Archive for the ‘New Resources & Information’ Category

2017 – The Year of Water Law

Friday, October 6th, 2017

2017 can, and indeed should, be called “the Year of Water Law.” A number of water lawyers have been honored by organizations and associations across the globe for their significant contribution to the legal field of knowledge in water resources management.

SalmanDr. Salman Salman received the Crystal Drop Award from the International Water Resources Association (IWRA) at the IWRA 16th Congress in Cancun, Mexico in June 2017. The Award, which Dr. Salman shared with Dr. Cecilia Tortajada, is the highest award of the IWRA, and is presented once every three years. The IWRA congratulated Dr. Salman for “achieving this unique distinction and attaining this notable award from the Association. Your extensive knowledge and broad experience in the water resources sector are, certainly, of an unparalleled match.”

LilianDr. Lilian del Castillo Laborde, was also honored in the same Congress in Cancun by the IWRA, and was awarded the notable and noble status of “Distinguished Honorary Member.” Lilian is a long-time member of the IWRA, and has served IWRA in various positions, including Vice President. She is also a member of the Executive Council of the International Association for Water Law.

eckstein_gabriel1Professor Gabriel Eckstein’s leading role as the Chair of the International Scientific Committee of the IWRA was widely acknowledge with deep appreciation by the IWRA in Cancun. The Committee was shouldered with the responsibility of organizing the IWRA Cancun Congress which turned into a major success, attended by more than 1,400 experts who presented and discussed more than 400 papers. Acknowledgement of Gabriel’s leading role was made during both, the opening and closing sessions of the Congress.

stephen_mccaffreyProfessor Stephen McCaffrey was awarded in August 2017 the Stockholm Water Prize for his unparalleled contribution to the evolution and progressive realization of international water law. In its citation, the Stockholm Water Prize Nominating Committee recognized Professor McCaffrey’s “path-breaking leadership and legal scholarship in international water law. He has made a unique contribution in three specific areas: his seminal work on Treaty negotiation; his major scholarly works, including his book The Law of International Watercourses and; his leadership providing expert legal advice, wise counsel, training and facilitation of complex negotiations with a wide range of stakeholders.”

MaraDr. Mara Tignino, Senior Lecturer at at the Faculty of Law of the University of Geneva, and Coordinator of the Platform for International Water Law at the Geneva Water Hub, received the award “Women Peacebuilders for Water” at the international conference “Rules of Water, Rules for Life”, organized by the Milan Center for Food Law and Policy, in Italy in September 2017. This award marks the seventeenth anniversary of Resolution 1325 adopted by the United Nations Security Council on the contribution of women to peacebuilding in post-conflict situations. The award was given to Mara Tignino by the UN Special Rapporteur on the Right to Food, Ms Hilal Elver, and was motivated by her research in international water law and her dedication to the creation of new generations of international lawyers.

Truly, 2017 has turned out to be the Year of Water Law.

New Book Explores the International Law of Transboundary Groundwater Resources

Sunday, September 17th, 2017

The following essay by Gabriel Eckstein provides an overview of his forthcoming book on The International Law of Transboundary Groundwater Resources. The book should be released on 20 September 2017.

Approximately 600 aquifers worldwide traverse international frontiers. Yet, only four of these have been the direct focus of a treaty regime. In sharp contrast, more than 3,600 treaties have been crafted for the 276 shared rivers and lakes of the world. As a result, the international law applicable to transboundary groundwater resources is far less developed and understood than its surface water counterpart. To a significant extent, international groundwater law has yet to emerge on the international stage.

 

TBA Map - colour

 

Nevertheless, increased regional scarcities and growing demand for freshwater resources have forced many governments to focus on all of their freshwater resources, including those found below the surface along their borders. In places like the Middle East, North and sub-Saharan Africa, parts of Central Asia, and the Mexico-United States border, nations have come to realize that transboundary aquifers serve as the primary or sole source of freshwater for their communities and natural environment.

