1 Report of the International Law Commission on the Work of Its Sixtieth Session, UN GAOR, 62d Sess., Supp. No. 10, at 19, UN Doc. A/63/10 (2008) [hereinafter 2008 ILC Report]. The Commission’s documents cited in this Note are available on the ILC Web site, <http://www.un.org/law/ilc/>, unless otherwise noted.

2 2008 ILC Report, supra note 1, at 18.

3 Report of the International Law Commission on the Work of Its Forty-sixth Session, [1994] 2 Y.B. Int’l L. Comm’n, pt. 2, at 89, UN Doc. A/49/10 (1994) [hereinafter 1994 ILC Report]; see Stephen C., McCaffrey, The International Law Commission Adopts Draft Articles on International Watercourses, 89 AJIL 395 (1995)Google Scholar.

4 Convention on the Law of the Non-navigational Uses of International Watercourses, May 21, 1997, 36 ILM 700 (1997) [hereinafter UN Convention].

5 1994 ILC Report, supra note 3, at 89.

6 Resolution on Confined Transboundary Groundwater, id. at 135.

7 Id.

8 Id., pmbl.

9 Foreword to Thomas C., Winter et al., Ground Water and Surface Water: A Single Resource at III (U.S. Geological Survey Circular 1139, 1998), available at <http://pubs.usgs.gov/circ/circl 139/>>Google Scholar.

10 The draft articles, like the UN Convention, define “watercourse” to mean “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.” Art. 2(b), 1994 ILC Report, supra note 3, at 90. “International watercourse” is defined simply as “a watercourse, parts of which are situated in different States.” Art. 2(a), id.

11 This term is used in the definition of “watercourse.” See supra note 10.

12 See Commentary on Art. 2(b), 1994 ILC Report, supra note 3, at 90. The commentary notes: “Some members of the Commission . . . believed that [confined] groundwater should be included within the term ‘watercourse’, provided that the aquifer in which it is contained is intersected by a boundary.”

13 Resolution on Confined Transboundary Groundwater, supra note 6, para. 1.

14 Id., pmbl.

15 Report of the International Law Commission on the Work of Its Fifty-fourth Session, paras. 518–19, UN GAOR, 57th Sess., Supp. No. 10, at 243–44, UN Doc. A/57/10 (2002).

16 Report of the International Law Commission on the Work of Its Fifty-eighth Session, UN GAOR, 61st Sess., Supp. No. 10, at 193, UN Doc. A/61/10 (2006) (referring to the UN Convention, supra note 4) [hereinafter 2006 ILC Report]. The Commission’s previous work, of course, is that reflected in 1994 ILC Report, supra note 3.

17 2006 ILC Report, supra note 16, at 193. The special rapporteur dealt with the relationship between the work on groundwaters and that on oil and gas in his fourth report, considered at the ILC’s 2007 session. See Report of the International Law Commission on the Work of Its Fifty-ninth Session, UN GAOR, 62d Sess., Supp. No. 10, at 124, UN Doc. A/62/10 (2007) [hereinafter 2007 ILC Report]; see id. at 126 (summarizing the Commission’s discussion of the fourth report].

18 General commentary on the draft articles, para. 2, 2008 ILC Report, supra note 1, at 28.

19 These are the same titles as those used for parts I, II, IV, and VI, respectively, of the UN Convention, supra note 4.

20 2008 ILC Report, supra note 1, at 20.

21 Id. at 20–21.

22 Id. at 21.

23 Interestingly, the Commission’s commentary on Article 4 distinguishes between “equitable” and “reasonable” utilization of aquifers, explaining that three of the article’s four paragraphs (relating to maximizing longterm benefits, para, (b); establishing comprehensive utilization plans, para, (c); and not overutilizing recharging transboundary aquifers, para, (d)) are “more related to reasonable utilization.” Commentary on Art. 4, para. 4, id. at 42.

24 Commentary on Art. 5, para. 4, id. at 45.

25 The commentary on paragraph (i) states that the expression “related ecosystem” should be understood in the context of the use of the term “ecosystem” in draft Article 10 on protection and preservation of ecosystems. Id.

26 Id. at 22.

27 See generally Stephen C., Mccaffrey, The Law of International Watercourses 369–71 (2d ed. 2007)Google Scholar.

28 Art. 6(2), 2008 ILC Report, supra note 1, at 22.

29 Art. 6(3), id.

30 The states causing the harm are, “where appropriate, to discuss the question of compensation.” UN Convention, supra note 4, Art. 7(2).

