Basic Challenges Faced with Transboundary Groundwater: Low level of technical knowledge. Definition of transboundary GW. Pollution and over extraction. Issues of land and water ownership at national level; customary water rights. Issues of federal and state jurisdiction over GW. Conflicting interests of states sharing aquifer.

1. 1
International Legal Regime
for Transboundary
Groundwater
S. Salman
Legal Department, The World Bank
GEF 3rd IW Conference
Brazil, June 23, 2005

2. Structure of Presentation
Basic challenges faced with transboundary
Groundwater
Earlier Attempts at Addressing legal issues
ILA Rules
Bellagio Drat Treaty
UN Watercourses Convention
ILC Resolution
Treaties dealing with groundwater
Current Work of ILC
Concluding Remarks
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3. Basic Challenges Faced with
Transboundary Groundwater
Low level of technical knowledge
Sahara, Guarani, Nubian
Definition of transboundary GW
Pollution and over extraction
difficulty to reverse pollution, ascertain over
extraction
Out of sight, out of mind
Issues of land and water ownership at national
level; customary water rights
Issues of federal and state jurisdiction over GW
Conflicting interests of states sharing aquifer
3

4. Earlier Attempts at Addressing
transboundary groundwater
ILA Helsinki Rules of 1966
Definition of international drainage basin
Surface and under groundwater flowing into
a common terminus
Refers to an aquifer that contributes water
to, or receives water from, surface water of
an international basin
Application of the Helsinki Rules to such
transboundary groundwater only.
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5. Earlier Attempts at Addressing
transboundary groundwater
Basic provisions of Helsinki Rules
Equitable and reasonable utilization
Obligation not to cause harm
Environment protection
Notification requirement
Problems with Helsinki Rules
Application to groundwater “connected” to
surface water only
Leaves out other types of groundwater
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6. Earlier Attempts at Addressing
transboundary groundwater
ILA Seoul Rules
Expansion of the Helsinki Rules to cover
shared aquifers that do not contribute water
to, or receive water from surface water of an
international drainage basin
Consultation and exchange of information
Conjunctive use of ground water and surface
water.
ILA Rules have no binding legal effect
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7. Earlier Attempts at Addressing
transboundary groundwater
Bellagio Draft Treaty 1989
Effort of Professor Utton and Hayton
Provides a standard model treaty on shared GW
Basic features
Joint Commission with extensive authority
Establishment and maintenance of database
Detailed provisions on water quality protection
Legal Status of Draft Treaty
Endorsed by a number of organizations, IWRA
No legal status
Operationalization by Guarani Aquifer states
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8. UN Watercourses Convention
Adopted by UN General Assembly in
1997 by a large majority
Definition of international watercourse
A system of surface waters and groundwaters
constituting by virtue of their physical
relationship a unitary whole, and flowing into
common terminus
Followed ILA Helsinki Rules, and excluded
“non-connected” aquifers
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9. UN Watercourses Convention
Basic Provisions
Equitable and reasonable utilization
Obligation not to cause harm, protection of
the environment
Notification and exchange of information,
joint mechanism
Peaceful settlement of disputes
Status of the Convention
Not yet in force
Reflects customary international law
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10. ILC Resolution
Issued in 1994 after completion of work on the
UN Convention
Deals with “Confined Transboundary GW”
GW not related to an international watercourse
Commends states to be guided by the principles
contained in the Convention for dealing with
issues related to confined aquifer
Use of the term “confined groundwater.”
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11. Other International Instruments
International instruments dealing with
transboundary GW that are in force:
Convention on Environmental Impact
Assessment in a Transboundary Context,
1991 (Espoo Convention)
• Notification is required when annual volume of
abstraction of groundwater from a shared aquifer
amounts to 10 million cubic meters or more
• Only threshold for “adverse” effects on GW
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12. Other International Instruments
International instruments dealing with
transboundary GW that are in force:
UN ECE Convention on the Protection and
Use of Transboundary Watercourses and
International Lakes 1992 (Helsinki
Convention)
“Transboundary waters” means any surface
or groundwaters which mark, cross or are
located on boundaries between two or more
States
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13. Other International Instruments
International instruments dealing with
transboundary GW that are in force:
SADC Protocol on Shared Watercourse
Systems 2001
“Watercourse system” means the inter-related
hydrologic components of a drainage basin such as
streams, rivers, lakes, canals and underground water
which constitute a unitary whole by virtue of their
physical relationship.
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14. Current Work of the ILC on
Shared Resources
ILC work started in 2002, committee is
chaired by Ambassador Yamata
Mandate goes beyond transboundary GW
and covers all shared resources
Works is still on going
Opportunity to get issues clarified
Expected to codify customary
international law in this filed
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15. Conclusion
Low level of technical knowledge on GW
rendering legal agreements difficult to arrive at
Difficulties with the definition of transboundary
groundwater
Jurisdictional issues making it difficult for
states to enter into international commitments
Different uses of terms by different disciplines
Confined, connected, inter-related
Drainage basin, hydrologic components
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16. Conclusion
Absence of an international convention
More difficult issues than surface water
Limited incentives for cooperation
Few bilateral or multilateral treaties
Emphasis on surface water, even when GW is
mentioned,
UN ECE Convention, SADC Protocol
Different approaches to groundwater
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17. Conclusion
Basic rules of customary international law governing
transboundary GW:
Equitable and reasonable utilization
Environment protection, no harm rule
Joint mechanisms
notification and exchange of information
Peaceful settlement of disputes
Joint mechanism is the starting and most important
element
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legal entity with wide responsibilities
Particularly for fossil aquifer

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