the guarani aquifer agreement and the role of non-state actors · the guarani aquifer agreement ....

Public Participation and Water Resources Management: Where Do We Stand in

International Law?

13 December 2013 UNECE and UNIGE Platform for International Water Law Palais des Nations, Room V

The Guarani Aquifer Agreement and the role of

non-State Actors

Francesco Sindico Reader in International Environmental Law School of Law, University of Strathclyde, Glasgow

o 2010: Seminar @ the University of Surrey, Guildford, UK & 2011: Conference @ the University of Sao Paulo, Brazil

13.3 International Community Law Review

(2011) 123.3 Boletin Geologico Minero (2012)

o 15-16 October 2013 International

Roundtable Conference “International Water Cooperation and the Management of Transboundary Aquifers”, Glasgow

Glasgow Statement on International Water

Cooperation and Transboundary Aquifers

Context

o The Guarani Aquifer Agreement Aquifers and Transboundary Aquifers (TBA): A

Hydrogeological and an International Law Approximation

o Non State Actors and Public Participation in

the Guarani Aquifer Agreement

Outline

o The Guarani Aquifer System Transboundary aquifer system

(Argentina, Brazil, Paraguay and Uruguay)

Underground geological formation (container / rock)

Groundwater contained therein

o Water resources are not (yet) in crisis Climate Change Population increase and change

in land use

The Guarani Aquifer Agreement

o The long road to cooperation Guarani Project (2003/09) Negotiations in 2004/05 Guarani Aquifer Agreement

(2010) o Implementation of the Guarani

Aquifer Agreement (2013) Commission under the Treaty of

the River Plate Basin (art. 15) Ratified only by Uruguay and

Argentina Key role of Brazil

The Guarani Aquifer Agreement

The Guarani Aquifer Agreement

UNILC Draft Articles on the Law of TBA (2008)

Guarani Aquifer Agreement takes into

account the Draft Articles(2010)

A/68/470 (2013) takes note of the Guarani Aquifer Agreement

o The Guarani Aquifer Agreement One of the few examples of

international treaties in the field of TBA management

Refers to the UNILC Draft Articles Recent discussion at the UNGA

6th Committee on the future of the Draft Articles refers to the Guarani Aquifer Agreement • And to the Model Provisions

on Transboundary Groundwaters

No tangible presence of public participation in the Agreement…

But if public participation is a

component of other obligations provided for in the Agreement…

And if public participation is part of (or

becoming part of) general international law…

Then…. It will still be

relevant/applicable.

Non State Actors and Public Participation in the Guarani Aquifer Agreement

o But if public participation is a component of other obligations provided for in the Agreement…

Environmental impact

assessment (GAA, arts. 9 and 10) Relationship between public

participation and Environmental Impact Assessment

Non State Actors and Public Participation in the Guarani Aquifer Agreement

o And if public participation is part of (or becoming part of) general international law…

GAA art. 5: “When the Parties intend to undertake

studies, activities or work related to parts of the GAS that are located in their respective territories, and that may have effects beyond their respective boundaries, they shall act in agreement with the principles and norms of applicable international law.”

Non State Actors and Public Participation in the Guarani Aquifer Agreement

o River Uruguay Treaty Does not require EIA Parties to the treaty are

not parties to the ESPOO Convention

Still, the ICJ made it clear that Argentina and Uruguay were bound by the international legal obligation to undertake an EIA

Non State Actors and Public Participation in the Guarani Aquifer Agreement

o Guarani Aquifer Agreement Does not require public

participation (public consultation)

Parties to the GAA are not parties to the Aarhus Convention

Are the GAA Parties bound by an emerging international legal obligation to carry out public consultation?

EIA and public

participation

TBA dimension

Non State Actors and Public Participation in the management of a TBA

TBA

Activity in State A • Groundwater

exploitation • Shale gas exploitation • Underground

infrastructure (metro)

May cause significant harm in State B • To the

groundwater and/or

• To the geological formation

State A

Public in State B

Business

Public in State A

Conclusion

Uruguay River / Guarani Aquifer

Espoo Convention /

Aarhus Convention

Environmental Impact

Assessment / Public

participation

o Then…. Public participation is

applicable/relevant to the GAA countries

GAA is not yet in force, but this would not matter

Relevant in the context of shale gas exploration/exploitation in Brazil

Conclusion

Conclusions

o A/68/470, The Law of Transboundary Aquifers “Commends to the attention of

Governments the draft articles on the law of transboundary aquifers annexed to the present resolution as guidance for bilateral or regional agreements and arrangements for the proper management of transboundary aquifers;

o Opening of the UNECE Water Convention to all UN Member States Model

Provisions on Transboundary Groundwaters adopted by the sixth MOP to the UNECE Water Convention

From taking into account (2009) to guidance (2013)

Francesco Sindico Director, Strathclyde Centre for Environmental Law and Governance http://www.strath.ac.uk/scelg/ Programme Director, Strathclyde LLM in Climate Change Law and Policy http://www.strath.ac.uk/humanities/courses/law/courses/climate_change_l

aw_policy_llm/ Glasgow Statement on International Water Cooperation and Transboundary

Aquifers http://www.strath.ac.uk/media/faculties/hass/law/scelg/Glasgow_Stateme

nt_on_International_Warer_Cooperation_and_Transboundary_Aquifers.pdf

Thank you!