1. Transboundary Aquifers: Legal Aspects (Case Studies) Marcella Nanni

2. General observations: although inadequate in many countries, domestic GW law evolves, while international GW law lags behind –Few disputes –Relationship groundwater/land –Difficult to agree on what is transboundary or has transboundary effects –Action is taken at national level and locally international GW law less developed than law of int’l surface water resources –groundwater ‘concealed’ resource –effects of intensive use & pollution are not felt immediately Existing treaties pay scant attention to GW

3. International groundwater law Few groundwater-specific agreements –Geneva Aquifer Convention 2007 (superseding Arrangement of 1978): Joint commission oversees use, protection, recharge; Annual water utilization programme –Minute 242/1973 (USA/Mexico) –NSAS: treaty on joint authority; 2 data collection & sharing agreements (at technical level) The UN Watercourses Convention does not sufficiently cover groundwater (& not in force yet) Judicial decisions Scholarly opinion Resolutions of international bodies CONCLUSION: MAIN FOCUS ON SURFACE WATER

4. GENEVA AQUIFER CONVENTION (2007) Main Features bilateral updates ‘arrangement’ 1977 in view of new int’l agreements & domestic legislation objective: ensure aquifer conservation while allowing water abstraction to satisfy drinking water needs in the 2 countries confirms the commission established in 1977 provides for inventory & updating of gw recharge & utilization works works to be equipped with devices to record abstractions & level variations (data to be provided to commission) Parties to analyze gw at regular intervals Parties to set up alarm networks to prevent accidental pollution duration of convention: 30 years

5. GENEVA AQUIFER COMMISSION Structure –Two delegations of 3 members each Functions –Define annual gw utilization programme –Advise on gw protection measures –Advise on new gw abstraction works & installations –Supervise work execution –Control gw abstractions –Control investment & exploitation costs Sessions at least once a year (ordinary)

6. USA/MEXICO TRANSBOUNDARY GROUNDWATER 1973 Agreement on Permanent &Definitive Solution to International Problem of Salinity of Colorado River (Minute 242) Adopted pending conclusion comprehensive gw agreement GW provisions: –limit annual gw pumping by USA & Mexico within 5 miles from Arizona/Sonora border near St Luis –duty to consult on gw development Comprehensive GW agreement never arrived at 2005: unilateral action: US Congress passes USA/Mexico Transboundary Aquifer Assessment Act –purpose: establish TA Assessment Programme (including characterization, mapping & modelling for priority aquifers) –involves US states institutions, IBWC & Mexican institutions, Indian tribes

7. NUBIAN SANDSTONE AQUIFER SYSTEM (NSAS) Joint Authority (Egypt & Libya) created 1992 Sudan & Chad joined later (1996, 1999) Mandate: –oversee strategic planning –develop monitoring network –exchange data & information on gw & extraction 2000: two technical agreements on data collection, sharing & access within project framework Creation of NARIS (regional database) GEF project planned to start 2006 –outcomes include draft framework agreement & institutional framework for NSAS management –involvement of Joint Authority

8. Ongoing initiatives on transboundary gw ILC: development of a new draft legal instrument on transboundary groundwater Programmes directed towards the establishment of institutional mechanisms for cooperation in TA management & the development of supporting legal instruments –NWSAS (SASS) –Iullemeden Aquifer System (IAS) –Guarani Aquifer System –Strengthening of cooperation in the NSAS –Other programmes in Africa and Mediterranean Region

9. Main elements of ongoing & recent programmes Focus of cooperation: management of risk & uncertainty (beyond water utilization) –Improvement of knowledge base –Establishment of systems for sustainable exchange of data and information –Identification of threats & of hot spots –Creation of joint institutional mechanisms –Harmonization of legislation –Capacity strengthening Evolutionary approach: from simple & feasible to more complex and overarching arrangements Focus on institutional mechanisms: relevant agreements to follow

10. Institutional aspects of ongoing & recent programmes Need for joint international institutional mechanism for transboundary aquifer management recognized Question of scope and functions of joint institutional mechanism Need to define –matters to be dealt with at international level –in case of 3 or more aquifer states, matters to be dealt with at the bilateral level –matters to be dealt with at the national level Type of decision-making & effects of decisions Housing of institutional mechanism –c/o existing institution dealing with surface water –autonomous groundwater institution –c/o existing institution not necessarily dealing with water

