Archive for the ‘Transboundary Aquifers’ Category

The Rio Grande/Río Bravo Basin: old disputes in a new century

Monday, October 3rd, 2022

This essay is written by Regina M. Buono, Principal at Aither, and Gabriel Eckstein, Professor of Law at Texas A&M University, and director of the International Water Law Project. It first appeared on the Global Water Forum on September 28, 2022.

The Rio Grande River, known in Mexico as the Río Bravo, is one of the principal rivers in the southwestern United States and northern Mexico. Originating in Colorado in the U.S., the Rio Grande flows over 3,000 kilometers to the Gulf of Mexico. Its basin covers an area over 500,000 square kilometers. Governing such an important transboundary water system poses a multitude of issues, and the most recent treaty guiding such efforts is now almost 80 years old. Regina Buono and Gabriel Eckstein discuss here the big challenges facing the Rio Grande/Río Bravo Basin, and how effective the current governance arrangements are.

The Rio Grande flowing through a national park in Texas, U.S. The Rio Grande/Río Bravo Basin ties two nations together through shared natural resources, wildlife habitats, socio-economic systems, culture and history. Governing this transboundary system is an enormous challenge. (Image by David Mark from Pixabay)

Mexico and the United States have shared the Rio Grande river basin (known as the Río Bravo in Mexico) for over 170 years. Though the basin includes over 2,000 kilometers of international border, it also ties the two nations together through shared natural resources and wildlife habitats, socio-economic systems, and cultural and historic bonds.

Management of the Rio Grande and its tributaries is governed by a series of border treaties and institutions, as well as the domestic national and state laws of the two countries. The most recent and visible border treaty is the 1944 Treaty on the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, an agreement often lauded for enabling innovative and collaborative governance of the three named rivers.

In recent years the treaty regime has come under intense pressure. Domestic and international water governance institutions are struggling under the strain of climate change impacts, population growth, and the attendant impacts to water supply and demand in the region. Three issues are of particular concern: (1) an increasing focus on groundwater and groundwater-surface water interactions and the related practical and policy implications; (2) strained relations between the two treaty parties, as well as with local and regional stakeholders; and (3) resolution of Mexico’s water debt under Article 4 of the 1944 Treaty and the need to facilitate increased reliability and predictability in Rio Grande water deliveries.

Groundwater, a crucial resource long neglected and little understood

Groundwater has long been neglected by the Mexico-US transboundary water regime. Groundwater plays a significant role in agricultural production, economic development, and even the social fabric of the region, but the estimated 72 transboundary aquifers and hydrological units have only sporadically been studied and are excluded from the existing treaty regime. Groundwater supplies, which constitute essential water sources for millions of people on both sides of the border, are managed under independent, domestic legal regimes in each country. Moreover, there are no procedures or mechanisms to integrate hydrologically related groundwater into the overall management and allocation regime of the Rio Grande.

To address this disorder, a key first step is to collect existing information on groundwater-surface water relationships in the basin, and to fill the significant knowledge gaps with additional research. It’s also important to expand the existing system for data and information sharing to include groundwater resources and facilitate more opportunities for public participation by local stakeholders in the governance system, since groundwater—more so than rivers and lakes—is regarded as a local resource. Finally, the management and governance of transboundary aquifers should be pursued collaboratively by local and regional stakeholders on both sides in a manner that allows full engagement and collaborative decision-making.

Governance across borders

The binational institution responsible for managing Mexico-US border waters is the International Boundary and Water Commission (IBWC/CILA). Its current approach to managing the Rio Grande, which offers limited stakeholder involvement, has been heavily criticized, especially as more integrated and inclusive management approaches have proliferated elsewhere around the world.

Stakeholder participation and transparency are relatively more advanced in the U.S., in part, a function of that country’s decentralized approach to water management, which requires local participation to operate effectively. Stakeholder engagement in the U.S. also benefits from the greater availability of resources for state-level administrations and agencies that support the development and administration of local and regional water plans, as well as from efforts by private and civil society groups.

In contrast, stakeholder participation and transparency on the Mexican side is largely absent because of the country’s centralized approach to water management. Since the vast majority of domestic water-management decisions are made by the country’s federal water agency, CONAGUA, at the national level, local communities have little to no real opportunity to be involved in meaningful decision-making. The eventual effects of these enduring conditions became apparent in the summer and fall of 2020 when Mexican farmers in the state of Chihuahua protested water deliveries from the Rio Conchos, Mexico’s chief tributary to the Rio Grande. The protests were a poignant symptom of the disenfranchisement of local water stakeholders in that country.

Mexico’s water debt under the 1944 Treaty

Under the 1944 treaty, Mexico is obliged to deliver to the U.S. an average annual 350,000 acre-feet of water down the Rio Conchos and into the Rio Grande. The treaty allows Mexico to carry over any incomplete balances of water from one 5-year cycle to the subsequent 5-year cycle in the event of an “extraordinary drought.” The two countries, however, have historically disagreed over the meaning of “extraordinary drought” and whether repayment of a water debt can be carried forward over more than two consecutive 5-year cycles (Carter et al. 2017). By the Fall of 2021, Mexico had accumulated a significant water debt and was poised to begin a third 5-year cycle in arrears.

On October 21, 2021, three days before Mexico would have violated its delivery obligations, IBWC/CILA signed an agreement to resolve the issue. Under Minute 325, Mexico fulfilled its delivery obligations by transferring the entirety of its water in the Amistad and Falcon reservoirs to the U.S. While the transfer nearly depleted all of Northern Mexico’s stored water in the reservoirs, in doing so, Mexico abided by the 1944 Treaty and ended the 2016-2020 cycle debt free (Helfgott 2021). The minute also resolved the long-standing disagreement over Mexico’s ability to end two back-to-back cycles, stating that two successive cycles “may not end in a deficiency.”

Minute 325 also recognized the importance of two pre-existing working groups, the Rio Grande Hydrology Work Group tasked with developing technical information on the Rio Grande, and the Rio Grande Policy Work Group, which oversees the Hydrology Work Group and “consider[s] water management policies in the basin.” The two groups are now tasked with developing a new minute by December 2023 to provide “increased reliability and predictability in Rio Grande water deliveries to water users in the United States and Mexico” (IBWC 2020, ¶4).

Equitable, efficient and peaceful water governance

Though challenges remain, the 1944 Treaty’s mechanisms—and, in particular, the treaty’s minute system—have been shown to facilitate and support innovations in water management, and new efforts to improve sustainable management and public engagement in the Rio Grande basin are underway at various levels. As severe drought sets in across Europe, the American west, China, and other parts of the world—underscoring the need to allocate and manage water use equitably, efficiently, and peacefully—it is increasingly imperative that humans imbue water management systems around the world with these qualities.

This essay is a condensed version from the authors’ chapter on “Current challenges in the Rio Grande/Río Bravo Basin: old disputes in a new century,” which appears in Water Resources Allocation and Agriculture: Transitioning from Open to Regulated Access, (Josselin Rouillard, at.al., Eds., Edward Elgar 2022), available at https://doi.org/10.2166/9781789062786.

