Factors Enabling Transboundary Aquifer Cooperation: A Global Analysis


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This report, written by PhD Researcher Kirstin Conti, is a result of the research project initiated by IGRAC for the 2013 United Nations International Year Water Cooperation. IGRAC hopes that this initial attempt to capture the state of cooperation as of

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Factors Enabling Transboundary Aquifer Cooperation: A Global Analysis Westvest 7 2611 AX Delft The Netherlands P +31 (0)15 215 2325 E info@un-igrac.org W www.un-igrac.org Cartography by Friedemann Scheibler Formatting, Layout and Graphics Completed by Erik Geerts (c) 2014 Kirstin I. Conti


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IGRAC, the International Groundwater Resource Assessment Centre facilitates and promotes international sharing of information and knowledge required for sustainable development, management, and governance of groundwater resources worldwide. Since 2003, IGRAC has been providing independent content and process support, focusing on transboundary aquifer assessment and groundwater monitoring. Government of The Netherlands World Meteorological Organization


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Preface and Acknowledgements Enabling Factors for Transboundary Aquifer Cooperation: A Global Analysis is the result of a research project initiated by IGRAC for the 2013 United Nations International Year Water Cooperation. The research was ongoing during 2013 and preliminary findings from that year were viewed and reviewed through various means including publication in the UNESCO book Free Flow and presentation at the 2013 Stockholm World Water Week. The final publication is released with the understanding that the global overview could be updated in the future since the nature and locations of transboundary aquifer cooperation are continually changing. IGRAC hopes that this initial attempt to capture the state of cooperation as of 2013 will be a starting point for future projects and research concerning this subject. I would like to thank everyone at IGRAC who supported the publication of this report, especially Dr. Neno Kukuric and Stefan Siepman. Special thanks are also owed to Geert-Jan Nijsten and Raya Stephan for their review and feedback on multiple drafts as well as interim brainstorming, input and recommendations; there is no doubt that the quality of this research was greatly improved by their suggestions. I would like to thank Dr. Sarah Hendry at the Centre for Water Law, Policy and Science of University of Dundee for her support of my Master’s research, which formed the basis of the content here. The adaptation of the TWINS framework was completed in consultation with Dr. Naho Mirumachi of Kings College London and I am grateful for her personal attention and continued interest in this project. Also Lena Heinrich and Friedemann Scheibler are responsible for the wonderful cartography featured here. So I thank them for their patience and ingenuity with the maps. Many thanks are owed to my mother, Donna Clay-Conti, who reviewed the final version of this report. Finally, I would like to thank my family and friends for supporting me in all my endeavors. II


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LIST OF ACRONYMS AND ABBREVIATIONS APRONA BAR Berlin Rules BMP CEDARE CONAGUA Danube Convention DIKTAS Draft Articles EAC eds. EPDRB EU EU WFD FAO FGEF G-77 GEF GIZ Helsinki Rules IAEA IBWC ICPDR IGRAC IJC ILA ILC INTERREG INWeb ISARM IUCN IWRM Joint Authority JSET JWC km 2 Observitoire de la Nappe d’Alsace [Association for the Protection of Groundwater in the Plain of Alsace] Basins at Risk Intensity Scale Berlin Rules on Water Resources Best Management Practice Centre for Environment and Development for the Arab Region and Europe National Water Commission of Mexico Convention on Cooperation for the Protection and Sustainable Use of the Danube River Dinaric Karst Transboundary Aquifer System Draft Articles on the Law of Transboundary Aquifers East African Community editors Environmental Programme for the Danube River Basin European Union European Union Water Framework Directive Food and Agriculture Organization French Global Environmental Facility Group of 77 Global Environmental Facility German Agency for International Cooperation Helsinki Rules on the Uses of Water of International Rivers International Atomic Energy Agency International Boundary and Waters Commission (United States and Mexico) International Commission for the Protection of the Danube River International Groundwater Resources Assessment Centre International Joint Commission (United States and Canada) International Law Association United Nations International Law Commission European Union Interregional Cooperation Programme International Network of Environment Water Centres UNESCO-IHP Internationally Shared Aquifer Resources Management Programme International Union for Conservation of Nature Integrated Water Resources Management Joint Authority for the Study of the Development of the Nubian Sandstone Aquifer Waters Joint Supervision and Enforcement Teams of Israel and Palestine Joint Water Committee of Israel and Palestine Square kilometers III


