Gabriel Eckstein

Managing Buried Treasure Across Frontiers: The International Law of Transboundary Aquifers

In recent years, transboundary aquifers have received growing attention in numerous policy-making and negotiating circles. This development suggests an evolution in customary international law for transboundary aquifers. This article examines recent international arrangements and pronouncements related to the assessment, use, allocation and protection of transboundary groundwater resources and identifies the legal trends emerging from these instruments. The article also considers gaps and shortcomings in the emerging regulatory regime and offers recommendations for the further development of the law.

Minute 319: A Cooperative Approach to Mexico-US Hydro-Relations on the Colorado River

Minute 319 is the most recent amendment to the 1944 treaty governing the Colorado River, shared between Mexico and the United States. The amendment was adopted, in part, as a continuing response to the 2010 Mexicali earthquake, which severely damaged Mexican irrigation infrastructure, as well as ongoing objectives to address dwindling water supplies in the basin. By implementing measures to share both shortages and surpluses, and by facilitating long-term collaborative efforts that engender interdependencies, the amendment commits the parties to cooperate and may serve as a model for other regions sharing limited transboundary freshwater resources.

Groundwater Resources and International Law in the Middle East Peace Process

Abstract Next to issues of land, water resources are the major bone of contention in the peace negotiations between Israel and the Palestinian Arabs. The objective of negotiations is de facto setting the clock back to the eve of the Israel War of Independence, when the Jews accepted the 1947 UN resolution of partition, while the Arabs rejected it. The Arabs now accept the principle of territorial partition, but at the same time, they demand re-apportioning of resources, mainly of water. The Palestinians contend that the facts created on the ground unilaterally by Israel during the last 50 years, namely the agricultural development and the high water consumption by the Israeli urban sector, leave them without resources necessary for their development as a modern society. Per capita annual renewable freshwater resources in the region is among the lowest in the world. Approximately 600 million m3, or about one-third of the regional fresh groundwater consumption, is annually abstracted from aquifer systems recharged at the uplands of the Upper Cretaceous partly karstified carbonate formations of Judea and Samaria, terrenes often referred to as the West Bank. Israel and the Israeli agricultural settlements established within Judea and Samaria use 495 million m3/year (or 82.5 percent) of the abstracted water, leaving to the Palestinians the remaining 105 million m3/year. Thus, while the recharge zone to the Judean and Samarian aquifer systems are within the territories with an overwhelmingly Palestinian majority, most of the discharge occurs through water wells within the Israeli administration. The situation is reversed in the Gaza Strip, where Israel allows underflow of only 7 million m3/year of groundwater across the border, a less than 10 percent contribution to the nearly 80 million m3/year overdrawn water budget of the area. The issue of water is complicated by glaringly wide disparity in per capita water consumption between the two nations. While lines on the ground may separate two nations with conflicting territorial ambitions, apportioning of groundwater between Israel and the future Palestinian State proves to be one of the most intractable issues in the Middle East Peace Process. Moreover, neither international nor domestic law provides an adequate answer to questions of ownership or rights.

The Silala/Siloli Watershed: Dispute over the Most Vulnerable Basin in South America

The dispute over the Silala (or Siloli) Basin, shared by Bolivia and Chile, illustrates the importance of history, the role of indigenous communities, and the effects of differences in national socio-economic philosophies informing water resource management in international negotiations concerning transboundary watercourses, regardless of their size. The Silala case provides an illuminating example of the overlap between surface and groundwater regimes, and the range of interpretations states can uphold regarding this complex interaction. The objective of this paper is to present a brief case study, including a physical description, historical review, summary of current status, and discussion of the legal context of the transboundary Silala Basin.

Strengthening cooperation on transboundary groundwater resources

Water is life’s most important natural resource, and groundwater is humanity’s most vital source of that life-giving substance. Global freshwater resources contained in aquifer systems are two orders of magnitude greater than those found in rivers, lakes and other surface freshwaters combined. Moreover, more than one half of the world’s population today is dependent on groundwater for its basic needs (Eckstein 2003). A large number of the aquifers on which humanity depends lay across and underneath international political borders. According to the most recent studies of the United Nations Educational, Scientific and Cultural Organization (UNESCO), transboundary aquifers underlie the territory of nearly every non-island nation (Puri and Aureli 2009). The International Shared Aquifer Resources Management (ISARM) initiative, which was launched by UNESCO’s International Hydrological Programme (IHP) in 2000, has identified more than 270 transboundary aquifers worldwide (Stephan 2009). In recent years, as communities and nations realized the significance of these shared freshwater resources, transboundary aquifers have become the subject of growing attention among aquifer riparians and the international community. Questions are now being raised with regard to the mechanisms for governing shared groundwater resources, the rights that aquifer riparians enjoy from a transboundary aquifer and the reponsibilities that these nations might owe to other aquifer riparians. As a result, in 2002, building on its prior work that led to the formulation of the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses, the United Nations International Law Commission (UNILC) decided to continue its work on “shared natural resources” focusing on transboundary aquifers (Yamada 2003). As part of that effort, UNESCO-IHP, through its ISARM initiative, mobilized hydrogeologists, water resources managers, water law experts and groundwater administrators to provide advisory support to the UNILC. Within a relatively short period of six years, the UNILC completed 19 draft articles, which it submitted in 2008 to the 63rd Session of the United Nations General Assembly (UNGA). Thereafter, the UNGA adopted the Resolution on the Law of Transboundary Aquifers (A/RES/63/124) in December 2008, which included in its annex the 19 draft articles. The draft articles have now been placed on the provisional agenda of the 66th session of the UNGA, scheduled for Autumn 2011.

