Shared Natural Resources- Transboundary Groundwater Report by Fadia Daibes1
General Comments
The 1997 UN Watercourses Convention is the most authoritative statement developed so far in the field of non-navigational uses of international watercourse, including connected transboundary groundwaters. The 1997 UN Watercourses Convention, however, fails to address the specific needs of optimal and sustainable utilization and development of transboundary groundwaters. Additionally, the Convention does not adequately and comprehensively respond to management and regulation needs of transboundary groundwater. To compensate for this gap, it is suggested here to derive the detailed procedures, mechanisms and required institutions contained in the Bellagio Draft Treaty. It is therefore proposed that an agreement that draws lessons from the 1997 UN Watercourses Convention and the Bellagio Draft Treaty might provide an ideal alternative for the regulation of utilization of transboundary groundwater. If States intend to apply the above proposition, they have to resolve two important questions at the outset of their negotiations. The first relates to the scope and whether or not confined transboundary groundwaters are included, and second to decide on the geographic/hydrographic scope and how broad or narrow they are willing to be in their approach.
1 Water Law and Policy Specialist (PhD), Research Associate International Water Law Research Institute, Dundee University e-mail: fadia@sabreen.org OR fadia_daibes@yahoo.com. These comments are based on the researcher’s PhD thesis titled “A Progressive Multidisciplinary Approach for Resolving the Israeli-Palestinian Conflict over Transboundary Groundwater:
What lessons from International Law”, accepted April 2004.
5.2.2 Treaty Formulation
The Parties are recommended to recognize and accept their common responsibility in ensuring the reasonable and equitable development and management of groundwaters in the border region for the well being of their peoples. In the treaty formulation process, attention must be paid to the fact that international water resources development is an undertaking that involves policy decisions and complex technical assignments. As a precondition, the basis for treaty formulation is the Parties’
common objective concerning the need to attain optimum utilization and conservation of transboundary groundwaters and to protect the underground environment. This type of understanding requires the Parties to agree on the following framework:
1) The Scope and Use of Terms and Concepts 2) The Hydrologic Management Unit
3) The Substantive Rules 4) The Procedural Mechanisms
5) The Institutional Mechanisms and Dispute Settlement Scope and Use of Terms
In the context of “scope and use of terms”, and as reflected in the codification and progressive development of governmental and non-governmental organizations, there is a clear consensus to consider connected transboundary groundwater as an integral component of the overall hydrological cycle. However, this consideration varies substantially within the various legal instruments reviewed. On the one hand non- governmental organizations and groups have confirmed that the “drainage basin” is the most appropriate hydrogeological unit for the utilization, development and protection of transboundary groundwater. The ILC uses the term “international watercourse system”, which was a compromise that satisfied the States’ reluctance to
accept the “drainage basin” approach. Non-renewable groundwaters in confined aquifers were only covered in the scope of the Seoul Rules and the Bellagio Draft Treaty. The two instruments provide that the same rules and principles that apply to connected transboundary aquifers apply to those that are confined. Such resources, however, were completely excluded in the final text of the 1997 UN Watercourses Convention. If there is a consensus that the 1997 Watercourses Convention is somehow weak in addressing and dealing with all the specific issues related to transboundary groundwater in general (renewable and non-renewable) it has to be clearly stated that the scope covers transboundary groundwaters whether or not they have a physical interconnection with surface water. The terms renewable and non- renewable groundwater maybe are preferable as these terms are not novel ones and they have been used extensively in the legal literature. By doing this the ambiguity of using “confined”, “unrelated” or “confined” is avoided. Or it is advised to use the term “confined” but give it a legal definition to what is meant by “confined”.
Substantive Rules
As for the substantive rules, the above review confirms that there is a collective consensus that equitable and reasonable utilization is a fundamental principle governing the utilization, development, management and protection of transboundary groundwater. There is an inherent relationship between this principle and the “no harm” rule and there are enough grounds to conclude that the “no harm” rule is subordinate to the equitable and reasonable utilization principle. The operationalization of the latter principle requires that hydrologic, economic, social, and political factors are taken on the account with the final decision to be made based on the whole.
Proposed Article
1. The Parties shall in their respective territories utilize the transboundary groundwaters in an equitable and reasonable manner. In particular, these groundwaters shall be used and developed by both Parties with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the Parties, consistent with adequate protection of the transboundary groundwater aquifers.
2. The Parties shall participate in the use, development and protection of the transboundary groundwater aquifers and of their waters in an equitable and reasonable manner. Such participation includes both the right to utilize the transboundary groundwaters and the duty to cooperate in the protection and development thereof, as provided in the present Agreement.
3. The utilization of transboundary groundwater in an equitable and reasonable manner within the meaning of article V requires the Joint Committee to consider all relevant factors such as:
a. Geographic, hydrographic, hydrological/hydrogeological, climatic, ecological and other factors of a natural character;
b. The reasonable vital human needs of the Parties
c. The reasonable social and economic needs of the Party;
d. The population dependent on the transboundary groundwater in each State;
e. The effects of the use or uses of the transboundary groundwater aquifer in the territory of one Party on other Party;
f. Existing uses of transboundary groundwater;
g. The reasonable planned groundwater development requirements;
h. Conservation, protection, development and economy of use of the water resources of the transboundary groundwater the avoidance of unnecessary
waste in the utilization of waters, with due regard for the technological and financial capabilities of each Party;
i. The availability of alternatives, of comparable value, to a particular planned or existing use including the option of artificial recharge potential; and
j. The practicability of compensations either in cash or in kind one or the other Party as a means of adjusting competing water demands.
4. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.
5. A water use existing at the time an equitable sharing determination is made shall take precedence over a future use, provided the existing use is beneficial to both Parties and reasonable under the circumstances.
6. A water use shall be deemed an existing use within the meaning and for the purposes of Article V by reference to, and within the limits of, the amount of water which has been put to a beneficial use from the date of inception of construction or comparable acts of implementation to the date of entry into force of this Agreement.
Procedural Rules
The procedural rules in the case of transboundary groundwater are the most distinct as compared to those relating to international surface water. The Bellagio Draft Treaty which presents the most advanced framework in relation to transboundary groundwater regulation, offers the best suited mechanisms and procedures for the protection, utilization development and management of such resources.
- Joint Monitoring and Assessment
- Creation and Maintenance of a Joint Database
- Transboundary Conservation Areas
-Framework and procedures for the development of Management Plans - Public health emergencies.
-Planned Depletion -Planning for drought
Institutional Mechanism
Mandate of the Joint Institution/Commission Enforcement and supervision mechanisms
Dispute Settlement Mechanisms
The provisions on dispute avoidance/settlement found within the Helsinki Rules and the Bellagio Draft Treaty, are innovative and therefore inspiring. The procedures can be modified and adapted to suit the specific groundwater course situation and be as well procedures for cooperation and collaboration. In summary, the Helsinki Rules and the Draft Treaty agree that the first step in dispute settlement is negotiation and consultation. As a second step and having failed to reach an agreement the intervention of a third party becomes essential. The proposal embodied within the 1997 UN Watercourses Convention and the Bellagio Draft Treaty to appoint a “Fact Finding Commission” or a “Commission of Inquiry”, respectively is important for the verification of facts especially when one party has more control of relevant data and information. The two instruments agree that last resort in all cases would be mediation, conciliation and arbitration.