As a result, various countries and international organizations are now beginning to explore legal options for the management of these subsurface water bodies.  Both the UN International Law Commission and the UN Economic Commission for Europe have issued proposed norms aimed at guiding transboundary aquifer riparians on how to develop such regimes (see UN Draft Articles on the Law of Transboundary Aquifers, and UNECE Model Provisions on Transboundary Groundwaters). And agencies like the UN Educational, Scientific, and Cultural Organization are developing case studies and evaluating management approaches with the goal of developing equitable cooperative regimes.

While the international law applicable to transboundary groundwater resources is still in its infancy, progress is evident and preliminary trends can be discerned.  This books documents these developments and offers a fairly comprehensive look at the evolutionary process that has led to the emergence of what may yet be termed international groundwater law.

IGWLBookCoverThe book opens with a general overview of the importance of groundwater resources to communities and humanity on a global scale. It then placed groundwater in a transboundary context and recognizes the governance challenges that arise among aquifer riparians. Taking a decisively interdisciplinary approach, Chapter 2 discusses groundwater resources in accessible scientific terms and lays the foundations for applying scientifically sound laws and policies to transboundary groundwater resources. It considers groundwater within the broader hydrologic cycle and describes and defines the various hydrogeological concepts and processes that must be considered by groundwater managers and regulators.  The book then discusses in Chapter 3 groundwater in a cross-border context and presents six conceptual aquifer models to illustrate various scenarios in which groundwater resources can have transboundary implications.  The models are all scientifically valid generic models, and are based on and represent the vast majority of circumstances found in nature under which an aquifer may have transboundary implications.

In Chapter 4, the book turns to the law and explores how groundwater has been treated in various domestic legal regimes and traditions, as well as in formal and informal arrangements between aquifer riparian states. This discussion lays the foundation for the growing attention paid to transboundary aquifers among governmental, inter-governmental, and non-governmental entities, and their interest in identifying globally acceptable legal norms and rules for managing groundwater resources that traverse international boundaries.  Chapter 5 follows with an analysis of groundwater resources and aquifers under the U.N. Watercourses Convention, while Chapter 6 focuses on groundwater and aquifers under the UN Draft Articles on the Law of Transboundary Aquifers.

Taking into account the preceding chapters, Chapter 7 discusses the emerging trends in the evolution of international law for transboundary aquifers. It begins by reviewing the few formal and informal arrangements in existence in which nations have addressed directly the management or use of a transboundary aquifer. It then extracts those principles and norms that are common to all or most of these instruments and evaluates them as a basis for the possible emergence of international law. The book concludes with Chapter 8 where it identifies gaps in the law in light of the unique characteristics (especially as compared to surface water bodies) of groundwater resources and their potential cross-border implications. This final chapter is intended as a basis for further discussion and consideration of the continued development of this nascent but critical area of international law.

For more information about this book, please see here.  To request a review copy, see here; Instructors can request an e-book exam copy here.

 

Disputes over International Watercourses: Can River Basin Organizations make a Difference?

Friday, July 21st, 2017

The following essay by Sabine Blumstein and Susanne Schmeier is a summary of a recently published book chapter titled “Disputes Over International Watercourses: Can River Basin Organizations make a Difference?”. Ms. Blumstein works as a Project Manager at adelphi. Ms. Schmeier is Coordinator for Transboundary Water Management at the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). They can be contacted at: blumstein[at]adelphi.de.

 

Book coverDisagreements or even full-fledged disputes over the use of water resources in shared basins have increasingly made headlines in the past years. Developments in the Mekong, Nile, Syr Darya, Indus and other basins have led more and more scholars, as well as policy-makers and journalists, to warn of the risk of water conflicts or even wars. This revives – albeit in a more informed manner – the water wars debate of the early 1990s. While much progress has been made since then – especially through the creation and institutionalization of cooperative arrangements in many shared basins – disputes nonetheless continue to occur. And they do occur even in basins with River Basin Organizations (RBOs) in place, which have often been set up to solve, mitigate or prevent such disputes.

