Archive for August, 2010

Hydraulic Harmony or Water Whimsy? Guarani Aquifer Countries Sign Agreement

Thursday, August 5th, 2010

Last week it was the Nile Basin riparians [see here and here]. Now it’s the countries overlying the Guarani Aquifer. On August 2, 2010, the four nations overlaying the massive South American aquifer – Argentine, Brazil, Paraguay, and Uruguay – signed the Agreement on the Guarani Aquifer [Spanish] [Portuguese] in San Juan, Argentina (original text can be found on the Brazilian Ministry of Foreign Relations website). Has humanity finally reached its senses and decided to pursue global hydraulic harmony?

It is unfortunately unlikely that a global era of hydro-cooperation is at hand. Moreover, a review of this new Guarani instrument reveals a bare-bones agreement that contains less than ideal cooperative mechanisms. In particular, the agreement places great emphasis on individual states’ right while limiting obligations to cooperate and jointly management the aquifer. Article 2, for example, affords the parties the right of exclusive dominion over the portions of the aquifer that underlay each nation, while Articles 1 and 3 evince similar notions of sovereign rights. The idea that a state can have sovereign rights over a water body (or a portion of that water body) that flows across an international border harkens back to the long-discredited Harmon Doctrine. As international water law expert and former UN International Law Commission member, Dr. Stephen McCaffrey, modestly stated in a 2009 law review article [The International Law Commission Adopts Draft Articles on Transboundary Aquifers, Amer. J. of Int’l Law, Vol. 103, pp. 272-293 (2009)], where “the subject matter is something that moves from one state to another, from underground to surface, from surface to atmosphere, and so on in the hydrologic cycle, the notion that states have sovereignty over it seems a far from perfect match.”

In contrast, the Guarani Agreement places few limitations on sovereignty in relation to the rights of other parties. While it does contain provisions alluding to well-known international water law principles that could moderate the problems associated with sovereign claims over fresh water resources (e.g., principles of reasonable and equitable use [Arts. 3 & 4] and of no significant harm [Arts. 3, 6, & 7]), it merely references these notions without providing definitions or elaboration. In other words, the Guarani nations agreed mostly to leave each other alone in their respective Guarani-related territories and hydro-activities and only modestly agreed to cooperate.

Yes, the four nations did agree to share information generated about the aquifer (Arts. 9 & 12) as well as to notify each other of planned measures that may result in a transboundary impact (arts. 9, 10, & 11). And there is some language on the conservation and environmental protection of the Guarani (Art. 4) and the need to identify critical areas, especially in border regions, that require special measures (Art. 14). However, the language used in these provisions leaves quite a bit of room for interpretation and suggests that the parties themselves could not agree on the extent to which they want to cooperate. Similarly, the absence of any language describing the responsibilities and authority of the commission that is to be created under Article 15 intimate the creation of a paper tiger.

Notwithstanding its shortcomings, the Guarani Agreement can still be regarded as an important milestone in the world of international water law. Even in its less-than-ideal formulation, it constitutes progress in the effort to have more nations cooperate over shared fresh water resources. At the very least, it is an agreement for some measure of cooperation. If the four Guarani nations actually ratify the instrument (which appears likely), they will join a very small club composed of states who are party to a cross-border ground water treaty. The number of these treaties can be counted on one hand and include the complex management mechanisms governing the use of the Genevese Aquifer [French and unofficial English translation] along the French-Swiss border, and the rudimentary consultative and data-sharing agreements implemented for the Nubian Sandstone and Northwestern Sahara aquifers in North Africa. Given the dearth of treaties over transboundary aquifers (in comparison with the thousands of agreements over transboundary rivers and lakes), and the fact that there are at least 273 transboundary aquifers globally and that millions of people around the world rely on transboundary aquifers for their sustenance and livelihoods, the Agreement on the Guarani Aquifer is still a welcomed development.