31 Commentary on Art. 6, para. 5, 2008 ILC Report, supra note 1, at 47.

32 Article 2(d) defines “aquifer State” to mean “a State in whose territory any part of a transboundary aquifer or aquifer system is situated.” Id. at 20.

33 “For the purpose of paragraph 1, aquifer States should establish joint mechanisms of cooperation.” Art. 7(2), id. at 23.

34 Art. 8(2), id.

35 Art. 8(4), id. The UN Convention’s counterpart provision reads: “Watercourse States shall employ their best efforts to collect and, where appropriate, to process data and information in a manner which facilitates its utilization by the other watercourse States to which it is communicated.” UN Convention, supra note 4, Art. 9(3).

36 Art. 9, 2008 ILC Report, supra note 1, at 23.

37 Commentary on Art. 7, id. at 49–50.

38 One of the articles, Article 14, is located in a different part of the draft, part 3, from the other two, which are contained in part 2.

39 Art. 10, 2008 ILC Report, supra note 1, at 24.

40 While the “Statements of Understanding” adopted by the Working Group of the Whole of the Sixth Committee, in which the UN Convention was negotiated, state that Articles 21–23 of the Convention “impose a due diligence standard on watercourse States,” they do not include Article 20 in this group. Report of the Sixth Committee Convening as the Working Group of the Whole at Its Second Session, para. 8, UN Doc. A/51/869, at 5 (Apr. 11, 1997), reprinted in 36 ILM 720 (1997).

41 Commentary on Art. 10, para. 4, 2008 ILC Report, supra note 1, at 55

42 Art. 11(2), id. at 24.

43 Art. 12, id.

44 Perhaps the most broadly accepted general formulation of the precautionary “approach” is that of Principle 15 of the Rio Declaration on Environment and Development: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio Declaration on Environment and Development, June 14, 1992, 31 ILM 874, 879 (1992)Google Scholar.

45 Commentary on Art. 12, para. 5, 2008 ILC Report, supra note 1, at 59.

46 The ILC’s commentary acknowledges the controversy as to whether it is a precautionary “approach” or “principle” and opts for the former on the ground that “it is the less disputed formulation.” Id.

47 Art. 13(1), id. at 24.

48 Art. 13(2), id. at 24–25.

49 Art. 14, id. at 25.

50 Id.

51 The reference here is to Garrett, Hardin’s well-known article, The Tragedy of the Commons, 162 Science 1243 (1968)Google Scholar. Hardin uses the analogy of a pasture open to all herdsmen. The incentive of each is to increase his herd without limit, leading eventually to the destruction of the commons: “Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.” Id. at 1244. The same phenomenon would operate in the case of a shared aquifer.

52 See in this connection the “Bellagio Draft Treaty,” a model agreement for transboundary groundwater, in Robert D., Hayton & Albert E., Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 29 Nat. Res. J. 663, 663 (1989)Google Scholar (“Withdrawals from one country can drain life-giving water from a neighboring country and, as a consequence, be the source of severe and protracted conflict. . . . The draft provides mechanisms for the international aquifers in critical areas to be managed by mutual agreement rather than continuing to be subjected to unilateral taking.”). Article VIII of the Bellagio Draft Treaty deals with comprehensive management plans, which are to be prepared by a joint commission, provided for in Article III and established by the states sharing the aquifer in question. Id. at 684, 695. Remarkably, the ILC’s draft refers to the Bellagio Draft Treaty, a widely respected model for the management of shared groundwater, only for its definition of “aquifer.” Commentary on Art. 2, 2008 ILC Report, supra note 1, at 34 n.23.

53 Art. 14, 2008 ILC Report, supra note 1, at 25.

54 Commentary on Art. 15, para. 1, id. at 66.

55 The Seoul Rules on International Groundwaters adopted by the International Law Association (ILA) in 1986 make the ILA’s 1966 Helsinki Rules applicable to groundwater. Rules on International Groundwaters, in 62 ILA, Conference Report 251 (1986)Google Scholar [hereinafter Seoul Rules on International Groundwaters]. The rules were adopted by the Resolution on International Water Resources Law, id. at 21.

56 Commentary on Art. 15, para. 1, 2008 ILC Report, supra note 1, at 66.

57 Art. 15(1), id. at 25.

58 Paragraph 3 of Article 15 also states, in its final sentence, that the states concerned “may utilize an independent fact-finding body to make an impartial assessment of the effect of the planned activities.” Art. 15(3), id. What this provision adds is unclear, since states are always free to have recourse to such third parties. The ILC refers in its commentary on this article to the compulsory fact-finding procedure set forth in Article 33 of the UN Convention, but states that “there exists no evidence as yet for such an obligation in relation to groundwaters.” Commentary on Art. 15, para. 6, id. at 68. As indicated in the text at notes 54–55 supra, this explanation is not convincing.

