Archive for the ‘South America’ Category

Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

Tuesday, April 16th, 2019

The following essay by Dr. Maria A. Gwynn is a summary of her recently published monograph (under the same title), which appears in Vol. 4(1) 2019, of Brill Research Perspectives in International Water Law.  Dr. Maria A. Gwynn is a Senior Research Fellow at the Institute of Public International Law of the University of Bonn, and conducted most of the research contained in this monograph while she was an Oxford-Princeton Global Leaders Fellow at Princeton University and at the University of Oxford. She can be reached at maria.gwynn [at] uni-bonn.de.

 

The UN Convention on the non-navigational uses of international watercourses recommends that states adapt their existing bilateral and regional agreements to the provisions of the Convention to promote equitable and reasonable uses of watercourses. This monograph assesses the practical consequences of this provision, and the prospects for achieving sustainable development with such action, and uses the Itaipu Treaty as a case study.

The Parana River

The Itaipu Treaty, which was signed and ratified by Brazil and Paraguay in 1973 and continues to be in force today, was established so that these two countries would jointly pursue the advantages that could be obtained from the exploitation of the Parana River to

The former Guaira Falls

produce hydropower through the construction of a dam. The Parana River is an international watercourse on the South American continent sourced by the La Plata basin. The dam was constructed at the river’s most powerful point, the Guaira Falls, formerly the greatest set of waterfalls on the South American continent, which disappeared after the construction of the dam.

The river’s great resources were not underestimated. Today, the sheer amount of energy that the Itaipu Dam produces has placed both countries among the largest producers of clean and renewable energy in the world. However, while Brazil consumes its entire share of the energy produced, Paraguay (whose available share of energy from the hydropower facilities far exceeds its own domestic energy demands) only consumes a small part of this clean and renewable energy source. Paraguay, instead, continues to use biomass sources (burning of coal and wood) to satisfy most of its energy needs. Under the Itaipu Treaty, Paraguay sells its unused allotment of energy to Brazil.In general, the Itaipu Treaty regulates the use and consumption of hydropower produced by the dam, making the provisions of the treaty very pertinent to understanding the two countries’ energy policies.

The Itaipu Dam and Reservoir

The Itaipu Treaty entered into force before the United Nations International Law Commission had finished its task of evaluating the international law and customs on the non-navigational uses of international watercourses, embodied in the UN Watercourses Convention, and before some of the major developments concerning international environmental law came about. However, the Itaipu

Treaty contains a renegotiation provision, according to which the two states must renegotiate some of its provisions 50 years following the conclusion of the treaty, i.e. in the upcoming year 2023. The monograph argues that this is a great opportunity for both countries to adapt their watercourse agreements to the current standard and principles of international law.

The monograph provides a detailed assessment of the advantages of adapting watercourse agreements to the standard and principles of all pertinent areas of international law, such as international water law, international environmental law, and climate change law. The first part of the monograph begins with an analysis of the initial approaches to the law of international watercourses in the first half of the twentieth century. It discusses some of the main principles of the law governing international watercourses and the work of pertinent institutions concerned with this area. In this sense, the first part of the monograph describes the status of the law on international watercourses at the time when the Itaipu project was first pursued.

Signing the Acta de Yguazu Agreement in 1966

The second part of the monograph discusses the Itaipu project in its legal and historical context. An analysis of the principles of consultation and notification for projects on international watercourses are particularly instructive. The monograph describes the relevance of the role of Paraguay, which despite being a main treaty party, has often been neglected in the scholarship.  The monograph shows how escalation of disputes to an international conflict regarding sovereignty was eased by benefit sharing agreements and inter-state cooperation of the countries of the La Plata basin. The monograph also offers a comparative analysis to similar cooperation and benefit sharing agreements signed at about the same time in other parts of the world.

The Itaipu Agreement

The third part of the monograph describes the advances in the law of international watercourses and of environmental law since the 1970s, and places the implementation of the Itaipu Treaty, which in turn is analyzed in the fourth part of the monograph, within this context. The fifth part of the monograph describes recent disputes concerning the non-navigational uses of international watercourses decided by the International Court of Justice in an analysis that connects the decisions of such judgments with the monograph’s object of study.

