In 2008, the United Nations General Assembly adopted the Draft Articles on the Law of Transboundary Aquifers. Yet, nearly two decades later, they have still not evolved into a legally binding international convention.
This raises an important question: Is the international community reluctant to embark on another codification process for transboundary groundwater after the long and difficult experience of negotiating the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses?
The negotiations leading to the 1997 Convention took many years and were marked by profound legal and political disagreements among riparian States. Reaching a consensus was far from straightforward. The final text reflected a delicate balance between the competing interests of upstream and downstream States. Achieving agreement required considerable flexibility to accommodate divergent national positions; without such compromise, the entire codification effort could easily have failed.
The challenges of that process are further illustrated by the fact that, although the Convention was adopted in 1997, it did not enter into force until seventeen years later due to the slow pace of ratification. During that period, the United Nations, together with several international organizations, including the World Wide Fund for Nature (WWF), actively supported efforts to promote its entry into force.
Experience has nevertheless demonstrated that a broadly accepted legal framework is far preferable to a legal vacuum, where the management of international watercourses is left to the dynamics of political power rather than the rule of law.
Indeed, the influence of the 1997 Convention has extended well beyond its States Parties. Its fundamental principles have significantly shaped the drafting of numerous regional agreements governing the management of shared international river basins.
Today, almost two decades after the adoption of the Draft Articles on Transboundary Aquifers, the question deserves renewed attention: Has the time come for the United Nations to launch negotiations aimed at transforming the 2008 Draft Articles into a binding international convention?