References

Carter Nicole, SP Mulligan & C Ribando Seelke (2017). U.S.-Mexico Water Sharing: Background and Recent Developments, Congressional Research Services, R43312. https://fas.org/sgp/crs/row/R43312.pdf.

Helfgott Alexandra (2021). Bilateral Water Management: Water Sharing between the US and Mexico along the Border. Wilson Center. https://www.wilsoncenter.org/article/bilateral-water-management-water-sharing-between-us-and-mexico-along-border

International Boundary and Water Commission (2020). Minute 325: Measures to End the Current Rio Grande Water Delivery Cycle Without a Shortfall, to Provide Humanitarian Support for the municipal Water Supply for Mexican Communities, and to Establish Mechanisms for Future Cooperation to Improve the Predictability and Reliability of Rio Grande Water Deliveries to Users in the United States and Mexico. Available at: https://www.ibwc.gov/Files/Minutes/Min325.pdf

Posted in Mexico-US Border, North America, Transboundary Aquifers, Transboundary Rivers | Comments Off on The Rio Grande/Río Bravo Basin: old disputes in a new century

U.S. Supreme Court Issues Decision in First Ever Dispute Over Interstate Groundwater – Implications for International Law

Monday, December 13th, 2021

This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Energy, Environmental, and Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu. (This essay was republished in Global Water Forum, Dec. 21, 2021, available at https://bit.ly/3qcITgC).

On 22nd November 2021, in the case of Mississippi v. Tennessee, the Supreme Court of the United States issued its first ever decision in a dispute between two U.S. states over a transboundary aquifer.  The Justices’ decision was unanimous with the Court dismissing Mississippi’s case and holding that “the waters contained in the Middle Claiborne Aquifer are subject to equitable apportionment,” and that U.S. states may not “exercise exclusive ownership or control” over interstate waters flowing within their borders.  While the case involved an entirely domestic U.S. dispute, it is nonetheless an interstate dispute over cross-border groundwater resources. Thus, it could have a significant jurisprudential impact on the development of international law for transboundary groundwater resources.

Background

The Middle Claiborne Aquifer. From U.S. Geological Service.

The Middle Claiborne Aquifer (also known as the Memphis Sand Aquifer) is a relatively large groundwater-bearing formation that underlies eight states in the United States, including Mississippi and Tennessee.  Decades ago, Tennessee installed groundwater wells on its side of the border to supply the growing city of Memphis. More recently, Tennessee installed additional wells close to its border with Mississippi to supply Memphis and the surrounding communities.  Memphis, with a population of 1.15M people, is one of the largest cities in the United States that relies exclusively on groundwater for its municipal water supply utilizing around 160 wells.  In contrast, Mississippi has withdrawn comparatively very little groundwater from the aquifer on its side of the border.  Most of the extractions in Mississippi supply individual households and some agricultural activities.

In 2014, Mississippi sued Tennessee and the City of Memphis claiming that since 1985, Memphis had stolen 252 billion gallons (954 million m3) of Mississippi’s groundwater.  While Tennessee’s wells were drilled vertically and did not extend across the border, Mississippi asserted that the cones of depression of Tennessee’s wells crossed into Mississippi and diverted that state’s groundwater into Tennessee.  Mississippi also claimed that it had an ownership interest in that stolen groundwater and demanded compensation in the amount of USD $615 million.  In response, Tennessee asserted that transboundary groundwater resources in the United States should be subject to the same doctrine as transboundary surface waters, namely, the doctrine of equitable apportionment.  Hence, it asked the Court to dismiss Mississippi’s case since Mississippi had not filed a claim based on that doctrine.  Mississippi responded that equitable apportionment should not apply in its case because groundwater and surface waters have different properties and characteristics, and because Tennessee had already withdrawn 252B gallons of groundwater before there was a chance to divide it in a fair manner.

The Decision

In surprisingly quick action, less than two months following oral arguments, the Supreme Court issued its decision.  The Court outrightly rejected all of Mississippi’s exclusive ownership claims and ruled that “the waters contained in the Middle Claiborne Aquifer are subject to equitable apportionment.”

NW-SE hydrostratigraphic cross section beneath the city of Memphis and the adjacent states of Arkansas (AR) and Mississippi (MS). From Michael Campana, Mississippi v. Memphis: The Curious Case of the Memphis Sand Aquifer, in Transboundary Groundwater Resources: Sustainable Management and Conflict Resolution (Fried and Ganoulis, Eds. 2016, Lambert Academic Publishing).

In adjudicating the case, the Court acknowledged that the Court has “never considered whether equitable apportionment applies to interstate aquifers.” However, it quickly asserted that, for three reasons, equitable apportionment of the Middle Claiborne Aquifer would be “‘sufficiently similar’ to past applications of the doctrine to warrant the same treatment.”  First, it stated that while the Court had only applied equitable apportionment to transboundary resources, the “Middle Claiborne Aquifer’s ‘multistate character’ seems beyond dispute.”  Second, it explained that the aquifer “contains water that flows naturally between the States” and that its distinct characteristics, including the considerably slower movement of groundwater in comparison to surface flows, are irrelevant to the analysis.  Lastly, the Court said that where one state’s use of a transboundary resource affects the other state (here, Tennessee’s pumping of the groundwater affected the aquifer in Mississippi through the cone of depression, which extended underneath Mississippi), indeed, “[s]uch interstate effects are a hallmark of our equitable apportionment cases.”  Accordingly, the Court concluded that “the judicial remedy of equitable apportionment” applies to the waters of the Middle Claiborne Aquifer.

In addition, the Court thoroughly rejected Mississippi’s claim to sovereign ownership of the groundwater in the portion of the formation that was located within its borders.  The Court recognized that each state “has full jurisdiction over the lands within its borders, including the beds of streams and other waters.”  However, it asserted that “such jurisdiction does not confer unfettered ‘ownership or control’ of flowing interstate waters themselves.”

Implications for International Law

While nation’s domestic court decisions are not regarded as primary sources for international law, decisions from federal jurisdictions often have been influential in its development.  This is especially true in the advancement and evolution of international water law where the jurisprudence of the U.S. Supreme Court in interstate water disputes has featured quite prominently.  Thus, it is likely that the recent decision could prove significant in two regards.

Equitable and reasonable utilization

Equitable and reasonable utilization is considered as one of the keystone principle of international water law.  However, as Professor Rhett Larson explains, its origin can be traced back largely to U.S. Supreme Court jurisprudence and that Court’s doctrine of equitable apportionment.  For example, both equitable apportionment and equitable and reasonable utilization focus on the notion of equality of states under law, and both advocate equity in the allocation of benefits derived from transboundary waters.  Moreover, the factors established by the U.S. Supreme Court for determining equitable apportionment are very similar to those laid out in Article 6 of the Watercourses Convention for determining equitable utilization.  For example, while the U.S. doctrine considers “physical and climatic conditions” when evaluating the equities, international law ponders the “[g]eographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character.”  Although there are also important differences between the two doctrines, it suffices to say that U.S. Supreme Court decisions in interstate U.S. water disputes have greatly influenced the development of the international law principle of equitable and reasonable utilization.