11. CASE STUDIES NWSAS (SASS): Algeria, Libya, Tunisia Iullemeden: Mali, Niger, Nigeria Support by GEF & FAO Focus of work: institutional mechanism for consultation –Formation of teams of experts (technical & legal) –Review of issues –Review & assessment of existing legal & institutional framework (international & country-level) –Series of discussion workshops Phased approach agreed upon –1 stage (temporary): focus on improved knowledge + confidence building –2 stage (permanent): involvement of political level SASS: structure formally agreed upon (2002-2003) 2nd stage reached (2008) Iullemeden: 1st stage - outline of MOU on mechanism approved by countries (2006)

12. SASS: Algeria, Libya, Tunisia

13. SASS Risk Map Ghadames Jufrah Oued Mya Bassin artesien Syrte Exutoire Tunisien Bassin des Chotts Bassin Occidental CARTE des RISQUES du SASS (Source: OSS)

14. SASS: CONSULTATION MECHANISM Stage 1 (12/2002): technical level (temporary) Focus on data collection, modelling & confidence building

15. Functions manage hydrogeological data base & simulation model; develop & follow-up reference observation network; process, analyze and validate data relating to the knowledge of the resource; develop databases on socio-economic activities in the region in relation to water uses; develop & publish indicators on the resource and its uses in the three countries; promote & facilitate the conduct of joint or coordinated studies and research; formulate & implement training programmes; update SASS model on a regular basis; devise & formulate proposals relating to permanent consultation mechanism (Phase 2).

16. Permanent Technical Committee SASS: CONSULTATION MECHANISM Stage 2 (06/2008): political level (permanent) Permanent Technical Committee Council of Ministers of Water (Algeria, Libya, Tunisia) Workin g groups Coordination Unit (OSS) Tunisia Libya Algeria National Committees

17. Functions (proposed at the outset) In addition to those of temporary mechanism, –definition of policy & strategies for aquifer utilization, protection, conservation & management; –definition of priority zones for aquifer development & management plan formulation, and plan formulation; –endorsement of projects with possible adverse effects; –definition of management measures to be taken by states (control of water use & pollution, conservation); –formulation of recommendations aiming at the harmonization of legislation.

18. IULLEMEDEN AQUIFER SYSTEM (IAS): Mali, Niger, Nigeria

19. Objective of cooperationActivities Tasks of CM*Tasks of the member states 1 Improvement and updating of the common risk identification database with data on: - water resources (quantity, quality) - water uses, demand & supply - land use (and degradation) - the state of the environment - socio-economic & institutional data The common database is the starting point for risk identification and management Formulation and coordination of monitoring and evaluation programmes (water/land, quantity and quality, progress) Review, coordination and adoption of data collection programmes Harmonization of procedures and methododologies relating to monitoring and data collection Formulation and coordination of research programmes Maintenance of the common risk identification database Risk identification Monitoring & evaluation, according to procedures and methods agreed upon within the framework of the CM Data collection Submission of the data to the CM, according to the procedures agreed upon within the framework of the CM Implementation of research programmes 2 A common risk management policy Adoption of a common risk management policy Review and update of a common or harmonized management policy Collection of national policies Submission to CM Updating of the national policies if needed 3 a.A strategy aiming at the protection and conservation of the IAS resources, and the management of the risks to which these resources are exposed b. A strategy for the sustainable development of the IAS resources. a. Review, for compatibility with the common risk management policy, of development programmes and projects proposed by the member states Coordination of integrated resource development programmes Prevention and settlement of disputes b. On the basis of available data, risk identification and assessment, and identification of vulnerable zones Preparation of vulnerability maps for the IAS Definition of risk management measures (technical, economic and legal) Prevention and settlement of disputes a. Provision of information on proposed resource development programmes and projects Environmental impact assessment Programme implementation b. Identifying and reporting on the activities and phenomena which are likely to affect the resources of the IAS Implementation of risk mitigation measures

20. IAS: CONSULTATION MECHANISM Stage 1 (10/2006) - temporary Nigeria Technical committe e Nigeria Technical committe e Niger Technical committe e Niger Technical committe e Secretar y (facilitator ) Secretar y (facilitator ) Mali Technical committe e Mali Technical committe e Steering Committee (political level) Steering Committee (political level)

21. Functions (Stage 1) improvement & updating of common knowledge base; –definition of initial monitoring & assessment programme (water quantity and quality, land uses and degradation within recharge areas), –overseeing the harmonization of procedures and methodologies, –definition of guidelines for database maintenance. definition of risk assessment methodologies; identification & mapping of vulnerable zones; paving the way for permanent mechanism (for Phase 2).

