Stefano Burchi - Role of Domestic Groundwater Law, Interface With International Water Law

1. GEF IW-LEARN and UNESCO-IHP WEBINAR
ON GROUNDWATER AND INTERNATIONAL
LAW (11 December 2013)
THE ROLE OF DOMESTIC
GROUNDWATER LAW –
INTERFACE WITH
INTERNATIONAL WATER
LAW
STEFANO BURCHI
Chair
International Association for Water Law (AIDA)
Rome, Italy

2. INTRODUCTION
Compliance with international norms of interState behaviour in regard to TBAs requires
adjustment of the domestic legislation of
aquifer States, generating an interaction of
the international and the domestic law levels
Aquifer management engages primarily the
domestic legislation governing (a) water
resources and (b) land use
This presentation will focus on water
resources legislation

3. PLAN OF PRESENTATION
 What
precise norms of inter-State behaviour
in regard to transboundary aquifer
management and development can be
derived from UNGA Res.63/124?
 Water legislation of South Africa examined in
light of above standards
 Such legislation assessed for its capacity to
support compliance with norms found in
UNGA Resolution

4. UNGA Resolution norms of inter-State
behaviour
UNGA Resolution, and in particular Part 3 on
“Protection, preservation and management”,
provides sufficiently precise standards and
legal requirements of inter-State behaviour to
warrant contrasting them to the domestic
water legislation of any TBA State
They are:

5. UNGA Resolution – Part 3 norms



utilizing a recharging aquifer at a level that
permits its effective functioning (4(d))
ensuring adequate quantities of recharge or
discharge water of adequate quality to
support aquifer-dependent ecosystems
(Art.10)
preventing and minimizing detrimental
impacts on the aquifer recharge and
discharge processes (Art.11)

6. UNGA Resolution – Part 3 norms



preventing and controlling groundwater
pollution, also by adopting a precautionary
approach in the matter (Art.12)
regular monitoring of aquifer conditions
(Art.13), and
aquifer utilization and aquifer management
planning (Arts. 4(c), and 14)

7. South Africa - National Water Act, 1998
Main relevant provisions:



“meeting international obligations” is listed as one of
the Purposes of the Act (2(i))
international rights and obligations must be provided
for in the National Water Strategy (6(1)(b)(ii))
international obligations must be met in
preparing allocation schedules of available water
resources for abstraction licensing (45(2)(a))

8. South Africa - National Water Act, 1998
international obligations in regard to the quality
of water resources must be considered in
issuing authorizations and licences for
abstraction, and for wastewater discharge
purposes (27(1)(j))
 international obligations have priority call in
times of shortage, and abstraction licences can
be adjusted downwards as a result (49(2)(b))


9. South Africa - National Water Act, 1998
 abstracting
water and discharging waste into
a water body subject to licensing
requirements, and
all licensing subject to pre-grant scrutiny and to
post-grant review to protect the water body
(27(1)(f), 29(1), 49(2)(a))
 catchment management strategies to be
prepared for water resources protection, use,
development, conservation, management and
control (9)


10. South Africa - National Water Act, 1998
artificial recharge of aquifers subject to prior
authorization (37(1)(d))
 water of suitable quality may be “reserved” for
the protection of aquatic ecosystems (1(1)(xviii),
16-18)
 Government to establish a national monitoring
system of water resources (137)
 abstractors and dischargers to monitor and
report on water use (29(1)(b)(ii)),(d)(i)


11. Assessment
By implication of several provisions
remanding explicitly to RSA’s
international obligations, the Act has
the effect of requiring the norms
crystallized in the UNGA Resolution to
be factored in the administration of the
Act’s main regulatory features
In addition and in particular:

12. Assessment
 the
abstraction licensing and wastewater
discharge permit requirements of the Act will
enable compliance with UNGA Res. Arts.11
and 12
 the controlled artificial recharge of aquifers
will be directly instrumental to complying with
UNGA Res. Art.12
 the catchment management strategies
provide a useful vehicle for compliance with
UNGA Res. Art.14

13. Assessment
 the
ecosystem “Reserve” will be
directly instrumental to complying with
UNGA Res. Art. 10, and
 the water resources monitoring
provisions will enable compliance with
UNGA Res. Art.13

14. Conclusion
Methodology of analysis replicable to
gauge the responsiveness of the
domestic legislation of any TBA country
to the norms posited by the UNGA Res.
(as in the Trifinio aquifer test case carried
out by this author for the GEF TWAPTBA project, ongoing)

15. Conclusion
Methodology of analysis equally useful
to test the responsiveness of the
domestic legislation of any TBA country
to the norms posited by a particular TBA
treaty or agreement, and
to determine the need and extent of
adjustment of domestic legislation
needed to align it with treaty obligations

16. THANK YOU
Stefano Burchi
stefano.burchi@gmail.com
www.aida-waterlaw.org