Transboundary Groundwater And International Law: Past Practices And .
TRANSBOUNDARY GROUNDWATER AND INTERNATIONAL LAW: PAST PRACTICES AND CURRENT IMPLICATIONS By Kyoko Matsumoto A RESEARCH PAPER Submitted to THE DEPARTMENT OF GEOSCIENCES Oregon State University In partial fulfillment of the Requirements for the degree of MASTER OF SCIENCE GEOGRAPHY PROGRAM December 2002 Directed by Dr. Aaron T. Wolf
i Table of Contents Table of Contents. i List of Figures. ii List of Tables.iii Acknowledgements. iv Abstract. v 1. Introduction . 1 2. The Notion of Transboundary Groundwater. 3 3. Evolution of International Groundwater Management in Environmental Law. 6 3.1 Helsinki Rules.7 3.2 Seoul Rules .8 3.3 Bellagio Draft Treaty .9 3.4 Agenda 21 .10 3.5 The Law of the Non-Navigational Use of International Watercourses .12 3.6 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes.14 3.7 Summary .15 4. Past Trends in Groundwater Management . 17 4.1 Methodology .17 4.2. Findings and Discussions.19 5. Practice of International Groundwater Management. 27 5.1. Dealing with Uncertainty of Transboundary Groundwater Resources.27 5.1.1 Uncertainty in Environmental Problems .28 5.1.2 Precautionary Principle for Transboundary Groundwater Management.32 6. Future Implementations . 36 7. Conclusion. 45 Bibliography . 47 Appendices. 55 Appendix 1 (A) : Level 3 . 56 Appendix 1 (B) : Level 2 . 58 Appendix 1 (C) : Level 1 . 64
ii List of Figures Figure 1. Schematic drawing of aquifer types.5 Figure 2. Spatial distribution of treaties. .19 Figure 3. International freshwater agreements by decade.21 Figure 4. Categories by issue. .22
iii List of Tables Table 1. Summary of international law related to groundwater .16 Table 2. Description of the degree of groundwater resource management. .18
iv Acknowledgements I would like to thank Drs. Aaron Wolf, Julia Jones, and Philip Jackson for their advice and suggestions. I also would like to thank my grandparents and parents for continuing financial support throughout graduate school. Without their encouragement and support, I would not be able to finish this degree. In particular, I mark in my memory that my departed grandmother, Sada, always cared about my health. Also, I would like to thank Shira Yoffe and Meredith Giordano for encouraging and informing me throughout school. I am most grateful to my Japanese friends at Oregon State University. Sharing feelings always makes happy. I also want to thank all of the Geosciences students, who were helpful with my English. The conversations we had every day helped me learn much about American culture and who I am as a foreign student, which is a part of my life education in the United States. Throughout graduate school, I believe that I developed a strong belief that I can impact people, and I will be able to treat people of different cultures well, without any cultural biases. Also, I would like to thank Valerie Rosenberg at the International Student Office, Caryn Davis from the College of Forestry, Dr. Patricia Muir, my undergraduate advisor, as well as Amy Alexander and Wayne Robertson at the Writing Center. Also, I cannot forget to thank my cat and faithful companion Choko-chan in Japan.
