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

Date01 April 2015
Published date01 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.
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
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),
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.
Review of European Community & International Environmental Law
RECIEL 24 (1) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12098
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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