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Public Par*cipa*on and Water Resources Management: Where Do We Stand in
Interna*onal Law?
13 December 2013 UNECE and UNIGE Pla7orm for Interna;onal Water Law Palais des Na;ons, Room V
The Guarani Aquifer Agreement and the role of
non-‐State Actors
Francesco Sindico Reader in Interna;onal Environmental Law School of Law, University of Strathclyde, Glasgow
o 2010: Seminar @ the University of Surrey, Guildford, UK & 2011: Conference @ the University of Sao Paulo, Brazil
§ 13.3 Interna;onal Community Law Review
(2011) § 123.3 Bole;n Geologico Minero (2012)
o 15-‐16 October 2013 Interna;onal Roundtable Conference “Interna;onal Water Coopera;on and the Management of Transboundary Aquifers”, Glasgow
§ Glasgow Statement on Interna;onal Water
Coopera;on and Transboundary Aquifers
Context
o The Guarani Aquifer Agreement § Aquifers and Transboundary Aquifers (TBA): A
Hydrogeological and an Interna;onal Law Approxima;on
o Non State Actors and Public Par;cipa;on in
the Guarani Aquifer Agreement
Outline
o The Guarani Aquifer System § Transboundary aquifer system
(Argen;na, Brazil, Paraguay and Uruguay)
§ Underground geological forma;on (container / rock)
§ Groundwater contained therein
o Water resources are not (yet) in crisis § Climate Change § Popula;on increase and change
in land use
The Guarani Aquifer Agreement
o The long road to coopera;on § Guarani Project (2003/09) § Nego;a;ons in 2004/05 § Guarani Aquifer Agreement
(2010) o Implementa;on of the Guarani
Aquifer Agreement (2013) § Commission under the Treaty of
the River Plate Basin (art. 15) § Ra;fied only by Uruguay and
Argen;na § Key role of Brazil
The Guarani Aquifer Agreement
The Guarani Aquifer Agreement
UNILC Drae Ar;cles on the Law of TBA (2008)
Guarani Aquifer Agreement takes into account the Drae Ar;cles(2010)
A/68/470 (2013) takes note of the Guarani Aquifer Agreement
o The Guarani Aquifer Agreement § One of the few examples of
interna;onal trea;es in the field of TBA management
§ Refers to the UNILC Drae Ar;cles § Recent discussion at the UNGA
6th Commihee on the future of the Drae Ar;cles refers to the Guarani Aquifer Agreement • And to the Model Provisions
on Transboundary Groundwaters
§ No tangible presence of public par;cipa;on in the Agreement…
§ But if public par;cipa;on is a
component of other obliga;ons provided for in the Agreement…
§ And if public par;cipa;on is part of (or
becoming part of) general interna;onal law…
§ Then…. It will s;ll be relevant/
applicable.
Non State Actors and Public Par>cipa>on in the Guarani Aquifer Agreement
o But if public par;cipa;on is a component of other obliga;ons provided for in the Agreement…
§ Environmental impact
assessment (GAA, arts. 9 and 10) § Rela;onship between public
par;cipa;on and Environmental Impact Assessment
Non State Actors and Public Par>cipa>on in the Guarani Aquifer Agreement
o And if public par;cipa;on is part of (or becoming part of) general interna;onal law…
§ GAA art. 5: “When the Par;es intend to undertake
studies, ac;vi;es or work related to parts of the GAS that are located in their respec;ve territories, and that may have effects beyond their respec;ve boundaries, they shall act in agreement with the principles and norms of applicable interna>onal law.”
Non State Actors and Public Par>cipa>on in the Guarani Aquifer Agreement
o River Uruguay Treaty
§ Does not require EIA § Par;es to the treaty are
not par;es to the ESPOO Conven;on
§ S;ll, the ICJ made it clear that Argen;na and Uruguay were bound by the interna;onal legal obliga;on to undertake an EIA
Non State Actors and Public Par>cipa>on in the Guarani Aquifer Agreement
o Guarani Aquifer Agreement
§ Does not require public par;cipa;on (public consulta;on)
§ Par;es to the GAA are not par;es to the Aarhus Conven;on
§ Are the GAA Par;es bound by an emerging interna;onal legal obliga;on to carry out public consulta;on?
EIA and public
par>cipa>on
TBA dimension
Non State Actors and Public Par>cipa>on in the management of a TBA
TBA
Ac;vity in State A • Groundwater
exploita;on • Shale gas exploita;on • Underground
infrastructure (metro)
May cause significant harm in State B • To the
groundwater and/or
• To the geological forma;on
State A
Public in State B
Business
Public in State A
Conclusion
Uruguay River / Guarani Aquifer
Espoo Conven;on /
Aarhus Conven;on
Environmental Impact
Assessment / Public
par>cipa>on
o Then…. § Public par;cipa;on is applicable/
relevant to the GAA countries § GAA is not yet in force, but this
would not maher § Relevant in the context of shale
gas explora;on/exploita;on in Brazil
Conclusion
Conclusions
o A/68/470, The Law of Transboundary Aquifers § “Commends to the ahen;on of
Governments the drae ar;cles on the law of transboundary aquifers annexed to the present resolu;on as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers;
o Opening of the UNECE Water Conven;on to all UN Member States § Model Provisions on Transboundary Groundwaters adopted by the sixth MOP to the UNECE Water Conven;on
From taking into account (2009) to guidance (2013)
§ Francesco Sindico Director, Strathclyde Centre for Environmental Law and Governance hhp://www.strath.ac.uk/scelg/ Programme Director, Strathclyde LLM in Climate Change Law and Policy hhp://www.strath.ac.uk/humani;es/courses/law/courses/
climate_change_law_policy_llm/ Glasgow Statement on Interna;onal Water Coopera;on and Transboundary
Aquifers hhp://www.strath.ac.uk/media/facul;es/hass/law/scelg/
Glasgow_Statement_on_Interna;onal_Warer_Coopera;on_and_Transboundary_Aquifers.pdf
Thank you!