However, research on transboundary river basin management as well as empirical evidence from basins around the world suggest that RBOs do make a difference. They provide a variety of direct and indirect mechanisms for dispute resolution, as discussed in a recently published chapter which appeared in “Management of Transboundary Water Resources under Scarcity. A Multidisciplinary Approach”. In this chapter, the authors shed light on how RBOs engage in the solution of disputes that arise over water resources in transboundary basins. And they show that it is not dispute-resolution mechanisms in the narrow sense – often identified as the key if not the only instruments RBOs provide – that make a difference in whether a conflict is solved peacefully in a cooperative manner. Instead, it is the broader cooperative framework of RBOs that matters.

The authors review existing dispute resolution mechanisms of international RBOs around the world in a comprehensive manner. Their research indicates that more than 50% of the 121 analyzed RBOs have a dispute resolution mechanism in place – seemingly a good starting point. Among those, they identify three broader categories of RBO dispute resolution mechanisms: bilateral negotiations between those RBO members involved in a disagreement; RBO-internal mechanisms; and external actors’ involvement. Often, states have opted to establish more than one step in the respective dispute-resolution mechanism, structuring the processes in two instances with different mechanisms to be applied. For instance, bilateral negotiation between disputing parties (facilitated by the RBO) are often followed by a possible engagement of external actors – both 3rd party mediators and judicial ones.

The authors also provide explanations for why dispute resolution mechanisms vary around the world (in terms of existence in the first place, but also in design). Often, it is the history of cooperation (also beyond the water sector) that determines both the existence as well as the exact design of dispute resolution mechanisms. The high share of dispute resolution mechanisms in African RBOs, for example, can be explained by the past conflicts found in many African basins as well as the high presence of international donors, which often consider well-defined dispute-resolution mechanisms as a prerequisite for successful cooperation. In Europe, on the other hand, the existence of cooperation mechanisms (including specific instruments for solving disputes) in many issue-areas has limited the need for well-defined dispute resolution mechanisms within specific basins and RBOs.

Regional distribution of dispute-resolution mechanisms in RBOs

    Regional distribution of dispute-resolution mechanisms in RBOs

In the second part of the chapter, the authors analyze two conflicts in greater detail in order to shed more light on how exactly RBOs make a difference in solving or mitigating disputes in shared basins. For the Mekong River Basin, they find that while the Mekong River Commission’s (MRC) dispute resolution mechanisms themselves (see Art. 34 and 35 of the 1995 Mekong Agreement) might seem insufficient for addressing issues as complex as recent hydropower developments and related inter-state conflicts, the MRC provides ample other tools for ensuring that such disputes get addressed in a cooperative manner and on the basis of comprehensive technical data and information. Although having been criticized by many scholars, the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) and the processes established around them (e.g. the identification of environmental and socioeconomic baselines, the establishment of guidelines for impact mitigation, etc.) have ensured that disagreements have been handled in a rather cooperative manner. This is particularly obvious if compared to similar situations of unilateral hydropower development in other basins around the world.

For the Nile River Basin, the authors find that the Nile Basin Initiative (NBI) did not directly contribute to diplomatic negotiations or any other form of direct resolution of the conflict around the Grand Ethiopian Renaissance Dam (GERD), which can partly be explained by the absence of any NBI dispute resolution mechanism. In addition, the lack of any notification mechanism or requirement to exchange data/information on planned infrastructure measures which could potentially impact downstream countries, prevented the NBI to play any significant role in averting the dispute in the first place. Despite this limited role in conflict prevention and direct diplomatic engagement, NBI played an important role in defusing the conflict through broader activities around data and information sharing and increasingly distributing this knowledge to the broader public. The RBO’s activities regarding knowledge distribution and more neutral reporting through national media is an important contribution to de-securitize national discourses around the construction of GERD and hence a precondition for any final resolution of the dispute.