The monograph concludes by highlighting how the treaty provisions and their implementation could be affected by the developments in international law and the UN Watercourses Convention in particular. It argues that adapting watercourses agreements like the Itaipu Treaty to the provisions of the Convention is a way to foster

The UN Sustainable Development Goals

sustainable development. Doing so would be advantageous not only to the treaty parties, but also to the other countries in the water basin and to the international community as a whole.

The monograph is dedicated to the memory of Prof. Dr. Efrain Cardozo (1906-1973) and to Prof. Dr. Ruben Ramirez Pane (1920-2004).

The entire article is available here.

 

Posted in Brill Research Perspectives – International Water Law, International Water Law, Latin America, South America, Sustainable Development, Transboundary Rivers, UN Watercourses Convention | Comments Off on Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

Countdown to the Guarani Aquifer Agreement coming into force: will it be effective in promoting transboundary groundwater governance?

Monday, June 18th, 2018

The following essay is by Pilar Carolina Villar, Professor of Environmental Law at Federal University of São Paulo. She can be reached at pcvillar [at] gmail.com.

The signing of the Guarani Aquifer Agreement (Portuguese / Spanish / English [unofficial]) on August 2, 2010, by Argentina, Brazil, Paraguay and Uruguay was received by the water community with excitement due to the few number of treaties dedicated to transboundary aquifer cooperation, the absence of a water conflict, and the short time it took to secure the signatures after the end of the Guarani Aquifer System Project. In 2012, Argentina and Uruguay ratified the treaty with the promulgation of Law n° 26.780/2012 and Law n° 18.913/2012, respectively. Thereafter, the Agreement faced a period of stagnation until May 2017 when Brazil ratified it with Legislative Decree n° 52/2017. Almost a year later, in April 2018, Paraguay ratified the Agreement when it approved Law nº 6037/2018.

After almost 8 years, the Agreement is in the final stage of coming into force, although Paraguay has yet to deposit its instrument of ratification with Brazil, which is the official depository for the Agreement. According to Article 21, the Agreement will officially enter into force on the thirtieth day after that deposit occurs.

Schematic hydrogeological map of the Guarani Aquifer System. Source: The Guarani Aquifer Initiative – Towards Realistic Groundwater Management in a Transboundary Context, Case Profile Collection Number 9. Sustainable Groundwater Management: Lessons from Practice (Nov. 2009)

The Agreement’s ratification by the four countries represents a new phase in the process of cooperation among the Guarani countries. It allows implementation of the Guarani Aquifer Commission, and the possibility of restarting cooperative projects that will promote the development of knowledge and management of the Guarani Aquifer System. However, considering the long ratification process of the Agreement and the role of other transboundary water organizations in the La Plata Basin, should we be optimistic in the context of transboundary aquifer cooperation?

In view of the lack of international agreements for the joint management of transboundary aquifers, the ratification of the Agreement represents a milestone to encourage more countries in South American to include groundwater cooperation in their practice of international affairs. Moreover, the ratification opens a path for the establishment of a common institutional arrangement dedicated exclusively to groundwater issues among the four countries. The existence of an international agreement could also be used as a positive force for attracting international funds from organizations like the Global Environment Fund, World Bank, Organization of American States, UN Environmental Programme, and UN Development Programme, which may be interested in supporting the operationalization of the only international groundwater cooperative arrangement in South America. Finally, the Guarani Aquifer States could become more interested in promoting cooperative projects and actions regarding the aquifer since the Agreement will soon be binding on all of them.

The future of the Guarani Aquifer Agreement is dependent especially on the will of the countries to enforce the agreement’s institutional framework. On this point, the projections are not necessarily encouraging. While the Guarani Aquifer Commission is the pillar of the Agreement, it is unclear what its powers will be or whether it will have legal personality under international law. Moreover, it is impossible to foresee when the countries will establish the Statute of the Commission. Regardless, it does not seem to be a priority in the short term, especially considering the current political and economic conditions of the Guarani countries.