59 Article 16 begins: “States shall. . . promote . . . cooperation with developing States . . . .” Art. 16, chapeau, id. at 25. The commentary does not address what is intended by the initial reference to “States,” but on the basis of other uses of the term, unmodified by the adjective “aquifer,” in the draft, see, e.g., Art. 15, it seems reasonable to conclude that it refers to all states.

60 See Commentary on Art. 17, para. 1, 2008 ILC Report, supra note 1, at 73 (stating that the UN Convention “contains a similar provision in article 28”).

61 Art. 17(2), id. at 26.

62 Art. 17(3), id. Articles 4 and 6 set forth the obligations of equitable utilization and prevention of significant harm, respectively.

63 Commentary on Art. 17, para. 1, id. at 73.

64 Id.

65 For the definition of “watercourse” in Article 2(a) of the UN Convention, see supra note 10.

66 As indicated above, most surface water has associated groundwater. It does not accord with hydrologic reality to treat the two as entirely separate. See Winter et al., supra note 9.

67 2008 ILC Report, supra note 1, at 27.

68 Id.

69 Id.

70 See Arts. 6, 11, 15, 16, 17.

71 2008 ILC Report, supra note 1, at 27.

72 The substantive provisions (i.e., those not involving scope and definitions) in the transboundary aquifers draft that do not have counterparts in the UN Convention are Article 3, Sovereignty of Aquifer States; Article 11, Recharge and Discharge Zones; Article 13, Monitoring; and Article 16, Technical Cooperation with Developing States.

73 The statement that provisions of the aquifers draft that are not based on the UN Convention “for the most part” deal with the special characteristics of aquifers refers to the fact that Article 16, Technical Cooperation with Developing States, is more broadly applicable. Article 3, while inimical to the law of shared freshwater resources as discussed below, was apparently inspired by the characteristics of aquifers.

74 See note 6 supra and corresponding text.

75 2008 ILC Report, supra note 1, at 18.

76 According to the United Nations Environment Programme, of all freshwater on Earth, only 0.3 percent is contained in lakes and rivers, while 30.8 percent is groundwater. The remaining 68.9 percent takes the form of glaciers and permanent snow cover. See Vital Water Graphics (2002), available at <http://www.unep.org/dewa/assessments/ecosystems/water/vitalwater/01 .htm>>Google Scholar. In its commentary on the preamble to the draft, the ILC states that “[n]inety-seven per cent of readily available freshwater is stored underground.” 2008 ILC Report, supra note 1, at 31, para. 2.

77 2008 ILC Report, supra note 1, at 13, para. 34.

78 Art. 2(a), id. at 20.

79 The term “rock” is used for simplicity. As noted in the commentary, “[a] ‘geological formation’ consists of naturally occurring materials such as rock, gravel and sand.” Commentary on Art. 2(a), para. 1, id. at 35.

80 Seoul Rules on International Groundwaters, supra note 5 5, Art. 1, at 251 (entitled The Waters of International Aquifers) (emphasis added).

81 See the UN Convention’s definition of “watercourse,” supra note 10.

82 See, e.g., Commentary on Art. 2, para. 1, 2008 ILC Report, supra note l , a t 3 5 : “All the aquifers are underlain by less permeable layers which serve, as it were, as the bottom of [a] container. Some aquifers are also upper-lain by less permeable layers. The waters stored in such aquifers are referred to as confined groundwaters as they are pressurized by more than atmospheric pressure.”

83 Resolution on Confined Transboundary Groundwater, supra note 6, pmbl.

84 See the definitions of “recharging aquifer,” “recharge zone,” and “discharge zone” in Article 2(f), (g), and (h), 2008 ILC Report, supra note 1, at 20–21.

85 Id. at 17, para. 43 (describing consideration of special rapporteur’s proposed Article 20, discussed in text at notes 90–92 infra).

86 See, e.g., id. at 136, para. 68.

87 Id. at 15, para. 39 (“[I]ssues concerning the relationship with other instruments were linked to questions concerning final form.”).

88 Id.

89 Id. at 18, para. 49. In December 2008, the General Assembly decided to consider the form the draft articles might take during its sixty-sixth session in 2011. See note 138 infra.

