Differentiating between Sovereignty over Exclusive and Shared Resources in the Light of Future Discussions on the Law of Transboundary Aquifers

• Date: 01 April 2015
• Author: Nadia Sánchez Castillo
• DOI: http://doi.org/10.1111/reel.12098
• Published date: 01 April 2015

Differentiating between Sovereignty over Exclusive

and Shared Resources in the Light of Future

Discussions on the Law of Transboundary Aquifers

Nadia Sánchez Castillo*

This article argues that sovereignty over exclusive

resources and sovereignty over shared resources are

different concepts constituting distinct legal regimes.

First, it presents the controversy caused by applying

the principle of permanent sovereignty over natural

resources to shared resources. It then explores the main

differences between sovereignty over exclusive and

shared resources. The article suggests that increased

awareness about these differences could facilitate

negotiations on shared resource management, particu-

larly in the light of discussions on the Draft Articles on

the Law of Transboundary Aquifers at the United

Nations General Assembly scheduled for 2016.

INTRODUCTION

The International Law Commission (ILC) adopted the

Draft Articles on the Law of Transboundary Aquifers1in

2008 as a result of its work on the topic of shared natural

resources.2This article follows the work of the ILC on

this topic. Therefore, the term ‘shared resources’ refers

here to natural resources contained in a single geological

formation (i.e., groundwater, oil and natural gas) situ-

ated in the territory of a limited number of States.3

‘Transboundary aquifers’ are defined in the Draft

Articles as ‘a permeable water-bearing geological forma-

tion underlain by a less permeable layer and the water

contained in the saturated zone of the formation’.4

The United Nations General Assembly (UNGA) took

note of the Draft Articles and encouraged States to take

them into account in managing their transboundary

aquifers.5Whether the Draft Articles will take the form

of a convention or non-binding guidelines is yet to be

decided. The issue of the final form that might be given

to the Draft Articles is included in the agenda of the

seventy-first Session of the UNGA in 2016.6Under

‘General Principles’, the Draft Articles enumerate the

core principles of international water law – namely

equitable and reasonable utilization, the obligation not

to cause significant harm, cooperation, and exchange of

data and information.7These principles are considered

part of customary international law.8In addition, and

for the first time in an instrument regulating shared

water resources, the Draft Articles include one more

principle: sovereignty. In fact, the Draft Articles apply

the principle of ‘permanent sovereignty over natural

resources’ (PSNR) to shared aquifers, referring to

UNGA Resolution 1803 (XVII) in the Preamble and

providing that: ‘Each aquifer State has sovereignty over

the portion of a transboundary aquifer or aquifer

system located within its territory. It shall exercise its

sovereignty in accordance with international law and

the present draft articles.’9This recognition of sover-

eignty over transboundary aquifers has proven to be

controversial.

Draft Article 3 limits the exercise of sovereignty by

international law and the Draft Articles, and in the

* Corresponding author.

Email: n.n.a.sanchez.castillo@umail.leidenuniv.nl

1The Law of Transboundary Aquifers (UNGA Resolution A/RES/63/

124, 11 December 2008), Annex (‘Draft Articles’).

2This topic was added to the programme of work of the ILC in 2002

and included groundwater, oil and natural gas. C. Yamada, Shared

Natural Resources: First Report on Outlines (UN Doc. A/CN.4/533,

30 April 2003), at paragraph 4.

3Ibid., at paragraph 17. See also R. Rosenstock, Shared Natural

Resources of States, Off‌icial Records of the General Assembly, Fifty-

f‌ifth Session, Supplement No. 10 (UN Doc. A/55/10, 2010), Annex,

Section 3. The ILC only f‌inished draft articles on transboundary

aquifers; its work on oil and natural gas was discontinued in 2008.

See S. Murase, Shared Natural Resources: Feasibility of Future Work

on Oil and Gas, International Law Commission Sixty-second session

(UN Doc. A/CN.4/621, 9 March 2010), at 3.

4Draft Articles, n. 1 above, Article 2(a).

5For a comprehensive description of the work of the ILC on

transboundary aquifers, see K. Mechlem, ‘Moving Ahead in Protect-

ing Freshwater Resources: The International Law Commission’s

Draft Articles on Transboundary Aquifers’, 22:4 Leiden Journal of

International Law (2009), 801.

6Report of the Sixth Committee, The Law of Transboundary Aquifers

(UN Doc. A/68/470, 19 November 2013), at paragraph 3. For a

discussion on the future form of the Draft Articles, including the

advantages and disadvantages of each possibility, see G. Eckstein

and F. Sindico, ‘The Law of Transboundary Aquifers: Many Ways of

Going Forward, but Only One Way of Standing Still’, 23:1 Review of

European, Comparative and International Environmental Law (2014),

32.

7Draft Articles, n. 1 above, Articles 4–8.

8P. Sands and J. Peel, Principles of International Environmental Law

(Cambridge University Press, 2012), at 305–319.

9Draft Articles, n. 1 above, Article 3.

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Review of European Community & International Environmental Law

RECIEL 24 (1) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12098

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