Multilateral treaties/conventions and international case law on water resources, including trans-boundary waters and watercourses: different types of compliance mechanisms

Different types of water resources are subject to the respective sets of regulations that deal with those resources that show similar characteristics. On a global scale, different normative instruments in the matter take on board international law regulating groundwater and international river/lake/basin governance arrangements.

Water scarcity and water security have become relevant in the face of the world’s freshwater crisis, in which access to water resources is not guaranteed, with a significant percentage of the world’s population living in river basins under current or future water stress and suffering severe water shortage. As a

result, a considerable portion of the world’s population will lack access to sufficient freshwater resources, which also hinders sustainable development and the fulfilment of Sustainable Development Goals.[1]

Different legal considerations arise for each ‘water body’, groundwater and surface water, as discussed in the previous section. Seen from a legal standpoint, water resources are regulated in distinctive sets of norms, which have confronted the issue of compliance with IWL in different ways. The diversity of international legal instruments and compliance models is nothing new to IWL. There is no single compliance mechanism, but there are several legal techniques used in the context of IWL underpinned by common legal principles and obligations: duty to cooperate, principle of equitable utilization, obligation not to cause transboundary harm and the precautionary principle, amongst others.

Traditionally, bilateral agreements between riparian States along rivers flowing between them and sharing water resources have been common in IWL. Multilateral and universal instruments present numerous advantages in terms of governance and compliance; however, the main caveat is how to reach consent and to ensure compliance with IWL provisions. The adoption of multilateral environmental agreements, such as the UNECE Water Convention, represents a further development in IWL. As a multilateral agreement, the UNWC is open to all States, reaching consensus over specific issues and agreeing on general provisions that can be used as a framework for the negotiation of bilateral and regional agreements. A panoply of dispute settlement mechanisms are listed in Article 33, ranging from negotiations to more sophisticated mechanisms, such as arbitration.

The primary purpose of IWL, as an international legal regime, is to establish a coherent framework of enforceable rights and obligations, which ensures predictability and fosters the achievement of common goals. To this aim, soft-law instruments have assisted States in compliance with IWL, such as Geneva Strategy on Compliance. Other instruments have sought to achieve consistency in compliance with IWL, promoting, at the same time, the goal of sustainable development. In terms of compliance, these instruments encompass a set of rights and obligations governing the use of freshwater resources, preserving their

availability from an intra- and inter-generational perspective while also prioritising sustainable development and having regard for the needs of vulnerable 42

groups.

International treaties concerning international aquifers are distinct in nature as they are bilateral or involve States concerned. Interestingly, agreements regarding aquifers that straddle the international boundary lines of states are a relatively recent phenomenon. Some of the regional approaches to management of water resources appear to be more holistic and have generated a number of new stances grounded in principles that apply to a wider spread of pollution sources.

Given the relevance of water resources and the EU’s position on the matter, the Water Framework Directive (WFD) comprises under its regulatory framework various water bodies including ‘groundwater bodies’ which means distinct volumes of groundwater within an aquifer or aquifers.[2] The innovation in compliance consists in the comprehensive approach adopted in EU legislation and national law to address water pollution, achieving specific targets and water quality standards. Member States aim to achieve good qualitative and quantitative status of all water bodies (including marine waters up to one nautical mile from shore).

In Europe, the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) and the Protocol on Water and Health have codified a number of rules and general principles applicable in the European region. Although the Water Convention was initially negotiated as a regional instrument, it was opened up for accession to all UN Member States in 2016. The Water Convention sets up a mechanism to strengthen international cooperation and national measures in the area of ecologically sound management and protection of transboundary surface waters and ground waters.

One compliance-related aspect that is interesting to observe across these examples is whether it might be plausible to extrapolate compliance mechanisms rules regarding watercourses adopted in one region to other regions.

4 International water law (IWL) and the law of transboundary aquifers

IWL offers many nuances in terms of compliance, as it encompasses different water bodies considered from a transboundary perspective and regulated under

regimes separately instituted which has led to various systems.[3] IWL principles also apply across these different sub-systems from transboundary water resources management to groundwater resources. Based on customary international law, these principles are incorporated into recent international conventions and treaties.

