The World Bank policy and practice for projects affecting shared aquifers

Abstract

The policies issued by the World Bank since 1956 for regulating its operations on international waterways dealt only with surface water, and did not make any reference to groundwater. Nevertheless, since 1990, the World Bank addressed, through practice and precedents, projects involving shared aquifers in the same manner it has been dealing with shared surface waters. The article discusses how the Bank reached and applied such an approach, and analyzes its contribution to the evolution and progressive development of the law involving transboundary groundwater.

Keywords:

• international water law
• notification
• surface water
• transboundary aquifers
• World Bank policy

Notes

Note: Dr Salman M. A. Salman worked as Lead Counsel and Water Law Adviser with the Legal Vice Presidency of the World Bank until December 2009. Currently he is an academic researcher and a consultant on water law and policy.

1. The Bank has so far appointed such experts in only one project in 1989: the Baardhere Dam and Water Infrastructure Project on the Juba River in Somalia. Ethiopia (which shares the river with Somalia) responded to the notification with a detailed and substantiated objection to the Project, claiming appreciable harm to its interests. That objection prompted the Bank to appoint three independent experts to examine the objection. The experts confirmed the Bank's determination that the Project would not cause appreciable harm to Ethiopia's interests. For more details on the project and the objection see Salman (2011).

2. Section 4.02 of the Loan Agreement between Democratic and Popular Republic of Algeria and International Bank for Reconstruction and Development, dated 6 November 1992 (Loan No. 3405-AL).

3. Article II of the Helsinki Rules defined international drainage basin as “a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus”.

4. Article 2(2) of the Seoul Rules stated that “an aquifer intersected by the boundary between two or more States that does not contribute water to, or receive water from, surface waters of international drainage basin constitutes an international drainage basin for the purpose of the Helsinki Rules”.

5. Similar to the Helsinki Rules, the UN Watercourses Convention defines the term “watercourse” as “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus”. Thus, the Convention applies only to groundwater that is connected to surface water. To remedy this situation the International Law Commission (ILC), after completing its work on the draft Convention, issued “ILC Resolution on Confined Transboundary Groundwater”. The Resolution, like the Seoul Rules, commended the states to be guided by the principles contained in the Draft Convention in regulating transboundary groundwater. For an analysis of how the UN Watercourses Convention addressed groundwater see Eckstein (2005) and McCaffrey (2007). Both authors, as well as other experts, have pointed at the problem of the use of the term “confined aquifers”.

6. See Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992 . The Convention defines transboundary water to include both surface and groundwaters that mark, cross or are located on boundaries between two or more states.

7. See the Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) Region, 1995 . The Protocol defined “watercourse system” to mean the inter-related hydrologic components of a drainage basin such as streams, rivers, lakes, canals and underground water which constitute a unitary whole by virtue of their physical relationship.” This Protocol was replaced in 2000 by the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC). The Revised Protocol adopted the definition of the term “watercourses” of the UN Watercourses Convention (see n. 5).

8. It should be noted that the 1964 Convention and Statutes of Lake Chad Basin (Cameroon, Chad, Niger and Nigeria, joined in 1994 by the Central African Republic) made an explicit reference to groundwater when they stated that the exploitation of the Basin “ … and especially the utilization of the surface and under groundwaters, has the widest meaning and refers in particular to the needs of domestic, industrial and agricultural development”. This reference to groundwater, made in 1964, is one of the earliest such references to groundwater in a regional treaty.

9. It is worth noting in this connection that the 1980 Convention Creating the Niger Basin Authority (NBA) (Benin, Cameroon, Chad, Côte d'Ivoire, Guinea, Mali, Niger, Nigeria and Upper Volta) vested the NBA with extensive authority over both surface and groundwater, including “the initiating and monitoring of an orderly and rational regional policy for the utilization of the surface and underground waters in the Basin”.

10. Because of the absence of a functional government in Somalia, the notification was sent to the Executive Director representing Somalia in the Board of Directors of the World Bank. It was reconfirmed to him that the Project would not cause any appreciable harm to Somalia's interests.

11. The Espoo Convention (Convention on Environmental Impact Assessment in a Transboundary Context 1991) lists in Appendix 1 a number of activities that require notification of the Secretariat of the Convention by the party planning any such activity. The list includes “groundwater abstraction activities in cases where the annual volume of water to be abstracted amounts to 10 million cubic metres or more”.

12. For example, the Bank consistently applies the provisions of treaties and conventions when they require notification or exchange of data and information even if the project in question would fall under one of the three exceptions to the notification requirement under the Bank Policy discussed earlier.

13. The OSS is an independent international organization based in Tunis, Tunisia. It was founded in 1992 to improve early-warning and monitoring systems for agriculture, food security and drought in Africa. Membership of OSS consists of 22 African countries, five countries in Europe and North America (Germany, Canada, France, Italy and Switzerland), and four sub-regional African organizations. For more information on OSS, see: http://www.oss-online.org/index.php?option=com_content&task=view&id=433&Itemid=564&lang=en.

14. By the time of notification of the Mechanism of the Project in early 2009, the United Nations General Assembly had already passed a resolution in December 2008 taking note of the Articles on the Law of Transboundary Aquifers that were adopted by the ILC in August 2008. For the history and an analysis of the Articles see Eckstein (2007).

15. Julio Barberis addressed this matter in 1986 and concluded that groundwater may become of international relevance in the following situations: (1) where a confined aquifer is intersected by an international boundary; (2) where an aquifer lies entirely within the territory of one state but has interconnections and interdependence with an international watercourse; (3) where the aquifer is entirely situated within the territory of one state but has interconnections and interdependencies with another aquifer in another state; and (4) where an aquifer is entirely situated within the territory of one state but is getting recharged in another state (Barberis 1986). This classification raises the question of whether a river that is situated in one country but has connections to an international aquifer can still be considered a national river. In the author's view, such a river is indeed an international river because of such connections.