Levelling of scientists by lawyers Pilot course on transboundary aquifers Thessaloniki 12-13 October 2008 Raya Marina Stephan Water law specialist

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

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

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 http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf

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

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

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

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

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

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

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

B. Regional Conventions UN ECE Convention on the protection and Use of Transboundary Watercourses and International Lakes (1992) http://www.unece.org/env/water/text/text.htm Applies to the 56 member States of the ECE: countries of Europe, Canada and United States Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan Israel

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

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

Guidelines on monitoring and assessment of transboundary groundwaters Monitoring programmes Data management Quality management Joint action and institutional arrangements http://www.unece.org/env/water/publications/documents/guidelinesgroundwater.pdf

Regional Conventions Revised Protocol on Shared Watercourses in the Southern African Development Community (2000) http://www.sadc.int/index/browse/page/159 Adopts the same definition of a watercourse than the UN Watercourse convention Sustainable, equitable and reasonable utilisation Obligation not to cause significant harm Cooperation

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

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

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

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

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

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)

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

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

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

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

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.

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

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

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 ...

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 www.un.org/law/ilc Shared Natural Resources Framework

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

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;

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.

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

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

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

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