While the findings reveal that the existence of specific dispute resolution mechanisms in a narrow sense does not necessarily influence the success of dispute resolution and depends on a number of other intervening factors, RBOs as a whole do matter in 2addressing water-related conflicts. This is because RBOs provide a range of instruments beyond pure dispute resolution mechanisms: amongst others, they provide platforms for negotiation and exchange, data and information exchange or notification procedures. These instruments are of key importance to solve, contain or even prevent conflicts. Water practitioners and policy actors should therefore not exclusively focus on the specific dispute resolution mechanisms provided by RBOs but be aware of and actively use the broader repertoire of governance instruments provided by RBOs to avoid and solve evolving disputes in transboundary river basins.

 

The Greening of Water Law: Why and How We should Modernize Legislation to Account for the Environment

Monday, May 22nd, 2017

The following essay by Ariella D’Andrea is an introduction to the training course on “The Greening of Water Law: Implementing environment-friendly principles in contemporary water law,” which she designed and coordinated. The course is available on UN Environment’s InforMEA E-Learning Platform. Ms D’Andrea is a member of the Executive Committee of the International Association for Water Law (AIDA). She can be reached at ariella.dandrea [at] gmail.com

 

In the past century, water management focused primarily on developing the resource to satisfy human needs: irrigation, hydropower, industrial and municipal uses, and so on. National governments around the world put in place a broad range of infrastructure and mechanisms for the abstraction and use of water resources to implement their development policies.

This display of engineering skills for dam construction, diversion of watercourses, groundwater pumping and, more recently, desalination has not always been mindful of environmental concerns that may result from technological advances. More often than not, efficient water abstraction was the main objective with little thought given to the long-term availability or quality maintenance of the resource. This approach was based on the conception of water as a renewable rather than finite resource. Although water quantity and quality regenerate through the hydrologic cycle, we now know that the amount of water on Earth is constant. Of this water, only about 2.5% is freshwater and, of that volume, around 0.3% is readily accessible being found in rivers and lakes; the rest is stored in glaciers and ice caps or in aquifers underground.

All life forms need clean and sufficient water to thrive, which is produced by healthy ecosystems.  Time has shown that inconsiderate economic development may critically affect the rate at which freshwater is generated in the natural environment, thus compromising the crucial ecosystem-support function of water resources in a vicious cycle of progressive water salinization and biodiversity loss, at least in a local context.

Inspired by traditional knowledge, some countries have declared the environment or specific waterbodies as right holders. In Ecuador, Mother Nature or Pacha Mama was granted the right to the conservation of water resources (Water Resources Law 2014 based on the Constitution of 2008); New Zealand recently granted legal personality to the Whanganui River, with rights and duties as well a legal representative (Te Awa Tupua (Whanganui River Claims Settlement) Act 2017); shortly after, the forests and waterbodies of the Indian State of Uttarakhand, including the Ganga and Yamuna Rivers, were declared as legal entity by the High Court of Uttarakhand (Uttarakhand High Court Decision 2017); at this very moment, French Polynesia is considering the possibility of granting legal personality not only to its rivers but also to its ocean Te moana nui a Hiva (Parliamentary Question to the Minister of the Environment, 28 March 2017).

Greening-course2Clearly, a balance must be struck between people’s needs and those of the natural environment. Moreover, action must be taken to reverse the degradation of waterbodies, knowing that the status quo ante cannot always be restored. UN member States recently committed, under Sustainable Development Goal 6, to “ensure availability and sustainable management of water and sanitation for all”, including by implementing integrated water resources management and by protecting and restoring water-related ecosystems.

Water law can support this commitment by guiding water use and management towards sustainability. To do this, it must become ‘greener’. In practice, the water law ‘greening’ is the process by which legal provisions regulating the use of water resources progressively incorporate environmental concerns. The greening of international treaties, regional agreements and domestic legislation on water resources may be carried out by: freshwater treaty negotiators as they bring environmental principles and concerns to bear on negotiations over shared freshwater bodies; domestic legislatures embedding environmental provisions into laws and regulations, and by judges interpreting legal provisions in light of environmental law.