90 Why the Commission felt it necessary to refer to both “conventions” and “international agreements,” since the latter is an all-embracing term for treaties, however named, is not known. See the definition of “treaty” in Article 2(a) of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

91 2008 ILC Report, supra note 1, at 15 n.13.

92 UN Convention, supra note 4, Art. 3(1).

93 Article 10, Recharge and Discharge Zones, 2008 ILC Report, supra note 1, at 24.

94 See generally Margaret J., Vick, International Water Law and Sovereignty: A Discussion of the ILC Draft Articles on the Law of Transboundary Aquifers, 21 Pac. McGeorge Global Bus. & Dev. L.J. 191 (2008)Google Scholar.

95 2008 ILC Report, supra note 1, at 21.

96 Commentary on Art. 3, id. at 39 n.24.

97 This is not the place for an analysis of each of the treaties and nonbinding instruments referred to in note 24 of the ILC’s commentary. Suffice it to say that they relate to a wide variety of subject matters, from the ozone layer and biodiversity to succession of states and the law of the sea. Only two of the instruments actually concern freshwater, and one of those, the 2003 Convention on the Sustainable Development of Lake Tanganyika, reproduces Principle 2 of the Rio Declaration on Environment and Development, supra note 44, in its preamble. Many of the other instruments cited reproduce Principle 2 as well. In providing that “States have. . . the sovereign right to exploit their own resources,” 31 ILM at 876 (emphasis added), Principle 2 is not saying the same thing as that states have “sovereignty over” those resources; nor is there any reference to shared natural resources. The other instrument relating to freshwater, the 1999 Protocol on Water and Health to the 1992 ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, also reproduces Principle 2 of the Rio Declaration in its Article 5(c). Not one instrument cited is devoted to transboundary groundwater.

98 Rio Declaration on Environment and Development, supra note 44, princ. 2, 31 ILM at 876.

99 See the comments of Brazil and Israel, in Shared Natural Resources, Comments and Observations by Governments on the Draft Articles on the Law of Transboundary Aquifers, at 22, UN Doc. A/CN.4/595 (Mar. 26, 2008) [hereinafter Comments and Observations by Governments], available at <http://documents.un.org/default.asp>.

100 Commentary on Art. 3, para. 3, 2008 ILC Report, supra note 1, at 40.

101 “[H]aving a site, situation, or location: Located.” Merriam-Webster’s Collegiate Dictionary 1166 (11th ed. 2003)Google Scholar.

102 The ILC’s commentary implies, without being entirely clear, that this is the meaning of sovereignty it had in mind in the draft articles: “The term ‘sovereignty’ here is a reference to sovereignty over an aquifer located within the territory of an aquifer State, including the territorial sea. . ..” Commentary on Art. 3, para. 4, 2008 ILC Report, supra note 1, at 40.

103 Missouri v. Holland, 252 U.S. 416 (1920).

104 Id. at 434.

105 Id. at 435.

106 Restatement of Torts, ch. 41, topic 3, Analysis, at 350 (1939)Google Scholar.

107 See, e.g., McCaffrey, supra note 27, at 111–70.

108 See Commentary on draft Art. 5, Equitable and Reasonable Utilization and Participation, 1994 ILC Report, supra note 3, at 96; see also McCAFFREY, supra note 27, at 384–405.

109 See Helsinki Rules on the Uses of the Waters of International Rivers, 52 ILA, Conference Report 484 (1966)Google Scholar; Seoul Rules on International Groundwaters, supra note 55; see also Resolution on the Use of International Non-Maritime Waters, Sept. 11, 1961, [1961] 2 Annuaire de I’institut de Droit International 381 Google Scholar; “Berlin Rules on International Water Resources,” 71 ILA, Conference Report 336, 343 (2004) (revising and updating the Helsinki Rules), available at <http://www.asil.org/ilib/WaterReport2004.pdf>>Google Scholar.

110 See 1994 ILC Report, supra note 3, at 89.

111 See note 17 supra and corresponding text.

112 The ILC’s previous work on shared freshwater resources did not rely at all on the legal regimes governing shared oil and natural gas. See the draft articles and commentaries on the law of international watercourses adopted by the Commission in 1994, 1994 ILC Report, supra note 3, at 89. The same is true of the work of the Institut de droit international and the International Law Association, supra note 109.

113 The surface water was, of course, the Danube River, on a long stretch of which the project was located. The groundwater was that associated with the surface water, primarily in the vicinity of the Gabcikovo barrage, but also in wells farther downstream near the banks of the river (“bank-filtered wells”). See, e.g., Gabcikovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7, 35–36, para. 40; 43, para. 56; & 74, para. 127 (Sept. 25).