Application of that doctrine to international transboundary groundwater resources, however, is not entirely novel.  While far from being widely accepted, the concept, or something close to it, does appear in a few international instruments governing specific transboundary aquifers: the 2010 Guarani Aquifer Agreement ratified by Argentina, Brazil, Paraguay, and Uruguay; the 2013 Regional Strategic Action Programme for the Nubian Aquifer System adopted by Chad, Egypt, Libya, and Sudan; and the Memorandum of Understanding for the Establishment of a Consultation Mechanism for the Integrated Management of the Water Resources of the Iullemeden, Taoudeni/Tanezrouft Aquifer System, which has yet to come into force for the signatory states of Algeria, Benin, Burkina Faso, Mali, Mauritania, Niger, and Nigeria.

Understandably, three instruments employed for three different transboundary aquifers does not establish the existence of a customary international norm.  However, now that the U.S. high court has ruled that waters flowing through the aquifer underlying the Mississippi-Tennessee border are subject to equitable apportionment, other nations may be more inclined to explore the relevance of the comparable international law version of the doctrine—equitable and reasonable utilization—to groundwater resources shared with their neighbors.

Sovereignty

In the U.S. Supreme Court case, Mississippi argued that it had an absolute “ownership” right to all groundwater beneath its surface.  As a result, it sought USD $615 million in compensation from Tennessee for groundwater that the latter state caused to flow from underneath Mississippi and to Tennessee’s pumps.  In rejecting this claim, the U.S. Supreme Court recognized that while each U.S. state has “full jurisdiction” over “the lands within its borders, including the beds of streams and other waters,” it may not “exercise exclusive ownership or control” of interstate waters flowing within its territory.  Otherwise, the Court asserted, it would allow an upstream (or up-aquifer) State “to completely cut off flow to a downstream one, a result contrary to our equitable apportionment jurisprudence.”  Thus, U.S. states may not claim sovereign ownership of the groundwater flowing beneath their territories.

Model of a transboundary aquifer. From S. Puri, G. Arnold Challenges to management of transboundary aquifers: The ISARM Programme: 2nd International Conference, Sustainable Management of transboundary waters in Europe, Miedzyzdroje, April 2002 (2002)

The Court’s decision is also noteworthy for the language it used.  In recognizing a state’s limited rights to the portion of cross-border land and resources located within its borders, and specifically to “the beds of streams and other waters,” the Court acknowledged only the right to “full jurisdiction,” but not to sovereignty.  This could be a critical distinction as “full jurisdiction” suggests a right to control or administer, but does not accord the full right of ownership that would ensue from sovereignty.  Moreover, by emphasizing “the beds of streams and other waters,” the Court seemed to focus on the container holding the water.  Thus, the Court’s decision could be interpreted as a right to control, regulate, and manage a portion of a transboundary aquifer—the matrix containing the groundwater—found within a country’s boundaries, but not an outright entitlement to claim ownership of that formation segment.  While the distinction may seem semantical, full jurisdiction could prove to be a more constrained right as compared to sovereignty in relation to other established interstate obligations, such as cooperation, the peaceful resolution of disputes, and equitable apportionment when arguing before the U.S. Supreme Court.

In the context of international law for transboundary groundwater resources, the notion of sovereignty has been controversial.  While sovereignty was excluded from the UN Watercourses Convention, it did find its way into Article 3 of the Draft Articles on the Law of Transboundary Aquifers (despite fervent objections—see here) where each aquifer state is accorded “sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory.”  This formulation was justified by some on grounds that groundwater was akin to other natural resources (like oil, gas, and other minerals) that were subject to ownership claims articulated in the UNGA Resolution 1803 (XVII) of 14 December 1962 on Permanent Sovereignty Over Natural Resources; others argued that sovereignty necessarily applies to the stationary, groundwater-bearing, rock formation located within each country, albeit maybe not the groundwater itself.  To many water law experts, the provision was anathema to more recent understanding of international water law, especially in light of emerging principles of international environmental law.  Professor Stephen McCaffrey, one of the ILC Special Rapporteurs for what became the UN Watercourses Convention, asserted that “In this one provision, the ILC has managed to reverse over 100 years of development of international-watercourse law,” and suggested that the provision harkened back to the now discredited Harmon Doctrine.

The U.S. Supreme Court’s pronouncement in Mississippi v. Tennessee marks a significant departure from the formulation found in the Draft Articles.  By asserting that a state may not seek to control exclusively interstate waters flowing within its territory, including groundwater, the Court mandated that interstate waters were common to all riparians and could be utilized and managed only with due regard given to the rights of other riparian states.  Potentially more significant, by focusing on the matrix containing the groundwater and using the “full jurisdiction” language, the Court may have signaled its disfavor of unrestrained sovereignty over groundwater-bearing formations that cross political boundaries, and its preference for cooperation and a collaborative approach to the management of transboundary aquifers.  In the international water law context, this equates with the notion of limited territorial sovereignty that now prevails for international watercourses, and possibly even the more progressive community of interest theory (see here).  Thus, the Court’s decision squarely sides with those who fought against inclusion of the sovereignty provision in the Draft Articles (see here).

Conclusion

Until now, there has never been a national judicial body (in the United States or elsewhere) that has considered a case between two political jurisdictions fighting over the right to use the waters of a transboundary aquifer.  As a result, the allocation of, rights to, and sovereignty in transboundary groundwaters and aquifers have been uncertain under both U.S. domestic law and international law.  While the case takes a great leap forward in clarifying the law within the United States, it may also prove to be influential in the international arena and serve as basis for the ongoing development of international law for transboundary groundwater resources.

Posted in International Water Law, Transboundary Aquifers, Tribunal Decision | 7 Comments »

New Book on “International Law and Transboundary Aquifers” by Francesco Sindico

Monday, February 15th, 2021

The following essay is by Dr. Francesco Sindico, Co-Director of the Strathclyde Centre for Environmental Law and Governance (SCELG). Dr. Sindico can be reached at francesco.sindico [at] strath.ac.uk.

How many times does an academic write a book and then only other academics read it? How useful are such books? This is something that has troubled me throughout my entire career in academia and has haunted me in the preparation of my first book as sole author. How do I write something that will be of interest to people within my area of expertise – international law – but also to those working in different fields relevant for the topic of my book – hydrogeologists, engineers, etc…? Even more importantly, how do I write a book that goes beyond the walls of academia and entice a non-academic readership – policymakers and water professionals?

Dr. Francesco Sindico

The book “International Law and Transboundary Aquifers” takes on this multiple challenge by framing the narrative around a practical scenario. One where two countries acknowledge the existence of a transboundary aquifer that straddles both their borders, and where both nations decide that they wish to manage it together and explore whether there are any rules that they can rely upon to base their cooperation on. It is a book that builds on a twofold premise that is not always present in real life. First, there is a common scientific understanding that the two countries indeed share an aquifer. Second, there is political will on both sides of the border to develop a joint normative framework to govern the aquifer. Chapter 1 provides the reader with an introduction to the book and details the contours of the practical scenario that will be present throughout. You can access the introduction free of charge via the publisher’s website.

