Yardan Muhammad Capstone Legal Issues

International Issues in Managing Transboundary Aquifers

The human body can go approximately 3 to 5 days without water, considerably fewer days when conditions are less than ideal (Water Policy International Ltd). Here in the United States, most people have the privilege of running water, water fountains in parks and public establishments like restaurants, water for sale in retail stores and rainwater from the skies, as a last resort. However, there are many regions around the world where water is scarce and considered precious. These arid regions may suffer from droughts and water contamination that make providing for such a basic need extremely difficult. Such areas have a growing need for protection in order to ensure that water is available and free of contamination. The worlds primary source of fresh water is groundwater, which can be found in rivers, streams, and even underground in aquifers. Many aquifers around the world face many threats such as unauthorized drilling, water contamination, and ownership disputes that compromise the integrity and availability of the water. Current regulation in the area of transboundary aquifers is insufficient to handle the myriad of issues that can arise. This research paper will describe several aquifer systems around the world, the current regulatory landscape, or lack thereof, and future plans or goals for managing groundwater systems.

Global Groundwater systems There are over 200 recognized aquifers and groundwater systems around the globe. The largest and major transboundary aquifers are identified as the Guarani Aquifer System, Ohangwena II, Nubian Sandstone aquifer, North-Western Sahara Aquifer System, the Genevese Aquifer, the Murzuk-Djado Basin, the Taoudeni-Tazcouft Basin, and the Senegato Mauritanian Basin. Following is a brief description of some of the major transboundary aquifers: Ohangwena II: Recently, the Ohangwena II aquifer system was discovered in Namibia Africa, one of the driest regions in the world. The Ohangwena II is so large, it is said to contain enough to provide the region with fresh water for almost 400 years. The water is thousands of years old, pure and untapped. The system lies under Namibia and Angola and is safer to drink than many modern sources. (United Press Inc.) Guarani Aquifer System: The Guarani Aquifer System lies under and supplies the countries of Argentina, Brazil, Paraguay and Uruguay. This is a major source of water for the region, although the population depends mostly on surface water, the political and climactic conditions make it an extremely valuable resource if the surface water becomes scarce. The aquifer is said to be able to provide around 1,600 years worth of water with current consumption rates. Over 15 million people rely on the Aquifer for water (International Atomic Enegery Agency).

Nubian Sandstone Aquifer System: The Nubian Sandstone Aquifer System (NSAS) which supplies Egypt, Libya, Sudan and Chad, is one of the worlds largest systems and is also a major source of water for the Great Man Made River project. The Great Man Mad River project is one of the worlds largest civil engineering endeavors and attempts to irrigate the dry Saharan regions, particularly Libya (Net Resources International).

Major Issues Because of the geological nature of these various groundwater systems, current regulation is fairly difficult. Transboundary aquifers lie under the land without regard to national or political boundaries. Most transboundary aquifers lie under 2 different nations, however, many lie under 3 or more different nations. Some basins are even shared between 9 and 11 different countries (United Nations). This makes cooperation between neighboring countries, who share the same resources, extremely critical. Any attempt to develop a framework for management must account for this fact. The possibility that a shared aquifer lying under several nations with competing interests will make regulation and management a difficult endeavor, which is why the United Nations is focusing on increasing cooperation and understanding of the issue.

Unauthorized drilling is also a major threat. Sometimes, aquifers lie under the water table, with a large salt water basin just above it. By drilling improperly, the fresh water can fall victim to salinization, where salt water infiltrates the fresh water supply, compromising its integrity and purity. In nations where fresh water is practically scarce, salinization can spoil an already rare commodity. Depletion can threaten the water supply if consumption is not regulated. Most groundwater systems are recharged from natural phenomena like seepage, melting icecaps, rainwater, etc. If usage and extraction exceeds the recharge rate (the rate at which the water supply is replenished), the available quantity of water is depleted and the cost of extraction can become prohibitively expensive. Foreign corporations involved in bottling water see these resources as capital and threaten exploitation at the expense of the interests of native populations.

Major players International regulation of groundwater systems is still in a stage of infancy. Though it has been increasing over the years, information regarding the nature of groundwater systems is relatively scarce. More research is being conducted as leaders recognize the need for a viable framework for groundwater management to ensure that its people can continue to have access to fresh water. Several national and international organizations have recognized the growing issue of groundwater management and are in the process of compiling research and developing measures to manage access and usage.

