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(2)The third is a consequence of the latter, because it recognizes that existing surface water rules are not applicable to aquifers

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COMMENTS ON THE THIRD REPORT ON SHARED NATURAL RESOURCES:TRANSBOUNDARY

GROUNDWATERS BY AMBASSADOR CHUSEI YAMADA,SPECIAL RAPPORTEUR

Following the successful and productive workshop on Transboundary Aquifers, Hydrogeology and International Law, organized by UNESCO HIP on March 7-9, 2005, where fertile ideas were discussed by the participants, we were asked to submit our comments to the Third Report on Transboundary Groundwaters prepared by the ILC Special Rapporteur, Ambassador Chusei Yamada.

The Special Rapporteur made during the sessions very accurate remarks on some articles that were very helpful for the participants and help to better understand its significance. We all appreciate his kind and judicious interventions.

Even if the commentary will address briefly each article some general considerations are respectfully advanced.

The first relates to the nature of the task of the ILC, that it is not one of codification but totally of progressive development as a result of lacking State practice. This circumstance is clearly stated in the Report and it implies a quasi-legislative function to be carried out by the Special Rapporteur and the ILC. It is a significant burden but at the same time it offers the possibility to explore new paths in the utilization and preservation of this partially known resource.

The second associates the lack of existing State practice with the particular features of aquifers to suggest the advisability of a fresh start. There is a demand of innovative approaches to deal with aquifers, including more inputs on implementation, institutionalization and monitoring to put in motion principles and rules.

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The third is a consequence of the latter, because it recognizes that existing surface water rules are not applicable to aquifers. However it is clear that some basic principles as no harm, information and preservation apply to natural resources on the whole.

The fourth is a query: Is it convenient to deal with confined and rechargeable aquifers at the same time and with similar rules? Confined aquifers should not be considered non renewable deposits?

The fifth is another query: Rechargeable aquifers and surface water do not deserve joint management, planning and regulation as single water bodies?

The current draft has changed considerably from its previous formulation in the Second Report, and in some sections deviates and in others grows in similarity with the 1997 Watercourses Convention.

Article 1.

The former wording of this article mirrored the 1997 UN Convention and its present reformulation seems to be wider taking into account that ‘utilization’ is the unspecific category including every activity while ‘use’ relates to a particular usage, meaning that it could be ‘uses’ outside the scope of the Convention. Then, ‘utilization’ is comprehensive, including every ‘use’ related to a transboundary aquifer, better for a set of rules addressing aquifers holistically.

Article 2.

a. The current definition of ‘aquifer’ is accurate and comprehensive, embracing geological container and water contained. ‘Groundwater’ was deleted from the draft Convention and supplanted by ‘aquifers’. This terminology requires further consideration because geological formations allow boundaries between States while groundwater moves disregarding boundaries. Then becomes relevant the assessment of water productivity and the draft Convention has no rules regarding the allocation

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b. No ‘more than two’ but ‘two or more’. Otherwise only a series of three or more aquifers would be an ‘aquifer system’ and two aquifers would be neither an

‘aquifer’ nor an ‘aquifer system’.

c. This paragraph states clearly that ‘Aquifer State’ is a geographical and not a legal condition.

d. Accordingly, it is unnecessary to say ‘Party to the present Convention’ because the Convention only applies to State Parties and it does not appear any especial circumstance that requires those words in this paragraph: ‘Aquifer State’ means a State in whose territory any part of a transboundary aquifer or aquifer system is situated even if it is not a Party to the Convention. Duties for ‘Emergency situations’ as established in Article 19 will not apply to a non-Party State.

Article 3

1. The very welcome ‘encouragement’ to enter into bilateral or regional arrangements. To stress the importance of this suggestion the paragraph should finished after ‘use’ in the sixth line. The a paragraph would read: If the arrangement adversely affects………. The possibilities of adverse effects could be the following paragraph, with an amended wording.

Which is the rationale of entitling only adversely affected aquifer States with the possibility to became party to an aquifer arrangement? Why not in any case?

2. Duty to harmonize the special or regional conventions with the basic principles of this Convention. It is a convenient flexibility to allow the amendment of the application of the Convention in special situations.

3. Principle of subsidiarity, applicable to the present Convention, indispensable for the uninterrupted application of existing special agreements but only if they are compatible. This could originate potentially controversial situations when trying to decide about the compatibility of different clauses.

