UNESCO-IHP, along with others, is organising a seminar during the upcoming Stockholm World Water Week on “Sharing an Invisible Water Resource for the Common Good: How to Make Use of the UN General Assembly Resolution on the Law of Transboundary Aquifers (TBA).” This looks to be a fantastic event and line up of speakers.
In preparation for the seminar, the organizers have launched an internet debate to allow contributions from the rest of us. Those contributions will be compiled in a final report and presented during the seminar in Stockholm. Brief comments, thoughts, and case studies can be sent to IHPSeminarWWW2009 “at” unesco.org.
The following is my own initial contribution:
One of my concerns related to the Draft Articles on the Law of Transboundary Aquifers pertains to how nations, organizations and others view the articles. To many, I suspect the articles represent the law by which to judge the actions that States may take vis a vis transboundary ground waters (e.g., did the State comply with the legal obligation). And the emphasis is likely to be on the substantive articles of equitable and reasonable utilization (Draft Art. 4); no significant harm (Draft Art. 6); prevention, reduction and control of pollution (Draft Art. 12), etc. In order to employ these principles to their fullest extent, though, they would be applied ex post facto – after a particular action is taken that results in an alleged claim of violation. This is because the objective determination of what use may be equitable and reasonable, or whether a particular project will significantly harm another state, etc., is, at best, a very difficult exercise where the equity and reasonableness of a water use, or the magnitude of the harm, are mere projection.
What I hope is not neglected, thought, is the fact that the Draft Articles are also (or, more so) intended as proactive procedures designed to help nations manage their transboundary aquifers in ways that prevent waste and neglect and, especially, avert disputes among aquifer riparians. Some of the more significant include proactive procedural articles that could easily be implemented prior to or during the implementation of an aquifer-related project, including Draft Art. 8 (Regular exchange of data and information); Draft Art. 9 (Bilateral and regional agreements and arrangements); Draft Art. 13 (Monitoring); Draft Art. 14 (Management); and Draft Art. 15 (Planned Activities). Doing so would likely prevent subsequent violations of the substantive rules. Accordingly, I hope that States, IGOs, NGOs and others place greater emphasis and attention on the procedural provisions of the Draft Articles as a means for encouraging cooperation and collaboration, and for preventing dispute over shared waters.