Despite progress achieved in other areas, the regulation of transboundary aquifers has been overlooked in IEL until recently. Different sets of international legal instruments governing transboundary aquifers are scattered in IEL, comprising provisions in international agreements and one codification attempt: the 2008 Draft Articles on the Law of Transboundary Aquifers (Draft Articles) adopted by the ILC. Equally important are the interactions between the regulation of transboundary aquifers and the UN Watercourses Convention (UNWC), which may also serve as guidance with respect to transboundary water resources. In Europe, the law of transboundary aquifers also includes the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Water Convention) and the UNECE Model Provisions on Transboundary Groundwater. In addition, there are few bilateral and multilateral agreements focussing on specific transboundary aquifers, as discussed below. In relation to implementation and compliance, several initiatives have emerged in the field of transboundary aquifers. To name just one, the Internationally Shared Aquifer Resources Management (ISARM).

Aquifers are a source for groundwater, being defined in legal instruments as ‘a permeable water-bearing geological formation underlain by a less permeable layer’ (Article 2.a of the Draft Articles on Transboundary Agreements). They are considered transboundary when they are situated in different States, it is estimated that there are approximately 600 transboundary aquifers and groundwater bodies around the world. Transboundary aquifers constitute approximately

97% of the available freshwater on the planet, hence playing a key role in global water security and fulfilling a significant function in terms of the sustainability of ecosystems and water supply.05

In an attempt to class international agreements regulating transboundary aquifers, some of them are of a bilateral nature, like the very first contemporary international treaty regulating on transboundary aquifers. This bilateral agreement dates back to 1977 and it was concluded between France and Switzerland.[4] Another more recent example, it is the agreement on the Al-Sag/Al Disi Aquifer, signed in 2015 by Jordan and Saudi Arabia. Some of these agreements function as predecessors to the draft articles, acting as the same time as the main source for the provisions contained therein. Other similar agreements are of a more informal nature, being based on memoranda of understanding or even minutes of meetings, such as the one regulating the Nubian Sandstone Aquifer System (1992 and updated in 2000) signed by Chad, Egypt, Libya and Sudan. Another agreement type of agreements are trilateral agreement or tri-lateral consultative arrangement for the North-Western Sahara Aquifer System, made by Algeria, Libya and Tunisia in the period 2002-2008 which consists, technically, of minutes of meetings and joint ministerial declarations. A good example is the agreement (formally, a Memorandum of Understanding) made in 2009 by Mali, Niger and Nigeria for the establishment of a tri-lateral consultative arrangement for the lullemeden Aquifer System (IAS). An interesting feature of international treaty practice in this field is that some agreements have been replaced before entering into force that may indicate effectivity issues. In other words, the agreement is not in force yet, however it is due for replacement by a later agreement (also technically, a Memorandum of Understanding). To illustrate, the agreement made in 2014 by Algeria, Benin, Burkina Faso, Mali, Mauritania, Niger and Nigeria for the lullemeden and Taoudeni/Tanezrouft Aquifer Systems (ITAS) and the establishment of a comparable multi-partite Consultative Mechanism for the ITAS.

Finally, subregional agreements also regulate transboundary aquifers such as the agreement on the Guarani Aquifer, concluded in 2010 by Argentina, Brazil, Paraguay and Uruguay.

Draft articles on the Law of Transboundary Aquifers (2008) put forward a series of provisions reflecting international practice in the sector.[5] The draft articles follow a traditional international law structure based on state sovereignty. To regulate the management of water resources, the articles draw upon pre-existing bilateral, regional and international agreements and arrangements on groundwaters.

It is worth to bear in mind that as the text states

even if the general obligations are formulated in mandatory language, the modalities for achieving compliance with the main obligations remain recommendatory, in order to facilitate compliance by States. Monitoring would generally be less important when the aquifer or aquifer system is not utilized.

Although not being formally adopted, these articles can be implemented based on reciprocity. They also address areas to be revisited, including sovereignty and recharge zone states. The Draft Articles interact with other relevant IWL instruments, they are interrelated. Nevertheless, criticisms arise as it does not appropriate addresses the circumstances of joint water management. Finally, a normative approach to the UNWC and the law of transboundary aquifers, reveals the necessary interactions between the regimes to ensure an appropriate level of compliance.

