The International Law of Transboundary Groundwater Resources

Gabriel Eckstein

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138842984
• eBook ISBN: 9781317551300
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This book provides a comprehensive review of the state of international law as it applies to transboundary groundwater resources and aquifers. The main focus is on recent developments and the emerging international law for transboundary aquifers as reflected in the practice of states and the work of the UN International Law Commission, UN Economic Commission for Europe, and International Law Association.

The author takes an interdisciplinary approach to the subject matter and provides the scientific hydro-geological underpinning for the application of law and policy to transboundary groundwater resources. He also addresses the growing global dependence on this hidden resource, as well as both the historical and scientific context for development of the law.

The book provides case examples throughout to illustrate the various concepts and developments. These include more detailed examinations of the few existing transboundary aquifer agreements in operation, such as for aquifers between France and Switzerland and Jordan and Saudi Arabia, as well as aquifers in North Africa and in South America.

1
INTRODUCTION

Groundwater at the global level

Global reliance on groundwater

Groundwater today is the most extracted natural resource on the planet. An estimated 1,000 km³ of water is extracted globally every year from within the Earth, around two hundred times more groundwater, by volume, compared with oil. While 70% of these withdrawals are used in agriculture, the rest are disproportionately used for human sustenance. Worldwide, groundwater provides approximately 45% of humanity’s freshwater needs for everyday domestic uses, such as drinking, cooking, and hygiene (Margat and van der Gun, 2013). Among European nations, at least 75% of drinking water comes from ground water; while in Austria, Croatia, Denmark, Hungary, Italy, Lithuania, and Slovenia, the figures exceed 90% (Almássy and Busás, 1999). In India, 50% of urban water requirements and 85% of rural domestic water requirements are fulfilled by groundwater resources (World Bank, 2010). In the United States, groundwater serves as a source for 21% of domestic water supplies provided by municipalities, and 98% of water procured by self-supplied homeowners (NGA, 2016). Coupled with improvements in groundwater extraction and management technology, groundwater withdrawals have escalated from meeting strictly local needs to providing for the needs of whole nations.

Expanded reliance on groundwater as a chief source of freshwater is due, in part, to growth in industry, agriculture, and the global population. Over the past 100 years, per capita global water consumption grew six-fold (Morris et al., 2003). Presently, human water use is increasing at twice the rate of the global population growth (Zabarenko, 2011). Reliance on groundwater, however, is also a function of technology and the expanded ability of farmers, manufacturers, and other users to access the resource. Following World War II, improved well drilling and pumping technologies, expanded power networks, and advances in geological knowledge spurred a boom in groundwater exploitation. For example, in India, where the growth in groundwater use has been described as a “silent revolution” (Llamas and Martinez-Santos, 2005), groundwater abstractions intensified more than 1,650%. Similar revolutions have occurred in other developing nations, especially those in the arid Middle East, where groundwater extractions increased more than 1,100% in Libya between 1970 and 2000; 1,000% in Saudi Arabia between 1975 and 2000; 600% in Egypt between 1972 and 2000; 330% in Iran between 1965 and 1995; and 320% in Tunisia between 1977 and 2000. More modest, yet still significant gains in abstractions were seen in developed countries: 300% in Australia between 1970 and 2000; 144% in the United States between 1950 and 1980; 60% in Japan between 1965 and 1995; and 54% in the United Kingdom between 1950 and 1975 (Margat and van der Gun, 2013).

Most industrialized nations that experienced the boom in groundwater use, such as the United States and Japan, have seen a leveling off or even perhaps a slight decrease in abstraction rates. Such stabilization has not yet occurred in most of the developing world, especially in countries in Asia where economies and populations continue to grow. As a result, global groundwater use is expected to grow, especially since nine of the ten countries that are extracting the largest volumes of groundwater are found in Asia and the Middle East (Table 1.1, Margat and van der Gun, 2013).

Groundwater dependence, however, is not simply a human experience. Vast numbers of species and ecosystems worldwide rely on the consistent flow and quality of groundwater. Springs and shallow aquifers with high water tables support wetland and riverine biomes, while unique habitats often exist at the source of springs and can even be found underground within the matrix of certain karstic aquifers. A recent study suggests that 22% to 32% of global land area is influenced by or is dependent on shallow groundwater resources (Fan et al., 2013).

TABLE 1.1 Top ten groundwater-abstracting countries (as of 2010)

	Country	Abstraction (km^3/year)
1	India	251
2	China	112
3	USA	112
4	Pakistan	65
5	Iran	64
6	Bangladesh	30
7	Mexico	29
8	Saudi Arabia	24
9	Indonesia	15
10	Turkey	13

Source: Margat and van der Gun (2013).