Once the scenario is laid out, the book takes the reader through a journey that seeks to answer two key questions. The first one is what are the rules, if any, that two countries willing to manage a transboundary aquifer can consider? The answer to this first question is spelled out throughout chapters 3 and 4, which highlight the emergence of an international law of transboundary aquifers and discuss its normative content. The reader will discover how such rules do exist and can be found in a plethora of existing international legal instruments. These include both substantive and procedural obligations and, while most can be found in the United Nations International Law Commission Draft Articles on the Law of Transboundary Aquifers, the legal mosaic is much more complex and includes the United Nations Watercourses Convention, the UN Economic Commission for Europe Water Convention and its Model Provisions on Transboundary Groundwaters. The second question present in the book is one that the two countries in the practical scenario are deemed to ask themselves once they figure out what rules are present. Are such rules just guidance, or do they “have” to follow them? In other words, is the content of the international law of transboundary aquifers, as spelled out in chapters 3 and 4, legally binding? Is it mere guidance that countries can follow if they so wish and can adapt to their own context and interests? Or does it amount to legally binding obligations that countries are obliged to comply leading to legal consequences in case of breach? Chapter 5 and 6 present an answer to this question by engaging in a discussion about the future of the international law of transboundary aquifers (chapter 5) and introducing the reader to the still relatively small number of transboundary aquifer specific agreements and arrangements (chapter 6). Chapter 5 is where the book embarks in its most difficult challenge: to explain and clarify to a wide range of readers (not just those versed in international law) in practical terms the relevance of defining an international legal obligation as customary international law. Since the latter requires a detailed analysis of state practice, chapter 6 takes the reader through a journey around the world to “see” the various transboundary aquifer agreements and arrangements to consider how they contribute to the crystallisation (or not) of customary international law in the field of international law of transboundary aquifers.

The book does not provide all the answers to policymakers interested in pursuing transboundary aquifer cooperation with their neighbours. However, it does provide a basis upon which discussions can begin and cooperation can be developed. It is my hope that this book can serve such a purpose. For this to happen it is important that the two premises underpinning the practical scenario presented in the book are met: knowledge about the aquifer in the first place, and political will to cooperate. Other books and other means will be useful to overcome these two complex hurdles. However, once they are overcome, then I hope policymakers and transboundary water managers will be interested in picking up my book as a means to clarify, to them and to their counterparts, the normative landscape that lies ahead. If even just one country that shares one of the 592 transboundary aquifers (and groundwater bodies) present in the world achieves some more clarity about the complex landscape ahead, I will feel that my book will have been a worthwhile effort beyond the sometimes too high walls of academia.

A virtual book launch with the author and other eminent speakers is scheduled on Wednesday 24 Match from 2 to 3 PM GMT.

The book can be accessed here.

Posted in International Water Law, New Resources & Information, Transboundary Aquifers | 2 Comments »

The Agreement on the Guarani Aquifer enters into force: what changes now?

Monday, November 16th, 2020

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

The Agreement on the Guarani Aquifer (Portuguese, Spanish, English unofficial), ratified by Argentina, Brazil, Paraguay, and Uruguay, will enter into force on November 26, 2020. After a lengthy waiting process, the countries have finally and officially determined that they can now resume their efforts to pursue cooperation. The Guarani Aquifer was the focus of a long cooperative process that began within the epistemic community in the 1990s. That focus was transferred to the four Guarani States and international organizations between 2000 and 2009, which culminated in August 2010 with the signing of the agreement in San Juan, Argentina.

Guarani Aquifer

The water community extensively celebrate this achievement for the following reasons: a) it was a specific agreement for a transboundary aquifer, which is rare in the global context; b) the agreement specifically referenced United Nations General Assembly Resolution 63/124 (2008) pertaining to the Draft Articles on the Law of Transboundary Aquifers, thereby emphasizing the importance of this document; c) it included the main principles of international water law reinforcing their applicability to aquifers; d) it was the first specific agreement for a transboundary aquifer in Latin America and could encourage the conclusion of other similar agreements; e) it represented the continuity of the cooperative process established between the countries within the scope of the Guarani Aquifer System Project; and f) it was an example of preventive diplomacy, without conflicts over the use of groundwater.

However, over the past decade, the initial optimism for this treaty to enter into force had cooled down. Article 21 determined that the agreement would enter “into force on the thirtieth day following the date of deposit of the fourth instrument of ratification” with the Federative Republic of Brazil, which was assigned as the custodian of the agreement and the instruments of ratification. Argentina and Uruguay ratified the treaty by enacting Law No. 26,780/2012 and Law No. 18,913/2012, respectively. Brazil recognized it through Legislative Decree No. 52/2017 and Paraguay through Law No. 6037/2018. However, Paraguay’s instrument of ratification was not deposited with Brazil until October 2020.

The entry into force of this agreement allows the promised innovation initiated in 2010 to be implemented; however, the delay in the process raises the question of when and if this cooperative process will come to fruition. The agreement, which focuses on the transboundary water resources of the Guarani Aquifer System (SAG), represents a flexible cooperation tool and obligates the four aquifer States to manage them in accordance with the rules of international law. Table 1 shows the main characteristics of the agreement.

Table 1. Key elements of the Guarani Aquifer Agreement

The entry into force of the agreement will allow the Guarani States to deepen the cooperation process presupposing the following steps: a) creation of a commission for the Guarani aquifer (art. 15); b) defining the arbitration procedure for settling disputes by issuing an Additional Protocol (art. 19); c) implementing groundwater cooperation programs (art. 12) and d) identifying critical areas, especially in border areas where the flow is transboundary. Of these actions, the most urgent undoubtedly is the creation of the commission, which is responsible for coordinating cooperation in compliance with the principles and objectives of the agreement. Without the creation of the commission with a statute to define its structure and powers, the agreement will have limited effectiveness in the regional context.

The realization of the international project Implementation of the Guarani Aquifer Strategic Action Program: Enabling Actions – with the participation of the four countries, the Global Environmental Facility as financier, and UNESCO as the executive agency, and with technical support from the Regional Center for Groundwater Management (known as CeReGAS) – can encourage the Guarani States to implement the agreement and establish the commission.

Posted in Latin America, Transboundary Aquifers | Comments Off on The Agreement on the Guarani Aquifer enters into force: what changes now?

Botswana, Namibia and South Africa Develop Joint Governance Mechanism for the Stampriet Aquifer System in the Orange-Senqu River Commission

Monday, December 9th, 2019

The following essay was prepared by Stefano Burchi, Chairman of the International Association for Water Law (AIDA), and former consultant to the GGRETA project. He can be reached at stefano.burchi [@] gmail.com.

