A critical analysis of the 2008 Draft Articles on the Law of Transboundary Aquifers in the European context

In 2008, the International Law Commission adopted a set of 19 articles that aim to contribute to the codification and development of the law governing transboundary aquifers. In 2009, the UN General Assembly a) took note of the draft articles; b) commended them to the attention of governments without prejudice to the question of their future adoption or other appropriate action; c) encouraged the states concerned to make appropriate bilateral or regional management arrangements, taking into account the draft articles; and d) decided provisionally to examine the question of the form that might be given to those articles at its 66th Session. The ILC Draft Articles offer an important and valuable basis for the progressive development of international groundwater law, including through the negotiation of future agreements applying and adjusting draft articles’ provisions to specific regions or transboundary aquifers. In this sense, both the ILC Draft Articles and the above UNGA resolution address the complementary relationship between universal and regional (or aquifer-specific) legal instruments. In this context, the paper will conduct a comparative analysis and evaluate the relationship between the ILC Draft Articles and relevant laws applicable to the UNECE region, with special focus on EU legal instruments. The analysis will show that these global and regional developments are mutually supportive, but some important differences exist in the extent and content of the obligations under each of them. The paper will consider such differences, in particular, in the context of requirements pertaining to the monitoring and sustainable use of recharging aquifers.