Even with the Guarani Aquifer Commission, cooperation should not be taken for granted. The La Plata Basin has a complex institutional system made up of fourteen organizations that have legal personality under international law and four technical committees. All of them face difficulties in consolidating themselves as leading players in cooperation over the La Plata basin. In fact, the amount of institutions contrasts with the relatively low number of joint actions and products resulting from their work. Even the Intergovernmental Coordinating Committee of the Countries of the Plata Basin, which is the oldest water-related organization in the La Plata Basin area, still has problems receiving financial support from its member countries, and largely depends on international funds to conduct studies in the basin. As a result, the Guarani Aquifer Commission runs the risk of becoming another water-related organization with very limited influence.

Implementation of the Agreement and creation of the Guarani Aquifer Commission could benefit from the existence of CeReGAS – Centro Regional para la Gestion de Aguas Subterráneas (Regional Center for the Management of Groundwater), an international center located in Montevideo, Uruguay, that is dedicated to promoting groundwater management and cooperation in the regional context. While CeReGAS and the Guarani Aquifer Commission have different mandates, since the first is a regional center supported by UNESCO and the other is an organization established by an international treaty restricted to the Guarani Aquifer countries, they might build an alliance to optimize funding and technical resources. Their scope is closely related since both focus their efforts on the promotion of groundwater cooperation, one in the South American context while the other in the Guarani Aquifer region. CeReGAS has also developed a case study on the Guarani Aquifer, and has produced documents on and disseminated the results of the Guarani Aquifer System Project.

The Agreement soon will come into force and become a binding instrument for the Guarani Aquifer States. However, the questions of when and how it will be implemented remain unanswered. The challenges to applying the Agreement are some of the same facing other water agreements in the region: overcoming the tendency of building fragile water-related institutions, improving cooperation between institutions or between States, expanding transparency in actions of cooperation, and guaranteeing financial support. In this sense, the first step for the countries involved is to establish the Commission and define its capacity, a mission that could be facilitated by the presence of CeReGAS. Then, the States involved must overcome the traditional challenges related to political will, institutional capacity and efficiency, as well as the provision of funds to support the Commission and the execution of cooperative projects. Only time will tell if the Guarani Aquifer States will cooperate successfully over the joint management of the Guarani Aquifer.

Posted in Latin America, South America, Transboundary Aquifers | 1 Comment »

The Human Right to Water in Latin America

Monday, May 14th, 2018

The following essay by Anna Berti Suman is a summary of her recently published monograph (under the same title), which appears in Vol. 3(2) 2018, pp. 1-94, of Brill Research Perspectives in International Water Law. Ms. Berti Suman is a PhD Researcher at the Tilburg Institute for Law, Technology and Society (TILT) at Tilburg University in The Netherlands. She can be reached at A.BertiSuman [at] uvt.nl.

The right to water (RtW) is a key factor both shaping and shaped by the social, political, and economic arena of a country. Often, conflicting interests are at stake when water governance is addressed. A large and heterogeneous number of governance solutions have been proposed with the aim of balancing the interests of civic society and the private sector, as well as respect for the environment and public finance concerns. The main aim of this monograph is to illustrate and analyze lessons from Latin America contributing to the international debate on the governance of the RtW. The attention is specifically focused on questioning the role that each stakeholder should have in the water debate with a view to harmonizing the RtW with the interests of the concerned stakeholders.

Water, as a shared resource, calls for a transboundary approach. Various forms of cooperation and association among the global community are discussed as, for example, the World Water Forum organized by the World Water Council, and the Global Water Partnership. Relevant treaties, such as the 1992 UN Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, demonstrate the importance of cross-sectorial and multi-level cooperation in addressing water governance challenges.

Demonstrations during the ‘Water War’ in Cochabamba, Bolivia, which occurred December 1999 – April 2000.

