“The Guarani Aquifer Agreement: The Role of Non State Actors” @ Public Participation and Water Resources Management: Where do We Stand in International Law Conference 13 December 2013, organized by the United Nations Economic Commission for Europe and the Platform for International Water Law of the University of Geneva, Room V, Palais des Nations, United Nations Headquarters, Geneva

1. 13
December
2013
UNECE
and
UNIGE
Pla7orm
for
Interna;onal
Water
Law
Palais
des
Na;ons,
Room
V
Public
Par*cipa*on
and
Water
Resources
Management:
Where
Do
We
Stand
in
Interna*onal
Law?
The
Guarani
Aquifer
Agreement
and
the
role
of
non-­‐State
Actors
Francesco
Sindico
Reader
in
Interna;onal
Environmental
Law
School
of
Law,
University
of
Strathclyde,
Glasgow

2. Context
o 2010:
Seminar
@
the
University
of
Surrey,
Guildford,
UK
&
2011:
Conference
@
the
University
of
Sao
Paulo,
Brazil
§ 13.3
Interna;onal
Community
Law
Review
(2011)
§ 123.3
Bole;n
Geologico
Minero
(2012)
o 15-­‐16
October
2013
Interna;onal
Roundtable
Conference
“Interna;onal
Water
Coopera;on
and
the
Management
of
Transboundary
Aquifers”,
Glasgow
§ Glasgow
Statement
on
Interna;onal
Water
Coopera;on
and
Transboundary
Aquifers

3. Outline
o The
Guarani
Aquifer
Agreement
§ Aquifers
and
Transboundary
Aquifers
(TBA):
A
Hydrogeological
and
an
Interna;onal
Law
Approxima;on
o Non
State
Actors
and
Public
Par;cipa;on
in
the
Guarani
Aquifer
Agreement

4. The
Guarani
Aquifer
Agreement
o The
Guarani
Aquifer
System
§ Transboundary
aquifer
system
(Argen;na,
Brazil,
Paraguay
and
Uruguay)
§ Underground
geological
forma;on
(container
/
rock)
§ Groundwater
contained
therein
o Water
resources
are
not
(yet)
in
crisis
§ Climate
Change
§ Popula;on
increase
and
change
in
land
use

5. The
Guarani
Aquifer
Agreement
o The
long
road
to
coopera;on
§ Guarani
Project
(2003/09)
§ Nego;a;ons
in
2004/05
§ Guarani
Aquifer
Agreement
(2010)
o Implementa;on
of
the
Guarani
Aquifer
Agreement
(2013)
§ Commission
under
the
Treaty
of
the
River
Plate
Basin
(art.
15)
§ Ra;fied
only
by
Uruguay
and
Argen;na
§ Key
role
of
Brazil

6. The
Guarani
Aquifer
Agreement
UNILC
Drae
Ar;cles
on
the
Law
of
TBA
(2008)
Guarani
Aquifer
Agreement
takes
into
account
the
Drae
Ar;cles(2010)
A/68/470
(2013)
takes
note
of
the
Guarani
Aquifer
Agreement
o The
Guarani
Aquifer
Agreement
§ One
of
the
few
examples
of
interna;onal
trea;es
in
the
field
of
TBA
management
§ Refers
to
the
UNILC
Drae
Ar;cles
§ Recent
discussion
at
the
UNGA
6th
Commihee
on
the
future
of
the
Drae
Ar;cles
refers
to
the
Guarani
Aquifer
Agreement
• And
to
the
Model
Provisions
on
Transboundary
Groundwaters

7. Non
State
Actors
and
Public
Par>cipa>on
in
the
Guarani
Aquifer
Agreement
§ No
tangible
presence
of
public
par;cipa;on
in
the
Agreement…
§ But
if
public
par;cipa;on
is
a
component
of
other
obliga;ons
provided
for
in
the
Agreement…
§ And
if
public
par;cipa;on
is
part
of
(or
becoming
part
of)
general
interna;onal
law…
§ Then….
It
will
s;ll
be
relevant/
applicable.

