If Water Respects No Political Boundaries, Does Politics Respect Transboundary Waters

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 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 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 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 over that resource. …

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