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Madrid Convention MERCOSUR Mm 3 European Outline Convention on Transfrontier Co-operation Between Territorial Communities or Authorities Common Market of the South Million cubic meters Mekong River Commission Nubian Sandstone Aquifer System Northwestern Sahara Aquifer System (same as SASS) Organization of American States Observatoire du Sahara et du Sahel [Sahara and Sahel Observatory] UNESCO-IHP From Potential Conflict to Cooperation Potential Programme Post Nubian Aquifer System River Basin Management Commission River Basin Management Organizations Southern Africa Development Community Southern African Development Coordination Conference Sistema Aquífero Guaraní [Guaraní Aquifer System] Strategic Action Program Système Aquifère du Sahara Septentrional (same as NWSAS) Contribute to a better quality of surface and groundwater bodies in the Scheldt International River Basin District South Eastern Europe region Seoul Rules on International Groundwaters Thermal Joint Aquifer Management Transboundary Water Interaction NexuS United Nations United Nations Watercourses Convention United Nations Development Programme United Nations Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes United Nations Environmental Programme Agreement between the Swiss Federal Council, the Government of the Federal Republic of Germany and the Government of the French Republic on Crossborder Co-operation in the Upper Rhine Region United States of America MRC NSAS NWSAS OAS OSS PCCP PNAS RBC RBO SADC SADCC SAG SAP SASS ScaldWIN SEE Seoul Rules T-JAM TWINS UN UN Watercourses Convention UNDP UNECE Water Convention UNEP Upper Rhine Agreement US IV


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1. INTRODUCTION In recent years, significant attention has been given to the potential for conflict over water resources, particularly transboundary resources. However, research has shown that it is considerably more likely that stakeholders will use cooperative approaches than adversarial ones (Yoffe et al. 2004; de Stefano et al. 2010). While cooperative events are relatively well-documented through media and publicly available information, there is a gap in understanding what conditions facilitate sustained cooperation over water resources. This gap is even more evident when it comes to transboundary aquifers because researchers and practitioners have given them less attention than their surface water counterparts (Jarvis et al. 2011; Linton & Brooks 2011; Feitelson 2003; Machard de Gramont et al. 2011). However, the importance of transboundary aquifers cannot be emphasized enough. There are 608 identified transboundary aquifers worldwide underlying almost every nation – excluding most but not all islands (International Groundwater Resources Assessment Centre 2014). These resources are of considerable importance given that groundwater from TBAs fulfills basic human needs and irrigates arable lands worldwide (Siebert et al. 2010; Döll & Hoffmann-Dobrev 2012). Further, countless habitats rely on groundwater flow for their survival, such as groundwater-dependent wetlands and desert ecosystems. Given the critical importance of groundwater resources worldwide, this report will present a global analysis of factors that enable and facilitate cooperation over transboundary aquifers. The focus of current water diplomacy and conflict resolution research is methodologies for and “best practices” in dismantling existing water conflict. Yet, conflict over groundwater has rarely risen to the international scale. In light of this, managing potential conflict may not be the appropriate goal for groundwater resources. Instead, focusing on enabling cooperation could prove more fruitful given that most aquifer states (states sharing a transboundary aquifer) are not yet interacting about transboundary aquifers. Therefore, the purpose of this report is to link theory and observations about real occurrences of transboundary aquifer cooperation and answer the question: What factors enable and facilitate cooperation over transboundary aquifers? To respond to this question, the report outlines current theories about why international water cooperation occurs and subsequently matches these theories with the identified factors that lead to cooperative events. In other words, it will describe where reality and theory meet. It also makes conjectures as to why. To accomplish this, a multi-step analysis is conducted. First, instances of transboundary aquifer cooperation are identified, along with the mechanisms by which the aquifer states are cooperating. Next, the context under which the cooperation occurs is assessed. Each incidence of cooperation is then indexed according to the intensity of cooperation resulting from the various cooperative mechanisms and cooperative contexts. This index allows the specific enabling factors to be correlated with two metrics of transboundary cooperation: transboundary aquifer events and transboundary aquifer interactions. Patterns and trends in the occurrence of these “enabling factors” are then extrapolated. Data for the analysis comes from a range of resources. Information regarding transboundary aquifers at the global level is primarily sourced from the International Groundwater Resources Assessment Centre (IGRAC). A review of academic literature and practitioner guides identified theories and frameworks for cooperative management of transboundary water resources. Instances of cooperation are identified through project documents from IGRAC, the International Shared Aquifer Resources Management Initiative (ISARM), the Global Environmental Facility (GEF), the UNESCO-IHP from Potential Conflict to Cooperation Potential Programme (PCCP), as well as a general internet search. Details surrounding the nature of transboundary aquifer cooperation are gathered from these project documents and supplemented by academic research on the aquifers. This constitutes a new research effort that addresses an existing gap in water cooperation/ 1