Legislation reflects the society it regulates; therefore, early domestic water laws generally supported the ‘development craze’ and focused on abstraction and use of water resources rather than protection and conservation. Similarly, early international water law, including bi- or multilateral agreements on shared waters, focused on allocation of those waters between riparian countries rather than preservation.

Environmental concerns started making their way in both domestic and international water law in the second half of the 20th century and, more conspicuously, after the Rio Earth Summit in 1992 when the greening wave acquired momentum and depth. It was during that decade that two major treaties on transboundary waters were adopted: the 1992 UNECE Water Convention, and the 1997 UN Watercourses Convention.

The interdependence of water and nature is now widely recognized, not only in the scientific world but also by policy- and lawmakers. The environment is increasingly being recognized as a water user, competing with the different human uses of the resource, and a wide range of solutions are emerging to ensure that environmental concerns are duly accounted for in water law.

‘Green’ provisions often aim at controlling effluent discharge to minimize pollution of natural waterbodies, or more innovatively promote wastewater reuse thanks to advances in water treatment technology. They also aim at establishing an ecological flow of water in rivers to allow aquatic life or a water reserve for human and environmental benefit. An environmental impact assessment may be required before developing infrastructure that might affect water resources. Certain standards may be established to protect aquatic biodiversity (e.g. migratory fish passage in dams), prevent soil erosion (e.g. reforestation of river banks) or prevent groundwater pollution (e.g. protection of recharge areas). Legislation may also recognize ecosystem services, such as the provision of freshwater or the regulation of floods, and establish payment or compensation schemes for those who maintain healthy ecosystems.

The most progressive examples of ‘green’ provisions are generally found in domestic legislation, with international water law often lagging behind despite the ‘green’ potential of its main guiding principles – equitable and reasonable utilization, no significant harm and ecosystem protection. A vast range of multilateral environmental agreements adopted during the last 50 years, such as the 1997 Ramsar Convention on Wetlands and the 1992 Convention on Biological Diversity, may effectively support the process of water law greening, both at domestic and international level, by prompting normative reform and orientating judicial interpretation towards environmentally-sound application of water use principles.

Funded by UN Environment (formerly UNEP), the online training course on “The Greening of Water Law: Implementing environment-friendly principles in contemporary water law” was developed by the International Association for Water Law (AIDA) with the contribution of 10 authors and 6 reviewers, as a guide for policy makers, technocrats and experts. The course focuses on the implementation of international principles for sustainable water management, stemming from both binding and non-binding instruments, and on their implementation in domestic legislation, transboundary agreements and related court/arbitration decisions.

The program is accessible free-of-charge from the INFORMEA website. It involves a series of slides and readings, including a brief and group exercises presented as a manual for lecturers, and requires 5 days to complete considering one module per day. A condensed version of the training course will be presented in a Special Session at the XVI World Water Congress of the International Water Resources Association (IWRA) that will be held in Cancun, Mexico at the end of this month.

Further reading:

Burchi S., Balancing development and environmental conservation and protection of the water resource base – the “greening” of water laws, FAO Legal Paper Online #66, June 2007

Eckstein G., et.al., The Greening of Water Law: Managing Freshwater Resources for People and the Environment, UNEP, 2010

 

New Journal: Brill Research Perspectives – International Water Law

Friday, May 13th, 2016

Brill Research Perspectives – International Water LawIn April 2016, the publishing house, Brill, launched a new journal entitled Brill Research Perspectives – International Water Law (IWL Journal). The IWL Journal is a quarterly publication that targets monographs deemed too long for a typical journal article and too short for a book, typically in the range of 25,000 to 45,000 words. Thus, the IWLP Journal has carved out a niche that will not compete with other water journals, but rather provide in depth analysis of critical issues pertaining to international water law.

