International Water Law and Sovereignty: A Discussion of the ILC Draft Articles on the Law of Transboundary Aquifers

Abstract

The International Law Commission (ILC) recently transmitted the Draft Articles on the law of transboundary aquifers (Draft Articles), through the Secretary-General to Governments for comment. This article looks at the tension between the goal of obtaining an international freshwater treaty and the ILC's work to draft a new legal regime for transboundary aquifers. The author does not question the vital importance of transboundary aquifers or that they are in need of legal principles for optimal utilization, protection from pollution and sustainability. The issue this paper raises is whether a second international legal instrument for freshwater will further these goals. In particular, the author examines two issues: 1) the problems associated with bifurcated water laws where groundwater and surface water are governed by different legal regimes cautioning that the problems experienced in these regimes should be avoided for international watercourses and 2) the inclusion of a draft article on sovereignty over transboundary aquifers.

Keywords: water, international watercourses, international law commission, aquifers, transboundary aquifers