1. Levelling of scientists by lawyers
Pilot course on transboundary aquifers
Thessaloniki October 2008
Raya Marina Stephan
Water law specialist

2. Outline Sources of International Groundwater Law
II. Evolution : the process at the ILC

3. I. Sources of International Groundwater Law
A. Global conventions
B. Regional conventions
C. Water agreements

4. A. Global Conventions
Convention on the law of non-navigational uses of international watercourses (21 May 1997)
Votes : 103 in favour,
27 abstentions
3 against

5. UN Watercourse Convention
Seven parts:
Introduction
General principles
Planned measures
Protection, preservation and management
Harmful conditions and emergency situations
Miscellaneous provisions
Final clauses

6. UN Watercourse Convention
Part I Introduction
Article 1 Scope
uses of international watercourses and of their waters for purposes other than navigation
measures of protection, preservation and management related to the uses of those watercourses and their waters

7. a watercourse is defined as :
Convention on the law of non-navigational uses of international watercourses (21 May 1997)
Article 2 Use of terms
a watercourse is defined as :
A system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus (article 2 a)
Draft articles of 1994 adopted as a Convention by the UN GA in 1997
The definition excludes groundwaters which are not related to surface waters and are not flowing into a common terminus

8. UN Watercourse Convention
Part II General Principles
Equitable and Reasonable Utilization
Obligation not to Cause Significant Harm
General obligation to cooperate
Regular exchange of data

9. UN Watercourse Convention
Part III Planned Measures
Procedural rules regarding the Notification of and Consultation on Planned Measures
Part IV Protection, preservation and management
Protection of ecosystems and of marine environment
Prevention, reduction and control of pollution
Management → joint management mechanism

10. UN Watercourse Convention
Limited in its scope
Aquifers not ‘related’ to surface water bodies are excluded from the scope of the Convention
Groundwater and surface water do not necessarily share a ‘common terminus’
The need for specific rules
The rules were tailored for surface waters, GW came in later.
GW more vulnerable to pollution and depletion than surface water : need for more protective obligations and principles

11. UN Watercourse Convention
Not yet in force
16 signatories and 15 ratifications
However its core principles are part of international customary law

12. B. Regional Conventions
UN ECE Convention on the protection and Use of Transboundary Watercourses and International Lakes (1992)
Applies to the 56 member States of the ECE: countries of Europe,
Canada and United States
Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan
Israel

13. UN ECE Convention on the protection and Use of Transboundary Watercourses and International Lakes (1992)
- applies to all transboundary waters
Provisions procedural rules, such as monitoring
Guided by the equitable and reasonable use principle, the precautionary principle and the sustainable development

14. UNECE Survey of European transboundary aquifers
Under the Convention (1992) on the Protection and Use of Transboundary Watercourses and International lakes

15. Guidelines on monitoring and assessment of transboundary groundwaters
Monitoring programmes
Data management
Quality management
Joint action and institutional arrangements

16. Regional Conventions
Revised Protocol on Shared Watercourses in the Southern African Development Community (2000)
Adopts the same definition of a watercourse than the UN Watercourse convention
Sustainable, equitable and reasonable utilisation
Obligation not to cause significant harm
Cooperation

17. C. Water Agreements
The majority of the agreements are on surface water,
GW is included when related to the surface waters

18. Water Agreements Consideration of groundwater flowing into the lake
Multilateral agreements
Convention on the Sustainable Development of Lake Tanganyka, 12 June 2003, (Burundi, Congo, Tanzania, Zambia)
The Protocol for Sustainable Development of Lake Victoria basin, 29 November 2003, (Kenya, Tanzania, Uganda)
Consideration of groundwater flowing into the lake

19. Bilateral agreements
Convention and Statutes relating to the development of the Chad basin, 22 May 1964 (Cameroon, Chad, Niger, Nigeria)
- refers to the utilisation of surface and underground waters with the widest meaning
- objective: “to intensify cooperation and efforts in the development of the Chad Basin”
- Establishes the Lake Chad Basin Authority

20. Agreement concerning the equitable sharing in the development, conservation and use of the common water resources, 18 July 1990 (Nigeria, Niger)
Applies to shared river basins
Covers groundwater when it contributes to the flow of the shared surface waters
equitable share in the development, conservation and use of the water resources, with specific factors
Regular exchange of data
Prior notification

