THE DRAFT ARTICLES ON THE LAW OF
TRANSBOUNDARY AQUIFERS
Professor Gabriel EcksteinTexas A&M University School of Law
Fort Worth, Texas, USADirector, International Water Law Project
GEF IW-LEARN and UNESCO-IHP WebinarGroundwater and International Law: Current Status and Recent Developments
11 December 2013
www.InternationalWaterLaw.org
Groundwater: A Critical Resource
Accessible groundwater = 100 times more than all surface waters
Most extracted natural resources in the world (appx. 950–1,000 km3/yr)
Nearly ½ of humanity depend on groundwater for drinking, cooking and hygiene
40% of water used by industry
40% of water used in irrigated agriculture
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Groundwater: A Critical Resource
Transboundary rivers and lakes• 273 transboundary
watercourses• 3,600+ treaties since 800
AD
Transboundary aquifers• 448 transboundary aquifers
and aquifer bodies• 1 management and 2 data
sharing agreements in force• 1 regional convention• Handful of other related
instruments
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Roots of the Law of Transboundary Aquifers
International Law Association 1966 Helsinki Rules on the Uses of the
Waters of International Rivers 1986 Seoul Rules on International
Groundwaters 1992 UNECE Watercourses/Lakes
Convention 1997 UN Watercourses Convention 1994 UNILC Resolution on Confined
Transboundary Groundwater
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Developing the Law of Transboundary Aquifers
UN International Law Commission Tasked with the “codification and
progressive development of international law” of transboundary aquifers
Appointed Ambassador Chusei Yamada of Japan as Special Rapporteur
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Supported by UNESCO and experts group (lawyers, hydrogeologists, hydrologists, agriculturalists, policy specialists)
Produced 5 reports and addenda Produced draft articles on the law of transboundary
aquifers
Draft Articles on the Law of Transboundary Aquifers
19 draft articles Preamble + four sections
I. IntroductionII. General principlesIII. Protection, preservation and managementIV. Miscellaneous provisions
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Draft Articles on the Law of Transboundary Aquifers
Scope (Art. 1)(a) Utilization of transboundary aquifers or aquifer
systems;(b) Other activities that have or are likely to have an
impact upon such aquifers or aquifer systems; and(c) Measures for the protection, preservation and
management of such aquifers or aquifer systems.
Definitions (Art. 2)(a) “aquifer” means a permeable water bearing geological
formation underlain by a less permeable layer and the water contained in the saturated zone of the formation;
(d) “utilization of transboundary aquifers or aquifer systems” includes extraction of water, heat and minerals, and storage and disposal of any substance;
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Draft Articles on the Law of Transboundary Aquifers
Sovereignty (Art. 3)Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory. It shall exercise its sovereignty in accordance with international law and the present articles.
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Draft Articles on the Law of Transboundary Aquifers
Chief Substantive Principles Equitable & reasonable utilization (Arts. 4 &
5) No significant harm (Art. 6) Cooperation (Art. 7) Protection/preservation of ecosystems (Art.
10) Protection of recharge & discharge zones
(Art. 11) Prevention, reduction & control of pollution
(Art. 12)
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Draft Articles on the Law of Transboundary Aquifers
Chief Procedural Principles Exchange of data & information (Art. 8) Monitoring (Art. 13) Notification of planned activities (Art. 15)
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Next Steps
UN General Assembly and Member States Assess substance of the proposed draft articles
Consider the type of instrument Independent convention Protocol to the 1997 UN Watercourses Convention Declaration of principles Guidelines Status quo (draft articles annexed to a UN Resolution)
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Next Steps
2008 UNGA Resolution A/RES/63/124“commends [the draft articles] to the
attention of Governments without prejudice to the question of their future adoption or other appropriate action”
“Encourages the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of these draft articles”
2011 UNGA Resolution A/RES/66/104“Further encourages the States concerned to
make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of the draft articles”
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Next Steps
2013 UN Resolution A/C.6/68/L.25 (DRAFT)“Commends to the attention of Governments the draft articles on the law of transboundary aquifers annexed to the present resolution as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers”
2015 = ?
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Thank You!
Professor Gabriel EcksteinTexas A&M University School of Law
Fort Worth, Texas, USADirector, International Water Law Project
www.InternationalWaterLaw.org
