International Water Law Trends Amidst a Global Water Crisis
Ian Murray, Associate Editor, Michigan Journal of International Law
While the overall scope and accompanying costs of global climate change remain uncertain, one aspect of the international environmental landscape is presently clear: water (clean water in particular) is becoming increasingly scarce.[1] Due in part to the intensifying depletion of underground fresh water aquifers, over 2 billion people lack access to clean water on a daily basis, and another 1 billion people do not have enough water to meet basic daily needs.[2] Policy debates surrounding the implications of global climate change abound, but the reality on the ground suggests that the world is already dealing with the initial effects of a global water crisis. The effects of the looming global water crisis will only be exacerbated as the world presses further into the 21st century, with international tensions likely to develop as the battle for previously untapped water sources begins.[3] Some of these untapped water sources will likely come in the form of coastal undersea freshwater aquifers, a form of fresh water that has only been recently discovered and has never before been accessed for the purposes of mass domestic or industrial use.[4] International competition for the rights to the water contained in these aquifers, specifically the water contained in transboundary aquifers (those spanning the coastline or coastal economic zone of two or more nations) will undoubtedly give rise to novel legal questions in the coming years regarding applicable water law as well as giving rise to political battles surrounding equitable resource allocation as transaction costs related to water access continue to rise. The potential use of offshore freshwater aquifers is a very new phenomenon in both the scientific and legal communities as the discovery of the vastness of the overall resource was first published by a group of Australian scientists in December of 2013.[5] One of the lead scientists, Dr. Vincent Post, says that the amount of water contained in these aquifers is one hundred times greater than the combined amount of water that has been extracted worldwide from sub-surface sources since 1900.[6] With many of these seabed aquifers being potentially accessible by countries in North America, Asia, Australia, and Africa,[7] the question remains as to how to decide jurisdiction amongst countries or even between continents when dealing with giant aquifer water reserves that span a vast physical distance. Three major water law doctrines (domestic water law, international water law, and the Law of the Sea) have the potential to drive future conversation pertaining to international water rights, with each doctrine bringing different costs and conflicts to the parties claiming a stake in the global water sweepstakes.[8] Domestic water law (as its name implies) would likely be used to resolve claims to underwater aquifers when the aquifer is confined to specific national or regional boundaries. However, the inherent complexity of domestic water law doctrines means that localizing the issue doesn’t necessarily simplify the problem. For example, the United States is split into two distinct regions for the purposes of allocating water resources, with each region relying on a specific body of laws to govern water usage. The eastern portion of the United States follows riparian law, a legal doctrine premised on the idea that a riparian (an individual owning property abutting a public water resource) does not own water, but possesses certain rights like the right to a continued flow of water and the right to reasonable use of the water resource.[9] The western United States follows the legal doctrine of prior appropriation, which is not based on land ownership, but rather allows the first user to have made a beneficial use of a water resource to continue using the resource as long as certain requirements are met.[10] These kinds of differences within domestic law are not unique to the United States, and the stark contrast between the two regimes serves as a blatant reminder that the future of global water allocation may not be easy to deal with on even the smallest of scales. International water law will also surely play a crucial role in transnational water issues, but the jurisdiction of claimant countries remains no less ambiguous than the competing claims within a domestic zone itself. One possible controlling legal regime of the future would be the Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) as it is the elder of the two major regimes that attempt to shape the future of international water law.[11] However, the Watercourses Convention only applies to aquifers with a link to a surface water system, thusly excluding the seabed aquifers at hand in the present.[12] Some important omissions from the Watercourses Convention, such as the exclusion of fossil seabed aquifers, are addressed in the 2008 UN Draft Articles on the Law of Transboundary Aquifers (the other major, and more recent regime dealing with the future legal treatment of water on the international level). The expansive view of aquifer rights that can be tied to this inclusion of fossil seabed aquifers makes these Draft Articles a leading candidate to shape future international water disputes. However, the Draft Articles have seen very little international attention and have in fact received negative treatment from the International Court of Justice.[13] Additionally, the discrepancies between the Watercourses Convention and the Draft Articles, along with the fact that neither is widely followed at present as a matter of customary international law, further contributes to considerable uncertainty about the future of fresh water resources on the international scale. A third source of legal force, the Law of the Sea, could also potentially guide the future of international water allocation as it pertains to seabed aquifers. This legal doctrine, as codified in the UN Convention on the Law of the Sea, has promising potential to govern seabed aquifers because it has already entered into force with a wide international following.[14] Using the Law of the Sea as applied to seabed aquifers would mean that any water resource located within a 200 mile exclusive economic zone surrounding a nation would belong to that nation.[15] However, applying the Law of the Sea to fresh water seabed aquifers requires the assumption that the aquifers can be treated as “non-living resources” (much like minerals, oil, and gas) under the text of the Convention, a legally untested assumption that cannot be relied upon as hard law going forward.[16] Branding water as a non-living resource would potentially allow countries to have a legitimate and defensible legal claim to a taking of the water in a particular seabed aquifer.[17] However, simplifying the jurisdictional question in this way also has drawbacks on the international scale in the sense that technologically and financially wealthy nations would be able to singlehandedly exploit and hoard a resource that many consider to be the most vital resource on the planet.[18] There is no doubt that water will become a more precious and internationally contested resource as its scarcity increases. In a best case scenario the world will never need to touch the freshwater aquifers underneath our oceans and seas, but if climate change hits as expected (and without proper global mitigation strategies) then the nations of the world will surely entertain the exploration of all possible water sources including seabed aquifers. The political bargaining, interstate conflict, and heightened transaction costs related to extracting the aquifer water can be reduced if the appropriate governing international legal doctrine is hashed out in the present. Extracting water from the seabed aquifers will be unavoidably costly, but it is certainly possible to restrict these costs to the monetary realm rather than letting them expound to the human rights and political spheres. The future of international water law in reference to its largest untapped resource is currently murky, and regional leaders within the zone of each major seabed aquifer should take the lead on establishing a collaborative effort to create reasonable legal and policy objectives before a global water crisis is in full effect.
