies' rights to have land access and extract minerals in the context of groundwater contamination in the Lake Titicaca region. The research question is answered through a critical assessment of international, regional and national laws regarding indigenous peoples' rights, mining law, international water law and the law of transboundary aquifers. International law provides an international legal framework and in the context of the Lake Titicaca region, the law and the policy of the ALT are examined as well as Peruvian and Bolivian national laws, to provide a comprehensive analysis.
The paper concludes that the ALT does not clearly embrace the interconnection between surface waters and groundwaters and does not include the aquifers in the TDPS System, particularly the one underlying Lake Titicaca shared by Bolivia and Peru. The ALT also fails to include, in proper terms, the rights of the populations living in the TDPS System, although Peru and Bolivia gather a large number of indigenous peoples, particularly around Lake Titicaca due to its traditional and cultural history. While Peru and Bolivia legally include the obligation to conduct an environmental impact assessment, they do not guarantee the consent of indigenous communities for mining production. Moreover, although the law of Bolivia related to indigenous peoples' rights to lands and natural ressources is the most impressive, it does not provide any legislation about groundwater. Conversely, Peruvian legislation includes groundwater and protects indigenous peoples' rights over all water resources. However, it does not clarify whether indigenous rights to lands and natural resources include groundwater, although within the ILO Convention No. 169, the interpretation of the total environment should include groundwater and aquifers if it infringes the survival and physical integrity of the affected persons. Hence, these failures have led to various indigenous protests in these countries because of breaches of international indigenous peoples' law and national legislation. In addition, the mining economy often takes priority over indigenous peoples' rights.
Therefore, while science is crucial to consider the interconnection between surface waters and groundwaters and to analyse the level of water contamination, science is also essential for indigenous peoples' understanding to claim their rights over their lands and natural resources as well as over the aquifers underlying their territories.
The UN International Law Commission (ILC) had prepared between 2003 and 2008 a full set of draft articles on the law of transboundary aquifers, aiming to fill the gap which was left in international law to provide principles for the proper management of this important source of freshwater. In the drafting process the ILC took inspiration from the UN Convention on the law of non-navigational watercourses (1997), but also based its work on the inputs on hydrogeology and aquifers provided by an experts group set up by UNESCO-IHP at the request of the Special Rapporteur. The draft articles thus include the core principles of international water law but also principles addressing specifically the needs of transboundary aquifers. Both categories of principles were specifically adapted and tailored for the characteristics of transboundary aquifers, based on the scientific inputs of the experts group.
The paper aims to address the benefit sharing approach in the draft articles on the law of transboundary aquifers. Under the equitable and reasonable utilisation principle (article 4), four elements, addressing the hydrogeological management requirements, have been identified as important for the realization of benefit sharing through cooperation:
1. The idea of maximising, and long term
2. The elaboration of a comprehensive utilisation plan
3. The consideration of the present and future needs
4. The alternative water resources
A last element addresses specifically the case of recharging aquifers.
While these elements are derived from article 4, they are also transversal and are confirmed and detailed in other provisions.
The paper will go through the notion of benefit sharing for transboundary aquifers and provide a detailed analysis of its identified elements, with close linkages to other provisions from the draft articles. It will also go through specifc examples of cooperation illustrating these aspects.
