If water respects no political boundaries, does politics respect transboundary waters?

Author:Aureli, Alice
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law
 
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This panel was convened at 1:00 p.m., Friday, April 11, by its moderator, Stephen C. McCaffrey of McGeorge School of Law, University of the Pacific, who introduced the panelists: Alice Aureli of UNESCO; Jutta Brunnee of the University of Toronto; Gabriel Eckstein of Texas Tech; and Rene Uruena of the University of Helsinki.

INTRODUCTION: POLITICS AND SOVEREIGNTY OVER TRANSBOUNDARY GROUNDWATER

By Stephen C. McCaffrey *

It is widely known that over a billion people lack access to potable water, and well over twice that number are without adequate sanitation (1)--the latter situation often being related to the former. It has been calculated that every eight seconds a child dies of water-related causes (2)--a stunning statistic and an absolutely unacceptable state of affairs.

While much has been made of the prospect of global water shortages, (3) what is perhaps not so well known is that most of the world's fresh water is shared by two or more states. There are more than 260 international drainage basins, which account for about 60 percent of global river flows. This figure does not include an increasingly important form of this resource, groundwater, much of which also straddles international boundaries. Perhaps this is in part what motivated UN Secretary-General Ban Ki-moon to say, at the World Economic Forum in Davos, Switzerland, in January of this year: "As the global economy grows, so will its thirst ... many more conflicts lie over the horizon," and "too often, where we need water, we find guns." (4)

The question for this panel is: "To what extent do political considerations affect the legal relations among states sharing freshwater resources"? In many ways this is a field that almost invites the intervention of politics: partly because individuals--the Egyptian, Ethiopian or Mexican farmer, for example--may be directly affected by their government's practice regarding shared water resources; and partly because water may be so vital to the very life of a nation that it can be regarded as a matter of national security and thus influence strongly the way that country relates to its neighbors.

But there is another reason that governments might come under the sway of politics where shared fresh water is concerned: some of that water is, at least temporarily, within the boundaries of the state concerned. Thus, water flowing in a river or aquifer from State A to State B is, for a time, within the boundaries of State A. This has on several occasions led states to claim "sovereignty" over the water within their borders--claims that most of them later retracted. (5) The temptation to make such a claim is understandable, whether it is made by an upstream or a downstream state. (6) However, the obvious difficulties that can result from an authoritative recognition of "sovereignty" or other forms of absolute rights in either an upstream or a downstream party--let alone both of them have led both domestic legal systems and international law to reject such an approach.

It is therefore surprising that the United Nations International Law Commission (ILC) has provisionally adopted a set of draft articles that includes the principle of "sovereignty" over shared freshwater resources. This action is particularly remarkable given that the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, (7) which closely follows an ILC draft on which the negotiation of the Convention was based, thoroughly rejects any notion that sovereignty over shared water resources is part of international law. Moreover, the International Court of Justice in the Gabcikovo-Nagymaros Project case also rejected such an idea. The Court referred to a state's "basic right to an equitable and reasonable sharing of the resources of an international watercourse." (8) A right to share in a common resource is difficult, at best, to reconcile with the notion of "sovereignty" over that resource.

The draft articles in question are entitled the Law of Transboundary Aquifers. (9) The fact that the draft focuses on "aquifers"--water-bearing rock formations--rather than groundwater, may have been the beginning of the problem. Despite the fact that it straddles a boundary, the "rock" itself does not move; it is the water it contains that, in most cases, moves. Thus, while states may claim "sovereignty" over the portion of an aquifer--the rock formation--in their territories, they cannot claim sovereignty over the water contained in the aquifer, which is shared by the states in which the aquifer is located. As proof of this limitation, one need only think of one of the states depleting the aquifer using powerful pumps, or contaminating it with waste deposited in the aquifer's recharge zone. The "sovereignty" of the adversely affected state is of little use as far as such effects are concerned; the state may assert it, but obviously that will not stop the harmful activities affecting the portion of the aquifer over which the other state is "sovereign."

