Home >Documents >Legal Issues - Atlas of Transboundary Aquifers

Legal Issues - Atlas of Transboundary Aquifers

Date post:26-Mar-2016
Category:
View:215 times
Download:1 times
Share this document with a friend
Description:
As mentioned earlier, despite the importance of transboundary aquifers and the increasing dependency on them for water resources, they have received, until recently, little attention in international law. While regulations for transboundary surface waters are quite well developed, this is still not really the case for transboundary groundwaters.
Transcript:
  • 4

  • Legal issues

  • Tran

    sbo

    un

    dar

    y aq

    uife

    rs m

    anag

    emen

    t: IS

    ARM

    Pro

    gra

    mm

    e304

    As mentioned earlier, despite the importance of transboundary aquifers and the increas-ing dependency on them for water resources, they have received, until recently, littleattention in international law. While regulations for transboundary surface waters arequite well developed, this is still not really the case for transboundary groundwaters.

    At the global level

    At the global level, the UN Convention on the Law of Non-Navigational Uses of Inter-national Watercourses (1997) (UN Doc. A/RES/51/229) (known as the UN Water-course Convention) represents the latest authority in international water law. Itincludes groundwater in its coverage but in a very limited way. In article 2 on the Useof terms, the Convention defines a watercourse as a system of surface waters andgroundwaters constituting by virtue of their physical relationship a unitary whole andnormally flowing into a common terminus (article 2 paragraph a). An internationalwatercourse is defined as a watercourse, parts of which are situated in differentStates (article 2 paragraph b). Regarding groundwater, the Watercourse Conventionappears limited in its scope. It only considers groundwater when it is related to surfacewater, flowing to a common terminus. For instance, groundwater unrelated to surfacewater is excluded. This leaves out important transboundary aquifer systems located indifferent regions of the world, containing great amounts of freshwater resources. Onthe other hand, groundwater and surface water, even when they are related, do not nec-essarily share a common terminus. In reality, surface water and groundwater dontalways flow to a common terminus.

    As a result, transboundary aquifers received limited coverage in international law. Fur-thermore, the provisions are tailored for a surface water body and do not cover the spe-cific hydrogeological characteristics of aquifers.

    The work of the ILC achieved in 2008 with the adoption at second reading of the draftarticles on the law of transboundary aquifers and its recent recognition by a Resolutionof the UN General Assembly on the law of transboundary aquifers (A/RES/63/124)(December 2008) mark an important step forward in the development of internationallaw in the field of transboundary aquifers. The Resolution is a non-binding legal instru-ment, offering guidance for States sharing a transboundary aquifer in reaching anagreement. The text acknowledges the importance of the subject of the law of trans-boundary aquifers in the relations among States. It encourages the States concernedto make appropriate bilateral or regional arrangements for the proper management oftheir transboundary aquifers, taking into account the provisions of these draft articles,which are annexed to the Resolution.

    At the regional level

    The UN ECE Convention on the Protection and Use of Transboundary Watercoursesand International Lakes (or UNECE Water Convention) applies to all transboundarywaters meaning any surface or ground waters which mark, cross or are located onboundaries between two or more States; (article 11). This definition is broad andincludes transboundary aquifers. The Convention is guided by the equitable and rea-sonable use principle, the precautionary principle and the sustainable development.

  • The UN ECE Water Convention provides that Riparian States shall enter into agree-ments, and establish joint bodies, which will have the responsibility, inter alia to col-lect and compile data and to elaborate joint monitoring programs.

    Another instrument worth mentioning in Europe is the EU Water Framework Directive1.The EU WFD extends its provisions to provide transboundary or international riverbasins. According to the Directive groundwater is assigned to the most appropriateriver basin. Each Member State will have to find and set the most appropriate admin-istrative arrangements at the level of the river basin. In case of international river basindistricts, whether shared by two or more Member States, or extending beyond the ter-ritory of the EU, each Member State has the obligation to ensure the administrativearrangements within the portion of his territory that comply with the rules of the Direc-tive. Member States are required to coordinate with non Member States, when it is thecase, for meeting the requirements of the Directive.

    The revised Protocol on Shared Watercourses in the Southern African DevelopmentCommunity (2000) adopts the same definition for a watercourse as the UN Convention,which was described earlier as limited regarding groundwater. The Revised Protocolpromotes cooperation on shared watercourses in the SADC region, the sustainable,equitable and reasonable utilization and the obligation not to cause significant harm.

