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Geo-hydrology of Transboundary Confined Aquifers and International Water Law

IWRA World Water Congress 2017 - Cancun Mexico
4. Water policy and governance
Author(s): Malebo Matlala
Malebo Matlala
University of South Africa

Keyword(s): Transboundary Aquifer, Groundwater, Watercourses Convention, UNECE Water Convention, Draft Articles on the Law of Transboundary Aquifers

Groundwater is a crucial, reliable and a strategic resource for domestic, industrial and agricultural supplies. As a result, aquifer development tends to be more intensive in areas prone to surface water shortages. Because of its slow movement, groundwater serves as both a reservoir as well as a constant source of freshwater that is most accessible, reliable and cost effective. This very slow movement of water through aquifers however, makes groundwater susceptible to exploitation. As a result, the development of groundwater can often go unnoticed (private wells dug up by home owners), resulting in tremendous pressure on aquifers, and often leading to over-abstraction of the resource, making the monitoring, protection and conservation as well as management of these systems more challenging with every political border they intersect. In addition, the specific locality of recharge and discharge areas, might influence the use and overall management of the aquifer, where one state’s water supply might be totally dependent on recharge that takes place within the borders of a neighbouring state sharing the same aquifer. Thus in order to promote equitable use and encourage cooperation, states rely on principles of customary international law to guide and govern the use of transboundary water resources. 
The objective of this research was to study and analyse the hydro-geological features that distinguish groundwater from surface water, focusing on determining the distinctive features that dissociates confined aquifers from unconfined aquifers, with the intention of substantiating the need for a separate regulatory instrument for confined aquifers. The coming into force of the UN Watercourses Convention (which is applicable to unconfined aquifers), as well as the opening up of the UNECE Water Convention (which is applicable to all transboundary surface and groundwaters), to other UN Member states further raises the question that should the draft articles on the Law of Transboundary Aquifers proceed toward an independent legal instrument which would require harmonising with the two instruments mentioned above?
The review and analysis of the above-mentioned international regulatory instruments demonstrated that the UN Watercourses Convention does not cover confined aquifers within its scope, and that even though confined aquifers are covered within the scope of the UNECE Water Convention, the conventions’ focus is on transboundary water quality issues.  Although the scope of the draft articles was meant to cover both confined and unconfined transboundary aquifers, the draft articles’ definition of an aquifer explicitly defines an unconfined aquifer, and totally excludes confined aquifers from the scope of the draft articles. In order to protect and conserve transboundary groundwater resources, as well as to reflect principles of international water law, it is essential for states to appreciate the nature of confined aquifers, and harness their dissimilarity to unconfined aquifers. Thus it is a recommendation of this study that the draft articles should not be developed into an independent legal instrument, and that the current Watercourses Convention be revised to include the management, regulation, protection and conservation of transboundary confined aquifers within the scope of the convention.  
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