Comments on the International Law Commission's Draft Articles on the Law of Transboundary Aquifers (2006)

Abstract

The U.N. International Law Commission (ILC) adopted a set of draft articles on the Law of Transboundary Aquifers on first reading at its 2006 session. It is likely that the ILC will give the draft a second and final reading at its session to be held in the summer of 2008. The draft, which many expected to deal with a form of transboundary groundwater not covered by the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses, in fact overlaps with the 1997 Convention in terms of the subject matter it covers and thereby gives rise to confusion. Moreover, the draft introduces a dangerous and novel concept into the law of shared freshwater resources: sovereignty over the portion of those resources located in the territory of a state. For these reasons, the draft is fundamentally flawed and should not be adopted by the Commission without revisions that eliminate these problems.