The Editor-in-Chief of International Water Law Journal is Dr. Salman M. A. Salman, who is a Fellow with the International Water Resources Association (IWRA). The editorial board consists of Professor Laurence Boisson de Chazournes, Professor Gabriel Eckstein, Professor Lilian del Castillo-Laborde, Professor Alistair Rieu-Clarke, Dr. Makane Moise-Mbengue, and Dr. Kishor Uprety. More information about International Water Law Journal can be found at: www.Brill.com/rpwl.

In an effort to disseminate widely the important articles that will be published in this journal, Brill and the International Water Law Project Blog have teamed up to present summaries of articles appearing in the IWL Journal as they are published.

The monograph for the first issue of IWL is authored by Dr. Gotz Reichert, and titled “Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?” An essay summarizing that inaugural article will be forthcoming on the IWLP Blog on Monday, 16 May 2016.

Online Presentations on International Water Law and Policy

Thursday, June 18th, 2015

By Gabriel Eckstein

In recent years, technology has allowed us to become more informed and engaged at greater distances. This includes viewing lectures and presentations via the Internet. I wanted to draw your attention to a number of presentations on international water law and policy that were recently posted online and that may be of interest. If any of you know of other relevant lectures online, please do let me know via the comment box below or at iwlpwebsite [at] gmail.com.

On 22 May 2015, the Strathclyde Centre for Environmental Law and Governance at the University of Strathclyde in Glasgow, Scotland, organized two lectures as part of its SCELG Seminar Series.

Entry into Force of the United Nations Watercourses Convention: Why Should it Matter

Dr. Salman M.A. Salman, fellow with the International Water Resources Association, delivered a lecture in which he outlined the progressive development leading to the adoption of the United Nations Watercourses Convention, and comprehensively explained the importance and relevance of the Convention now it has entered into force. The seminar was supported by the Scottish Government.    View the presentation here.

Transboundary Aquifers: An Interdisciplinary Conversation

Prof. Gabriel Eckstein, Professor of Law at Texas A&M University, gave a guest lecture on the challenges for transboundary aquifer law and governance. The lecture was followed by a roundtable discussion that also included an esteemed panel from the fields of hydrogeology (Prof. Robert Kalin, University of Strathclyde), human geography (Dr. Naho Mirumachi, King’s College London), and international water law (Dr. Salman M.A. Salman, International Water Resources Association).    View the presentation and roundtable here.

Over the past few years, United Nations Audiovisual Library of International Law has organized a lectures series on various international issues, including International Watercourses.

Dr. Stephen C. McCaffrey, Distinguished Professor and Scholar at the University of the Pacific McGeorge School of Law, delivered a lecture on The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. This lecture provides an overview of the background and content of the Convention, and then examines the Convention’s influence. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

Dr. Salman M.A. Salman presented a lecture on The Evolution, Codification and Current Status of International Water Law. The lecture describes the developments in international water law since 1911. It reviews and analyzes the work of the Institute of International Law, the International Law Association, and the International Law Commission, paying particular attention to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

Not long before he passed away in 2013,  Ambassador Chusei Yamada, who served on the ILC during the drafting of the UN Watercourses Convention and later as Special Rapporteur for the ILC’s Draft Articles on the Law of Transboundary Aquifers, delivered a lecture on Codification of the Law on Transboundary Aquifers (Groundwaters) by the United Nations. The lecture describes how the UN International Law Commission, a subsidiary organ of the UN General Assembly with the mandate of codification of customary international law, formulated Draft Articles on the Law of Transboundary Aquifers (groundwaters) for the proper management of the transboundary aquifers in order to attain the reasonable and equitable utilization through international cooperation. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

The Global Environmental Facility Groundwater Community of Practice, coordinated by UNESCO-IHP, has featured a of seminars on groundwater law and policy.

Webinar #1, which took place 17 October 2013, was entitled Multiple Dimensions of Groundwater Governance: What We Are Doing and What More Can We Do? The video and webinar material can be accessed here.

Webinar #2, which took place 11 December 2013, was entitled Groundwater and International Law: Current Status and Recent Developments. The video and webinar material can be accessed here.

