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Factors Preventing Finalization of the Draft Articles in the 2008 UNGA Resolution on the Law of Transboundary Aquifers

IWRA World Water Congress 2017 - Cancun Mexico
4. Water policy and governance
Author(s): Malcolm J. Gander
Malcolm J. Gander
Remedial Project Manager, Department of Defense
malcolmgander@comcast.net


Keyword(s): 2008 UNGA Resolution, Law, Transboundary Aquifers
Article: Oral:

Abstract

The United Nations General Assembly (UNGA) established Resolution 63/124 on the "Law of Transboundary Aquifers" on December 11, 2008, which took noted the 19 Draft Articles (Draft Articles or DAs) on the Law of Transboundary Aquifers.

Since 2008, there has been relatively little movement toward finalization of the DAs as part of the development of an international legal instrument for transboundary aquifers. This article examines the scientific, legal, political, and socio-economic factors preventing finalization of the DAs. In addition to drawing from sources that identify reasons why there are so few agreements between nations that share transboundary aquifers (TBAs), the article draws from sources that identify challenges to surface water transboundary agreements, as many of these challenges are applicable to challenges associated with TBAs.

The finalization of the DAs, and the development of international law as it applies to groundwater resources, must be grounded in hydrogeologic principles. A shortlist of the most basic hydrogeologic principles is presented, which leaders of nations/politicians, and policymakers, must understand in order to sustainably manage TBAs. Experts in this field have identified in great detail the important hydrogeologic principles; however, a shortlist is needed for non-technical participants.

In an effort to effectively bridge science and policy, the following hydrogeologic principles should be applied in the implementation of the essential international water law tenets of cooperation between states; equitable and reasonable utilization of the resource; infliction of no significant harm; ongoing information sharing; prior notification of activities that will affect the resource; and the completion of environmental impact assessments prior to initiating an aquifer-related project:
1) Aquifers are finite resources, meaning they can be depleted if mismanaged.
2) Aquifer depletion can occur through overpumping, and the effects of overpumping may not be evident until one or more years after overpumping is initiated.
3) Recharge zones collect the water stored in aquifers, and must be protected.
4) The pollution of aquifers is either impossible to clean up, or cleanup will take years and great cost, unlike surface water bodies, which can often be reasonably cleaned up in a matter of months.
5) Early definition of aquifer characteristics is needed (spatial extent and contained water volume), but this is usually not done due to high cost.
   Therefore, ongoing well water level readings and pumping rates should be recorded and shared amongst neighboring states so the resource is not depleted. 
6) Most of the world's accessible groundwater is moving. Therefore, the resource is similar to surface water and an individual state cannot reasonably declare an absolute sovereign right to the entire resource by accessing that resource through wells located within their boundaries.
7) Aquifers are of two types: Those that are replenished by surface water, and those that have no connection to surface water (called fossil aquifers).
 
This summary is intended to assist decision makers and policy makers, and raise awareness of those involved in the management of TBAs.

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