The United Nations is at the forefront in developing programs and fostering cooperation amongst various countries. The United Nations International Law Commission (UN-ILC), with the assistance of the United Nations Educational Scientific and Cultural Organization (UNESCO), developed and adopted the Law of Transboundary Aquifers, which is a set resolutions agreed upon by the various nations, and represents one of the largest steps towards global management of groundwater systems (UNESCO). In June 2000, the Intergovernmental Council of the International Hydrological Programme (IHP) of UNESCO formed ISARM (Internationally Shared Aquifers Resource Management) to address the problem of managing the worlds groundwater systems by fostering cooperation between international organizations through research. The ISARM has identified many of the worlds transboundary aquifers and compiled useful data in systems such as the Global Groundwater Information System (GGIS). The information is available to the public and serves as a valuable resource for researchers and policymakers. National governments have instituted various programs to address water usage, but most efforts have focused on surface-level sources of water like rivers, lakes, above ground basins, etc. The invisible nature of deep and underground water supplies like aquifers pose the difficult problem identifying boundaries, capacity, recharge ability, etc. This is an area of growing concern and the subject of this paper.

Current Regulation

Historically, water resources and disputes have been resolved through treaties. Since 805 A.D., approximately 3600 treaties have been drafted to address various water-related disputes. Early agreements focused on issues of navigation and boundary demarcation, rather than the need for preservation and monitoring of groundwater utilization (United Nations). The United Nations General Assembly recently adopted the Law of Transboundary Aquifers based on a report commissioned by the International Law Commission (ILC). The resolution contains 19 articles serving as a cooperative agreement amongst the nations involved. The resolution called on the General Assemblys responsibility for initiating studies and making recommendations for the purpose of encouraging the progressive development of international law and its codification, as established in Article 13, paragraph 1(a), of the Charter of the United Nations (U.N. General Assembly, 63rd Session). The resolution acknowledged that nations have permanent sovereignty over their natural resources as provided by General Assembly resolution 1803 (XVII) of December 14, 1962, which is why they emphasize cooperation between international organizations and amongst nations, in moving forward with developing a viable management framework. The Law of Transboundary Aquifers is organized into four parts: 1. Introduction: describes the scope of the agreement and a definitions section 2. General Principles: acknowledges the sovereignty of aquifer states over their portion of water systems, while laying the foundation for several principles: a. Equitable and reasonable usage of the aquifer systems by aquifer states should keep in mind long-term benefits; Aquifer states should, individually

and jointly, develop a comprehensive utilization plan for present and future consumption to prevent premature depletion b. Equitable utilization and management requires consideration of several factors such as: i. Population dependence upon the supply ii. Social, economic and other needs of the aquifer State iii. Natural characteristics of the aquifer system iv. Contributions to the formation and recharge of the aquifer v. Current and potential consumption/extraction rates vi. Actual and potential effects of aquifer usage by aquifer states on neighboring aquifer states vii. Availability of alternatives viii. Cost of development, protection, and conservation of the aquifer systems ix. The role of the aquifer in the related ecosystem. c. Obligation not to cause significant harm: requires nations to refrain from activities that will jeopardize the integrity of the systems; if harm is done, the state should take measures to mitigate damages. d. Obligation to cooperate: requires aquifer states to establish mechanisms of cooperation e. Regular exchange of data and information regarding the condition and nature of transboundary aquifers among the relevant States; if little to no

information is available, States should take measures, jointly and individually to ascertain critical information and conduct research to foster responsible usage. f. Bilateral and regional agreements and arrangements for managing transboundary aquifer systems without negatively impacting neighboring aquifer states and their utilization or access without their express consent 3. Protection, preservation and management: provides for the protection of ecosystems, recharge and discharge zones, and encourages non-aquifer States to collaborate with aquifer states when their territory overlaps recharge/discharge zones and transboundary aquifer systems. Pollution of groundwater systems should be eliminated or reduced. Aquifer states are asked to monitor their groundwater systems individually and in cooperation with other affected states to determine condition and keep up with usage and extraction rates. The last two articles ask aquifer States to establish management plans for the effective management of utilization, and to determine potential effects of any activities that may harm or affect transboundary aquifer systems. 4. Miscellaneous provisions: the final section of the resolution calls for States to cooperate and assist developing nations/States to increase their knowledge base, and if necessary equip them with necessary supplies and facilities in order to develop further research, monitoring, education and other purposes. There are also provisions for handling emergency situations that threaten local and neighboring systems and extends protection afforded by international laws during

armed conflict, and providing essential data without compromising national security or defense. The resolutions established by the United Nations General Assembly (UNGA), while they represent a giant step in the right direction, are still dependent upon the respective aquifer states to develop effective measures for the management of their own and shared resources. As acknowledged by the General Assembly, nations retain absolute sovereignty over their national resources and it is only with careful cooperation that the aforementioned agreements can be practicable. National and international organizations have to establish measures for conducting their own research and creating arrangements for managing shared groundwater systems. Further undermining the effectiveness of the resolutions is the fact that they are as of yet, non-binding and without effective means of enforcement. States are strongly encouraged, but not required, to comply. Other vulnerabilities include the lack of any clear consensus on usage, consumption and access guidelines (UNGA Adopts New Resolution on Transboundary Aquifers). Very few transboundary aquifer States have established any sort of regulatory framework for their shared groundwater systems. Most nations rely on traditional riparian doctrines to govern usage and capture. The riparian water rights essentially provides that all the adjoining property owners have equal access to the water source and are entitled to reasonable usage as long as they dont significantly interfere with the right of access and use by others. These principles attempt to be fair, but on an international scale, require a more robust system of monitoring and enforcement to really be effective.