Webinar #3, which took place 29 April 2014, was entitled The Coastal Zone: Where Groundwater Merges With the Sea. The video and webinar material can be accessed here.

On 15 January 2015, IGRAC and UNESCO-IHP organized the IW:LEARN Groundwater Webinar entitled: Moving with the Momentum: Reviewing Lessons for Groundwater from 2014 and a Looking Ahead to 2015. Part I of this program can be accessed here  /  Part II can be accessed here.

 

IWLP Blog’s Series on 1997 UN Watercourses Convention Republished in Water Policy Journal and in Russian translation

Thursday, February 26th, 2015

By Gabriel Eckstein

As you may recall, the IWLP Blog recently featured a series of twelve essays on the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses.  That series was recently republished in Water Policy, a journal published by the International Water Association and the official journal of the World Water Council.

Part I, containing the first 6 essays, was published as: Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into Force of the UN Watercourses Convention 2014:  Part One. Water Policy, Vol. 16(6), available at doi: 10.2166/wp.2014.008 (subscription required).

Part II, containing the next 6 essays was published as: Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into Force of the UN Watercourses Convention 2014:  Part Two. Water Policy, Vol. 17(1), available at doi: 10.2166/wp.2014.009 (subscription required).

In addition, the entire series was translated into Russian by the Scientific Information Center of the Interstate Coordination Water Commission of Central Asia. That version can be found here.

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] eli.org.

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, et.al., 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, et.al., 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.

Ground water, ground water, everywhere …

Friday, September 16th, 2011

In 2008, the UN General Assembly took note of the draft articles on the law of transboundary aquifers and commended them to the consideration of its member States. Those articles were the work-product of the UN International Law Commission, which was supported by an advisory group organized by the International Hydrological Programme of the UN Educational, Scientific and Cultural Organization. As indicated in that resolution, the draft articles have now been placed on the provisional agenda of the 66th Session of the UN General Assembly (UNGA), which recently commenced in New York City. The Sixth Committee (legal) of the UNGA is scheduled to examine the question of the form that might be given to the draft articles on 18 October 2011.

Not coincidentally, the most recent issue of Water International (which is guest edited by yours truly) focuses on “Strengthening Cooperation on Transboundary Groundwater Resources.” The special issue is a compilation of articles and essays on the development of international ground water law and focuses, in large part, on the draft articles. The issue also includes a number of relevant and fascinating case studies. Here is the table of contents:

Note that unless you are a member of the International Water Resources Association or pay for individual issues, you will only have access to the abstracts (note that IWRA membership is relatively inexpensive and provides access to all present and back issues of Water International).

UNDP/GEF Publish Review of Legal and Institutional Frameworks for Transboundary Waters

Thursday, May 5th, 2011

If you haven’t seen this report, its very interesting and timely. The UN Development Programme (UNDP) and Global Environmental Facility (GEF) have just published a global review of legal and institutional frameworks for 28 transboundary surface water, groundwater and marine water systems covering the Americas, Europe, Africa and Asia (full report can be found here). The report was spearheaded by Richard Kyle Paisley, Director for the Global Transboundary International Waters Research Initiative at the University of British Columbia. Here is an excerpt from the description:

The project, with a life-cycle of three years, seeks to facilitate good governance and effective decision making in international waters through the identification, collection, adaptation and replication of beneficial practices and lessons learned from a wide range of experiences. The project focuses on institutional harmonization and strengthening, capacity building in regard to integrated water management, and forecasting the hydrological impacts from climate change and the anticipated responses to these changes.

The report’s analysis is organized by a common set of 18 criteria and is intended to provide information that can be used to support further research and analysis, with the ultimate goal of identifying a set of common elements of good governance for transboundary freshwater and marine water bodies as well as groundwater systems. This report is based on primary materials that establish legal and institutional frameworks, such as international agreements including treaties and conventions, where applicable, protocols or action plans.

The full report can be downloaded here.