Subsequently, the monograph proceeds in a preliminary and indispensable discussion on the dual nature of water, as an indispensable source of life and as an economic good, thereby acknowledging that water has been recognized as a social good and a human need, as well as a commodity. Its economic value will be inspected through the analysis of the debate ongoing at the international and national levels. A remarkable example of this double nature is identified in the Chilean legal framework for water, where two texts provide for the rights of private citizens over water (granted by the 1980 Constitution and the 1981 Water Code) and for water as a national property for public use (as stated by the 1981 Water Code; the Constitution lacks a similar provision). The economic value of water is also approached from the international perspective, as enshrined in the 1992 Dublin Statement on Water and Sustainable Development.

The monograph next delves into local scenarios and inspects the transposition of RtW in constitutional laws of Latin American countries and its interplay with water management systems. Part A investigates the broader  discussion in Latin America on the responsibility of the state towards the right to water, when recognized in constitution and when acknowledged through different legal tools. It also considers whether the state has a duty to grant a quantitative and qualitative minimum of fresh water to everyone, even if through subsidies or by impinging on private interests. The consequences of a state’s decision-making process that does not take into account the RtW are illustrated through three case studies, the participatory case of Porto Alegre, Brazil, and two cases of conflicts over water management, namely the case of the Matanza-Riachuelo River Basin, Argentina, and the case of Cochabamba, Bolivia.

The cases presented in Part A serve to illustrate the limits of the law in resolving water management issues. The discussion also examines the judicial system under the analytical lens of its suitability to settle water disputes. Overall, Part A stresses the need to focus the water debate on specific issues rather than on general statements.

The linking element bridging the transition from Part A to Part B is the discussion of whether the right to water as a human right is in antithesis to privatization. Part B considers the main Latin American water management systems, with their advantages and disadvantages, and compares them with European legal frameworks. In principle, the analysis suggests that the recognition of water as a human right does not prevent the privatization of the service, as long as the state monitors the private provider’s operations and complies with its obligations to ensure the RtW.

Participatory budgeting including water issues in Porto Alegre – Brazil

Part C provides a specific insight into the relationship between the market and the RtW in the context of Chile’s highly privatized water framework. The Chilean case offers an opportunity to reflect on the importance of the engagement of all affected stakeholders in the water debate as well as on the need for a wise compromise among them.

In the Conclusion, the lessons learnt from Latin America are summarized. The limits of the law in resolving water conflicts, and the disconnection of water issues from the adopted legal framework, are outlined to demonstrate the mismatch between the legal framework and the reality of water challenges. While it is not possible to identify the ‘best’ water management model, the analysis affirms the general need for a focus on the specificities of each river basin unit. The final message presented is that recognition of water as a human right does not prevent the possibility of privatizing the service if the state fulfills its obligations toward the right to water. Ultimately, the engagement of all affected stakeholders in the debate over water can facilitate constructive and open-minded compromises for jointly facing water challenges.

 

Posted in Human Rights, Latin America, South America, Water and Health | Comments Off on The Human Right to Water in Latin America

Dr. Maria Querol: The UN Watercourses Convention and South America

Thursday, August 21st, 2014

The following post by Dr. Maria Querol is the ninth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Querol is an international law consultant with a vast background in international water law. She can be reached at maria.querol [at] gmail.com.

 

Introduction

Although the 1997 UN Watercourses Convention (UNWC) has finally entered into force, not one South American country is among its State Parties. Whilst Brazil, Chile, Uruguay and Venezuela voted in favour of its adoption at the UN General Assembly (UNGA), Argentina, Bolivia, Colombia, Ecuador, Paraguay and Peru all abstained. Paraguay and Venezuela were the only states from the region to sign the Convention, in 1997 and 1998 respectively. Nevertheless, neither has made any attempt to ratify it.

Many arguments have been presented to justify this flagrant absence, mainly focusing on the concern of South American states regarding challenges to their sovereignty over water resources flowing through their territories. However, this is not the only factor to be considered when analysing the region’s position on this topic.