v TRANSBOUNDARY GROUNDWATER AND INTERNATIONAL LAW: PAST PRACTICES AND CURRENT IMPLICATIONS Abstract Despite their significance, physical interactions between surface and groundwater have largely been ignored in international water law. While surface water has been given considerable attention as a transboundary natural resource, groundwater has not received the same recognition. International legal doctrines regarding water, such as the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, only recognized one aspect of groundwater, excluding confined aquifers. This study discusses how international freshwater treaties have addressed groundwater resources in the past, and considers current trends. While the issue of transboundary groundwater in international treaties is becoming increasingly relevant as disputes over groundwater resources come to the fore, it is usually only indirectly mentioned in treaties. Groundwater and surface water should be considered together as part of the hydrological cycle and reflected as such in the legal realm. The uncertainty of physical properties is not an excuse for the delay of a concrete framework. The “precautionary principle” should play a role as a guiding factor. An Interactive Coordinated Approach (ICA) is recommended as a guideline for future implementation of transboundary groundwater management. The purpose of this study is to demonstrate the need to develop comprehensive transboundary groundwater management schemes. KEY TERMS: Transboundary Aquifer, Groundwater, Uncertainty, Precautionary Principle, Interactive Coordinated Approach (ICA), International Environmental Law
1 TRANSBOUNDARY GROUNDWATER AND INTERNATIONAL LAW: PAST PRACTICES AND CURRENT IMPLICATIONS 1. Introduction Over the past century, maintaining adequate freshwater resources for all humans and environmental communities has become a focal point in the academic and political arenas (Albert 2000, Falkenmark 2000, Feitelson 2000, Gleick 2002, and Wouters 2000). Furthermore, conflicts resulting from water competition and degradation are frequently discussed in the literature (Homer-Dixon1994, Lowi 1999, Postel and Wolf 2001, Yoffe 2001). The inadequacy of water is expected to be severe in the future, although “the amount available to the world today is almost the same as it was when the Mesopotamians traded blows 4500 years ago, even as global demand has steadily increased” (Postel and Wolf 2001). The reasons for the water deficit in the world are not only geographical problems, but also increased population growth, land development, insufficient water management techniques, and a combination of other non-physical factors. Concern over the availability of groundwater1 is well warranted, since groundwater comprises 31 percent of the total freshwater in the world, compared with 0.3 percent for rivers and lakes (Shiklomanov 1993). Additionally, “aquifers are in many ways an ideal source of water”, providing ready availability for local users and an optimum storage place (Postel 1999, p. 33). The value of groundwater cannot be overlooked especially in light of the increasing demand for water. Despite the significance of groundwater availability and the necessity of groundwater management, in terms of laws and institutional approaches, management is still in its infancy at the international level (Barberis 1991, Hayton 1982, Krishina and Salman 1999, and Utton 1982), although some States have begun to expand regulations. In 1 In this paper, the term ‘groundwater’ includes water in aquifers. Aquifer is defined as, “a subsurface waterbearing geologic formation from which significant quantities of water may be extracted” (Hayton and Utton, 1989, p. 678).
2 comparison, transboundary2 surface water has been studied in order to pursue equity and sustainable development, and management has thoroughly evolved over the last few decades. There are marked differences in the status of the recognition for transboundary surface water and groundwater. Consequently, transboundary groundwater directives have been omitted from overall water management regulations. The two primary reasons for this absence are also points of contention in transboundary groundwater management. First, groundwater characteristics vary in each aquifer. Groundwater is often deep or unevenly distributed geographically. These uncertainties make groundwater seemingly impossible to regulate, as well as ill defined. The other reason is the transboundary element. Dealing with transboundary issues has been intensively studied in surface water; as a result, the difficulties as well as the necessity for management structures are understood. By contrast, in terms of transboundary groundwater, even the delineations of an aquifer are a challenge. Under the best use of monitoring and modeling techniques to identify groundwater characteristics, the definition of an aquifer cannot provide concrete conclusions about groundwater ownership. Because of these difficulties, in addition to the rapidly increasing population and the rising demand for water, groundwater quality and quantity have become serious environmental, economic, political, and socioeconomic concerns. Therefore, the establishment of an apparent management framework is critical. Based on the uncertainties of physical characteristics and transboundary elements of transboundary groundwater, I will explore three components of transboundary groundwater management: 1) international groundwater management in environmental law, 2) past trends in groundwater management, and 3) an institutional framework for transboundary groundwater. 2 ‘Transboundary’ in this context refers to more than one State sharing natural resources. In this paper, the resource is the aquifer.
3 2. The Notion of Transboundary Groundwater In order to understand transboundary groundwater management, it is important to closely look at how the terms groundwater, aquifer, and transboundary3 are defined in the literature. There are many ways to describe the aquifer. Freeze and Cherry (1979, p. 47) describe the ambiguity of the definition of the aquifer from the hydrological science perspective: “of all the words in the hydrologic vocabulary, there are probably none with more shades of meaning than the term aquifer.” Mazor (1995, p. 183) states “[A]quifer, the basic term of hydrology, has a countless number of definitions and applications, and as a result the term is esoteric.” The physical characteristics of the aquifer are indistinctly defined; for example, “An aquifer is best defined as a saturated permeable geologic unit that can transmit significant quantities of water under ordinary hydrologic gradients” (Freeze and Cherry 1979, p. 47). Fetter (1994) defines an aquifer as, “a geologic unit that can store and transmit water at rates fast enough to supply reasonable amounts to well”(Fetter 1994, p.110). None of the above definitions completely cover all of the unique characteristics of aquifers; however, one universal definition for the term aquifer is not important. Instead, it is more important to identify aquifers’ properties by measurements, where possible, because their geologic formations differ from place to place. Uncertainty over the physical properties of aquifers is a primary problem for management. Furthermore, the difficulty of groundwater management often relates to transboundary issues between States. There are many scholars debating the best management of transboundary resources, such as the atmosphere, oceans, surface water, and even outer space. The complexity of the boundary issue is described by Feitelson: “Boundaries complicate the management of resources, as they create discrepancies between spheres of control and natural systems” (Feitelson 2000, p. 534). Compared with surface water, the delineation of the boundaries of groundwater is a challenging issue because of spatial considerations. Groundwater disperses beneath the surface, irrespective of State 3 See definition: footnote 2 in this paper.