114 Id. at 56, para. 85 (quoting Territorial Jurisdiction of the International Commission of the River Oder, 1929 PCIJ (ser. A) No. 23, at 27 (citation omitted)).

115 Beyond the close relationship between the ILC and the ICJ, the Court’s president at the time, Stephen M. Schwebel, was a former special rapporteur for the ILC on international watercourses, and the Court’s membership included other former members of the Commission.

116 Commentary on Art. 3, para. 1, 2008 ILC Report, supra note 1, at 38–39.

117 The “Harmon Doctrine” of absolute sovereignty was articulated by Attorney General Judson Harmon of the United States in 1895 in a dispute with Mexico over the Rio Grande. 21 Op. Att’y Gen. 274 (1895), available in 1895 U.S. AG lexis 4. The dispute was resolved in the Convention Providing for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, U.S.-Mex., May 21, 1906, 34 Stat. 2953. See generally McCaffrey, supra note 27, at 76–110.

118 The United States disavowed the Harmon Doctrine in the context of a later dispute with Canada, stating that it never represented international law. See, e.g., William L., Griffin, Legal Aspects of the Use of Systems of International Waters, S. Doc. No. 85–118, at 59–63 (1958)Google Scholar (reprinting Memorandum of the U.S. Dep’t of State, Apr. 21, 1958).

119 See 2006 ILC Report, supra note 16, at 184, para. 73. This practice is followed by the ILC for all of its drafts, as provided for in Articles 16–21 of its Statute. ILC Statute, as amended, Arts. 16–21, UN Doc. A/CN.4/4/Rev.2 (1982). Governments are typically given a year to submit their written comments and observations. The ILC then gives the draft articles a second reading taking into consideration the comments that have been submitted. Also available to the ILC are topical summaries, prepared by the UN Secretariat, of the debates held in the Sixth (Legal) Committee of the General Assembly on the ILC’s annual reports.

120 See text at note 116 supra.

121 Comments and Observations by Governments, supra note 99, at 21–22. In fairness, only twenty-one states submitted comments on the international watercourses articles adopted on first reading. See UN Doc. A/CN.4/447 & Adds. 1, 2, 3 (1993). Unfortunately, low response rates to ILC requests for government comments on its drafts are not unusual. But states with strong interests in a given draft can be expected to submit comments.

122 Comments and Observations by Governments, supra note 99, at 22.

123 Id. (Brazil and Israel). These countries seem to have feared making the draft articles the sole limitation on a state’s exercise of sovereignty.

124 Id., comment of Israel.

125 Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During Its Sixty-first Session, Prepared by the Secretariat, UN Doc. A/CN.4/577 (Jan. 19, 2007); Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During Its Sixty-second Session, Prepared by the Secretariat, UN Doc. A/CN.4/588 (Jan. 24, 2008), available at <http://documents.un.org/default.asp>.

126 2008 ILC Report, supra note 1, at 38–39.

127 ILC Statute, supra note 119, Art. 1(1) (defining the “object” of the International Law Commission).

128 See note 117 supra.

129 Gabcikovo-Nagymaros Project, supra note 113, 1997 ICJ Rep. at 54, para. 78.

130 Article 4, Equitable and Reasonable Utilization, 2008 ILC Report, supra note 1, at 21.

131 For a discussion of these theories in state practice and the views of publicists concerning them, see McCaffrey, supra note 27, at 112–26, and 126–35, respectively. See also text at note 135 infra.

132 Comments and Observations by Governments, supra note 99, comment of Austria, at 21–22.

133 This point may not always be simple to determine, just as the precise location of surface boundaries is not always obvious.

134 State A’s freedom to dispose of the shared water would not be complete because of the obligations of equitable and reasonable utilization (Art. 4) and prevention of significant harm (Art. 6). But those provisions would operate only as limitations on the “sovereignty” conferred by Article 3 and in many cases would be more likely to be raised by the affected state (here, state B) after the activity producing the effects had begun rather than by the acting state (here, state A).

135 See McCaffrey, supra note 27, at 112–35.

136 See id. at 384; see also text at note 129 supra (quoting Gabcikovo-Nagymaros Project, supra note 113, 1997 ICJ Rep. at 54).

137 2008 ILC Report, supra note 1, at 18.

138 The Law of Transboundary Aquifers, GARes. 63/124, para. 6 (Dec. 11, 2008) (deciding to include this item in the provisional agenda of the Assembly’s sixty-sixth session—i.e., three years hence—”with a view to examining, inter alia, the question of the form that might be given to the draft articles”).