Background

The Stampriet Transboundary Aquifer System (STAS) stretches from Central Namibia into Western Botswana and South Africa’s Northern Cape Province, and lies entirely within the Orange-Senqu River Basin (see map). The STAS is a very large transboundary aquifer system, receiving relatively insignificant recharge, in a semi-arid to arid region without permanent surface water. It covers a total area of around 87 000 km², of which 73% lies in Namibia, 19% in Botswana, and 8% in South Africa. The area is sparsely populated with slightly over 45,000 persons concentrated in communities ranging from small rural settlements to villages and towns. Groundwater is the major source of water in the area and provides potable water to the population and livestock and for irrigation. There currently are no industrial or mining activities taking place in the STAS area. Over 20 million m³/year of groundwater is abstracted from the Aquifer, a considerable majority of which occurs in Namibia (over 95%). The largest consumer of water is agriculture in the form of irrigation, followed by stock watering and domestic use. There is a sizeable amount of water that is lost through evaporation and to invasive plant species and that is difficult to estimate.

With financial assistance from the Swiss Agency for Development and Cooperation (SDC), and with the technical assistance of UNESCO-IHP, the STAS countries have been actively cooperating in assessing the aquifer and its characteristics since 2013, through the Governance of Groundwater Resources in Transboundary Aquifers (GGRETA) project. That project aims to facilitate cooperation among countries sharing select transboundary aquifers (TBAs). In addition to the STAS, the GGRETA project is active in Central America on the Ocotepeque-Citalá Aquifer shared by El Salvador and Honduras (see here), and in Central Asia on the Pre-Tashkent Aquifer System shared by Kazakhstan and Uzberkistan.

Location of the Stampriet Transboundary Aquifer System (in orange) and the Orange-Senqu River Basin (in green) in southern Africa

The first phase of the project (2013-2015) focused on an in-depth assessment of the STAS using existing data and information, which allowed for the establishment of a shared science-based understanding of the aquifer. The activities of the second phase (2016-2018) focused primarily on consolidating the technical results achieved and the tools developed in the first phase. It also addressed strengthening capacity of national water institutions and academia in groundwater governance at the national and transboundary levels in order to support the process of establishing a Multi-Country Cooperation Mechanism (MCCM) for the governance and management of the STAS.

The first phase of the project (2013-2015) focused on an in-depth assessment of the STAS using existing data and information, which allowed for the establishment of a shared science-based understanding of the aquifer. The activities of the second phase (2016-2018) focused primarily on consolidating the technical results achieved and the tools developed in the first phase. It also addressed strengthening capacity of national water institutions and academia in groundwater governance at the national and transboundary levels in order to support the process of establishing a Multi-Country Cooperation Mechanism (MCCM) for the governance and management of the STAS.

The cooperation facilitated by the GGRETA project has yielded an in-depth assessment of aquifer characteristics, including current and projected uses of groundwater and likely future stress conditions under relevant factors.

The assessment also revealed a number of challenges:

  • lack of monitoring data seriously hampers a systematic diagnostic analysis of groundwater quantity-related stress; 
  • pollution by humans and animals, and that caused by poor well construction and lack of protection, is currently localized in the shallower parts of the STAS;
  • although there is no mining or industrial activity in the STAS area at present, unregulated mining activities might lead in the future to pollution of the aquifer system due to its fragility and vulnerability;
  • vertical leakage between superposed aquifers is accelerating due to uncemented borehole casings and metallic corrosion.

In view of the importance of the aquifer’s resources to the future of the local population, the three countries sharing the aquifer concurred in 2016 on the desirability of establishing a Multi-Country Cooperation Mechanism (MCCM) for the joint governance and management of the STAS.

The STAS MCCM

On 17-18 May 2017, delegations from Botswana, Namibia and South Africa attended the 3rd meeting of the Orange-Senqu River Commission (ORASECOM) Ground Water Hydrology Committee (GWHC) and Technical Task Team (TTT), where they tabled a proposal to establish the STAS MCCM within the ORASECOM structure. The proposal was put before the 34th Ordinary meeting of the ORASECOM Council, held 17-18 August 2017 in Windhoek, Namibia. The Council resolved that the STAS MCCM “be nested/housed” within the ORASECOM GWHC. While it is unclear whether the Council formally resolved to “establish” or “create” the mechanism, its intent to do so is clearly implied by its decision to “nest/house” such mechanism in the ORASECOM structure. Moreover, the Council resolution was subsequently endorsed by the Ordinary meeting of the ORASECOM Forum of the Parties (Ministers responsible for water), held on 16 November 2017 in Kasane, Botswana. Relevant milestones and a schedule of implementation were also approved, with implementation being reportedly in progress.

The STAS MCCM aims at integrating the GGRETA project support structure in the GWHC. The GGRETA project hydrogeology/model, legal and institutional, and gender National Focal Points (NFP) in the three countries will assist and report to the GWHC Officials on data collection, which will serve as a basis for the development of scenarios and project activities. In the short term, GWHC Officials will be in charge of updating the STAS joint borehole database during GWHC meetings, and reporting to the Technical Task Team (TTT) on the work program according to the planning and annual budget. The TTT will then report to the Council.  Ad hoc Working Groups (AWG) composed of experts nominated by the Council or GWHC will be formed as and when necessary for the evaluation of studies, and to support the design of projects and activities. Other concerned stakeholders (e.g. the SADC Groundwater Management Institute) would be invited to GWHC meetings on a regular basis.

The long term vision is for the STAS MCCM to move from data collection and exchange to joint strategizing and advising STAS countries on the management of the aquifer and its resources.

The decision to “nest/house” a STAS joint governance mechanism in an existing river basin organization can be regarded as a breakthrough in many respects. First, it is the first arrangement for the governance of a transboundary aquifer since the adoption of the Sustainable Development Goals (SDGs) in 2016. Prior to the STAS cooperative mechanism, only a handful of formal agreements worldwide had been developed for TBAs (see summary at the end of the essay). Second, it is the first governance mechanism to be nested formally in a river basin organization, which attests to the Integrated Water Resources Management (IWRM) approach with potential for, in particular, the conjunctive management of groundwater and surface water. Third, the fact that activities related to the STAS are now built in ORASECOM’s 10-year IWRM Plan (2015-2024) can be regarded as an indicator of the sustainability of the institutiional arrangement made. As a result, ORASECOM will be responsible for the implementation and reporting on activities related to the STAS. Lastly, the process that led to the decision to institutionalize cooperation on the STAS was remarkably expeditious. The process was expedited by a combination of factors, chief among them a clear perception by the countries concerned of the advantages of cooperation in the face of the challenges looming ahead. The institutional architecture of ORASECOM, structured into a Forum of the Parties, a Council, a Secretariat, four standing Task Teams, and committees operating under the latter (among these, the GWHC operating under the standing Technical Task Team), also helped as the proposal that was initiated by the GWHC could quickly and seamlessly work its way up the institutional ladder to the highest decision-making body of the Commission, for a decision in less than a year.

