The inadequacies of the 1997 Convention on International Water Courses and 2008 Draft Articles on the Law of Transboundary Aquifers.

• Author: Traversi, Christine

1. INTRODUCTION II. BASIC HYDROGEOLOGY A. Groundwater B. Hydrologic Cycle C. Aquifers D. Types of Aquifers III. PRECURSORS TO THE 1997 CONVENTION A. The 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses B. ILC's 2008 Draft Articles on the Law of Transboundary Aquifers IV. INCREASED SPECIFICTY OF SCOPE AND DEFINED TERMS A. The Problems with the Defined Terms B. Possible Solutions V. CENTRAL TENET: EQUITABLE AND REASONABLE UTILIZATION A. Groundwater Factors for Equitable and Reasonable Utilization B. The Human Rights Dimension VI. CENTRAL TENET: DUTY TO NOT CAUSE SIGNIFICANT HARM A. The Problems with the Duty to Not Cause Harm B. Possible Solutions VII. CONCLUSION I. INTRODUCTION

   Nothing can survive without water; it is essential to both plant and animal life. (1) For humans, water is not only crucial to survival, (2) but it is also a versatile piece of daily life used for cooking, cleaning, irrigation, waste disposal, power production, and recreation. (3)

   Freshwater is a precious resource, (4) and its value is especially clear given its relative scarcity. (5) Though water is abundant on Earth, most of it cannot be used for basic human needs--drinking, cooking, and cleaning--because more than 97% of Earth's water is saltwater. (6) This leaves only about 2.5% as freshwater. (7) Of this freshwater, more than 70% is frozen as ice or permanent snow in mountainous regions. (8) A small part of the remaining 30% of freshwater is found in streams and lakes, but the lion's share lies under the ground as groundwater. (9) So, only 2.5% of Earth's water is freshwater and less than 1% of that amount is available as surface water for humans and ecosystems. (10) In that context, it becomes apparent that usable freshwater is precious indeed. (11)

   The rapid growth of communities, combined with increased international trade, has resulted in a growing demand for freshwater. (12) U.N. estimates indicate that, over the last century, global water use has grown more than twice as quickly as the world's population. (13) But, while the demand for freshwater has grown, the quantity of surface water has remained the same. (14) This has led to heightened competition for groundwater sources. (15)

   Signs of the effects of this growing competition include the declining water levels in aquifers, decreased water pressure in aquifers, and poor water quality. (16) As it stands, 884 million people in the world lack access to enough freshwater to satisfy basic needs like drinking, cooking, and cleaning, (17) and 2.6 billion people do not have access to basic sanitation. (18) Experts predict that, if the demand for water continues to increase, we can expect about half of the planet's people to live in water-deprived countries in the near future. (19)

   These staggering numbers demonstrate the need for governments to ensure proper water management. (20) The need for organized action is even more critical for transboundary groundwater reserves situated "across a boundary line between two or more countries." (21) With no international law clearly governing freshwater, states would be tempted to completely exploit groundwater without considering the needs of other states, which may depend heavily on those shared reserves. (22) Despite the critical need to regulate the use of groundwater, governments and non-governmental organizations have largely ignored this topic. (23) In the absence of solid policy considerations and clear direction, legal principles related to groundwater have been "rather crude." (24)

   This Comment examines the existing legal principles about shared groundwater and the particularly heightened protections that should apply. It examines the application of the 1997 U.N. Convention on the Non-Navigational Uses of International Watercourses (25) (the "1997 Convention" or "Convention") and the 2008 Draft Articles on the Law of Transboundary Aquifers (26) (the "2008 Draft Articles" or "Draft Articles"). Although they are not binding law, these instruments are relevant and important to the international community because they serve as models for state agreements on water resources. (27)

   Part I of this Comment provides an overview of the hydrogeology of groundwater and its function in the hydrological cycle. Part II reviews the precursors to the 1997 Convention and introduces that instrument and the 2008 Draft Articles. In Part III, this Comment examines the scope of these instruments in terms of their application to groundwater and discusses the potential effects of the 2008 Draft Articles on the 1997 Convention. Parts IV and V each examine and critique one of the two main principles embodied in these instruments: (1) equitable and reasonable utilization and (2) the duty to cause no harm. Finally, this Comment proposes how these principles may be strengthened to better provide for groundwater's protection from overuse and pollution.