22. IAS: CONSULTATION MECHANISM Stage 2 - permanent Steering Committee (Political level) Steering Committee (Political level) Executive Secretariat Maintenance of the database; coordination of the work of the national committees; preparation of the decisions of the Steering Committee Executive Secretariat Maintenance of the database; coordination of the work of the national committees; preparation of the decisions of the Steering Committee Nigeria Technica l committe e Nigeria Technica l committe e Niger Technica l committe e Niger Technica l committe e Mali Technica l committe e Mali Technica l committe e

23. Functions (Stage 2) In addition to those of transitional mechanism, –advice on programmes & projects which are likely to create situations of risk, or to cause damage to the IAS resources; –definition of risk management measures; –coordination of integrated development programmes; –formulation of recommendations for harmonizing the legal and institutional frameworks; –mobilization of financial resources; –prevention and settlement of disputes; –preparation of annual report on the state of the IAS.

24. Question of housing of mechanism c/o existing water institution? –in this case NBA, which is too large and does not cover gw –but in this case the IAS would be given low priority mechanism as autonomous entity –too costly –objections would be raised, as the NBA is already in place existing neutral regional institution (ECOWAS)

25. Planned actions Short term (0-2 years) –Finalize & sign agreement on mechanism –establish operational plan for mechanism, including structure, manpower required, costs and modalities of financing –present the above to competent national authorities (and obtain their endorsement) –draft rules of procedure –set up steering committee –appoint members of national technical committees Medium term (2-5 years) –establish functional priorities –establish work plans, indicating targets, time frames, responsibilities & costs –implement workplans

26. IAS – OUTLINE DRAFT AGREEMENT (1) Preamble, with emphasis on –risks to which the aquifer is subject –commitment of states to cooperate –principles on which cooperation is based Creation of tripartite consultation mechanism (following phased approach) –territorial scope (IAS, as per map annexed to agreement) –objectives –functions (for phase 1 and phase 2) Duty to exchange information –Hydrogeological, meteorological, water quality –Research results –Legal, administrative & other measures –Accidents & emergencies –Actions taken to implement legislation & measures

27. IAS – OUTLINE DRAFT AGREEMENT (2) Notification of planned measures Legal status of consultation mechanism (phase 2) Headquarters Structure of mechanism –Steering Committee (control; decision-making) –National Committees (technical/scientific) –Secretariat/Secretary (executive) Sessions of Steering Committee Financial provisions Immunities & privileges Dispute settlement

29. A FURTHER CASE STUDY: GUARANI AQUIFER (SAG) Argentina, Brazil, Paraguay, Uruguay 2004 Presidential Declaration: decision to deal with SAG at MERCOSUR level 2004 creation of High Level Ad-Hoc Group to formulate SAG agreement At the same time, GEF project (technical nature) The two run in parallel Draft agreement been developed but not agreed upon

30. MAIN FEATURES OF DRAFT SAG AGREEMENT (end 2005) Reiterates sovereignty of aquifer states Engagement to promote management, monitoring & sustainable development of SAG water resources Resource use to be based on criteria of rational and sustainable use & duty not to cause harm Parties to promote SAG conservation & protection Planned activities with possible adverse effects to respect prevailing int’l law (notification duty, procedural rules) Elimination or reduction of damage Exchange of information Technical cooperation; cooperation in hot spot identification Commission to be established within framework of Plata basin treaty to coordinate cooperation Dispute settlement: direct negotiations; if no results, commission

31. Evaluation of aquifer management arrangements Geneva Aquifer : –good example of cooperation involvement of two countries only aquifer countries at same level of socio-economic development NSAS Authority: –weak, but might be strengthened through GEF project implementation SASS : –phased approach, with good progress –now permanent mechanism Iullemeden Aquifer (FAO, GEF): –phased approach; –hosting of institution (NBA or autonomous?) Guarani (GEF) : –ICC or dedicated institution?