The Law of Transboundary Aquifers: Many Ways of Going Forward, but Only One Way of Standing Still

• Published date: 01 April 2014
• DOI: http://doi.org/10.1111/reel.12067
• Author: Francesco Sindico,Gabriel Eckstein
• Date: 01 April 2014

The Law of Transboundary Aquifers: Many Ways of

Going Forward, but Only One Way of Standing Still

Gabriel Eckstein and Francesco Sindico

The international community has been considering

international legal norms and policies for the manage-

ment of transboundary aquifers for more than ten

years. In 2008, the International Law Commission

provided a framework with the adoption of the Draft

Articles on the Law of Transboundary Aquifers, which

are now formally annexed to a United Nations General

Assembly (UNGA) Resolution. Since 2008, the topic of

the law of transboundary aquifers has thrice been

placed on the agenda of the UNGA Sixth Committee

with a specific mandate to discuss the future form of

the Draft Articles. This article explores the options

before the international community regarding the

future form of the Draft Articles and considers the

possible advantages and disadvantages of each

option. The article also discusses the extent to which

the actual form of the Draft Articles matters in itself, or

whether their impact ultimately will depend on other

factors.

INTRODUCTION

Groundwater resources play a critical role in providing

fresh water for people, industries, nations and the envi-

ronment worldwide. Globally, groundwater provides

approximately 45% of humanity’s freshwater needs for

everyday domestic uses, such as drinking, cooking and

hygiene, as well as 24% of water used in irrigated agri-

culture.1In many cases, groundwater is found in aqui-

fers that are transboundary.2While 276 international

watercourses traverse the world’s land areas,3an

ongoing study has identified, to date, 448 aquifers and

aquifer bodies traversing international political bound-

aries.4In places like the Middle East, North Africa and

the Mexico-United States border, transboundary aqui-

fers serve as the primary or sole source of available

freshwater for human and environmental sustenance.

Recognizing the particular importance of trans-

boundary aquifers, nations and international agencies

around the world have begun exploring mechanisms for

governing these hidden resources. This includes formal

efforts to manage and regulate transboundary aquifers,

such as the rigorous scheme implemented on the Gene-

vese Aquifer along the French-Swiss border,5to more

general cooperative regimes, such as the Guarani

Aquifer Agreement in South America,6to instruments

aimed mainly at an initial exchange of scientific data, as

developed for the Nubian Sandstone and North Western

Sahara aquifer systems in Northern Africa.7It also

includes informal efforts forged by subnational political

entities, like the unofficial arrangements crafted for the

Hueco Bolson aquifer underlying the cities of Juárez and

El Paso on the Mexico-United States border,8and for the

1J. Margat and J. van der Gun, Groundwater around the World: A

Geographic Synopsis (CRC Press, 2013), at 149.

2It is important to highlight that groundwater is just one component of

an aquifer; an aquifer is the geological formation that contains the

groundwater. According to the International Law Commission Draft

Articles on the Law of Transboundary Aquifers, an aquifer is ‘a per-

meable water bearing geological formation underlain by a less per-

meable layer and the water contained in the saturated zone of the

formation’. The Law of Transboundary Aquifers (UNGA Resolution

A/RES/63/124, 11 December 2008), Article 2a.

3P. Wouters and R. Moynihan, ‘Benef‌it Sharing in the UN Water-

courses Convention and under International Water Law’, in: F.

Rocha Loures and A. Rieu-Clarke (eds.), The UN Watercourses

Convention in Force: Strengthening International Law for

Transboundary Water Management (Routledge, 2013), 336.

4See International Groundwater Assessment Centre (IGRAC),

‘Transboundary Aquifers of the World: Update 2012, Special Edition

for the 6th World Water Forum, Marseille’, found at: <http://www.un-

igrac.org/dynamics/modules/SFIL0100/view.php?f‌il_Id=213>.

5Convention Relative a la Protection, a l’Utilisation, a la

Realimentation et au Suivi de la Nappe Souterraine Franco-Suisse du

Genevois (18 December 2007; in force 1 January 2008).

6Acuerdo Sobre el Acuífero Guarani (San Juan, Argentina, 2 August

2010; not yet in force), (‘Guarani Aquifer Agreement’). An

English version of the Agreement can be found at: <http://www

.internationalwaterlaw.org/documents/regionaldocs/Guarani_Aquifer

_Agreement-English.pdf>.

7The Nubian Sandstone Aquifer System underlies the territories of

Chad, Egypt, Libya and Sudan. See Programme for the Development

of a Regional Strategy for the Utilisation of the Nubian Sandstone

Aquifer System (NSAS): Terms of Reference for the Monitoring and

Exchange of Groundwater Information of the Nubian Sandstone

Aquifer System (Tripoli, 5 October 2000), found at: <http://www.fao

.org/docrep/008/y5739e/y5739e05.htm>. The North Western Sahara

Aquifer System underlies Algeria, Libya and Tunisia. See Establish-

ment of a Consultation Mechanism for the Northwestern Sahara

Aquifer System (SASS) (Rome, 19–20 December; endorsed 6

January 2003 (Algeria), 15 February 2003 (Tunisia), 23 February

2003 (Libya)), found at: <http://www.fao.org/docrep/008/y5739e/

y5739e05.htm#bm05.2.1>.

8Memorandum of Understanding between City of Juárez, Mexico

Utilities and the El Paso Water Utilities Public Services Board of the

City of El Paso, Texas (6 December 1999), found at: <http://

internationalwaterlaw.org/documents/regionaldocs/Local-GW-

Agreements/El_Paso-Juarez_MoU.pdf>.

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12067

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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