Multilateral transboundary water treaties of South America

South American states have a history of concluding international treaties to regulate the management of their shared watercourses. This long-standing tradition favors the implementation of specific mechanisms and international water law norms over more general regimes. While most of these agreements are bilateral, there are four exceptions: the 1969 Treaty of the River Plate Basin, the 2010 Guarani Aquifer Agreement, the 1978 Amazon Cooperation Treaty, and the 1995 Agreement constituting the Tri-National Commission of the Pilcomayo River Basin.

International Basins of South AmericaThe Plate Basin Treaty entered into force for Argentina, Bolivia, Brazil, Uruguay and Paraguay on 14 August 1970.  It operates as an umbrella for other more specific agreements, both bilateral and multilateral, that have been concluded with regard to particular transboundary watercourses within the basin. Article VI of this agreement foresees the possibility that its Contracting Parties may conclude specific, partial, bilateral, or multilateral agreements designed to develop the basin. Accordingly, the Guarani Aquifer Agreement was concluded within the framework of the Plate Basin Treaty. Thus, the basin is regulated with an intergrated approach, both from a general and a more specific standpoint.

Transboundary watercourses are regarded in the region as shared natural resources. This view was particulary emphasized by both Argentina and Uruguay in the 1975 River Uruguay Statute and reaffirmed in 2010 in the Pulp Mills case before the International Court of Justice (ICJ). In this regard, Argentina argued in its memorial to the Court that “[t]he shared nature of the River Uruguay is also apparent from the fact that obligations are imposed on Argentina and Uruguay at an international level. The 1975 River Uruguay Statute is actually a repository for th[ose] international obligations”. Those obligations comprise the rules of no significant harm, equitable and reasonable use, and prior notification. It is important to bear in mind that these general norms are only applicable to the use and protection of shared natural resources as long as the states sharing the resource have not implemented a more specific conventional regime. Accordingly, Argentina also declared that while the River Uruguay Statute had been concluded 22 years before the UNWC was adopted by the UNGA, “the Statute provides for the establishment of a system of co-operation which is far more rigorous than that laid down by the Convention.”

The Amazon Cooperation Treaty was adopted by Bolivia, Brasil, Colombia, Ecuador, Perú, Suriname and Venenzuela to promote equitable and mutually beneficial results in the Amazon territories under their respective jurisdictions. It entered into force on 12 August 1980. The no harm rule and the reasonable and equitable principle are enshrined in Article I of the agreement. The no harm rule is also implicit in Article XVI as it stipulates that the decisions and commitments adopted by the State Parties to the treaty shall not be to the detriment of projects and undertakings executed within their natural territories, in accordance with international law. In addition, Article V prescribes the rational utilization of the water resources of the Amazon System. Periodic exchange of information among all the State Parties is also provided for in Articles I, VII and XI.

By virtue of an amendment to Article XXII of the Amazon Cooperation Treaty, the Organization of the Treaty of Amazon Cooperation was created with the view of further strengthening and ensuring the more effective implementation of the goals of the Treaty. The existence of an international legal entity directly regulated by public international law no doubt facilitates the realization of projects and can provide guidance for the rational utilization and sustainable management of shared water resources in the Amazon region.

Although the Amazon Cooperation Treaty does not prescribe a dispute resolution mechanism, State Parties can agree to submit their disputes to an arbitral tribunal or a permanent judicial organ such as the ICJ. They can also resort to a political dispute resolution method such as mediation or good offices. In any case, states are always bound by the customary obligation to negotiate a solution to their disputes in good faith.

Transboundary water management in South America

Unlike the practice in other regions of the world, discussions over shared water resources in South America, more often than not, take place under a cordial atmosphere. Although information exchange among states does take place in the region, the necessary data may be scattered around in different institutions, in which case its collection can prove quite burdensome. With reference to dispute resolution, South American states have been resolving their issues through direct negotiations and in some cases, as between Argentina and Uruguay, through the ICJ. Whilst progress has been made in terms of cooperation and knowledge over the management of shared surface water resources, this is not the case with regards to all shared groundwater. A first step forward has indeed been taken with regards to the Guarani Aquifer. But, further in-depth knowledge is necessary to provide a more complete scenario of all the possible consequences of human action related to transboundary groundwater resources.

