Archive for January, 2014

Offshore fresh water aquifers: which law will apply?

Wednesday, January 22nd, 2014

The following post is by Renee Martin-Nagle, a Visiting Scholar with the Environmental Law Institute in Washington, DC.  Ms. Martin-Nagle can be contacted at martin-nagle [at]

In recent years, increasingly urgent voices have been warning of a global water crisis, as the human species consistently uses more water than is sustainably available.  Pictures of parched lands, disappearing lakes and streams, and single-faucet villages have become commonplace as thirsty straws siphon life-giving water from above and below the surface of the earth.  Currently a billion people – 40% of humanity – live in water-stressed conditions, and studies predict that the situation will deteriorate rapidly in the next few years, as the agricultural sector, which already accounts for an average of 70% of global fresh water use, struggles to feed an additional billion by 2030.

Figure 1: World map of topography and bathymetry showing known occurrences of fresh and brackish offshore groundwater.

Figure 1: World map of topography and bathymetry showing known occurrences of fresh and brackish offshore groundwater.
Reprinted by permission from Macmillan Publishers Ltd: V. Post,, Offshore fresh groundwater reserves as a global phenomenon, Nature, Vol. 504, pp. 71–78 (5 December 2013) doi:10.1038/nature12858

Suddenly, in early December, a ray of hope appeared as a group of Australian scientists published a paper in Nature heralding discovery of vast meteoric fresh groundwater reserves off the coasts of China, Australia, North America, Greenland, Suriname, Nigeria and South Africa.  The group’s leader, Dr. Vincent Post of the National Centre for Groundwater Research and Training (NCGRT) and the School of the Environment at Flinders University, predicted that the “volume of this water resource is a hundred times greater than the amount we’ve extracted from the Earth’s sub-surface in the past century since 1900,” and went on to say that “[k]nowing about these reserves is great news because this volume of water could sustain some regions for decades.”  In spite of a cautionary message in the article that “[o]ffshore groundwater is not the answer to global water crises”, one recent headline excitedly proclaimed, “Aussie Scientists May Have Solved the Global Water Shortage Crisis.”

There are several reasons why the prospect of vast seabed aquifers should not distract us from addressing fresh water shortages.  First, the article admits that “[d[espite convincing indications of the widespread presence of offshore paleo-groundwater, direct observations remain limited.”  With very few exceptions, the presence of seabed aquifers has not been proven but is based on sporadic sampling and intensive modeling.  Technical challenges must be overcome in order to locate and access the aquifers, without introducing contamination that would forever foul the confined waters.  Further, the waters are not expected to be fresh, but rather either brackish or somewhat saline, meaning treatment will be required prior to use.  Once the quantity and quality of the contained water is determined, it must be abstracted and transported to a treatment or desalination facility that would probably be located on-shore at some distance from the wellhead.  Finally, after weighing the benefits and risks, one or more parties must be willing to invest substantial sums to find, recover and treat the water.  The investors would be unusually philanthropic if they did not expect an economic return within a reasonable time, so a mechanism for monetizing the water would have to be agreed upon.  If we accept Dr. Post’s statement that the seabed aquifers would meet our needs for only a few decades, any “solution” offered by the discovery would be short-lived at current consumption rates.

Figure 2: Global overview of inferred key metrics and cross sections of well-characterised vast meteoric groundwater reserves.

Figure 2: Global overview of inferred key metrics and cross sections of well-characterised vast meteoric groundwater reserves.
Reprinted by permission from Macmillan Publishers Ltd: V. Post,, Offshore fresh groundwater reserves as a global phenomenon, Nature, Vol. 504, pp. 71–78 (5 December 2013) doi:10.1038/nature12858

Assuming, however, that the challenges regarding accessibility and financial return could be overcome, determinations would have to be made whether jurisdiction and ownership of the water would follow domestic law, international water law, or the Law of the Sea.  Aquifers lying under the territorial sea of one nation would doubtless be governed by its domestic laws, but questions would arise for transboundary aquifers. If international water law principles were to guide ownership and use, a further determination would have to be made about which guidelines to follow.  The Convention on the Law of the Non-navigational Uses of International Watercourses (the Watercourses Convention) needs ratification by two more states to enter into force, but by its terms the Watercourses Convention only applies to aquifers with a link to a surface water system.  Since they are fossil aquifers, the seabed aquifers lack such a link to any surface water system.  The 2008 UN Draft Articles on the Law of Transboundary Aquifers (the “Draft Aquifer Articles”) include fossil aquifers within their scope, granting nations full sovereignty to aquifer formations and the water therein that lie under their borders (Art. 3).  However, the Draft Aquifer Articles have thus far received scant attention, and, in the Case Concerning the Gabčíkovo-Nagymaros Project, the International Court of Justice rejected the notion of absolute sovereignty over transboundary waters.  If the treaty void for transboundary aquifers were to be filled by adopting customary laws that have developed for transboundary surface waters, then nations sharing transboundary seabed aquifers may be expected to abide by such customary law principles as equitable and reasonable use, prevention of significant harm and exchange of information.

Alternatively, one could argue that the UN Convention on the Law of Sea (UNCLOS), which has entered into force, should serve as the prevailing set of guidelines.  In that case, a preliminary determination would have to be made as to whether water should be treated as a non-living resource such as minerals, oil and gas.  Under UNCLOS, non-living resources located within the 200-mile exclusive economic zone (EEZ) of a nation belong to that nation.  Oil and gas extraction follows the law of capture, which can result in windfall for nations with access to technology and financial resources.  An argument could be made that fresh, or even brackish, water should not be treated as a non-living resource, since water is the most vital of resources, necessary to support terrestrial life.  Indeed, the scope of the Draft Aquifers Articles initially included oil and gas along with water, but water was deemed too important to be treated in the same way as other extractive resources (see C. Yamada, Fourth report on shared natural resources: transboundary groundwaters (2007)).

