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The States' Response To The International Encouragement To Celebrate Transboundary Aquifers Agreements

Congress: 2015
Author(s): Laura Movilla

University of Vigo1

Keyword(s): Sub-theme 15: Water law,

Various international bodies have encouraged states to conclude agreements on the transboundary aquifers they share. The aim of this study is to analyze the States' response so far

Analysis of the relevant international and regional legal instruments on transboundary aquifers and specific States' agreements on shared aquifers

Results and Discussion
Despite its qualitative and quantitative importance, the international legal regime of transboundary aquifers is still underdeveloped. For instance, the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses only includes groundwater in its scope when it is connected to surface water and normally flows into a common terminus, although these conditions leaves out a large number of transboundary aquifers. Aware of this situation, the International Law Commission (ILC) adopted in 1994 a Resolution on confined transboundary groundwater encouraging States, among other things, to conclude agreements with the other States in which the confined transboundary groundwater is located.
In 2008, the ILC Draft articles on the Law of Transboundary Aquifers stated that "aquifer States are encouraged to enter into bilateral or regional agreements or arrangements among themselves" (art. 9). The draft articles were submitted to the United Nations General Assembly (UNGA), that approved a resolution that included this project in its annex and encouraged the States concerned 'to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of these draft articles' . This appeal was repeated by the UNGA in its new resolutions on this topic in 2011 and 2013 . Similar demands can be found in the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, that applies to transboundary groundwater (art. 9), and in the 2012 UNECE Model Provisions on Transboundary Groundwaters (provision 6).
There is, therefore, a clear call upon States to celebrate agreements on the transboundary aquifers that they share. But, if we analyze the States' response to this appeal, we found that it has not been very enthusiastic.
Although the celebration of an agreement does not imply automatically an effective cooperation, its existence may be, at least, an indicator that some steps have been taken to jointly manage and/or protect an aquifer. Because of that, it seems a bit worrying that out of the 608 transboundary aquifers and groundwater bodies that have been catalogued up to now, only five have legal instruments regarding their regulation . Two of them have a limited scope and content, solely making reference to the establishment of rudimentary procedures for consultation and exchange of information, such us the agreements on the North-Western Sahara Aquifer System and on the Nubian Sandstone Aquifer System. Though, only three agreements clearly deal with transboundary aquifers: the 1977 Convention on the Franco-Swiss Genevois Aquifer, renewed in 2007, and, more recently, the 2009 Memorandum of understanding on the Iullemeden Aquifer System and the 2010 Guarani Aquifer Agreement. Furthermore, only one of them is in force at the moment: the Convention on the Genevois Aquifer. The other two are yet to be ratified. Besides, all these agreements belong to different geographical regions with different hydrologic features and the study of their dispositions shows a great heterogeneity.
If we examine this phenomenon in the context of the current legal and political framework of the management of shared water resources, we can point out, among others, the following causes of the reluctance of the States to regulate its shared aquifers. First, the lack of knowledge that still exists about the characteristics of this resource. Second, the increasing securitization of the political discourse about water. Thirdly, the uncertainty about the future of the ILC Draft Articles on the Law of Transboundary Aquifers. And finally, the strong connection of this resource with the State sovereignty.

There are still very few agreements that regulate a specific transboundary aquifer, and those in existence are too heterogeneous as to establish overall conclusions about State practice on the management of transboundary aquifers, with the exception of the general consent regarding the need for the exchange of data and information. Furthermore, the process of conclusion of agreement appears to have stalled since the signing of the Treaty on the Guaraní Aquifer in 2010 and shows the still precarious international legal regime of transboundary aquifers. 1. Burchi, S. and Mechlem, K. (2005) Groundwater in international law. Compilation of treaties and other legal instruments, FAO legislative Study 86, Rome.
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