Groundwater as a transboundary resource

As new knowledge related to groundwater and other water resources has expanded, two realizations – one old and one new – have challenged a world established on sovereignty and political realms. The first is the ages-old understanding that water respects no political boundaries. It flows where it wants, obeying only the laws of physics. The other, a more recent awareness, is that with the exception of most island-nations, there is scarcely a country in the world that is not linked hydrologically to a neighboring nation (Figure 1.1). This is particularly true because of the vast array of groundwater and groundwater systems that underlie nearly every known terrestrial landmass on Earth.

While 276 international watercourses traverse the world’s land areas (Wouters and Moynihan, 2013), an ongoing study has identified, to date, more than 600 aquifers and aquifer bodies traversing international political boundaries (IGRAC, 2015). It is not surprising that some of these transboundary aquifers follow the contours of overlying river basins and help support the large populations that inhabit these regions. Given that more than 40% of the world’s population inhabit and rely on a transboundary river basin, it may be reasonable to assume that a similarly large number of people rely on transboundary aquifers for their daily water needs.

FIGURE 1.1 Transboundary Aquifers of the World – Edition 2015. Map, scale 1:50,000,000. International Groundwater Resources Assessment Centre (IGRAC), Delft, The Netherlands.

In the arid, semi-arid, and temperate regions of the world, including places such as the Middle East, North Africa, and the Mexico–United States border, transboundary aquifers serve as the primary or sole source of available freshwater for human and environmental sustenance.

Transboundary aquifers challenges

Politics are a clear and primary concern when addressing issues pertaining to aquifers traversing international political boundaries. Yet, international politics cannot be viewed in isolation when considering the various challenges threatening these resources. Rather, politics and cross-border relations are part and parcel of the various concerns, and have the potential to magnify threats, as well as, possible solutions.

Like their domestic counterparts, transboundary groundwater resources are susceptible to a host of challenges that can affect their functioning and sustainable utilization. Among others, these include overexploitation, which effectively means pumping in excess of natural recharge. The immediate result of overexploitation is depletion or “mining” of the resource. Subsidiary consequences of such mining activities can include subsidence, saltwater intrusion, and detrimental impact on groundwater-dependent species, habitats, and human communities. Transboundary groundwater resources also face considerable threats from other human activities, including contamination resulting from agricultural, municipal, and industrial activities. Human activities can also physically destroy the aquifer matrix though other endeavors, including mining for minerals, hydrocarbons, and other resources in the formations, as well as construction and land-use development activities. Moreover, human-induced climatic changes can affect rates of precipitation and evaporation on the Earth’s surface, which in turn can impact the volume of water available to recharge groundwater resources. Notably, threats to transboundary aquifers can also emanate from natural shifts in climatic conditions and precipitation, as well as rapid phenomena (e.g., earthquakes that shift formations and tsunamis that inundate coastal regions).

Governance of transboundary aquifers

Groundwater resources have historically been both neglected under and often omitted from international agreements and legal norms, and therefore cursorily misunderstood among the lay, political, and legal communities. While agreements and consistent legal principles focusing on transboundary rivers and lakes have become fairly common around the world, there is a tremendous scarcity of comparable arrangements and norms addressing groundwater resources that traverse international boundaries. Moreover, institutional structures designed to manage transboundary aquifers are virtually non-existent.

Today, there are only four treaties in force that directly address issues related to a transboundary aquifer, while two others await formal ratification and implementation. In addition, there are a handful of informal or otherwise non-binding arrangements, mostly implemented by local constituencies, in place to help facilitate cross-border aquifer cooperation. In sharp contrast, over the past 1,200 years, nations around the world have entered into more than 3,600 treaties over transboundary rivers and lakes to address navigation, management, diversion, conservation, and related issues.

This is not to say that there are no other international instruments that address various aspects of transboundary groundwater resources. In fact, there are many dozens of such arrangements between aquifer riparians, albeit primarily on the African, European, and North American continents (Burchi and Mechlem, 2005). Nevertheless, all of these additional references to groundwater resources on borders are merely secondary or tertiary references. In other words, groundwater appears in those instruments as a subsidiary issue to the main objective of the agreements and are referenced primarily to support their surface water focus. As a consequence, groundwater was historically treated as the neglected stepchild within most domestic legal regimes as well as in the international legal system.

Today, given the disconnect between the growing global dependence on transboundary groundwater resources and the near abse...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Preface
• 1 Introduction: groundwater at the global level
• 2 Understanding groundwater resources and aquifers
• 3 Groundwater resources in a transboundary context
• 4 Early legal treatment of groundwater resources
• 5 Groundwater and aquifers under the UN Watercourses Convention
• 6 Groundwater and aquifers under the UN Draft Articles on the Law of Transboundary Aquifers
• 7 Trends in the evolution of international law of transboundary aquifers
• 8 Gaps in the law of transboundary aquifers
• Appendix A UN Draft Articles on the Law of Transboundary Aquifers
• Appendix B UNECE Model Provisions on Transboundary Groundwaters
• References
• Index