Article 4

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1. Principle of complementarity, incorporated in order to avoid conflicts with other conventions if they are compatible. It states the dual applicability of the present Convention and the 1997 Watercourses Convention for connected aquifers. This article reveals the growing visibility of groundwater, the cross regulation by different international instruments, the demand for new comprehensive legal principles addressing water bodies and their interrelationship.

2. A new formulation of Article 3.3, principle of subsidiarity in another circumstances.

Article 5

1. Core section of the draft Convention. Articles 5 mirrors in its title the 1997 Watercourses Convention, as well as it happens in other articles, but it stands on its own in the text. Not to forget that the latter has not been a successful Convention, Articles 5-7 being controversial. The question arises whether it is convenient to replicate in a more strict mode the same scheme.

As the Special Rapporteur makes clear, this article includes only the rights of aquifer States. There are no limitations regarding preservation, protection, no harm or any other in this article. The no harm rule is included in Article 7, but there are no duties of protection or preservation in another section.

According to the commentary, the expression ‘accrue equitably’ or

‘equitable utilization’ refers to ‘the equitable allocation of benefits to be derived from aquifers’, but this is not that clear from the text. A more detailed formulation of the principle should be perhaps useful.

If allocation is suggested in ‘equitable’, is proportionality suggested in allocation? Could be read this paragraph substituting ‘equitably’ for

‘allocated according to the volume of the aquifer in the States concerned’.

The rule regarding the volume of the deposit is applicable to the exploitation of shared gas and oil. It could be considered for the allocation of

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2.a) In this paragraph the sustainability of recharging aquifers is envisaged without reference to any parameter. Relevant factors are incorporated in Article 6 for equitable and reasonable utilization, and according to the commentary ‘reasonable’ includes ‘sustainable’. The interpretation is not that evident in the text and sustainability is not a crystal clear concept. It could mean time-factor (sustainable in time), quantity (recharge, depletion), or quality (pollution, physical conditions, etc.). Moreover the ‘renewable’

character of aquifers is limited and it does not match with the demands of marine living resources.

2. b) The explicit mention of ‘the water contain therein’ in non-recharging aquifers stresses the idea of the volume of the aquifer as an utilization parameter, though the concept is not included in the draft Convention. The indication to maximize the long-term benefits is also accurate for rechargeable aquifers. The recommendation to adopt joint development plans is irreproachable.

2. The duty to enter into consultations for the application of these rules is an obligation added to those included in Articles 7 and 8. It could be a first paragraph in Article 8 if there is a purpose to draw a clear distinction between rights and duties.

Article 6

With no significant amendments duplicates Article 6 of the 1997 Convention. The relevant factors are mostly social and economic conditions of aquifer States. It seems that these flexible elements deviate the principles for the utilization of aquifers from those applicable to oil and gas deposits. Volume and natural conditions are but one element to be considered. Is this perspective accurate for aquifers? Are the same factors relevant for surface water and aquifers?

Article 7

This Article duplicates the no harm principle incorporated in the 1997 Convention, adding possible harm derived from other activities in paragraph 2. Significant harm

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for other aquifer States is little compare with the protective approach of the Special Rapporteur’s First Report and with the substitution of ‘harm’ by ‘impact’ in Article 1 and the rationale thereof. Moreover, the no harm principle is part of the right to use natural resources, which is not unlimited but regulated by legal principles. The use should be equitable and reasonable, those are limitations, and should avoid environmental and other States harm, which are also limitations. As such were adopted by Article 21, Avoidance of Transboundary Harm, by the Berlin Rules on Water Resources of the International Law Association in August, 2004.

Article 8

General obligation to cooperate: duplicates Article 8 of the 1997 Convention

Article 9

Regular exchange of data and information; duplicates Article 9 of the 1997 Convention; new paragraph 2 referring to research not only data.

Article 10

Monitoring. This is a programmatic section that will need special agreements for its implementation. It would be advisable to constitute permanent bodies for this task, or at least permanent consultation mechanisms in order to exchange the results of monitoring activities. The technical and institutional aspects become indispensable implementing tools and monitoring is but one aspect of cooperation among aquifer States.

Article 11

Different kinds of utilization. It seems that the 1997 Convention wording of ‘uses’

is preferable. Utilization is a single category gathering different uses, while use is a particular employment of the resource. It seems that we are talking of different kinds of uses instead of different kinds of utilization. The article duplicates Article 10 of the 1997 Convention.

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Article 12

Protection and preservation of ecosystems. Duplicates Article 20 of the 1997 Convention, with the addition of ecosystems within and outside the aquifer. This is not a section devoted to the protection of the aquifer.