Information generated by the GGRETA project and STAS databases are currently available at http://wis.orasecom.org/stas/

NOTE: Legally binding agreements are on record for the following TBAs: North-Western Sahara Aquifer System (Algeria, Libya, Tunisia); Nubian Sandstone Aquifer System (Chad, Egypt, Libya, Sudan); the Genevese Aquifer (France, Switzerland); and Al Sag/Al Disi Aquifer (Jordan, Saudi Arabia). An agreement on the Guaraní Aquifer (Argentina, Brazil, Paraguay, Uruguay) is pending delivery of the final ratification to the agreement’s secretariat, while an agreement on the Iullemeden Aquifer System (Algeria, Benin, Burkina Faso, Mali, Mauritania, Niger, Nigeria) is pending signature by some of the Parties.

Posted in Africa, Transboundary Aquifers | Comments Off on Botswana, Namibia and South Africa Develop Joint Governance Mechanism for the Stampriet Aquifer System in the Orange-Senqu River Commission

The Ocotepeque – Citalá Statement of Intent: a first step towards transboundary aquifer cooperation in Central America?

Friday, November 1st, 2019

The following essay is by Dr. Francesco Sindico, Co-Director of the Strathclyde Centre for Environmental Law and Governance (SCELG). Dr. Sindico collaborated in 2015 and 2016 with the GGRETA project Trifinio Aquifer case study contributing to workshops on the emerging international law of transboundary aquifers in San Salvador, El Salvador. He would like to thank Marina Rubio and Stefano Burchi for comments on this short piece. This blog is also available as a SCELG Policy Brief here. Dr. Sindico can be reached at francesco.sindico [at] strath.ac.uk.

On 22 February 2019 the Ocotepeque – Citalá Statement of Intent (Ocotepeque – Citalá SoI) – was signed (the official title in Spanish is “Carta de Intención entre municipalidades, juntas de agua, instituciones nacionales y regionales para la gobernanza integrada del acuífero Ocotepeque – Citalá compartido por El Salvador y Honduras en la región del Trifinio”). If only for the scarcity of agreements on transboundary aquifers (TBA), the Ocotepeque – Citalá SoI is to be celebrated, although it should not be considered as a formal legal instrument and should not be added to the very short list of TBA agreements in existence globally. Nevertheless, the document is interesting in a number of ways, and not just because it adds to the very scarce state practice in the field of TBA management. This short piece provides a brief overview of the main provisions of the Ocotepeque – Citalá SoI and focuses on a specific aspect: its inclusiveness when it comes to parties participating in the governance of the TBA.

The Ocotepeque – Citalá Statement of Intent and the GGRETA Project

The Ocotepeque – Citalá SoI is one of the results of the Governance of Groundwater Resources in Transboundary Aquifers (GGRETA) project funded by the Swiss Development and Cooperation Agency and implemented by UNESCO-International Hydrological Programme in collaboration with the International Union for the Conservation of Nature. The project was key in providing clarity as to the nature and extent of aquifers in the Trifinio region, which includes parts of Guatemala, El Salvador and Honduras. The project was also essential in bringing together a wide array of stakeholders interested in surface water and groundwater management in the region. Finally, the project also provided local stakeholders with capacity building on the emerging international legal frameworks applicable to transboundary aquifers.

While the GGRETA project is to be celebrated and served as a catalyst for this arrangement, the Ocotepeque – Citalá SoI is the result of the will of people living over the transboundary aquifer and has been shaped by local, national and regional actors.

An overview of the Ocotepeque – Citalá Statement of Intent

The Ocotepeque – Citalá SoI has a preamble, 6 main statements, and a final section that concludes the text. The preamble references sovereignty, a sticking point in the debate over the international law of TBAs, and to water as a vital human need and its importance for indigenous people. The preamble also focuses on climate change and on the need to have a reliable database as a precursor for any solid cooperation. It then makes clear references to the emerging international law of transboundary aquifers and UNGA Resolution 63/124 and to the Sustainable Development Goals, with a specific mention of SDG 6.5.

Moving to the substance of the text, the key intent of the signatories is to establish in future, and when appropriate, a TBA Binational Management Committee, and to nest it in the existing tri-national institutional framework for the implementation of the Plan Trifinio (Guatemala, in addition to El Salvador and Honduras, is also a member of this framework). The Committee would be constituted by:

  • 1 person per municipality in the Ocotepeque – Citalá Aquifer area;
  • 2  persons per country representing the local Water Supply & Sewage Authorities operating in the Ocotepeque – Citalá Aquifer area;
  • 1 representative of the network of municipal commonwealths of the Trifinio region;
  • 1 representative of the Plan Trifinio Executive Secretariat;
  • 1 representative each of the ministries responsible for water resources in El Salvador and in Honduras.

The TBA Binational Management Committee also will ensure adequate gender representation and participation of indigenous people. The activities and tasks of the TBA Binational Management Committee are to consist of:

  • Collection and collation of data necessary for the sound management of the TBA;
  • Exchange of information amongst all TBA stakeholders; and
  • Identification of funding in order to deliver its activities.

The signatories further commit themselves to share information available to them, including socio-economic data that is collected locally on both sides of the border. Signatories also commit to harmonize this data in order to facilitate their processing. All these commitments are qualified, as they will be undertaken based on the signatories’ capacities, competences, and respective authority.

Finally, it is foreseen that the cooperation triggered by the Ocotepeque – Citalá Aquifer Binational Management Committee will lead in the future to an agreed binational strategy for the conservation, protection and sustainable utilisation of Ocotepeque – Citalá Aquifer resources, including an implementation plan. In a bid to achieve the integrated management of the water resources in the region, the strategy will take into account the relationship between the Ocotepeque – Citalá Aquifer and the Ocotepeque – Citalá Valley surface water system.

An open and inclusive list of actors in the governance of the Ocotepeque – Citalá Aquifer

One striking aspect of the Ocotepeque – Citalá SoI is its inclusiveness. The document is not an inter-governmental agreement negotiated and signed by the Ministries of Foreign Affairs. However, it is also not “just” a document signed by two sub-national entities, like the Salto-Concordia agreement related to the Guarani Aquifer System. The list of signatories to the Ocotepeque – Citalá SoI includes the following actors:

  • Municipalities;
  • Local water supply and sewerage authorities;
  • Network of municipal commonwealths of the Trifinio region;
  • Plan Trifinio Trinational Commission; and
  • The ministries responsible for water resources in the two countries sharing the  Ocotepeque – Citalá Aquifer.

The Ocotepeque – Citalá SoI is, hence, truly a document stemming from local, national and regional stakeholders. It includes actors who rely on the aquifer for their daily lives and actors who sit further away in the capitals of El Salvador and Honduras. This combination gives both immediacy and legitimacy to the document. The actors also include the top-level executives of the institutional framework in place for the implementation of the Plan Trifinio. This has operated over the past decades as a strong regional organisation capable of leveraging good practices in the field of natural resources management in the area of the Trifinio mountain range that straddles the borders of El Salvador, Guatemala and Honduras.

Interestingly, in its final section, the Ocotepeque – Citalá SoI opens itself to any public and “private” stakeholder based in the area of the Ocotepeque – Citalá Aquifer that wishes to join the initiative. In order to be added to the list of stakeholders that have subscribed to the common intent recorded in the Statement, the representative of the organisation (public or private) simply needs to sign the document.

