The Water Giant Awakes: An Overview of Water Law in Brazil
I. Introduction
Brazil is home to the largest reserve of water resources on the planet,1 containing approximately 8% of the world's existing freshwater.2 Its territory encompasses several gigantic water basins,3 including the vast Amazon River basin.4 Except for the Northeast, the entire country
Brazil is the largest country in South America; with an area of more than 8.5 million square kilometers,8 it is larger than the contiguous United States. Brazil shares a border with ten countries, a fact that highlights the importance of adding international legal arrangements to the national system of water use regulation. Organized into a federal republic (a fact that, as will be seen, creates both difficulties and opportunities in the legal-administrative organization of a water resources system), Brazil is divided into 26 states and a federal district (Brasilia). There are distinct variations in size, population, and wealth among the states, and this diversity determines, to a greater or lesser degree, the level of investment in the implementation of policies and norms for water use and basic sanitation.
From geographic and political-administrative perspectives, the territory of Brazil is composed of five principal regions:
Northern Region.-With approximately 3.5 million square kilometers (more than 42% of the entire nation's land), this region is known for the world's largest river basin: the Amazon.9 The rivers that constitute the Amazon River Basin are divided into three types. First, there are the rivers of the right bank of the Amazon River (or south bank), with crystalline waters that arise in large part from the Central Brazilian Plain (Rivers Tapajs, Madeira, and Xingu). Second, there are the largely sediment-filled rivers that form part of the Andes Range tributaries (River Solimes). Third, there are the dark rivers of the left bank of the Amazon River (or north bank) that are born in the Guianas Plain (Rivers Negro, Trombetas, Paru, and Jari). In addition, there are the smaller Tocantins River and its principal tributary, the Araguaia, which drain out near Maraj Island into the estuary of the Amazon.10
Central-Western Region.-This region is dominated by the Central Brazilian Plain, which comprises a good part of the basins of the Rivers Amazonas, Paran, and So Francisco. The largest freshwater wetlands in the world, the Pantanal, are located in this region.11
Northeastern Region.-The most heterogeneous of the regions, this region has four zones: the Mid-North,12 the coastal Atlantic Forest, the Agreste,13 and the Serto.14 In the Serto, rains are sparse and there are periodic droughts.15 The principal river of the Northeast is the So Francisco.16
Southeastern Region.-The economic heart of the country, this region brings together the states with the greatest population and industrial production. The Rivers So Francisco and Paran, two of the most important in Brazil, have large extensions of their water basins in the Southeast. The River Grande, which divides the states of Minas Gerais and So Paulo, and the Tiet, which crosses the state of So Paulo, are two of the principal tributaries in the southeast Paran Basin.
Southern Region.-Predominantly a subtropical climate due to the low latitudes, this is the coldest region of Brazil, with frequent frosts and, in the mountains of the states of Santa Catarina and Rio Grande do Sul, even snow. The rivers that cross the region form the Parana Basin almost in its entirety; they are crucially important for the country, above all for their hydroelectric potential. Itaipu, the largest hydroelectric plant in operation in the world, is located in the state of Paran.17
One not familiar with the Brazilian reality might think that such an abundance of water and hydrological diversity would naturally have led to the development of a well-organized, centuries-old legal system for water. It may thus be a surprise to learn that the situation is exactly the opposite-only in the last 70 years has the country begun to be concerned about water regulation. Historically, water was treated as "a free good-a gift of God."18 As Vladimir Passos de Freitas explained, "The use and importance of water were never a concern of the Brazilian people."19
This disregard for water stems not only from culture, norms, and institutions, but also from jurisprudence. Carvalho de Mendona, one of the first national jurists to dedicate himself to the subject, referred in 1909 to "infrequent controversies over waters."20 He also added that "there is no theme in Brazil in which the jurisprudence has been exercised less than in questions over water. Rare, extremely rare, are higher courts' decisions in this matter. However, never has there been a country with such abundant rivers and water currents as ours."21 Perhaps it is due to the abundance of water that the legal treatment of Brazilian water is superficial, marginal, and fragmentary. Aldo Rebouas, the leading Brazilian scientist on the topic, confirmed this suspicion when he noted that Brazil's abundance of water "has served as support for a culture of disregard for available water, [stifling] the realization of investments necessary for its use and most efficient protection, and [contributing to] its low economic valuation."22
Because of history's superficial legal treatment of water, which lasted from the discovery of Brazil in 1500 until 1934, Brazil is still in the process of consolidating its legal water regime, a regime that currently reflects the uncertainties of the old law through commentaries on current legislation.23 So strong is the old mindset that commentators and jurists risk analyzing the current normative situation, which includes the modern and inclusive regulatory framework of the Federal Constitution of 1988 and the National Water Act of 1997,24 with eyes turned back to the past. Furthermore, it is only quite recently that Brazil has begun to see its border rivers as serving functions other than the "function of separation."25 The problem of managing these transnational hydrological resources is growing day by day, from the River Plate to the Amazon.