Currently, South American states do not appear to have an immediate interest in a universal framework treaty to regulate the management of their transboundary water resources. Rather, they would prefer to continue resorting to their existing bilateral and multilateral agreements and to applicable customary norms in the absence of such treaties. They even count on international organizations to help implement their preferred management regime in the case of the Amazon Basin, and through a framework agreement for the Plate Basin.

This does not mean that the UNWC will have no value to South America. To the extent that the Convention codifies general international rules, its norms are binding on all states of the international community, including those of South America. In addition, the entry into force of the UNWC might foster the development of new customary norms in areas not yet covered by the existing regional treaties and could prove very influential in the interpretation of those particular treaties.

 

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The Silala Basin: One of the Most Hydropolitically Vulnerable Basins in the World

Thursday, October 27th, 2011

A few months ago, Brendan Mulligan and I published a paper entitled “The Silala/Siloli Watershed: Dispute over the Most Vulnerable Basin in South America” in the peer-reviewed International Journal of Water Resources Development. The dispute, pitting Bolivia and Chile, provides a fascinating case study involving both transboundary surface and ground water resources. Of particular interest, it also involves an artificial watercourse traversing the border that may defy application of international water law to the controversy. In 2007, UNEP named the Silala watershed the only “high risk” basin in South America and “one of the most hydropolitically vulnerable basins in the world.”

The dispute focuses on water flowing across the Bolivian-Chilean border in the Atacama Desert via a canal constructed in the early 1900s by Antofagasta & Bolivia Railway Company, a Chilean mining operation, per a concession granted by the Bolivian Prefecture of Potosí. Bolivia claims ownership over the Silala River on grounds that the river originates from springs on its side of the border and that the Silala’s waters are transported artificially to Chile; in essence, Bolivia denies the existence of a Silalar river. In 1997, the Bolivian government revoked the concession on grounds that the waters had long been used for purposes that were different than those agreed to in the original agreement. It also sought to awarded a new 40-year concession to the Bolivian firm DUCTEC SRL for $46.8 million, established a military base on the banks of the Silala River, publicly discussed a plan to bottle the river’s water and sell it with the slogan “Drink Silala water for sovereignty,” and conducted a feasibility study for a hydroelectric plant on the Silala just inside Bolivian territory (see Bloomberg article). At one point, Bolivian officials asserted that any negotiations with Chile should guarantee Bolivia access to the Pacific Ocean (see Spanish-language article), a demand suggesting that the issues surrounding the Silala are not entirely water-focused.

In contrast, Chile bases its ownership claims on grounds that the Silala’s waters were never diverted from its original channel, but rather that the canal works merely augment the natural flow of the Silala River. Hence, Chile argues that the Silala is and always has been a transboundary river subject to international water law. Moreover, it contends that it need not pay for the use of the Silala and that Bolivia’s rescission of the original concession, as well as Bolivia’s awarding of the more recent DUCTEC concession, were illegal. It is noteworthy that while Chile voted in favor of the 1997 Watercourses Convention, Bolivia abstained from the vote and neither has signed or ratified it. Although the two governments have attempted to resolve the dispute, including drafting a bilateral agreement on the use of the waters of the Silala (Spanish / English), it remains unresolved.

The applicability of international water law to the Silala scenario depends largely on whether or not the Silala River is described as a natural transboundary watercourse. A manufactured river, in the form of canals or other man-made systems, would not fall within the rubric of international water law since, by definition, such water bodies are proprietary and subject to the agreements that created them. Moreover, international water law does not apply to surface runoff flowing in a marginally defined or in undefined channel (e.g., surface runoff) regardless of whether or not the flow crosses an international boundary.