The possibility of adding more signatories to the document appears to be a positive step forward in increasing the document’s legitimacy. However, it also begs the question of whether this could open the floodgates and reduce the effectiveness of the Ocotepeque – Citalá SoI. The possibility to have private actors sitting aside public actors is a novelty in the field of TBA management. Again, in principle, the participation of private actors should be commended as a positive step since it includes all stakeholders in the future management of the Ocotepeque – Citalá. However, safeguards should be developed to ensure that private actors involved in any future institution and governance framework developed through the SoI contribute meaningfully and not only as a means to lobby their own commercial interest. A further aspect concerns whether foreign private actors will be allowed to sign the document. As it currently stands, the only requirement is that they “belong” to the area of the Ocotepeque – Citalá.

Final remarks on the legal nature of the Ocotepeque – Citalá Statement of Intent

It is worth reminding that the Ocotepeque – Citalá SoI is not a treaty or a Memorandum of Understanding. The document signed in February 2019 in Esquipulas is a mere statement of admittedly good intentions, and should be considered only as such. It does not impose any legal obligation upon any of the signatories, and definitely not on the two countries that share the Ocotepeque – Citalá Aquifer. Nevertheless, the SoI does signal a first step toward a future bi-national cooperation mechanism, and possibly a legal instrument that would underpin it.

UNESCO press release on the Ocotepeque – Citalá Statement of Intent (in Spanish) – https://es.unesco.org/news/avance-historico-gestion-conjunta-recursos-hidricos-compartidos-salvador-y-honduras

Posted in Central America, Latin America, Transboundary Aquifers | Comments Off on The Ocotepeque – Citalá Statement of Intent: a first step towards transboundary aquifer cooperation in Central America?

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 »

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.

 

Posted in International Water Law, New Resources & Information, Transboundary Aquifers | 3 Comments »

Transboundary Offshore Aquifers: A Search for a Governance Regime

Monday, June 27th, 2016

The following essay by Renee Martin-Nagle is a summary of her recently published article entitled: Transboundary Offshore Aquifers: A Search for a Governance Regime, which appears in Vol. 1.2, 2016, pp. 1-79, of Brill Research Perspectives in International Water Law. Ms. Martin-Nagle is a PhD Researcher at the University of Strathclyde and a Visiting Scholar at the Environmental Law Institute. She can reached at renee.martinnagle [at] gmail.com.

In December 2013 an article appeared in Nature magazine describing aquifers lying under continental shelves around the world and containing fresh to slightly brackish water.  Entitled ‘Offshore Fresh Groundwater Reserves as a Global Phenomenon’, the article summarized scientific studies since the 1970s and suggested that the volume of water held in these offshore reserves could amount to twice the volume of groundwater withdrawn from aquifers globally since 1900.  Within days, the global press seized on the article and gleefully announced that the global water crisis had been solved.  Intrigued by the possibilities, I determined to understand the scientific support for such claims as well as the potential they held for supplementing existing freshwater supplies.  Moreover, I began to wonder what governance regime might apply in the likely event that one or more of these offshore aquifers straddled an international border  Since the topic of sharing transboundary offshore aquifers has not been addressed previously, there was no template to follow.  However, logic suggested that a governance regime for the these unique aquifers should be influenced by at least three current regimes: legal principles embodied in the UN Convention on the Law of the Sea (‘UNCLOS’), legal principles applicable to transboundary offshore hydrocarbon development, and legal principles that have evolved for transboundary land-based freshwater resources.

Global_Sumarine_Aquifers1My article begins with an explanation of the origins of offshore aquifers.  Not surprisingly, they were formed in the distant past, when meteoric and geological conditions were different than they are today.  During the last glacial maximum between 26,500 and 19,000 years ago, sea levels were much lower than they are today.  At that time the current continental shelves were actually part of the continental coastlines and were, therefore, exposed to rain and other meteoric conditions.  Over thousands of years, freshwater became entrapped between confining layers that were generated by the same natural processes that produced other land-based confined aquifers.  As glaciers melted and sea levels rose, the confining layers protected the now-offshore freshwater aquifers from saltwater intrusion.

With this background, the article proceeds to analyze three legal regimes in search of guidance on how these resources might be governed in transboundary circumstances.  It begins by looking at the UN Convention on the Continental Shelf (the precursor to UNCLOS) and its equidistant method for apportioning shared natural maritime resources among nations with adjacent and opposite coasts.  It then considers the assessment of the International Court of Justice in the North Sea Cases, which rejected the equidistant approach, urged nations to seek equitable solutions based on locally-specific facts and circumstances, and referenced the unity of a deposit. UNCLOS followed the ICJ guidance in advising nations to seek equitable solutions.

Global_Sumarine_Aquifers2Following the North Sea Cases, the oil and gas industry quickly filled the void by developing its own legal mechanism, which is the second regime assessed in my article.  Under that regime, and in harmony with the ICJ’s suggestion to preserve the unity of deposits, the industry utilized a system called unitization where parties sharing a resource appoint a single operator to exploit that reserve, with their respective shares being pre-determined in the applicable agreement.  The concept of unitization later evolved into joint development agreements where nations agreed on an operator for both exploration and exploitation of the resource.

The third regime considered in my study is the body of law that has developed for land-based groundwater resources.  While there are only four ratified treaties and several sets of guidance that address transboundary aquifers, certain concepts for land-based water have evolved to the point of representing accepted principles of customary international law.  Principles such as reasonable and equitable use, no significant harm, cooperation, and sharing of information have been enshrined in treaties for surface water and have also influenced principles for sharing hydrocarbon resources.

After examining these three bodies of law, I propose suggestions for a governance regime for transboundary offshore aquifers that incorporates the best aspects of each of them while still bearing in mind practical aspects of resource development.  Whether this regime will be needed in the near future remains to be seen. Nonetheless, by offering this analysis, I hope to begin the conversation and lay the groundwork for the time when offshore aquifers may be used to support existing freshwater supplies.

The entire article is available here.

 

Posted in Brill Research Perspectives – International Water Law, International Water Law, Transboundary Aquifers | 1 Comment »

The Newest Transboundary Aquifer Agreement: Jordan and Saudi Arabia Cooperate Over the Al-Sag /Al-Disi Aquifer

Monday, August 31st, 2015

By Gabriel Eckstein

By any standard, Jordan and Saudi Arabia are two of the most water-scarce countries on the globe (see here and here). Hence, it is no surprise that the neighbors have long looked to the Al-Sag /Al-Disi Aquifer on their shared border as a partial source for relief. Until recently, though, competing water needs and a lack of knowledge about the aquifer complicated efforts at compromise. That complexity appears to have been surmounted. On 30 April 2015, the Hashemite Kingdom of Jordan and the Kingdom of Saudi Arabia entered into an agreement for the Management and Utilization of the Ground Waters in the Al-Sag /Al-Disi Layer (Arabic original / unofficial English translation).