Amongst the various regional agreements discussed, the Guarani Aquifer Agreement between four MERCOSUR Member States represents an attempt to regulate the usage of shared water resources, guaranteeing, at the same time, their conservation. Because of the geographical extension, the Guarani Aquifer System as a transboundary aquifer represents an interesting case for the present study. The Guarani Aquifer System (GAS) is one of the largest reservoirs of freshwater worldwide shared by Argentina, Brazil, Paraguay and Uruguay. There

is an international treaty in place that regulates the management of this transboundary aquifer concluded under the auspices of MERCOSUR: the Guarani Aquifer Agreement (GAA).[6]

From a regulatory standpoint, the GAA relies on the UN International Law Commission Draft Articles on the Law of Transboundary Aquifers, which is referred to in its preamble. The GAS has led to continued transboundary cooperation between the four countries, not only restricted to the use of shared transboundary water resources but also focussing on conservation and protection of the aquatic ecosystem.

As an innovative initiative that fosters compliance, it is worth mentioning the GAS Project (Project for Environmental Protection and Sustainable Development of the Guarani Aquifer System) carried out by the four countries sharing the resource, the Global Environment Facility (GEF), the World Bank and the Organization of American States (OAS). This joint collaboration resulted in a Declaration of Basic Principles and Action Guidelines, which acknowledge the nature of the Guarani Aquifer, as a transboundary shared water resource and the need to protect it from pollution and achieve a sustainable management.

Scholars in the field divide the cooperation articulated around the use and conservation of the resource into main different periods: a first period (2002-2010) of positive cooperation, marked by a better understanding of the aquifer leading to the adoption of the Guarani Aquifer Agreement in August 2010. This period was followed by a second period (2010-2017) with a slowdown in transboundary cooperation, with some cross border projects and initiatives linked to past and existing international projects and a final period in which the ratification by the remaining state and entry into force. In this latter period, Argentina, Brazil and Uruguay ratified the agreement, with the last ratification by Paraguay pending to be submitted for the agreement to enter into force.

Key elements for implementation and compliance are the adoption of good substantive and institutional practices, taking stock of transboundary cooperation that have occurred until now.

