Commentary on the U.N. International Law Commission's Draft Articles on the Law of Transboundary Aquifers

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the management of a transboundary aquifer, and few nations possess the relevant technical information necessary to enter into such agreements. The result is overexploitation and degradation of many of the world's transboundary aquifers, and considerable harmful impacts on border communities, economies, and ecosystems dependent on transboundary ground water resources. Recently, the United Nations International Law Commission embarked on an effort to address this shortcoming and to consider the international law applicable to transboundary aquifers. This undertaking follows and builds on the Commission's prior work on international watercourses, which culminated in the 1997 U.N. Convention on the Non-Navigational Uses of International Watercourses. It also builds on the work of other organizations, including that of the International Law Association and its Helsinki, Seoul, and Berlin Rules. This paper reviews the work of the Commission in its current effort to codify and progressively develop the international law applicable to transboundary ground water resources. It critically assesses the nineteen Draft Articles formulated by the Commission and considers the various legal, scientific, social, and related implications of those articles. Moreover, it assesses the applicability and soundness of the Draft Articles in relation to the science of ground water resources. Ultimately, the challenge before the Commission is to formulate international legal principles and doctrines that will allow States to overcome the unique problems associated with the utilization, management, allocation, and protection of the world's transboundary aquifers. The goal of this study is to generate discussion on this critically important topic and to spur additional commentaries that may aid the Commission in its effort.