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conflict theory regarding practical motivations for cooperation. In the end, the report recommends how the “enabling factors” can be used to encourage future transboundary groundwater cooperation. Section 1 provides an overview of the report and the theoretical background on cooperation over transboundary aquifers by describing the transboundary aquifers of the world, summarizing current theories of cooperative water resources management, and generally describing instances of cooperation and conflict over transboundary aquifers. Section 2 extrapolates enabling factors from observed cases of transboundary aquifer cooperation and accounts for the context in which the cooperation occurred. Section 3 identifies trends in the presence of enabling factors such as geographic trends, trends in physical extent, and temporal trends. Section 4 discusses the correlation between enabling factors and the intensity of cooperative interactions. Section 5 presents conclusions and recommendations along with implications for ‘good practices’ in transboundary groundwater management. Full profiles of the transboundary aquifer cooperation cases evaluated in this analysis are found in Appendix A. 2


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2. BACKGROUND 2.1 PHYSICAL CHARACTERISTICS OF TRANSBOUNDARY AQUIFERS A broad definition of groundwater is water which fully saturates pores and fissures in the earth’s subsurface geological formations (Fitts 2002). Using this definition, groundwater can be distinguished from surface water and the water contained in partially saturated soils (also called the vadose zone). In most cases, groundwater moves very slowly taking tens to thousands of years to move a few meters. Groundwater is formed when rainwater falling on land or water flowing over land is absorbed into the soil and percolates into the underlying geological formation. Depending on the characteristics of the sub-surface geology, the groundwater, together with the rock matrix, can form an aquifer. Hydrogeologists do not rely on any one definition of an aquifer. Consequently, this report relies on the definition provided by the United Nations International Law Commission’s Draft Articles on the Law of Transboundary Aquifers (Draft Articles). The Draft Articles define an aquifer as “a permeable water-bearing geological formation underlain by a less permeable layer and the water contained in the saturated zone of the formation” (International Law Commission 2008). The Draft Articles further define a transboundary aquifer or a transboundary aquifer system as “an aquifer or aquifer system, parts of which are situated in different States.” There are two types of aquifers discussed in this analysis: unconfined and confined. In an unconfined aquifer, the water table occurs within the aquifer layer. This means that the groundwater comes in contact with the atmosphere through soil pores or fissures (Fitts 2002; Margat & van der Gun 2013). On the other hand, confined aquifers are sandwiched between layers which are wholly or partially impermeable (Fitts 2002; Margat & van der Gun 2013). Some aquifers only receive negligible amounts of recharge on a human timescale and are therefore considered non-recharging. These aquifers contain ‘fossil’ groundwater.1 Figure 1. Visualization of a Confined and Unconfined Aquifer Source: Hermance 1999:17 The CC license does not apply to this picture. 1 Although commonly used, the term ‘fossil aquifer’ is a misnomer. “Fossil” describes the groundwater rather than the aquifer itself. 3


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Figure 2. Transboundary Aquifers of the World The CC license does not apply to this picture.


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Eckstein and Eckstein (2005) put forth six conceptual models of transboundary aquifers to depict scenarios under which groundwater resources have transboundary impacts. These models are representative of the vast majority of aquifers around the world. The attributes of these models are summarized in Table 1. While scientists’ understanding of aquifers is significant, there is a lack of aquifer-specific data and knowledge in large parts of the world, especially when compared with that of surface water resources (Jarvis et al. 2011). Hydrogeologists agree that many aquifers - particularly non-recharging aquifers - are at high risk of overexploitation and contamination. Unfortunately, an aquifer with these problems is often difficult to remediate and rehabilitate (Linton & Brooks 2011). Table 1. Models of Transboundary Aquifers Aquifer Type Associated Surface Water River forming an international border River intersects international border River flows within a single state River intersects international border Potential for Transboundary Pollution Impacts Limited Potential for Transboundary Example Aquifers Cases Extraction Impacts Yes Rio Grande Aquifer Danube Aquifer Abbotsford-Sumas Aquifer Mures/Maros Aquifer San Pedro Basin Mimbres Basin Model A Unconfined, transboundary Unconfined, transboundary Unconfined, transboundary Unconfined, within a single state Confined recharging, Transboundary Confined nonrecharging, transboundary Model B Yes Yes Model C Yes Yes Model D Yes Yes Mesopotamian Basin Syr Darya Aquifer Mountain Aquifer Guaraní Aquifer Nubian Sandstone Aquifer Complex Terminal Aquifer Qa-Disi Aquifer Model E None Yes Yes Model F None Yes Yes Source: based on Eckstein & Eckstein 2005 2.2 USES OF TRANSBOUNDARY AQUIFERS In many arid, semi-arid, and temperate regions, groundwater composes a vast majority of the water supply. Worldwide, a significant portion of the human population relies on groundwater to meet their basic needs — drinking, bathing, hygiene, cooking and cleaning. In terms of commercial agriculture production, most recent estimates show that 43% of water used for crop irrigation is groundwater (Siebert et al. 2010). However, some estimates are as high as 65%. (Machard de Gramont et al. 2011). Worldwide, 50% of municipal water withdrawals and 40% of industrial withdrawals originate from groundwater (Zektser & Everett 2004). In Europe over 80% of drinking water is supplied from groundwater (Struckmeier et al. 2005). Meanwhile in Africa, Latin America and Asia increasing access to groundwater has been a major catalyst of growth and development (Wijnen et al. 2012). 5