  • [1] United Nations, Sustainable Development Goals, available at https://www.un.org/sustaina-bledevelopment/?s=Water accessed 1 April 2020. 2 ‘Article 33. Settlement of disputes l.In the event of a dispute between two or more parties concerning the interpretation or application of the present Convention, the parties concerned shall, in the absence of an applicable http://www.unwatercoursesconvention.org/the-convention/ accessed 1 April 2020. 3 Geneva Strategy and Framework for Monitoring Compliance with Agreements on Transboundary Waters: Elements of a Proposed Compliance Review Procedure, Expert’s Report, UN Doc MP.WAT/2000/5. 4 Dr Patricia K. Wouters and Alistair S. Rieu-Clarke, The Role of International Water Law in Promoting Sustainable Development.
  • [2] DFID 2001 Water Crisis Strategy, available at https://www.ircwash.org/sites/default/files/ DFID-2001-Addressing.pdf accessed 1 April 2020. 2 European Union, ‘Introduction to the EU Water Framework Directive’, available at https:// ec.europa.eu/environment/water/water-frainework/info/intro_en.htm accessed 1 April 2020. 3 The Protocol was concluded under the auspices of UNECE and WHO-Europe. Information available at https://www.unece.org/env/water/pwh_text/text_protocol.html 1 April 2020. 4 The Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) Was Adopted in Helsinki in 1992 and Entered into Force in 1996, available at https://www.unece.org/env/water/text/text.html accessed 1 April 2020. 5 Chad and Senegal have become the first non European Parties in 2018.
  • [3] Terje Tvedt and Tadesse Kasse Woldetsadik (eds), A History of Water, Series III, Volume 2: Sovereignty and International (Bloomsbury 2015). 2 G. Eckstein and F. Sindico, ‘The Law of Transboundary Aquifers’ (2014) 23 Review of European Comparative & International Environmental Law, pp. 32-42. 3 International Law Commission, Draft articles on the Law of Transboundary Aquifers (2008), ECE/M P.WAT/40, available at https://legal.un.org/ilc/texts/instruments/english/draft_ar-ticles/8_5_2008.pdf 1 April 2020. 4 The Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) was adopted in 1992 and entered into force in 1996. 5 UNECE, Model Provisions on Transboundary Groundwaters (2014), available at https:// www.unece.org/fileadmin/DAM/env/water/publications/WAT_model_provisions/ece_ mp.wat_40_eng.pdfl April 2020. 6 Raya Marina Stephan,’ International Water Law for Transboundary Aquifers - A Global Perspective’ (2018) 4(2) Central Asian Journal of Water Research, pp. 48-58. 7 This is a joint initiative of UNESCO !HP, UN/FAO, and the International Association of Hydrogeologists (IAH), which traces its origins back to the Ministerial Declaration of the Hague on Water Security in the 21st Century (March 2000). 8 Christina Leb, Cooperation in the Law of Transboundary Water Resources (Cambridge University Press 2013).
  • [4] According to the 2019 United Nations World Water Development Report, approximately 2.5 billion people depend solely on groundwater resources to satisfy their basic needs. Groundwater provides drinking water to more than half of the global population and supplies 43% of the water used for irrigation. 2 In chronological order, this is the first agreement on record and it was concluded in 1977 by France and Switzerland on the Genevese Aquifer, which was re-negotiated in 2007. Leaving no one behind (2019), available at https://www.unwater.org/publications/world-water-development-report-2019/ accessed 1 April 2020. 3 Agreement between the Government of the Hashemite Kingdom of Jordan and the Government of the Kingdom of Saudi Arabia for the Management and Utilization of the Ground Waters in the Al-Sag/Al-Disi Layer. 4 Integrated and Sustainable Management of Shared Aquifer Systems and Basins of the Sahel Region, RAF/7/011 lullemeden Aquifer System (2017), available at https://www.iaea.org/sites/ default/files/raf701 l_iullemeden_basin.pdf accessed 1 April 2020. 5 Ibid.
  • [5] Text adopted by the International Law Commission at its sixtieth session, in 2008, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/63/10). 2 Draft Articles, Article 13.7. 3 David J. Devlaeminck, ‘Reassessing the Draft Articles on the Law of Transboundary Aquifers through the Lens of Reciprocity’ (2020) International Journal of Water Resources Development. 4 Flavia Rocha Loures and Alistair Rieu-Clarke, The UN Watercourses Convention in Force: Strengthening International Law for, at 276. 5 Sindico Francesco, Hirata Ricardo, and Manganelli Alberto, ‘The Guarani Aquifer System: From a Beacon of Hope to a Question Mark in the Management/Governance of Transboundary Aquifers’ (2018) 20 Journal of Hydrology Regional Studies, pp. 49-59, available at https://pure-portal.strath.ac.uk/en/publications/the-guarani-aquifer-system-from-a-beacon-of-hope-to-a-question-ma accessed 1 April 2020. 6 The Guarani aquifer is one of the largest reservoirs of freshwater, it contains enough fresh water to fulfil the needs of world’s population.
  • [6] The signature of the Guarani Aquifer Agreement on 2 August 2010 by Argentina» Brazil» Paraguay and Uruguay represented a significant step due to the few number of treaties dedicated to transboundary aquifer cooperation» the absence of a water conflicts. The official version of the GAA is available (in Spanish) at https://www.internationalwaterlaw.org/documents/regional-docs/Guarani_Aquifer_Agreement-Spanish.pdf accessed 1 April 2020. 2 World Bank, Project for Environmental Protection and Sustainable Development of the Guarani Aquifer System, available at https://projects.worldbank.org/en/projects-operations/project-detail/P068121 accessed 1 April 2020. 3 Organisation of American States» Strategic Action Plan (2009)» available at http://www.oas. org/DSD/WaterResources/projects/Guarani/SAP-Guarani.pdf accessed 1 April 2020. 4 Francesco Sindico and Laura Movilla, ‘The Interplay between the UN Watercourses Convention and the Law on Transboundary Aquifers (Article 2)’, in Laurence Boisson de Chazournes, Makane Moise Mbengue, Mara Tignino, Komlan Sangbana, Jason Rudall (eds), Convention on the Law of the Non-Navigational Uses of International Watercourses (Oxford University Press 2018), available at https://pureportal.strath.ac.uk/en/publications/the-interplay-between-the-un-watercourses-convention-and-the-law- accessed 1 April 2020.
 
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