The Guarani Aquifer System (GAS) countries formed a multilateral agreement in August 2010 which serves as a basis for future groundwater management in the region. The agreement calls for the exchange of information and research between the member States to increase the scope of data available, and emphasized the importance of protecting the aquifers (Cassuto and Sampaio). A conference was also held on September 21-23, 2011, containing three sessions, with the purpose of discussing the measures previously taken in regulating aquifer usage and measures in anticipation of future issues (Dutch Portal to International Hydrology). The sessions covered: 1. An assessment of the scientific knowledge of GAS properties and characteristics to facilitate development of viable means of management. 2. Current use and protection of the GAS on the local, state, and regional level. 3. The GAS and regional cooperation. While, the GAS multilateral agreement represents another significant step in transboundary aquifer management, it isnt without its flaws. The agreement lacks sufficient enforcement provisions and suffers from vague language. It also fails to establish concrete duties or the specific authority of the overseeing Commission (Cassuto and Sampaio). The Nubian Sandstone Aquifer System (NSAS) countries also formed a multilateral agreement that suffers from some of the same symptoms of the above agreements. The agreement provides for increase sharing of data and increased cooperation, but fails to establish sufficient guidelines for managing aquifer utilization (Maxwell). Proponents of a more robust regulatory scheme suggest that policymakers look to prior initiates like the 1997

Convention on the Law of the Non-navigational Uses of International Watercourses and the 2008 Resolution on the Law of Transboundary Aquifers, as quidelines. The 1997 Convention, however was applicable only to aquifers hydrologically connected to surface waters, meaning they are recharged/replenished by surface waters (Maxwell). The NSAS is a non-recharging aquifer and falls outside the scope of the Convention but the same general principles apply (Mccaffrey). Conclusion With the assistance of the United Nations General Assembly and its various arms dedicated to water research and management, the issue of water security is gaining much needed worldwide attention. The multitude of initiatives, conferences and organizations working together, show that world leaders recognize the importance of establishing a framework for regulating and managing transboundary aquifers and groundwater systems. However, the current measures in place lack the requisite comprehensiveness needed to ensure that groundwater sources around the globe are protected and preserved for use by present and future generations. Success in aquifer management is dependent upon increased research and identification of the nature of aquifers and consumption requirements, and continued cooperation and collaboration between nations who share those groundwater resources. There are still very few transboundary aquifers who have implemented any sort of multilateral agreements and the ones that have, fail to address the most critical issues of enforcement, effective monitoring and guidelines for responsible extraction/consumption. These are the issues that presently require the most attention.

Works Cited
Cassuto, David N. and Romulo S.R. Sampaio. "Keeping it legal: transboundary management challenges facing Brazil and the Guarani." Water International 36.5 (2011): 661-670. Dutch Portal to International Hydrology. The management of the Guarani aquifer system. 21 September 2011. 23 March 2013 <http://www.hydrology.nl/ihpevents/275-the-management-of-the-guaraniaquifer-system.html>. International Atomic Enegery Agency. "Guarding the Guarani: Improving Management of South America's Precious Groundwater." Science Serving People. 2012. Maxwell, Nicholas. "The Nubian Sandstone Aquifer System: Thoughts on a multilateral treaty in light of the 2008 UN resolution on the Law of Transboundary Aquifers." Texas International Law Journal 46.Spring (2011): 380. Mccaffrey, Stephen C. "An overview of the U.N. Convention on the Law of the Non-navigational Uses of International Watercourses." Journal of Land, Resources and Environmental Law 20 (2000): 59. Net Resources International. "GMR (Great Man-made River) Water Supply Project, Libya." watertechnology.net. 2012. U.N. General Assembly, 63rd Session. "The Law of Transboundary Aquifers." (A/RES/63/124) 15 January 2009 UNESCO. UN General Assembly adopts resolution on the Law of Transboundary Aquifers. 2011. 23 March 2013 <http://www.unesco.org/water/news/transboundary_aquifers.shtml>. "UNGA Adopts New Resolution on Transboundary Aquifers." International Water Law Project Blog. 17 December 2011. United Nations. Water for Life Decade: Transboundary waters. 2005. 23 March 2013 <http://www.un.org/waterforlifedecade/transboundary_waters.shtml>. United Press Inc. "Aquifer could supply water for centuries." UPI.com. Windhoek: UPI, 20 July 2012. Water Policy International Ltd. "How long can you live without water?" Thewaterpage.com. 2012.