1 International Legal Regime for Transboundary Groundwater S. Salman Legal Department, The World Bank GEF 3 rd IW Conference Brazil, June 23, 2005

2 Structure of Presentation Basic challenges faced with transboundary Groundwater Earlier Attempts at Addressing legal issues ILA Rules Bellagio Drat Treaty UN Watercourses Convention ILC Resolution Treaties dealing with groundwater Current Work of ILC Concluding Remarks

3 Basic Challenges Faced with Transboundary Groundwater Low level of technical knowledge Sahara, Guarani, Nubian Definition of transboundary GW Pollution and over extraction difficulty to reverse pollution, ascertain over extraction Out of sight, out of mind Issues of land and water ownership at national level; customary water rights Issues of federal and state jurisdiction over GW Conflicting interests of states sharing aquifer

4 Earlier Attempts at Addressing transboundary groundwater ILA Helsinki Rules of 1966 Definition of international drainage basin Surface and under groundwater flowing into a common terminus Refers to an aquifer that contributes water to, or receives water from, surface water of an international basin Application of the Helsinki Rules to such transboundary groundwater only.

5 Earlier Attempts at Addressing transboundary groundwater Basic provisions of Helsinki Rules Equitable and reasonable utilization Obligation not to cause harm Environment protection Notification requirement Problems with Helsinki Rules Application to groundwater “connected” to surface water only Leaves out other types of groundwater

6 Earlier Attempts at Addressing transboundary groundwater ILA Seoul Rules Expansion of the Helsinki Rules to cover shared aquifers that do not contribute water to, or receive water from surface water of an international drainage basin Consultation and exchange of information Conjunctive use of ground water and surface water. ILA Rules have no binding legal effect

7 Earlier Attempts at Addressing transboundary groundwater Bellagio Draft Treaty 1989 Effort of Professor Utton and Hayton Provides a standard model treaty on shared GW Basic features Joint Commission with extensive authority Establishment and maintenance of database Detailed provisions on water quality protection Legal Status of Draft Treaty Endorsed by a number of organizations, IWRA No legal status Operationalization by Guarani Aquifer states

8 UN Watercourses Convention Adopted by UN General Assembly in 1997 by a large majority Definition of international watercourse A system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole, and flowing into common terminus Followed ILA Helsinki Rules, and excluded “non-connected” aquifers

9 UN Watercourses Convention Basic Provisions Equitable and reasonable utilization Obligation not to cause harm, protection of the environment Notification and exchange of information, joint mechanism Peaceful settlement of disputes Status of the Convention Not yet in force Reflects customary international law

10 ILC Resolution Issued in 1994 after completion of work on the UN Convention Deals with “Confined Transboundary GW” GW not related to an international watercourse Commends states to be guided by the principles contained in the Convention for dealing with issues related to confined aquifer Use of the term “confined groundwater.”

11 Other International Instruments International instruments dealing with transboundary GW that are in force: Convention on Environmental Impact Assessment in a Transboundary Context, 1991 (Espoo Convention) Notification is required when annual volume of abstraction of groundwater from a shared aquifer amounts to 10 million cubic meters or more Only threshold for “adverse” effects on GW

12 Other International Instruments International instruments dealing with transboundary GW that are in force: UN ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992 (Helsinki Convention) “Transboundary waters” means any surface or groundwaters which mark, cross or are located on boundaries between two or more States

13 Other International Instruments International instruments dealing with transboundary GW that are in force: SADC Protocol on Shared Watercourse Systems 2001 “Watercourse system” means the inter-related hydrologic components of a drainage basin such as streams, rivers, lakes, canals and underground water which constitute a unitary whole by virtue of their physical relationship.

14 Current Work of the ILC on Shared Resources ILC work started in 2002, committee is chaired by Ambassador Yamata Mandate goes beyond transboundary GW and covers all shared resources Works is still on going Opportunity to get issues clarified Expected to codify customary international law in this filed

15 Conclusion Low level of technical knowledge on GW rendering legal agreements difficult to arrive at Difficulties with the definition of transboundary groundwater Jurisdictional issues making it difficult for states to enter into international commitments Different uses of terms by different disciplines Confined, connected, inter-related Drainage basin, hydrologic components

16 Conclusion Absence of an international convention More difficult issues than surface water Limited incentives for cooperation Few bilateral or multilateral treaties Emphasis on surface water, even when GW is mentioned, UN ECE Convention, SADC Protocol Different approaches to groundwater

17 Conclusion Basic rules of customary international law governing transboundary GW: Equitable and reasonable utilization Environment protection, no harm rule Joint mechanisms notification and exchange of information Peaceful settlement of disputes Joint mechanism is the starting and most important element legal entity with wide responsibilities Particularly for fossil aquifer

18 THANK YOU