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Science, Politics And Society: International Law And The Challenges Ahead In Transboundary Aquifer Management

Congress: 2015
Author(s): Francesco Sindico (Glasgow, UK), Stephanie Hawkins, Renee Martin-Nagle
Strathclyde Centre for Environmental Law and Governance1

Keyword(s): Sub-theme 12: Transboundary river basins and shared aquifers,
AbstractIntroduction The goal of this abstract is to describe and discuss a triple set of looming scientific, political and societal challenges in the management of transboundary aquifers (TBAs) and to critically assess the role that international law can play in meeting such challenges. Factors including climate change, unsustainable consumption and land use changes are placing enhanced pressure on global water resources. The value of groundwater is thus rising in significance, as it comprises ninety-seven percent of available freshwater globally. Even regions once rich in surface water are looking covetously at groundwater, as unimaginable droughts have regional and global impacts. Groundwater stored in geological formations (aquifers) often crosses boundaries, thus creating a TBA that lies under two or more States. Little was known of TBAs until a few decades ago, but work undertaken by UNESCO's ISARM programme and IGRAC has led to identification of more than 600 TBAs. Only four TBAs have a legal/political arrangement where governance is based on an international agreement: the Nubian Sandstone Aquifer System, the North Western Sahara Aquifer System, the Genovese Aquifer and the Guarani Aquifer System. A fifth TBA, the Iullemeden Aquifer System, can be arguably said to be governed, at least partly, by a multi-lateral agreement. Although practice in specific TBA management is relatively unknown, the international community has a set of non-binding rules enshrined in the Draft Articles on the Law of Transboundary Aquifers, as annexed in the 2009 UN General Assembly Resolution 63/124, to guide States in formal management of a TBA. The Draft Articles are, however, not alone in providing direction to States when discussing TBA governance rules and structures. A series of other conventional instruments, not always geared for groundwater but nevertheless still applicable, such as the United Nations Watercourses Convention or the United Nations Economic Commission for Europe Water Protocol (and its Model Provisions on Transboundary Groundwater), can provide guidance, as can customary international law principles. Despite only recent attention from the international community, global water security calls for greater attention to groundwater and TBA management. The lack of formal international agreements presents a unique opportunity, since future agreements can be negotiated and drafted with greater knowledge of current challenges in TBA management and provide policy space to minimize such risks. This presentation will address three key challenges, suggesting ways in which international law can facilitate solutions. Methods/Materials The research will be conducted through a desk-based analysis of current trends and information, through discussions with knowledgeable persons and through personal knowledge of the presenters. Results and Discussion The first challenge lies in the need to develop a greater hydrogeological understanding of TBAs, which is still uncertain despite great advances in the mapping and science of groundwater and TBAs over the past two decades. Many States still do not know whether they share a TBA or, more importantly, how the groundwater affects the wider transboundary ecosystem. International projects are currently underway to bridge this gap and promote greater knowledge of TBAs, but large gaps remain. Considering that an international agreement may be negotiated when the exact science underlying a TBA is not readily available, it is important for any agreement to be flexible enough to adjust to pertinent scientific developments. Furthermore, international agreements need to consider the specific kind of TBA that is being managed. Different rules, or different focus of the same rule, may apply if the agreement being negotiated refers to a karstic TBA or a fossil TBA. The second challenge involves placing and maintaining TBA management on the political agenda. An international agreement is usually negotiated by the Ministry of Foreign Affairs with input from other relevant national agencies and ministries, and multi-state negotiations will address a myriad of international concerns. Securing sustained attention on TBA management to discuss a bi-lateral or multi-lateral agreement is a challenge in itself. Further, as the recent history of the Guarani Aquifer Agreement has shown, "political" challenges may occur if an agreement is signed but not thereafter ratified. Prioritizing TBA management within national parliaments to maintain momentum and secure the entry into force of signed international agreements becomes yet another a challenge. While international law alone, may have limited value to overcome such challenges, capacity building over the benefits of international cooperation with support from international law can prove very effective. The third challenge discussed in this intervention relates to the role of Non State Actors in the management of TBAs. The impact that industries operating in water intensive sectors (agriculture, mining, energy) have on TBAs will be explored. International law has developed general principles that, if implemented properly, allow industry to operate while preventing significant transboundary harm from occurring. It is important that any international agreement being negotiated to manage TBAs be capable of accommodating these two considerations that are often, but not necessarily, in conflict. In addition, local communities relying on groundwater for domestic or small-scale agricultural activities have an important stake in the management of the TBA. International agreements need to be inclusive and negotiated with input from these stakeholders. They should be included not only in the formulation of the agreement, but also in its implementation and enforcement. Recently, international law has developed to allow civil society to be more actively engaged in the management of water resources, and TBA management should not be an exception. Conclusion The relevance of groundwater and of TBA management is rising and will continue to rise as global freshwater resources are increasingly threatened. The stakes cannot be higher. International law provides a powerful tool to States to promote peaceful cooperation over TBAs. This intervention will highlight scientific, political and societal challenges that can be provided by international law and carefully crafted ad-hoc international agreements. 1. Bogardi, J.J., Dudgeon, D., Lawford, R., Flinkerbusch, E., Meyn, A., Pahl-Wostl, C., Vielhauer, K., Vörösmarty, C. (2012), “Water security for a planet under pressure: interconnected challenges of a changing world call for sustainable solutions”, Current Opinion in Environmental Sustainability, Vol. 4 No. 1, pp. 35–43. 2. Van der Gan, J. (2012), Groundwater and Global Change: Trends, Opportunities and Challenges, (UNESCO, Paris). 3. IGRAC (2014), Transboundary Aquifers of the World - Update 2014 - Prepared by IGRAC Base maps, [online] available at http://www.un-igrac.org/dynamics/modules/SFIL0100/view.php?fil_Id=270 [accessed 30 October 2014] 4. McCaffrey, S. (1991), “Seventh Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc A/CN.4/436”, at 17, reprinted in 2 Y.B. Int’l L. Comm'n, Vol. 2 No. 1, pp. 45–69. 5. UNESCO (2009), Atlas of Transboundary Aquifers: Global maps, regional cooperation and local inventories (UNESCO-IHP ISARM Programme). 6. Eckstein, G. and Sindico F. (2014), "The Law of Transboundary Aquifers: Many Ways of Going Forward, but Only One Way of Standing Still" Review of European, Comparative and International Environmental Law, Vol. 23 No 1, pp. 32-42 7. Martin-Nagle, R. (2011). "Fossil Aquifers: A Common Heritage of Mankind." Geo. Wash. J. Energy & Envtl. L., Vol. 2 No 1, pp. 39-60
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