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Groundwater resources are not only critical to the human, but also the natural environment. Environmental impacts most often arise when ecosystems, partially or wholly dependent on groundwater, receive reduced or contaminated flows. Therefore, the volume and quality (e.g. temperature, chemical composition, and pollutant load) of groundwater discharge can be of critical importance to maintaining biodiversity (Puri et al. 2001). Discharges into coastal areas can also influence the marine environment. For example, groundwater discharges in the Adriatic Sea are significant and maintain the saline balance many of the species require. Given that groundwater constitutes 97% of the world’s non-frozen freshwater resources, it is expected to have a more critical role in meeting expanded water needs in the future. Demand for water in developing countries is expected to grow 25% between 2010 and 2025 due to increased preference for water intensive foods, technological advancement, and economic development (UNESCO 2012). Increased pumping and subsequent discharge of groundwater may also have a noticeable impact on sea level rise (Konikow 2011). Simultaneously, groundwater use has the potential to combat impacts of climate variability by serving as secondary supply when availability of surface water is reduced and by buffering the effects of flood and/or drought through managed aquifer recharge schemes. 2.3 GOVERNANCE OF TRANSBOUNDARY AQUIFERS Governance of transboundary aquifers is becoming a critical need. Over abstraction, contamination and degradation of recharge areas are the main threats to the sustainability of aquifers worldwide (Wijnen et al. 2012). Increased areas with impermeable surfaces, deforestation and desertification are also reducing the volume of groundwater recharge globally. Consequently, the planet is in the midst of a “silent revolution,” stemming from the proliferation of groundwater use and the near absence of legal and managerial oversight (Llamas & Martínez-Santos 2005). Lack of scientific and technical knowledge about specific transboundary aquifers is one of the major challenges to proper governance. Without adequate technical understanding of aquifers, states may not properly identify the source of aquifer pollution or depletion and may be prone to blaming each other for mismanagement. Thus, absent some efforts to manage the aquifers, it is unlikely that any advanced technical understanding will be pursued. This paradox is the crux of the groundwater governance challenge and perhaps explains why groundwater governance regimes are so sparse today. Further, weak institutional structures and the absence of legal frameworks involving aquifer states likely result in poor communication regarding the allocation and quality of the resource. In the case of non-recharging aquifers, which contain fossil groundwater, one state’s extraction of the water resource would cause the other aquifer states to permanently loose the opportunity to utilize the groundwater (see Table 1, Model F). This type of extraction could cause a state to believe their sovereignty is threatened, possibly increasing the potential for conflict (Jarvis et al. 2011). The ‘out-of-sight, out-of-mind’ nature of aquifers adds a dimension of complexity to assessing conflict potential, especially when considering the impact of unilateral development. Developments within a transboundary aquifer may occur over an extended period of time before any of the aquifer states recognize a problem. The unexpected drying of wells, reduction of base flow, or emergence of communal health problems may spark conflict in areas where groundwater management was not previously a priority. 6