The provision of the draft articles referring to sovereignty is the first article in Part II, "General Principles." Entitled "Sovereignty of aquifer States," Article 3 reads: "Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory. It shall exercise its sovereignty in accordance with the present draft articles." (l0) The first sentence lets the genie of sovereignty out of the bottle; the second sentence cannot put it back in. The notion of sovereignty over shared water is unsupported both in state practice (11) and in the work of expert groups. (12) Moreover, it conflicts with the 1997 U.N. Watercourses Convention, since the term "aquifer" is defined (13) in such a way as to overlap with the definition of "watercourse" in the Convention. (14) The Commission gives only one reason for this approach: "many states" advocated "[t]he need to have an explicit reference in the form of draft article [sic] on the sovereignty of States over the natural resources within their territories...." (15) Space permits only two comments on this justification.

First, to say that a state has sovereignty over the natural resources (forests, coal, iron and other forms of ore, etc.) within its territory is, of course, much different from saying it has sovereignty over shared freshwater resources. But this important distinction seems to have been lost on the Commission. Second, it does not in fact appear that "many" states actually advocated for this proposition. A fairly reliable way to judge this is on the basis of comments submitted by governments on the ILC's draft. The Commission reports that only eighteen states submitted comments on the draft articles and, of those, only six commented on draft article 3. (16) Of those six states (Austria, Brazil, Cuba, Israel, Portugal and Turkey), three (Austria, Brazil and Turkey) are upstream or predominantly upstream, one (Israel) is upstream on one of the four aquifers it shares, one (Portugal) is predominantly downstream, and one (Cuba) has no international watercourses. Of these states, only Portugal commented that cooperation should be emphasized and that the ILC should "reflect upon whether or not to shift towards a more actual and mitigated doctrine of sovereignty...." (17) Nevertheless, among the states with international watercourses (including transboundary aquifers) that commented, four does not seem to qualify as "many."

In sum, politics seems to have played a rather strong role in relation to the ILC's Transboundary Aquifers draft. Others on this panel who have been involved in the project in an advisory capacity may well have views on it that differ from those I have expressed here or elsewhere. (18) But the draft, in its present form, seems to demonstrate that politics may have a strong influence on efforts to develop and codify international law in addition to the role it may play in causing states, from time to time, to disregard international law.

* Distinguished Professor and Scholar, McGeorge School of Law, University of the Pacific.

(1) WORLD HEALTH ORGANIZATION, THE GLOBAL WATER SUPPLY ANY SANITATION ASSESSMENT 2000 1 (2000).

(2) See, e.g., John J. Brandon, Why a Child Dies Every 8 Seconds, INT'L HERALD TRIB., May 12, 2001, .

(3) See, e.g., Streams of Blood, or Streams of Peace, THE ECONOMIST, May 1 2008, .

(4) As quoted in id.

(5) This is true, most infamously, of the "Harmon Doctrine" of absolute sovereignty, stated by U.S. Attorney General Judson Harmon in the context of a dispute with Mexico over the Rio Grande. 21 Op. Att'y Gen. 281 (1898). The dispute was settled in a 1906 treaty entitled Convention concerning the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, 21 May 1906, T.S. No. 455, and the United States later expressly repudiated the Harmon Doctrine. See generally STEPHEN C. MCCAFFREY THE LAW OF INTERNATIONAL WATERCOURSES 76-110 (2nd ed. 2007).

(6) For discussion of the "absolute territorial sovereignty" and "absolute territorial integrity" theories, on occasion advocated by upstream and downstream states, respectively, see McCAFFREY, id., at 112-135.

(7) U.N. Doc. A/RES/51/869 (May 21, 1997), 36 I.L.M. 700 (1997).

(8) Case Concerning The Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997 I.C.J. 7, at 54 (Sept. 25).

(9) 2006 ILC Report 185, available on the ILC's website, .

(10) Id. at 202.

(11) None of the authorities cited by the Commission in its commentary to art. 3 deals with transboundary groundwater, or otherwise recognizes "sovereignty" over shared freshwater resources. Id. at 202-203, notes 491-493.

(12) See Draft articles on the Law of the Non-Navigational Uses of International Watercourses, 1994 Y.B. ILC, v. 2, pt. 2, p. 89; The International Law Association's "Seoul Rules," The Law of International Groundwater Resources, ILA, Report of the Sixty-second Conference, Seoul 1986, pp. 21 and 231-285...

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