IWRA Webinar N° 61

Groundwater has not always received the level of attention it deserves considering its importance for water use and quality. Adding to this complexity is the transboundary nature of many aquifers. Human rights initiatives, including water sanitation and transboundary governance, are linked as they connect to the Human Right to Water.

This webinar discussed the implications the human right to water has on the law of transboundary aquifers. Imad Antoine Ibrahim, Assistant Professor of Environmental Law and Governance, University of Twente, moderated the discussion. This event had 409 registrants with attendees tuning in from many countries including France, Ghana, Greece, Morocco and more.

Amael Notini Moreira Bahia, Legislative Analyst at the Brazilian Legislative Institute within the Brazilian Federal Senate, started off the webinar by presenting the legal regimes related to the Human Right to Water and the laws related to international groundwater.

Amael described transboundary aquifers and the general legal frameworks that apply to them compared to International Watercourses. The Convention on the Non-Navigational Uses of International Watercourses focuses on international watercourses, but may only apply to some groundwater. He also mentioned the Draft Articles on the Law of Transboundary Aquifers (DALTA), bilateral and regional treaties and discussed the disagreement as to whether DALTA is in force.

Amael also shared the Human Right to Water was not explicitly included in International Covenant on Economic, Social and Cultural Rights (IESCR) (gen comment 15) or International Covenant on Civil and Political Rights (ICCPR) (Gen Comment 36). This was probably not included because water scarcity was not a primary issue when they were initially drafted. The Human Right to Water has explicitly been included in the Convention of the Rights of the Child, Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW) and Convention of the Right of Persons with Disabilities. Even when the Human Right to Water was explicitly included, it is only included as to protect the groups that are the focus of the specific conventions. For this reason, the Human Right to Water appears to be fractured amongst policies.

Amael then reviewed legal systems in the Americas, Europe and Africa and noted similarities in laws throughout. He tied the Human Right to Water to the progressive development that recognizes the right to a healthy environment. He suggested that transboundary human rights might be present in limiting actions by one state that impair the rights of another state.

Gabriel Eckstein, Professor of Law at Texas A&M University,  and former president of the IWRA, followed Amael’s presentation by providing comments. Eckstein highlighted the importance of this topic by noting that groundwater is becoming increasingly seen as a resource to ‘fix’ our depleting water resources caused by climate change and growing populations.

While 40-50% of the world’s population rely on groundwater for their daily needs, and 50% of the global population live in a shared water basin (likely within a shared transboundary groundwater resources), it is important that these transboundary aquifers are provided a legal framework by which water rights decisions are made. Eckstein notes, ‘Groundwater is often taken for granted and assumed it will be there forever, and it will not be. Despite the importance, groundwater is not included in many international documents, which reflects an assumption that it would not be a challenge and is taken for granted. Because of the importance, it needs a formal legal recognition.’ Eckstein further noted that while domestic legal frameworks include the human right to water, there is very little application of the Human Right to Water in the transboundary aquifers.

As population grows, reliance on groundwater will continue to increase. Although there is not a reliable count of internationally shared aquifers, it can be inferred from the number of shared surface water systems that many States are relying on shared groundwater. Currently, there are limited international agreements for these aquifers and those that do exist do not directly discuss protecting the human right to water. Other international agreements, including those focused on managing international watercourses or those focused on human rights can provide a framework that might be applicable to protect the right to water when groundwater is present.