Buried Treasure or Buried Hope - The Status of Mexico-U.S. Transboundary Aquifers under International Law

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater resources along the Mexico-United States border and considers the obstacles to the development of an international agreement. It also looks at existing sources of law at the local, regional, national, and international levels of governance. The article offers recommendations that may lead to an amicable arrangement between the two nations.

Aquifers Shared Between Mexico and the United States: Management Perspectives and Their Transboundary Nature

Totally 36 aquifers have been identified along the Mexico-U.S. border. Of these, only 16 have adequate data to provide a reasonable level of confidence to categorize them as transboundary. Limited and/or contrasting data over the other aquifers in the region reflects the void in transboundary groundwater management and assessment mechanisms throughout much of the Mexico-U.S. border. This paper identifies management mechanisms, structures, and institutional prioritization related to transboundary aquifers shared between Mexico and the United States. It also evaluates the differences in the transboundary nature of these aquifers, and how their combined hydrological and geographical considerations interrelate with local and regional social, economic, political, and even scale dimensions to create complex management challenges.

The future of adaptive water management: law and governance

Water law is understood as the field of law that deals with the ownership, use, conservation and protection of water as a resource, while water governance is the range of political, social, economic, environmental and administrative mechanisms employed to develop and manage water resources, as well as to provide water services at different levels of society. When combined, these two concepts provide communities and nations with the tools needed to sustainably manage freshwater resources in an increasingly complex and waterdependent world. Water law and water governance, however, are not static contrivances that, once identified, work effectively to meet all local and global water challenges. Rather, they are tools that need to be moulded and remoulded in response to local and changing circumstances. Accordingly, there is an ongoing need for analysis of existing water law and governance solutions, as well as for development of new concepts and approaches for the proper management of life’s most basic element. The present special issue of Water International offers such analyses and development in the form of selected papers that populated the water law and governance track of the 14th World Congress of the International Water Resources Association (IWRA), “Adaptive Water Management: Looking to the Future”, held in Porto de Galinhas, Brazil, 25–29 September 2011. As a contributor to the development of the Congress, the International Association for Water Law (AIDA) took a leading role in the delivery of the water law and governance track in the programme, by soliciting papers and presentations from within and outside its membership covering a variety of water law and governance topics and by contributing to the relevant debates. AIDA also volunteered to have the present guest editors review the numerous and diverse submissions, identify those law and governance papers that were of particularly high calibre, and shepherd this special issue of Water International through the editorial process. The result is an in-depth, quality compilation of material on a selection of contemporary water law and governance topics that should be of considerable interest to the readership of this journal, and beyond, across a broad spectrum of water-related disciplines. Moreover, to the extent that the papers point in the direction of desirable change, they should provide a source of inspiration for readers who are in a position to promote and influence the policy dialogue and review process within and beyond national borders. AIDA is a network of legal, policy, and management specialists active in government, academia, and civil society, with a specific interest in freshwater resources. It was founded in 1967 by a group of like-minded, visionary water law and management specialists who, with remarkable anticipation, foresaw the growing significance of freshwater to the wellbeing of humankind and to its economic and social development, in a world of rapidly changing circumstances and increasing competition for what has come to be regarded as

Transboundary Water Resources Management: A Multidisciplinary Approach

When he surveyed the American West in the latter part of the 1800s, John Wesley Powell famously recommended that irrigation systems and state frontiers be based on watershed contours lest the borders result in “a great deal of contention” among jurisdictions. No more prescient words have ever been spoken (U.S. House of Representatives, 1891, p. 254). Today, states and nations on every continent expend considerable energy disputing water-related boundaries, contesting their neighbours’ water uses and projects, and arguing over water rights. The result is a challenging system of transboundary water management that is politically charged and, all too often, results in mismanagement and waste rather than efficient and cooperative administration of shared water resources. Accordingly, any book that seeks to offer guidance on enhancing and implementing proper and effective management schemes for transboundary waters is truly welcomed, but may be met with some reservations. It is welcomed because of the great need for new ideas and solutions for addressing the predicaments facing many riparians around the world, such as dwindling per capita water supplies and climate variability. Yet, it also is questioned, because of the considerable challenge such a book would face in speaking to the multitude of problems and unique circumstances that characterize each transboundary water relationship. In October 2008, Jacques Ganoulis, Alice Aureli and Jean Fried helped organize the Fourth International Symposium on Transboundary Waters Management in Thessaloniki, Greece. The symposium was the fourth in a series that brought together water managers, policy makers, academics, consultants, and representatives of governmental and nongovernmental institutions to share their experiences, technical advancements, knowledge and opinions on how best to manage the world’s varied transboundary freshwater resources. Transboundary Water Resources Management: A Multidisciplinary Approach is the most significant work-product of that event. Using material and papers presented at the conference, the editors compiled a book on the importance of Transboundary Water Resources Management (TWRM), a term used throughout the book and which is capitalized to emphasize the importance and legitimacy of the subject matter. As repeatedly noted in the book, water resources are not confined by artificial, politically crafted boundaries. As a result, frontier waters create complex interactions between the various countries that depend on those resources. Using this reality as a backdrop, the authors of the various chapters examine a variety of aspects and problems related to TWRM from a multitude of disciplines with the goal of providing