The increase in world population is putting growing pressure on available freshwater stocks, both surface and underground. In particular, the more arid areas of the planet are increasingly dependent on groundwater. The conflict potential of ever scarcer water is all the greater when rivers, lakes or aquifers flow or lie astride the borders separating two or more sovereign riparian or aquifer States. Although aquifers, like rivers and lakes, can stretch beyond the national borders, unlike rivers and lakes they are invisible. Aquifers can be connected to surface water systems, and receive contemporary recharge, or not – in which case the groundwater stored in them is non-renewable, or fossil. In addition, aquifers are particularly vulnerable to pollution and to over-exploitation. Groundwater pollution originates from “point” sources, like the outfalls of industrial and sewerage systems, and from “diffuse” or non-point sources, like the drainage of farmland and inflitration of pesticides, herbicides and fertilizers underground. To make matters worse, pollution of non-recharging aquifers can be irreversible, and damage the aquifer permanently. State practice in the matter of transboundary or shared aquifers is evolving, as attested by the fact that only a handful of them, out of 445 documented transboundary aquifers, are governed by a cooperation agreement among the States concerned. The focus of this paper is on the Nubian Sandstone Aquifer System (NSAS), shared by Egypt, Chad, Sudan and Libya, and on the relevant instruments of cooperation among the four aquifer States. In particular, the attention will be directed at substantive and procedural rules, as well as rules for the resolution of disputes, including their actual functioning, with a view to assessing the intensity and functionality of cooperation among the four concerned States. In the case at hand, cooperation appears to rest mostly on procedural rules. Cooperation among the NSAS countries will be analyzed based on the agreements made by the four countries in a time span of twenty-plus years, from 1992 to-date. Such agreements bear out an evolutionary pattern of cooperation attesting to the will of the four countries to cooperate in the management of the shared aquifer in an incremental fashion, and within the limitations imposed by the embyonic stage of relations among the four countries. Ultimately, this paper aims to assess the effectiveness of cooperation, based on the norms agreed to by the cooperating NSAS States. In the author’s opinion, the NSAS countries should strive to attain a more mature level of cooperation, and in particular an agreement on substantive norms, and on norms regulating the settlement of disputes. The author concludes recommending the principles enshrined in the UN Resolution carrying “The law of transboundary aquifers”, adopted in 2008, as a basis for such agreement.
Transboundary Water Management (TWM) have been focusing on surface sources mainly because of the visibility of the surface resource. However since surface and groundwater are usually hydrologically linked, the implications and approaches of IWRM (Integrated Water Resource Management) and TWM related to groundwater have been advancing.
To address increasing competition and the possibility of conflict between groundwater resources that transcend national borders, there exists the need for groundwater regulation in order to control groundwater development and activities that might compromise availability and quality of these particular aquifers.
The Stampriet Transboundary Aquifer System (STAS) is a large aquifer system situated in the southern part of the Kalahari and it is shared between Botswana, Namibia and South Africa. The aquifer system is well representative of groundwater resources in hot semi-arid regions of Africa, where groundwater is the primary source of water. The problems that make groundwater regulation in the STAS area difficult include but are not limited to uncontrolled usage and ineffective water management.
The Namibian legislative framework on water resources and the management thereof (Water Resources Management Act (2013)) makes provision for control and protection of water resources from over-abstraction and pollution through a licensing system. Domestic policies, legal and institutional frameworks for groundwater management are in place for Namibia and there are various modalities on the control and protection of groundwater. Even though capable legal and institutional framework are in place, implementation of these regulations are not yet in operation.
The groundwater regulation in the STAS is enforced through various actions, e.g. the provision of groundwater monitoring through compliance checking. However through the IWRM plan and the legal framework a more encompassing approach for regulation of the groundwater and that is “Facilitating water-user and Stakeholder participation in groundwater/aquifer management”. This approach of groundwater management is more likely to succeed because stakeholders have a say and are actively involved. The establishment of a basin management committee (BMC) is instrumental for the management and regulation of the aquifer on the Namibian side of the border.
Groundwater is often considered to be one of the most mismanaged natural resources. And an area predominantly reliant on groundwater cannot afford to follow the norm where deficient management policies and fragmented water management institutions can have catastrophic results for the water resource. The effort to apply integrated water management in Namibia is in essence an attempt to put a stop to the fragmentation of water management policies and to integrate: upstream and downstream uses, land use planning, and water management. Water Law and Policy provides insights that can guide water development policies across national borders. This paper will look at the institutional and legal framework advancement for groundwater management, using the approach of facilitating water-user and stakeholder participation in the Namibian BMC context and the STAS.