On 9 December 2011 the United Nations General Assembly (UNGA), at its 66th session, adopted Resolution 66/104 on the “Law of Transboundary Aquifers”:
Resolution on the Law of Transboundary Aquifers
The General Assembly,
Recalling its resolution 63/124 of 11 December 2008, which took note of the draft articles on the law of transboundary aquifers formulated by the International Law Commission,
Noting the major importance of the subject of the law of transboundary aquifers in the relations of States, and the need for reasonable and proper management of transboundary aquifers, a vitally important natural resource, through international cooperation,
Emphasizing the continuing importance of the codification and progressive development of international law, as referred to in Article 13, paragraph 1(a), of the Charter of the United Nations,
Taking note of the comments of Governments and the discussion in the Sixth Committee at the sixty-third and sixty-sixth sessions of the General Assembly on this topic,1
1. 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 annexed to its resolution 63/124;
2. Encourages the International Hydrological Programme of the United Nations Educational, Scientific and Cultural Organization, whose contribution was noted in its resolution 63/124, to offer further scientific and technical assistance to the States concerned;
3. Decides to include in the provisional agenda of its sixty-eighth session an item entitled “The law of transboundary aquifers” and, in the light of written comments of Governments, as well as views expressed in the debates held at the sixty-third and sixty-sixth sessions of the General Assembly, to continue to examine, inter alia, the question of the final form that might be given to the draft articles.
1 Official Records of the General Assembly, Sixty-third Session, Sixth Committee, 26th meeting (A/C.6/63/SR.26), and corrigendum; and ibid., Sixty-sixth Session, Sixth Committee, 16th and 29th meetings (A/C.6/66/SR.16 and 29), and corrigendum.
The Resolution, which has yet to be published separately but which is attached to a 9 November report of the UN’s 6th (Legal) Committee, follows up on the UNGA’s December 2008 action in which it welcomed the work of the UN International Law Commission (see Resolution A/res/63/124) [U.N. General Assembly Resolution on the Law of Transboundary Aquifers, A/RES/63/124 (December 2008)] in formulating nineteen draft articles on the law of transboundary aquifers along with detailed commentaries (available in English, Arabic, Chinese, French, Russian, and Spanish). At the time, the UNGA commended the draft articles to the attention of all UN member-States and placed them on the provisional agenda of the current UNGA session.
To some, adoption of the most recent UNGA resolution may be disheartening since it tables for another day discussion on the merits of the draft articles. Moreover, it postpones consideration of the final form that might be given to the draft articles (e.g., freestanding convention, protocol to the 1997 Watercourses Convention, guidelines, etc.) as well as implementation of a global framework for managing transboundary aquifers.
Nonetheless, the fact that transboundary aquifers remain on the UNGA’s agenda is a testament to the importance that countries continue to ascribe to the subject. While there may not yet be a global agreement on how shared ground water resources should be shared, there is broad recognition that transboundary aquifers are a critical and inseparable component of the global water resource system. More than one-half of humanity depends on ground water for their everyday freshwater needs including drinking, cooking, and hygiene. Moreover, in places like North Africa, the Middle East, and the Mexico-US border, transboundary aquifers serve as the primary or sole source of fresh water for human and environmental sustenance. With increasing pressures coming from climate change, population growth, and economic development, the need for a regulatory framework for cooperation and coordination over the world’s fresh water resources, and especially transboundary aquifers, continues to be an imperative.
By adopting this recent Resolution and placing the topic on the provisional agenda of its 68th session, the Assembly has emphasized the need to keep the spotlight on transboundary aquifers around the world. Moreover, by encouraging nations to enter into bilateral and regional transboundary aquifer arrangements on the basis of the draft articles, it has recognized the need for the development of norms and frameworks for cooperation over this vital resource.
While the UNGA’s approach in pursuing such a framework may be frustratingly sluggish, it might be intentional. Although the draft articles on the law of transboundary aquifers were composed with lightning speed (in contrast to the 25 years it took to craft the draft articles leading to the 1997 Watercourses Convention, the present draft articles were prepared in less than six years), they were not achieved without controversy. Among the various disputes, many nations continue to advocate that any portion of a transboundary aquifer found within a state’s territory should be subject to the principle of permanent sovereignty over natural resource (recall the UNGA’s Resolution 1803 (XVII) of 14 December 1962). This is in stark contrast to the principle of equitable and reasonable utilization, a cornerstone of modern international water law.
Accordingly, in order to prevent the wholesale rejection of the draft articles, the Assembly may be taking a soft approach to the development of global standards and norms for managing transboundary ground water resources. This approach effectively allows countries to “test run” the principles and norms proposed in the draft articles without imposing any binding obligations. And given the dearth of experience with managing transboundary aquifers, this organic and measured tactic may be justified as it will allow for the formulation of locally-specific rules and procedures that are tailored to the unique characteristics of individual shared aquifers. Ultimately, as aquifer riparians begin to utilize, abide by, and modify these norms, it is quite possible that their efforts will evolve into demonstrable state practice and, thereby, customary international law.
Sources for Maps:
Transboundary Aquifers of the Americas – UNESCO/OAS, 2007. Sistemas acuíferos transfronterizos en las Américas. Evaluación Preliminar. Programa UNESCO/OEA ISARM Américas, Serie ISARM Américas N◦1. Montevideo/Washington DC: UNESCO-IHP/OAS
Transboundary Aquifers in Africa – UNESCO, 2004. ISARM-Africa. Managing shared aquifer resources in Africa. B. Appelgren, ed. ISARM-Africa. IHP-VI, series on groundwater 8. Paris: UNESCO
Transboundary Aquifers in Asia – UNESCO, 2008. Transboundary aquifers in Asia with special emphasis to China. Han Zaisheng, Wang Hao and Chai Rui associated with R. Jayakumar, Liu Ke and Wang Jin, eds. Report of ISARM Asia pilot case study. Paris: UNESCO