    State practice

    State practice over transboundary aquifers is also evolving. While until a recent period,transboundary aquifers were only covered within the larger framework of co-operationin the management and protection of border rivers, ad in a marginal role, a little butnotable change is occurring.

    The case of the agreement on the Genevese aquifer, shared between France andSwitzerland, remains an exception. A first convention on the protection, utilisation andrecharging of the aquifer was concluded in 1977. In 2008, a new Convention enteredinto force replacing the previous one, keeping globally the same arrangement for themanagement of the aquifer.

    Agreements on transboundary aquifers have appeared in the last years. For example,the riparian countries (Chad, Egypt, Libya and Sudan) of the Nubian Sandstone AquiferSystem have established a joint authority among them. The agreement was first signedin July 1992 between Egypt and Libya. Sudan and Chad joined later. Amongst otherthings, the Authority is responsible for collecting and updating data, conducting stud-ies, formulating plans and programmes for water resources development and utilization,implementing common groundwater management policies, training technical person-nel, rationing the aquifer waters and studying the environmental aspects of waterresources development.

    Leg

    al Is

    sues

    305

    1. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1)

  • Tran

    sbo

    un

    dar

    y aq

    uife

    rs m

    anag

    emen

    t: IS

    ARM

    Pro

    gra

    mm

    e306

    In the same way, a first temporary institutional mechanism was establishedin 2002 among the three States of the North Western Sahara Aquifer System(Algeria, Libya and Tunisia). The structure of the mechanism included a steer-ing committee composed of the national water authorities in the three countries, a coordination unit hosted by the Observatoire du Sahara et duSahel, and an ad hoc scientific committee for evaluation and orientation, ofwhich UNESCO-IHP is a member. The mechanism was in charge of managingthe tools developed for the system (a common data base and a model) and the exchange of information, the establishment of monitoring indicators andpromoting studies. In 2008, a permanent structure is agreed upon by the countries (figure below).

    COUNCIL OF MINISTERS IN CHARGE

    OF WATER RESOURCES (Algeria, Libya, Tunisia)

    PERMANENT TECHNICAL COMMITTEE

    (ANRH, GWA, DGRE)

    NATIONAL COMMITTEES

    Algeria

    Libya

    Tunisia

    COORDINATION UNIT(UC)

    AD HOC WORKINGGROUPS

    (GTA)

    Structure of the permanent consultation mechanism of the SASS (Latrech, oral presentation, Tripoli 2008)

    Notes:ANRH = Agence Nationale des Ressources Hydrauliques (Algeria)GWA = General Water Authority (Libya)DGRE = Direction gnrale des Ressources en Eau (Tunisia)GTA = Groupes de Travail ad hoc UC = Unit de Coordination

  • The responsibilities of the permanent mechanism are:

    The development of indicators on the water resource and water demand

    The development and the updating of the common date base

    The development and the management of common monitoring systems.

    Emerging projects

    Projects on transboundary aquifers are emerging, and often include a legaland institutional component. It is worth mentioning here the achievementsunder two projects, even if still not in force and application.

    In the frame of the GEF project on the environmental protection and sustain-able development of the Guarani Aquifer System (Argentina, Brazil, Paraguay,Uruguay), the four States have adopted a draft declaration on the basic prin-ciples and lines of action for the Guarani aquifer system. The draft declarationincludes the following :

    Recalls the sovereignty of each State on the part of the aquifer in its territory

    Use of the water resource in a reasonable and sustainable way

    Respect of the rules of international law related to the activities whichcould have an adverse effect in another State,

    Enter into cooperation in defined hot spots

    (http://www.sg-guarani.org/index/pdf/proyecto/docbas/acuerdos/Declaracion_Principios_Basicos_SAG.pdf )

    In the frame of the project on the Iullemeden Aquifer System (Mali, Niger andNigeria) Managing transboundary hydrogeological risks in the IAS, the threeStates agreed on the principle of setting up a consultation mechanism, and adraft proposal was prepared.

    It is clear from the evolving State practice that awareness on the necessityof developing legal tools and mechanisms for cooperation has been reached.The new Resolution on the law of transboundary aquifers is today at usefulguide for States, for entering into agr

Click here to load reader

Embed Size (px)
Recommended