The UN International Law Commission (ILC) had prepared between 2003 and 2008 a full set of draft articles on the law of transboundary aquifers, aiming to fill the gap which was left in international law to provide principles for the proper management of this important source of freshwater. In the drafting process the ILC took inspiration from the UN Convention on the law of non-navigational watercourses (1997), but also based its work on the inputs on hydrogeology and aquifers provided by an experts group set up by UNESCO-IHP at the request of the Special Rapporteur. The draft articles thus include the core principles of international water law but also principles addressing specifically the needs of transboundary aquifers. Both categories of principles were specifically adapted and tailored for the characteristics of transboundary aquifers, based on the scientific inputs of the experts group.
The paper aims to address the benefit sharing approach in the draft articles on the law of transboundary aquifers. Under the equitable and reasonable utilisation principle (article 4), four elements, addressing the hydrogeological management requirements, have been identified as important for the realization of benefit sharing through cooperation:
1. The idea of maximising, and long term
2. The elaboration of a comprehensive utilisation plan
3. The consideration of the present and future needs
4. The alternative water resources
A last element addresses specifically the case of recharging aquifers.
While these elements are derived from article 4, they are also transversal and are confirmed and detailed in other provisions.
The paper will go through the notion of benefit sharing for transboundary aquifers and provide a detailed analysis of its identified elements, with close linkages to other provisions from the draft articles. It will also go through specifc examples of cooperation illustrating these aspects.