4 boundaries. Although management of groundwater may include a number of ground-boring and monitoring activities, as well as modeling to delineate the boundaries of the water body, nevertheless, in many areas the picture may still be incomplete. Additionally, groundwater is influenced by land-development patterns. These influences can cause decreasing water levels and contamination of groundwater. It is important to protect the recharge area, which primarily captures precipitation on the surface, in order not to disturb water flow into the ground. Unfortunately, the question of how much land needs to be protected for the recharge area is currently unanswerable because scientists do not fully understand how groundwater behaves. Without considering the properties of the land, groundwater management could not be complete. To account for these unique characteristics, transboundary groundwater management should utilize the three-dimensional approach, rather than the two-dimensional approach used for surface water. In the two-dimensional approach, scientists study the behavior of surface water on a single plane. With groundwater, water percolates into the soil, drawn by gravity. It moves along more than one plane. The three-dimensional approach takes into account this complexity of behavior. It is hard to determine sovereignty for an aquifer with respect to the scale of both surface development and belowground structure. However, five different cases can be used to determine sovereignty (Barberis 1991, p. 168): 1) A State-owned aquifer, which is the entire aquifer in a State 2) A confined aquifer divided by an international boundary 3) An aquifer that is entirely in the territory of a State linked hydrologically with an international river 4) An aquifer that is entirely in the territory of one State but is hydrologically linked with another aquifer in a neighboring State 5) An aquifer that is entirely in the territory of one State but whose area of recharge is in a foreign State.
5 Figure 1. Schematic drawing of aquifer types.
6 These best describe guidelines for classifying transboundary groundwater. Except for Case 1, these conditions address possible sharing of an aquifer between States. One modification of Case 2 should be noted: if there is a hydrological relationship where intra-State rivers/lakes are linked to an international aquifer, then it is important to be aware of this relationship because the intra-State rivers or lakes may have some influence on the aquifer. Schematic views of these aquifer types are shown in Figure 1. These guidelines suggest possible conditions that determine the transboundary nature of aquifers, and provide a means by which States can proactively manage transboundary aquifers. In addition, these categories are important not only in defining the nature of the aquifer itself, but also in illustrating the scope of the hydrological relationships between aquifer-sharing States. Management with a transboundary element is extremely difficult because of the challenges of cooperation among neighboring countries. This can be an additional obstacle for transboundary aquifer management. 3. Evolution of International Groundwater Management in Environmental Law The principles for transboundary groundwater management have not yet been visibly developed. The reasons for the absence of transboundary groundwater law are, as Krishina and Salman (1999, p.163) point out, “the inadequacy of scientific data” and “complexity of the issues of groundwater.” In order to allow for uncertainty concerning the physical characteristics of groundwater, principles or laws on transboundary groundwaters are left undefined or ambiguous. These ambiguities will be discussed in real contexts: the Helsinki Rules, Seoul Rules, Bellagio Draft Treaty, Agenda 21, The Law of the Non-Navigational Use of International Watercourses, and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes. In particular, the discussions will be focused on the transboundary elements and physical characteristics of groundwater.