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Comprehensive governance of groundwater resources is critical to preventing and mitigating the aforementioned threats to groundwater resources. The United Nations Development Programme (UNDP) has defined governance as the ‘exercise of political, economic and administrative authority in the management of a nation’s affairs at all levels.’ The Global Water Partnership has defined water governance as the “range of political, social, economic and administrative systems that are in place to develop and manage water resources, and the delivery of water services, at different levels of society” (Rogers & Hall 2013). Most recently, Varady et. al. (Varady et al. 2013) specifically defined groundwater governance as “the process by which groundwater is managed through the application of responsibility, participation, information availability, transparency, custom, and rule of law. It is the art of coordinating administrative actions and decision making between and among different jurisdictional levels-–one of which may be global.” Compared to surface water, there are few legal and institutional tools designed to specifically manage groundwater resources and those that do exist are generally at the sub-national level and perhaps the aquifer or sub-aquifer scale (Linton & Brooks 2011; Feitelson 2003). According to Wijnen et al. (2012), proper governance frameworks will embody five main attributes: 1. 2. 3. 4. 5. an Integrated Water Resources Management (IWRM) modality that can allocate water in accordance with the institution’s policy goals; a robust legal framework including laws, appropriative rights, and regulatory tools; economic incentives that promote good management including subsidies, taxes, cost-recovery, and [tradable] licenses; a framework which facilitates groundwater management at the lowest appropriate administrative level and supports local management; and data and information from groundwater monitoring networks and from the observations of community level stakeholders. There are myriad obstacles to adopting groundwater governance frameworks, particularly at the international level. Groundwater is a common-pool resource and is often utilized at an individual scale regardless of overall impacts to an aquifer. This approach creates a ‘tragedy of the commons’ situation, wherein the resource is utilized only with regard to current benefits to the individual user. Meanwhile the likelihood for future, detrimental impacts to the resource and the users, as a collective, is ignored. The fact that most groundwater is accessible without many costs or requirements for monitoring exacerbates these issues. Negative impacts to the resource remain unseen and become evident only when adverse impacts to human and ecological health occur due to contamination and/or over pumping. In the absence of good groundwater governance and in the face of threatened transboundary aquifers, some states have experienced conflict and others have been motivated to seek out cooperative mechanisms for management. Legal regimes, in particular treaties, are commonly espoused mechanisms for cooperation. The following section highlights the current status of international legal regimes for groundwater. 2.4 INTERNATIONAL LAW AND TRANSBOUNDARY GROUNDWATER RESOURCES In general, legal instruments for transboundary aquifer governance are nascent and customary in nature (Dellapenna 2011). This could be explained by understanding how international law itself develops. The most influential source of international law is state practice. In other words, how states are interacting with each other regarding a certain topic in the legal regime. While, numerous states have developed national frameworks 7


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governing groundwater there is very little to be said about state practice with regard to transboundary aquifers. There is only one international agreement that goes so far as to establish a system for allocating transboundary groundwater resources. 2 There are several international rules and agreements that set forth specific legal principles for the management for transboundary groundwater and/or aquifers. They can be divided into two broad categories: those that are legally-binding upon the ratifying parties and those that are non-binding rules that serve as guidelines for the international community. Legally binding agreements include the United Nations Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Water Convention) (1992) and the United Nations Convention on the Non-Navigational ‘Until quite recently, transboundary Uses of International Water Courses (UN Watercourses groundwater resources were treated as the neglected stepchild of international Convention) (1997). It is worth noting that the UNECE Water Convention was originally a European regional instrument water law. Transboundary aquifers were habitually ignored in projects with and is now amended such that it is open to accession by all international implications, consistently UN Member States (United Nations Economic Commission omitted from treaties and cursorily for Europe 2003). It clearly includes all transboundary water understood in much of legal discourse. To resources in its scope and facilitates cooperation through a large extent, these resources were “out the formation of joint management bodies. In contrast, the of sight, out of mind,” largely because few realized that the resource they pumped UN Watercourses Convention was negotiated and created at the global level, but defines its scope as any “system was shared with another county.’ of surface waters and groundwaters constituting by virtue – Gabriel Eckstein of their physical relationship a unitary whole and normally flowing into a common terminus […] parts of which are situated in different States” (see Article 2(a)). However, this does not include all types of transboundary groundwater resources, notably confined non-recharging aquifers, among others. There are three sets of non-binding rules developed by the International Law Association’s (ILA), an epistemic community of lawyers that seek to articulate and progressively development international law. These are the Helsinki Rules on the Uses of Water of International Rivers (Helsinki Rules) (International Law Association 1966), Seoul Rules on International Groundwaters (Seoul Rules) (International Law Association 1986), and Berlin Rules on Water Resources (Berlin Rules) (International Law Association 2004a). The Berlin Rules are the first set of rules to dedicate a chapter to transboundary groundwater resources, yet they are considered controversial in that their scope includes both transboundary and domestic water resources (International Law Association 2004b). 2 The only international treaty including volumetric allocation of groundwater resources is the 2008 Convention Genevois between France and Switzerland (Convention on the Protection, Utilization, Recharge and Monitoring of the Franco-Swiss Genevois Aquifer). This convention was originally ratified in 1978 and was constructed for a 30 year term. The new convention is further aligned to new developments in international and supranational water law including the United Nations Economic Commission for Europe ‘Convention on the Protection and Use of Transboundary Watercourses and International Lakes’ and European Union Water Framework Directive respectively. 8



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