Saq-Ram Aquifer Map

Saq-Ram Aquifer

 

The Aquifer

The Aquifer, known as Al Sag in Saudi Arabia and Al-Disi in Jordan, is a fossil transboundary aquifer containing water that accumulated 10,000-30,000 years ago. It is part of the western section of the Saq-Ram Aquifer System, a Paleozoic carbonate aquifer that spans nearly 308,000 km2 and is estimated to hold as much as 10 km3 of water in Jordan and 65 km3 in Saudi Arabia (see here).

Use of the Aquifer’s Water

Both countries began exploiting the Al-Sag /Al-Disi Aquifer in the late 1970s and 1980s soon after its discovery. In the 1980s, Saudi Arabia dramatically increased its extractions to support its wheat production. As a result, groundwater, which typically flowed toward Jordan, reversed to flow toward the Saudi well field. While Saudi Arabia greatly reduced its extractions in the 1990s, Saudi withdrawals in 2008 were estimated at over 1,000 MCM (see here).

In Jordan, the Al-Sag /Al-Disi Aquifer was initially only used as a local water supply. In the late 1980s, Jordan began developing agricultural activities along its southern border and now withdraws some 60 MCM. To overcome water scarcity in other regions of the country, in the 1990s Jordan conceived the Disi Water Conveyance Project (DWCP) to extract an additional 100-150 MCM of water that would flow through a 325 km pipeline from Disi to Amman. While the project failed to obtain World Bank support, Jordan pursued the DWCP on a build-operate-transfer basis with a Turkish contractor and water began flowing to Amman in 2013 (see here and here). The project became especially controversial in 2009 when an independent study revealed that water in the aquifer contained naturally-occurring radiation (20 times international levels regarded safe for drinking) and posed a potential health hazard (see here). Subsequent Jordanian tests claimed the water met all safety standards when diluted with clean water (see here).

Disi Water Pipeline (from Ferraginaa & Greco (2008). The Disi project: an internal/external analysis, Water International, Vol. 33(4)

Disi Water Pipeline (from Ferraginaa & Greco (2008). The Disi project: an internal/external analysis, Water International, Vol. 33(4)).

The Agreement

The Agreement over the Al-Sag /Al-Disi Aquifer is concise with four main articles. Article One contains terms and definitions; Article Two describes the main norms for managing the aquifer; Article Three discusses the creation and responsibilities of a Joint Saudi/Jordanian Technical Committee; and Article Four contains administrative provisions related to the implementation of the Agreement.

Notwithstanding its minimalist approach, the Agreement is noteworthy in a number of important ways. As a general matter, its very nature as an agreement over a transboundary aquifer is unique since today there is only one transboundary aquifer globally with a comprehensive management regime and two with more rudimentary consultative and data sharing arrangements (see here). This is in sharp contrast to the over 3,600 treaties relating to the use of transboundary surface waters that have been catalogued since 800 CE (see here).

More specifically, the Agreement imposes no numerical limitations on extractions. Rather, Article 2(1) creates a “Protected Area” of approximately 400 km2 within each country along the border where “all activities … which depend on the extraction of groundwater therefrom” must be discontinued within five years. In addition, Article 2(2) requires the Parties to maintain the Protected Area free from all activities that require groundwater. In effect, it creates a forbidden zone between the well fields of the two nations. When looking at the map accompanying the Agreement and the straight lines demarcating the Protected Area, it is unclear whether this zone is the result of unique hydrogeological conditions, or simply based on a desire to maintain a geographical buffer zone between the two parties.

In addition, the Agreement creates a broader “Management Area” that encompasses the Protected Area and spans approximately 1,000 km2 in each country.  Although water extractions are permitted from within the Management Area, but outside of the Protected Area, they are limited solely for municipal purposes. While the aquifer extends beyond the Management Area on both sides of the border, these regions are not subject to the Agreement. Whether this is intentional is unclear, however, some studies indicate that some sections of the aquifer are less productive while others are at depths where extraction is not economical (see here).

Read together, these provisions effectively protect ongoing water projects supplying villages and cities in both nations, including the DWCP. They also ensure both nations’ extractions for agricultural and other purposes in areas outside of each country’s Management Area. This is especially important for Saudi Arabia, since a large portion of the aquifer lies in that country. The absence of more detailed pumping restrictions, however, could be worrisome in the long run as projections indicate that current pumping rates will deplete the aquifer in Jordan by mid-century and in Saudi Arabia shortly thereafter (see here).

Also noteworthy is the near absolute prohibition in the Agreement on groundwater pollution. Article 2(4) prohibits horizontal or slant wells explicitly to avoid aquifer pollution, while Article 2(5) creates an affirmative obligation to both protect groundwater against “any pollution” as well as prevent the injection of “any pollutant” into the aquifer. The only caveat is the fact that these obligations are limited to the Management Area; there are no pollution-related or other provisions pertaining to areas outside of the Management Area.

A further unique development found in the Agreement is the creation of a Joint Technical Committee (JTC). It is unique because relatively few agreements over transboundary surface water, and only one for a shared aquifer, have created such mechanisms. In the case of the Al-Sag/Al-Disi Aquifer, while the JTC is entrusted with “the supervision of the implementation of the terms of this Agreement,” it does not have any decision-making authority. Rather, under Article 3(4), it is primarily responsible for monitoring both the quantity and quality of extractions, collecting and exchanging information, analyzing collected data, and submitting their findings to the competent authorities in both nations. Accordingly, it may be argued that derivative to the creation of the JTC is the Agreement’s recognition of the international water law principles of exchange of information and ongoing monitoring, as well as the more progressive notion that such endeavors should be pursued jointly (see Art. 2(3)).

While the Agreement is notable for what it includes, it is also significant for what is conspicuously absent from the text. Under contemporary international water law, including trends identified in the emerging international law of transboundary aquifers (see here), two cornerstone principles require: equitable and reasonable utilization, and no significant harm. Neither norm appears explicitly in the Agreement. Possibly, the prohibitions on extraction and types of uses within, as well as the de facto permissible uses outside of, the Management Area could be interpreted as a form of equitable and reasonable utilization. Similarly, the prohibitions on the pollution of the aquifer could be deemed a variation on the rule of no significant harm, at least for purposes of ensuring water quality. Such analyses could be investigated further through access to the negotiators and any documentation that underpinned the Agreement.

One additional well-accepted norm of international water law that is missing from the Agreement: prior notice of planned measures that may have a transboundary effect. However, since all activities requiring groundwater are prohibited in the Protected Area, and limited to municipal purposes in the remaining section of the Management Area, such notice obligations may be superfluous. Of course, it is unclear whether activities in other sections of the aquifer that traverse the Jordanian-Saudi border could have transboundary consequences.

Conclusion

Of the more than 600 transboundary aquifers and ground water systems that have been identified globally (see here), only a miniscule number have any cooperative arrangement among these critical subsurface water resources. Accordingly, the Agreement over the Al-Sag /Al-Disi Aquifer is a significant milestone. It suggests that states may be beginning to recognize the importance of their transboundary aquifers and the need to cooperate with their neighbors. Hopefully others will soon follow suit.

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