In the case of the Silala Basin, most of the spring flow is captured by artificial channels, constructed by the mining interests under its 1908 concession from the Bolivian Prefecture of Potosí and that cross into Chile via the principal canal. This would suggest that the water in the canal is subject solely to the terms of the concession agreement rather than to international water law. And when Bolivia rescinded the concession, the waters’ ownership reverted back to Bolivia.

Nevertheless, geological and topographical evidence (including onsite evaluations conducted by my co-author, Brendan Mulligan), as well as certain historical material, indicate that prior to canalization, the Silala springs flowed naturally across the Bolivian-Chilean border in approximately the same path as the principal canal. If this proves true, application of international water law is still unclear since we would have a transboundary river that was captured and canalized for private use.

Chile might argue that the concession trumps international water law since international law allows for the creation of agreements deviating from international standards so long as the deviations do not violate jus cogens (peremptory international norms). On the other hand, Bolivia may contend that the concession was a license revocable at the will of the licensor (Bolivia). If this latter analysis holds, then the rules for the basin reverted back to the default norms of international water law when the Bolivian government revoked the concession in 1997.

Still, to the extent that the flow of the pre-canalized Silala was intermittent rather than perennial, applicability of international norms also may be tenuous. The substantive rules of international water law can be understood, in part, as rules of liability. In other words, violation of the rules mandates the imposition of responsibility and recompense. Violation of the rules, however, can only occur where human actions interfere with the natural flow of the watercourse. Where a river fails to flow for natural reasons, as an intermittent stream is wont to do, no liability may be imposed. Moreover, the absence of state practice or examples in which international water law norms were applied to an intermittent stream suggests that this scenario is, at best, unresolved. Hence, to the extent that prior to canalization water in the Silala flowed across the Bolivian-Chilean border only intermittently, international water law principles may not be applicable to the present dispute.

Further complicating the scenario is the presence of an interrelated transboundary aquifer. As noted above, the Silala River is fed by springs in Bolivia. Those springs, however, emerge from the Silala Aquifer, which is believed to traverse the Bolivian-Chilean border. Unfortunately, as little as is known about the topography and geology of the Silala River Basin, even less information is available about the underlying aquifer. In addition, international law applicable to transboundary ground water resources is still in its infancy and there are only a few examples of state practice from which lessons can be drawn (see my article on Managing Buried Treasure Across Frontiers: The International Law of Transboundary Aquifers).

Whether additional facts and scientific information will be forthcoming from the parties or from independent sources is presently unclear. Moreover, even with such information, international water law, whether for transboundary surface or ground water resources, may not have a ready solution. As is often the case in disputes over shared water resources, negotiations may provide the most optimal solution for this most hydropolitically vulnerable of basins.

Posted in International Water Law, South America, Water Conflicts | 1 Comment »

Conference on the Guarani Aquifer Agreement

Monday, February 14th, 2011

The signing of the Agreement on the Guarani Aquifer [Spanish] [Portuguese] on August 2, 2010, evidenced the continued progress being made in the pursuit of greater harmony in global hydro diplomacy (see my review of the agreement). True, South America is not lacking in fresh water resources. Yet, the effort by the overlying nations (Argentine, Brazil, Paraguay, and Uruguay) is laudable for its peaceful and cooperative approach. The four countries are now involved in the ratification process and in  negotiations over  institutional aspects, including discussions regarding an annex to the Agreement on arbitration procedures. How will these nations implement this agreement? What additional steps should they take?

Francesco Sindico, currently at the University of Surrey, Guildford, United Kingdom, along with colleagues Ricardo Hirata of the Centro de Pesquisas de Água Subterrânea–Instituto de Geociências da Universidade de São Paulo (CEPAS – IGc/USP) and Geroncio Rocha of the Secretaria do Meio Ambiente do Estado de São Paulo, is organizing a conference – “The Management of the Guarani Aquifer System: An Example of Cooperation” – in São Paulo, Brazil 21-23 September 2011. The deadline for abstract submission is 30 April 2011. Three conference sessions will address:

  1. An assessment of the scientific knowledge on the GAS
  2. Current use and protection of the Guarani Aquifer System
  3. The GAS and regional cooperation

For further information please see the full call for papers at:

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Hydraulic Harmony or Water Whimsy? Guarani Aquifer Countries Sign Agreement

Thursday, August 5th, 2010

Last week it was the Nile Basin riparians [see here and here]. Now it’s the countries overlying the Guarani Aquifer. On August 2, 2010, the four nations overlaying the massive South American aquifer – Argentine, Brazil, Paraguay, and Uruguay – signed the Agreement on the Guarani Aquifer [Spanish] [Portuguese] in San Juan, Argentina (original text can be found on the Brazilian Ministry of Foreign Relations website). Has humanity finally reached its senses and decided to pursue global hydraulic harmony?

It is unfortunately unlikely that a global era of hydro-cooperation is at hand. Moreover, a review of this new Guarani instrument reveals a bare-bones agreement that contains less than ideal cooperative mechanisms. In particular, the agreement places great emphasis on individual states’ right while limiting obligations to cooperate and jointly management the aquifer. Article 2, for example, affords the parties the right of exclusive dominion over the portions of the aquifer that underlay each nation, while Articles 1 and 3 evince similar notions of sovereign rights. The idea that a state can have sovereign rights over a water body (or a portion of that water body) that flows across an international border harkens back to the long-discredited Harmon Doctrine. As international water law expert and former UN International Law Commission member, Dr. Stephen McCaffrey, modestly stated in a 2009 law review article [The International Law Commission Adopts Draft Articles on Transboundary Aquifers, Amer. J. of Int’l Law, Vol. 103, pp. 272-293 (2009)], where “the subject matter is something that moves from one state to another, from underground to surface, from surface to atmosphere, and so on in the hydrologic cycle, the notion that states have sovereignty over it seems a far from perfect match.”

In contrast, the Guarani Agreement places few limitations on sovereignty in relation to the rights of other parties. While it does contain provisions alluding to well-known international water law principles that could moderate the problems associated with sovereign claims over fresh water resources (e.g., principles of reasonable and equitable use [Arts. 3 & 4] and of no significant harm [Arts. 3, 6, & 7]), it merely references these notions without providing definitions or elaboration. In other words, the Guarani nations agreed mostly to leave each other alone in their respective Guarani-related territories and hydro-activities and only modestly agreed to cooperate.

Yes, the four nations did agree to share information generated about the aquifer (Arts. 9 & 12) as well as to notify each other of planned measures that may result in a transboundary impact (arts. 9, 10, & 11). And there is some language on the conservation and environmental protection of the Guarani (Art. 4) and the need to identify critical areas, especially in border regions, that require special measures (Art. 14). However, the language used in these provisions leaves quite a bit of room for interpretation and suggests that the parties themselves could not agree on the extent to which they want to cooperate. Similarly, the absence of any language describing the responsibilities and authority of the commission that is to be created under Article 15 intimate the creation of a paper tiger.

Notwithstanding its shortcomings, the Guarani Agreement can still be regarded as an important milestone in the world of international water law. Even in its less-than-ideal formulation, it constitutes progress in the effort to have more nations cooperate over shared fresh water resources. At the very least, it is an agreement for some measure of cooperation. If the four Guarani nations actually ratify the instrument (which appears likely), they will join a very small club composed of states who are party to a cross-border ground water treaty. The number of these treaties can be counted on one hand and include the complex management mechanisms governing the use of the Genevese Aquifer [French and unofficial English translation] along the French-Swiss border, and the rudimentary consultative and data-sharing agreements implemented for the Nubian Sandstone and Northwestern Sahara aquifers in North Africa. Given the dearth of treaties over transboundary aquifers (in comparison with the thousands of agreements over transboundary rivers and lakes), and the fact that there are at least 273 transboundary aquifers globally and that millions of people around the world rely on transboundary aquifers for their sustenance and livelihoods, the Agreement on the Guarani Aquifer is still a welcomed development.

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