21. Result:
Exclusion of a great number of transboundary aquifers
Inadequate provisions to cover the specific characteristics of aquifers

22. Few exceptions :
Arrangement on the protectionm utilisation and recharge of the Franco Swiss Genevese aquifer (9 June 1977, revised in January 2008)
SASS : Establishment of a consultation mechanism approved by the three States (december 2002) (Algeria, Libya and Tunisia)
Joint Authority on the NSAS (1992) (Chad, Egypt, Libya and Sudan)

23. II. Evolution : the process at the ILC
UN International Law Commission
Established by the General Assembly in 1947
Promotes the progressive development of international law and its codification
Composed of 34 members elected by the GA

24. Oil Natural gas Transboundary groundwaters
2002 : the ILC includes in its programme of work the topic of “Shared Natural Resources”
Transboundary groundwaters
Oil
Natural gas

25. A. The process at the UN ILC First report (2003)
Background of the topic at the ILC
Scope of the study :
groundwaters « that are shared by more than two States but are not covered by article 2(a)… » of the UN Watercourse Convention

26. Second report (2004): transboundary aquifers:
Scope of the study: all groundwaters,
Introduction of the term « aquifer »
Seven draft articles
the scope, definitions, the obligation not to cause harm, the general obligation to cooperate, the regular exchange of data and information, and the relationship between different kind of uses
Seven draft articles to initiate discussions at the ILC

27. Third report (2005)
Complete set of draft articles on the law of transboundary aquifers
In 2006, the ILC adopts at first reading 19 draft articles on the law of transboundary aquifers.
The draft articles are transmitted to Governments for comments and observations, by 1 January 2008.
In 2005 ILC established a WG to review the draft articles. The WG completed its work in 2006.

28. Fourth report (2007)
Relationship transboundary aquifers and oil and gas
2006 & 2007
Comments by governments : 45 oral and 19 written
→ generally favorable

29. Fifth report (2008) Draft articles revised according to comments
Adoption on second reading by the ILC
Recommends a 2 steps approach :
Adoption of Resolution, with draft articles in annex
At a later stage elaboration of a convention

30. B. The role of UNESCO-IHP
Scientific and technical advice on the issues related to hydrogeology to the Special Rapporteur and to the ILC
Invitation, coordination and support of contributions from international experts, international and national institutions, and centres on groundwater resources, such as IAH, FAO, UN ECE, IGRAC ...

31. C. The draft articles on the law of transboundary aquifers
Five parts:
Introduction
General principles
Protection, preservation and management
Activities affecting other States
Miscellaneous provisions
Shared Natural Resources
Framework

32. Part I Introduction: Scope (article 1):
utilization of TB aquifers and aquifer systems
Other activities that have or are likely to have an impact upon those aquifers
Measures for the protection, preservation and management of those aquifers

33. Use of terms (article 2)
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;
“Transboundary aquifer” or “transboundary aquifer system” means respectively, an aquifer or aquifer system, parts of which are situated in different States;
“utilization of transboundary aquifers or aquifer systems” includes extraction of water, heat and minerals, and storage and disposal of any substance;

34. Part II General principles
Sovereignty
Equitable and reasonable utilization
Factors relevant to equitable and reasonable utilization
in weighing different utilizations of a transboundary aquifer or aquifer system, special regard shall be given to vital human needs.

35. Obligation not to cause significant harm
by utilization, or other activities through aquifer to other aquifer States
General obligation to cooperate : joint mechanisms of cooperation
Regular exchange of data

36. Part III Protection, preservation and management
Protection and preservation of ecosystems dependent on the aquifer
Recharge and discharge zones
Prevention, reduction and control of pollution

37. Monitoring Management:
indispensable for the proper management of a TB aquifer
ideally joint monitoring based on an agreed conceptual model
Management:
management plan
consultation with the other aquifer State
joint management mechanism

38. Part IV Activities affecting other States
Notification & Consultation on Planned Activities
Part V Miscellaneous provisions
Technical cooperation with developing States
Emergency situations
Protection in time of armed conflict
Data and information concerning national defense or security