7 3.1 Helsinki Rules The International Law Association (ILA), established in 1873, is a non-governmental international organization that works for the development of emerging rules of international law (Krishna and Salman, 1999, p. 170). The earliest works regarding transboundary groundwater regulations are the Helsinki Rules. The Helsinki Rules, drafted by ILA in 1966, represent an early attempt at codifying customary international law pertaining to transboundary water resources (Eckstein 1998, p. 92). The final version is called, “Helsinki Rules on the Uses of the Waters of International Rivers”, and was published in 1967. The concept of a ‘drainage basin’ in the Helsinki Rules was used for defining the influential geographical area of water system (Article II). As a part of an international drainage basin, underground waters were included as follows: “An international drainage basin is a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus” (Helsinki Rules: Article II, 1967). In the commentary section, the underground waters “ constituting a part of the drainage basin are those that contribute to its principal river, a stream or lake or other common terminus”(Helsinki Rules, Chapter 1, Article II, 1967). The Helsinki Rules clearly state that groundwater is, “connected to surface water” (Krishna and Salman, 1999, p. 170). Hayton explains that Article II “encompasses all waters included in the entire system” (Hayton 1982, p. 75). Although Article II declared a connection between surface and groundwater, as Krishna and Salman point out, “confined groundwater, that is groundwater which is not connected to surface water, is not dealt with under the Helsinki Rules” (Krishna and Salman, 1999, p. 170). Even though the importance of groundwater was recognized, the Helsinki Rules excluded confined aquifers—which constitute a large portion of groundwater—because a confined aquifer might exist between States, but not be connected to a particular body of surface water (a principal river, stream, lake, or other common
8 terminus). The International Law Association addressed this exclusion in the later Seoul Rules. 3.2 Seoul Rules Twenty years later, the Seoul Rules (1987) were proposed at the Sixty-Second Conference of ILA, which was held in Seoul, Korea. The conference focused on complementing the Helsinki Rules. The Seoul Rules defined groundwater and aquifer by using the terms interchangeably. Also, some specific terms were defined, such as groundwater catchments area and fossil water. In Article 1: The Waters of International Aquifers, an aquifer is described as “All underground water bearing strata capable of yielding water on a practicable, basis, whether these are in other instruments or contexts called by another name such as “groundwater reservoir,” “groundwater catchment area,” etc. including the waters in fissured or fractured rock formations and the structures containing deep, so called fossil waters” (Seoul Rules, 1986: Article 1). Article II defined what constitutes an international aquifer, as well as the hydrologic interdependence of surface and ground water: “An aquifer that contributes waters to, or receives water from, surface waters of an international basin constitutes part of an international basin for the purpose of the Helsinki Rules. An aquifer intersected by the boundary between two or more States that does not contribute water to, or receive water from, surface waters of an international drainage basin constitutes an international drainage basin for the purposes of the Helsinki Rules” (Seoul Rules, 1986: Article 2). Compared to the Helsinki Rules, the Seoul Rules clearly shows that even aquifers not connected with the surface waters of an international drainage basin, such as a confined aquifer between States, are also considered as in an international drainage basin. The implementation of the Helsinki Rules and the Seoul Rules is the fundamental recognition of the hydrologic relationship between surface and groundwater, and suggests that groundwater management requires an understanding of the mechanisms of the hydrologic cycle.
9 3.3 Bellagio Draft Treaty The Bellagio Draft Treaty,4 proposed by Robert Hayton and Albert Utton in 1989, was a revision of the “Ixtapa Draft,”5 proposed in 1985 by Ann Berkley Rodgers and Albert Utton. The Ixtapa Draft focused on management of the U.S.-Mexico border region aquifers, while the Bellagio Draft Treaty worked to apply aquifer managements more globally. The idea of drafting the treaty was described in its introduction of the draft treaty: “The overriding goal of the draft treaty is to achieve joint, optimum utilization of the available waters, facilitated by procedures for avoidances or resolution of differences over shared groundwaters in the face of the ever increasing pressures on this priceless resources” (Hayton and Utton 1989, p. 665). While the Bellagio Draft Treaty suggests a framework for comprehensive groundwater management, it has yet to be implemented for practical use in groundwater resources management. The treaty is divided into 20 sections, and each article is followed by a comment section. The treaty also articulates management methods in Article II: General Purpose6. Article I includes the definitions of terms, such as aquifer, border region, contaminant, contamination, depletion, drought, groundwater, impairment, interrelated surface water, pollution, recharge, transboundary aquifer, transboundary groundwater 4 Hayton and Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 1989. The draft treaty also described the evolution of transboundary groundwater law in the introduction section. 5 Rogers and Utton, The Ixtapa Draft Agreement Relating to the Use of Transboundary Groundwaters, 1985. 6 Article II -1 “ The parties recognize their common interest and responsibility in ensuring the reasonable and equitable development and management of groundwaters in border region for the well being of their peoples. 2 – Accordingly, the Parties have entered into this Agreement in order to attain the optimum utilization and conservation of transboundary groundwaters and to protect the underground environment. It is also the purpose of the Parties to develop and maintain reliable data and information concerning transboundary aquifers and their waters in order to use and protect these waters in a rational and informed manner.”