Article 13

1 and 2. Protection of recharge and discharge zones. This article is an innovation not included in the 1997 Convention and stresses the duty to protect not only the aquifer in itself but its recharging and discharging zones.

3. This provision is aimed to create a duty to non aquifer States regarding recharge and discharge zones. The comment arises that those States are aquifer States according to the definition adopted in this Convention because those zones are connected to the aquifer. Whether they are not aquifers States should be construed as not conventionally linked. But in a broader and not legal sense they should be considered aquifer States.

Article 14

Prevention, reduction and control of pollution. This article follows the sequence but not the entire Article 21 of the 1997 Convention, which includes the definition of pollution of a watercourse. The section establishes the duty to reduce and control pollution that could cause significant harm to other aquifer States. It is not a duty to minimize pollution of the aquifer itself provided that pollution remains in the pollutant State. Though not environmentally sound, the present Convention only regulates transboundary effects of domestic activities and not domestic affairs as such.

It is accurate the incorporation of the precautionary approach in view of the incomplete information existing on aquifers, domestic and transnational.

Article 15

Management. This article follows the sequence of the 1997 Convention, Article 24, but avoids the definition of management that the latter includes. The text and the commentary of the Special Rapporteur are not completely congruous when referring

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to the protection and preservation provided for in Articles 12 to 14, because these articles dealt with the protection of ecosystems and of recharge and discharge zones, not aquifers itself, and the duty not to cause significant harm to other aquifer States.

The obligation to protect the aquifer it is not included as such in the project.

This article is extremely important and indicates the path for the implementation of the rules incorporated in the Convention. The indication of joint management plans and mechanisms are interesting hints to encourage the establishment of permanent agencies.

Article 16

Assessment of potential effects of activities. Linked to the precautionary principle recommended by Article 14, the environmental impact assessment encouraged in this section is mandatory in potentially harmful activities. It seems that it should not be whenever possible.

This Article as well as Article 17 constitute Part IV, ‘Activities affecting other States’. However, the draft Convention as a whole addresses activities affecting other States, not only Part IV, i.e. Article 14. It would be perhaps accurate to write

‘Planned’ activities affecting other States to underline the special scope of this chapter. This is similar to Part III. Planned measures, in the 1997 Convention.

Article 17

Planned activities. The very important object of this Article is the duty to notify planned activities, paragraph 1, and to enter into consultations and negotiations in case of disagreement, paragraph 2. Accordingly it could be entitled ‘Notification of planned activities’ which would be similar to Article 12 of the 1997 Convention.

1. Duty to notify potentially affected States, a decisive procedural and substantive principle of transboundary integrated management of water resources. The explicit or implicit consent of the notified State and its consequences are not developed at this stage of the Draft., included in Articles 13, 14, 15 and 16 of the 1997 Convention.

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2. Consultations and negotiations in case of disagreement. In a condensed formulation this paragraph incorporates the framework of Article 17 of the 1997 Convention. It could also be a separate article with its own important object. The effects of the notification and consultation process are not developed yet.

Article 18

Scientific and technical assistance to developing States

This is a relevant section of the Draft and it goes beyond the 1997 Convention in a positive perspective.

Article 19

Emergency situations

A condensed drafting of Article 28 of 1997 Convention.

1. This paragraph envisages harmful effects to other States establishing the duty to notify them as well as competent international organizations ‘without delay’. This is a duty that could be framed in the general principle of cooperation among aquifer States.

2. This paragraph imposed States the duty to ‘take all practicable measures’ in emergency situations to minimize its harmful effects.

3. In emergency situations States are authorized to derogate from any section of the present Convention ‘to the extent necessary to alleviate the emergency situation’.

This paragraph is unnecessary. It incorporates a total waiver to be evaluated by the State alleging the emergency situation already dealt with by the 1969 Vienna Convention on the Law of Treaties which considers lawful non-compliance of treaties under circumstances of necessity, force majeure, fundamental changes and others.

Article 20

Protection in time of armed conflict

This article is rooted in the Geneva rules on armed conflict, mostly mandatory as customary rules.

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Article 21

Data and information vital to national defence or security

This article replicates Article 31 of the 1997 Convention and it is unavoidable.

i.e. pointing out the adoption of the concept of ‘impact’ in Article 1 which broadens the more strict approach of ‘harm, or explaining that the natural condition of the aquifer mentioned in Article 6.a) embraces also the portion of the aquifer in the territory of the State, among other things.

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