2. BASIC HYDROGEOLOGY

   1. Groundwater

      As a term, "groundwater" gives the impression that it applies to all water located below the Earth's surface. (28) This is not entirely accurate. (29) In the hydrogeological context, a slightly narrower definition is more appropriate: "Groundwater" encompasses all water below the water table. (30) The water table is the level under the Earth's surface where the soil is completely saturated with water. (31) Therefore, "groundwater" does not include the water percolating downward through the Earth's subsurface at any given time. (32) Instead, it is limited to the water that has already seeped downward as far as possible and can go no further because the earth beneath it is completely saturated. (33) This does not occur at a fixed depth across the globe; instead, the depth of a local water table--and thus any local groundwater--is determined by local conditions. (34) Likewise, groundwater "respects no political boundary." (35) As a result, "with the exception of remote islands, almost all states share groundwater resources with at least one neighbor." (36) This shared groundwater exists in transboundary aquifers, some of which are large enough to span across several international borders. (37)

   2. Hydrologic Cycle

      The hydrologic cycle "has no beginning and no end." (38) It is the constant and never-ending process by which water moves from the atmosphere downward to the earth's surface and back up to the atmosphere. (39) Water falls from the atmosphere to the Earth as precipitation and returns to the atmosphere either by being heated and evaporated directly into the air, or by being absorbed by plants and transpired through their leaves. (40) The water that does not immediately return to the atmosphere or flow into bodies of surface water (streams, ponds, and lakes) slowly percolates downward (with gravity's help) through porous layers of soil and rocks to become groundwater. (41)

   3. Aquifers

      An aquifer is a subsurface layer of sand, gravel, or a similarly permeable material that contains enough water "to provide a useful water supply via wells and springs." (42) Aquifers are bound vertically by the water table, which acts as an upper limit, and a layer of impermeable rock that acts as a lower limit by preventing water from seeping further down. (43)

      Despite popular perception, aquifers are not underground lakes. (44) Water in an aquifer is not stagnant; instead, it tends to flow toward surface water at natural discharge points. (45) This, however, does not mean that aquifers are underground rivers. (46) Groundwater "flows" much differently than surface water does in rivers or streams; in contrast, groundwater seeps through porous layers of earth much the same way water seeps through a sponge. (47)

      Three key characteristics affect the character and quantity of groundwater in an aquifer: porosity, permeability, and recharge. (48) Porosity is the degree to which rocks are porous, and permeability is the extent to which water can pass through a given layer of soil. (49) Both affect groundwater's ability to flow through the aquifer, (50) and aquifers exist only where the earth is permeable enough to let water seep through and porous enough to store it. (51) Porosity and permeability, then, are necessary for every aquifer's formation. (52) In contrast, recharge is not a characteristic found in every aquifer. (53) Recharge is the result of water seeping down through the subsoil and into the aquifer. (54) "Recharge locally raises the water table, creates a pressure difference, and induces flow away from the recharge area." (55)

   4. Types of Aquifers

      Aquifers that regularly recharge fit into one of three categories: confined, unconfined, or a mixture of the two. (56) An unconfined aquifer has a border of impermeable rock or soil below and a border of permeable material above. (57) The impermeable base layer keeps water from seeping any lower and creates the buildup of water that becomes the aquifer. (58) Unconfined aquifers often connect to surface water, which filters down through the permeable layers above the aquifer. (59) The connected surface water tends to be the source of recharge for the unconfined aquifer. (60)

      A confined aquifer, on the other hand, has impermeable rock bordering it above and below. (61) Because of this surrounding impermeable material, confined aquifers do not normally connect to--or recharge from--surface water. (62) Instead, confined aquifers are recharged through exposure to the atmosphere in higher elevations, such as hillsides or high plateaus. (63) Additionally, large aquifers may be confined in some places and unconfined in others. (64)

      Aquifers with no source of recharge, often called "fossil aquifers," are completely separated from the hydrological cycle. (65) The water in these aquifers dates back to the moment the aquifer formed and, as a result, is stagnant, non-renewable, and very old. (66)

3. PRECURSORS TO THE 1997 CONVENTION

   Although only governments can create and effectuate international law...