The day may come when technology, financing and need will all converge to make extraction of the water in the seabed aquifers practical and even necessary.  Prior to that day, fundamental questions on legal regimes and treatment of vital resources will have to be raised and answered.

Israeli-Palestinian Agreement on Water within Sight

Wednesday, January 8th, 2014

The following post is by David B. Brooks, an Associate with the International Institute for Sustainable Development in Winnipeg, Manitoba, Canada. Mr. Brooks can be contacted at david.b.brooks34 [at]

Many people have said that the last thing on which Israelis and Palestinians will be able to agree is fresh water.  They are very likely wrong.  Over the past year, the two governments have been discussing a draft water agreement that was designed by Friends of the Earth Middle East (FoEME), an Israeli-Jordanian-Palestinian environmental NGO that focuses on border issues.

Failings of the Oslo Process

Since the start of the Oslo process in 1993, all attempts at the peace process have been predicated on the belief that that a peace agreement must provide a simultaneous solution to all issues (i.e., “nothing is agreed until everything is agreed”). This approach has failed.

Based on the development of a draft water agreement for FoEME by two Canadians, David B. Brooks and Julie Trottier, as well as informal discussions with the Israeli Institute for National Security Studies and the Palestinian Water Authority, the best chance for reviving the floundering peace process is to start by tackling “easier” issues, particularly fresh water.

Shared Water Resources of Israel, Palestine and Jordan

Given the Palestinian need for more water, Israel’s new water supply from large-scale desalination, and a mutual need to deal with untreated sewage, bringing water from last to first in the peace process makes economic, ecological, and, most importantly, political sense. For Palestinians, it would provide fresh water in every home; for Israelis, it would remove pollutants from rivers that flow through its main cities. The goal in sight is a Final Accord on Water, not just another interim step.

Breaking Away from the Oslo Model for Water

In addition to the broad tradeoff – more water for Palestinians; better water for Israelis -– the FoEME Proposal is put forward on the basis of two political questions: First, why wait for conclusion of a final status agreement? If, instead of fixed allocations, as with the Oslo agreements, one thinks of ongoing joint management, agreement can be reached right now.  Second, why not shift from a static to a dynamic form of agreement?  The Oslo agreement is dependent on a particular set of borders; the FoEME Proposal is adaptable to any set of borders.  The Oslo-designed Joint Water Committee can only deal with what is deemed Palestinian water; the FoEME Proposal includes joint management of all shared water, which is to say any water that flows along, across, or under the border.  The Oslo approach looks at water as primarily a supply issue; the FoEME Proposal gives as much attention to reducing demand as to increasing supply.  Finally, but perhaps most important, the Oslo agreements propose fixed quantitative allocations of water to Israelis and to Palestinians; the FoEME Proposal incorporates an ongoing review process that adjusts water allocations over time, and ensures that total withdrawals stay within sustainable limits.

One cannot share water as if it were a pie.  Transboundary agreements can divide land this way, but not water.  Water may start as rainfall, but it is then typically used over and over again, sometimes by a group of Palestinian farmers cooperating in a decentralized way, sometimes by the highly centralized Israeli water network, before it finally evaporates or flows into the sea.   With each stage of use, water quality is altered, generally for the worse.  The Oslo approach treats water as if it were both immobile and constant in quality.  The FoEME Proposal recognizes that water is mobile in space and variable in quality.

The Structure of the FoEME Proposal

Cover Page - An Agreement to Share WaterThe FoEME Proposal suggests creation of two key bodies:

  • Bilateral Water Commission replaces today’s Joint Water Committee with responsibility for all shared water (non-shared water sources would remain managed nationally).  The BWC makes key decisions on rates of extraction and of delivery of shared water, and the removal and treatment of waste water.  Its decisions are based on advice from an Office of Science Advisors (OSA) made up of professional staff appointed or seconded by the two governments.  Because it is potentially so powerful, the BWC is not allowed to make decisions independently; rather, it can only accept or reject recommendations from the OSA, but not alter them.  This format avoids giving either side the ability to leverage water issues in endless horse-trading on other, wider issues.
  • Water Mediation Board comes into play whenever the BWC finds itself unable to accept a decision of the science advisors, or if a group or community opposes its decision.  The WMB would have a wide range of tools available to guide a process of seeking resolution ranging from scientific investigations to public forums.  All of these tools must be used in as transparent a way as possible, so as to give credence to its recommendations.


Both the BWC and WMB should be composed of an equal number of Israeli and Palestinian representatives plus possibly one person from outside the region. If voting is necessary, the rules are designed to prevent either side from dominating the other.  For example, if the BWC has seven members, any majority decision would have to have to have the support of least one Israeli and one Palestinian.

An Israeli-Palestinian water agreement is possible – Right now!  Though not designed for any purpose other than managing shared water, it could become the first step in creating the final status agreement that has eluded negotiators for so many years.


The full 180,000 word version of An Agreement to Share Water between Israelis and Palestinians: The FoEME Proposal (with Arabic and Hebrew translations of key chapters) by David B. Brooks and Julie Trottier is available here.  An abridged version, entitled Changing the Nature of Transboundary Water Agreements: The Israeli-Palestinian Case by Brooks, Trottier and Laura Doliner, is available here.