10 conservation area, and transboundary groundwater. Defining these terms prevents the type of confusion caused by lack of accepted definitions. Aquifer is defined as, “a subsurface waterbearing geologic formation from which significant quantities of water may be extracted” and groundwater is “the water in aquifers” (Hayton and Utton, 1989, p. 678). Note that aquifer is actually defined as a geologic formation, rather than a water storage area under the ground. This definition of aquifer emphasizes its hydrological relation to surface waters. Similarly, the definition of interrelated surface waters emphasizes hydrologic interdependencies between surface and ground waters. The definition of transboundary groundwaters is similar to that adopted in Seoul in 1986.7 The definition of the term, conjunctive use, as “the integrated development and management of surface and groundwater, as a total water supply system” (Hayton and Utton, 1989, p. 678) shows the firm relationship between surface and groundwater, and suggests the need for efficient management. Surface water was recognized as an influence on the quantity and quality of outflows and inflows of transboundary groundwater. The significant points of the Bellagio Treaty are the clarification of the definition of aquifer and the recognition of the connection between groundwater and surface water, which is shown in the idea of creating transboundary groundwater conservation areas. Additionally, the management of aquifers should therefore be conducted with an awareness of the interconnected relationships between surface- and groundwaters. 3.4 Agenda 21 Agenda 218 was adopted in June 1992 by the United Nations Conference on Environment and Development (UNCED). It is a comprehensive action plan for 7 Seoul Rule in Article I; The waters of International Aquifers states, “ The waters of an aquifer that is intersected by the boundary between two or more States are international groundwaters if such an aquifer with its waters forms an international basin or part thereof “. 8 Rio de Janeiro, June 16, 1992UN Doc. A/Conf.151/26, Vol. III (1992)
11 environmental management. Chapter 189 under Section II: “Conservation and Management of Resources for Development”, which deals with water, including groundwater issues. Groundwater is recognized in Agenda 21 as a freshwater source and is given parallel status with surface water. Both surface water and groundwater resources have to be managed interrelatedly, taking into consideration both water quantity and quality (Chapter 18.3). Additionally, this action plan recommends holistic freshwater management (Chapter 18.35). The plan indirectly infers that freshwater resource management should be considered along with the hydrologic cycle. Interestingly, this action plan also points out that the degradation of water quality has been underestimated because of the inaccessibility and physical uncertainties of aquifer systems (Chapter 18.37). It advocates that groundwater protection is a substantial element of water resource management. Agenda 21 does not include specific provisions of groundwater management, except as a statement of bilateral or multilateral cooperation with the UN system and other world organizations, and the development of technical/institutional capacities. In particular, Agenda 21 neglects the transboundary aspects of freshwater resource management. McCaffrey points out that “it fails to include a comprehensive treatment of the international, or transboundary aspects of the protection and management of fresh water” (McCaffrey 1994, p. 158). Section 18.9 explains that integrated water resources management can apply on a “catchment basin or sub-basin” basis, and includes integration of “the land and water related aspects.” The holistic concept reflects this statement; however, Section 18.10 limits this integrated approach: “In the case of transboundary water resources, there is a need for riparian states to formulate water resources strategies, prepare water resources action programs and For the full text of Agenda 21 see ID 52 9 Chapter 18: Protection of the quality and supply of freshwater resources: application of integrated approaches to the development, management, and use of water resources. The basic summary of chapter 18 was described in McCaffrey.1994 .The Management of Water resources. In The Environmental after Rio: International law and economics/ edited by Luigi Campiglio et. al.
12 consider, where appropriate, the harmonization of these strategies and action program (18.10)”. The statement is based on the idea that inte
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Asset management is a critical component in helping us comply with our licence and the road investment strategy. The Department for Transport (DfT) sets out what we must do, and provides funding through 5-year ‘Road Periods’. The Office of Rail and Road monitors how we deliver our strategic business plan, including key performance indicators, and Transport Focus represents our customers .