8. Non
State
Actors
and
Public
Par>cipa>on
in
the
Guarani
Aquifer
Agreement
o But
if
public
par;cipa;on
is
a
component
of
other
obliga;ons
provided
for
in
the
Agreement…
§ Environmental
impact
assessment
(GAA,
arts.
9
and
10)
§ Rela;onship
between
public
par;cipa;on
and
Environmental
Impact
Assessment

9. Non
State
Actors
and
Public
Par>cipa>on
in
the
Guarani
Aquifer
Agreement
o And
if
public
par;cipa;on
is
part
of
(or
becoming
part
of)
general
interna;onal
law…
§ GAA
art.
5:
“When
the
Par;es
intend
to
undertake
studies,
ac;vi;es
or
work
related
to
parts
of
the
GAS
that
are
located
in
their
respec;ve
territories,
and
that
may
have
effects
beyond
their
respec;ve
boundaries,
they
shall
act
in
agreement
with
the
principles
and
norms
of
applicable
interna>onal
law.”

10. Non
State
Actors
and
Public
Par>cipa>on
in
the
Guarani
Aquifer
Agreement
o River
Uruguay
Treaty
o Guarani
Aquifer
Agreement
§ Does
not
require
EIA
§ Does
not
require
public
§ Par;es
to
the
treaty
are
par;cipa;on
(public
TBA
not
par;es
to
the
ESPOO
consulta;on)
dimension
Conven;on
§ Par;es
to
the
GAA
are
§ S;ll,
the
ICJ
made
it
clear
not
par;es
to
the
Aarhus
that
Argen;na
and
Conven;on
Uruguay
were
bound
by
§ Are
the
GAA
Par;es
the
interna;onal
legal
bound
by
an
emerging
EIA
and
obliga;on
to
undertake
interna;onal
legal
public
an
EIA
obliga;on
to
carry
out
par>cipa>on
public
consulta;on?

11. Non
State
Actors
and
Public
Par>cipa>on
in
the
management
of
a
TBA
May
cause
significant
harm
in
State
B
• To
the
groundwater
and/or
• To
the
geological
forma;on
Ac;vity
in
State
A
• Groundwater
exploita;on
• Shale
gas
exploita;on
• Underground
infrastructure
(metro)
TBA
Public
in
State
B
Business
Public
in
State
A
State
A

12. Conclusion
Espoo
Conven;on
/
Aarhus
Conven;on
Uruguay
River
/
Guarani
Aquifer
Environmental
Impact
Assessment
/
Public
par>cipa>on

13. Conclusion
o Then….
§ Public
par;cipa;on
is
applicable/
relevant
to
the
GAA
countries
§ GAA
is
not
yet
in
force,
but
this
would
not
maher
§ Relevant
in
the
context
of
shale
gas
explora;on/exploita;on
in
Brazil

14. Conclusions
o A/68/470,
The
Law
of
Transboundary
Aquifers
§ “Commends
to
the
ahen;on
of
Governments
the
drae
ar;cles
on
the
law
of
transboundary
aquifers
annexed
to
the
present
resolu;on
as
guidance
for
bilateral
or
regional
agreements
and
arrangements
for
the
proper
management
of
transboundary
aquifers;
From
taking
into
account
(2009)
to
guidance
(2013)
o Opening
of
the
UNECE
Water
Conven;on
to
all
UN
Member
States
§ Model
Provisions
on
Transboundary
Groundwaters
adopted
by
the
sixth
MOP
to
the
UNECE
Water
Conven;on

15. Thank
you!
§ Francesco
Sindico
Director,
Strathclyde
Centre
for
Environmental
Law
and
Governance
hhp://www.strath.ac.uk/scelg/
Programme
Director,
Strathclyde
LLM
in
Climate
Change
Law
and
Policy
hhp://www.strath.ac.uk/humani;es/courses/law/courses/
climate_change_law_policy_llm/
Glasgow
Statement
on
Interna;onal
Water
Coopera;on
and
Transboundary
Aquifers
hhp://www.strath.ac.uk/media/facul;es/hass/law/scelg/
Glasgow_Statement_on_Interna;onal_Warer_Coopera;on_and_Transb
oundary_Aquifers.pdf