For the reasons that follow, it is surprising that the National Water Act's promulgation was able to resolve any of the legal uncertainties surrounding the subject. First, the Act must be read together with various provisions of the Federal Constitution of 1988, and many of these provisions are unclear-especially those that deal with union and state water ownership and their respective legislative and enforcement powers. The situation is further complicated by state constitutions that also address the issue. Second, because the National Water Act did not wholly revoke the Water Code of 1934, doubts remain as to which provisions of the original text remain in effect. Third, the new Civil Code (revised by a Commission of Jurists in the 1970s but promulgated only in 2002, after the National Water Act) also addresses waters. Finally, although the matter now has a clear legislative nucleus, it is still subject to a heterogeneous mosaic of federal and state laws that govern policies directly or indirectly related to water, such as environmental protection, health, basic sanitation, and energy (in particular, hydroelectricity).26
This Article attempts to provide a panoramic view of the legal treatment of waters in Brazil beginning with the earliest laws of the Portuguese colonial days and continuing through modern water legislation and regulation. It carefully considers the special cases of groundwater, drinking water, and sanitation. Part I presents both the historical evolution and the current status of national legislation and administrative institutions on water resources. It then provides a detailed account of the changes in the law through the centuries based on different priorities of water use and a major change in water ownership mandated by new codes and the Constitution of 1988. Part II analyzes the international normative landscape concerning Brazilian water resources, especially transboundary groundwaters, and references international soft law, customary law, a multilateral treaty, and regional norms and treaties for several important Brazilian water basins. Part III recommends future changes in national and regional law on groundwater, focusing on the case of the Guarani Aquifer underlying Brazil, Argentina, Uruguay, and Paraguay. The Article concludes by proposing a specific legal regime for groundwaters both within Brazil and shared across national borders. The proposal suggests a cooperative plan for the integrated water resources management of transboundary aquifers like the Guarani.
A. Historical Evolution of the Legal Regime for Water in Brazil
The legal treatment of waters in Brazil can be organized into three distinct historical periods. The first-the Navigability Phase-ended with the enactment of the Water Code of 1934, at which point the second-the Hydroelectricity Phase-began. The third period-the Environmental Phase-started in the 1980s and 1990s, with the publication of the Lei da Poltica Nacional do Meio Ambiente (National Environmental Policy Act) in 1981, the new Federal Constitution in 1988, and the Lei da Poltica Nacional de Recursos Hdricos (National Water Act) of 1997.
1. The Navigability Phase.-Until the beginning of the 1930s, the legal regime for water followed the tradition laid down by the Portuguese in the Ordenaes do Reino (Ordinances of the Kingdom)27 and the Civil Code of 1916.28 The primary concern of the Ordenaes was navigation.29
In the Civil Code of 1916 (recently replaced by the Civil Code of 2002), bodies of water were treated as things. Rivers were considered bens pblicos de uso comum do povo (public property for the shared use of the people).30 Such public property could be used for free or at a cost, depending on what system was established by the Poder Pblico (Public Authorities).31 Navigability and the ability to float cargo downstream were no longer the principal criteria for river regulation. Article 66 articulated "common use by the people" as the only prerequisite for the characterization of watercourses as "public property."32 However, doctrine and jurisprudence were still profoundly influenced by the Ordenaes do Reino's emphasis on navigation.
In its section dedicated to the Direitos de Vizinhana (Law of Good Neighborliness),33 the Code established that "[t]he owner of a spring that is not captured . . . cannot impede the natural course of water through the downstream properties."34 Furthermore, the Code ordered that "rain waters that flow across public lands, as well as the waters of public rivers, can be used by any individual landowner they pass by, in accordance with administrative regulations."35 The Code addressed water contamination by prohibiting those activities capable of polluting or making unfit for ordinary use waters from preexisting wells or springs.36 Finally, the Code specifically addressed underground water by prohibiting excavations that removed all water from a neighbor's well. However, excavation was permitted if it merely reduced the neighbor's water supply, provided that the excavation was not deeper than the neighbor's well.37
2. The Hydroelectricity Phase.-The model of weak individualistic regulation in the Civil Code did not survive the fall of the Old Republic.38 The cycle of deep political, social, and legal reforms, set up under the leadership of Getlio Vargas, influenced the way in which water was seen from that time forward. Responding to the growing demand for energy and the necessary consequence of exploring its immense hydroelectric potential, the country awoke to the advantages of instituting a specific legal regime for water resources apart from that in the Civil Code.
The Water Code promulgated in 1934 by Getlio Vargas39 gave water its own legal regime and revoked the treatment of water in the Civil Code. In a country that industrialized rapidly and whose cities grew suddenly, it is no surprise that the Code departed from the historical tradition of emphasis on agriculture and navigation by adopting an industrial vision of water. Problematically, however, such a transformation occurred only because the Code elevated water's use to generate energy above other uses, so much so that federal water management passed to the electric sector. This choice did not adequately take into account the complexity and multiplicity of water uses.40 In any case, it is undeniable that the Code reflects the notable expansion of hydroelectricity generation in Brazil.41 The new law was justified as a reaction to the regulation of the use of water "by an obsolete law, contrary to the needs and interests of the national collectivity."42 The principal intention was to endow the country with adequate legislation that, in accordance with current trends, permitted the public authorities to control and stimulate industrial utilization of water's hydraulic energy potential through measures that facilitated and guaranteed rational utilization.43
In order to make the industrial utilization of water viable, it was necessary to clarify the public nature of rivers. Consequently, the power of private owners to block such uses was reduced. This trend of growing publicization did not stop with the Water Code and, as seen below, ultimately resulted in the Federal Constitution of 1988's characterization of all waters as public goods belonging either to the union or to the states.
The 1934 Water Code classified water resources as: (a) guas pblicas (public waters);44 (b) guas comuns (common waters);45 and (c) guas particulares (private waters).46 Thus, despite its expansion of the domain of public waters, the Code did not entirely abandon the category of private waters.47 Springs and all waters found on private property were also private if they were not classified as common waters or public waters.48 As Pdua Nunes stressed, "[t]he notion of private waters is created by exclusion."49
Although public waters were considered inalienable, the Code allowed for rights to use these waters,50 assuring their utilization by everyone in conformity with administrative regulations.51 Nevertheless, if a use demanded "diversion" of water, the capture required an administrative permit.52 The permit was not necessary in the case of "insignificant" diversion.53 In every case, a preference for supplying water for human consumption was guaranteed.54 Furthermore, public rivers were the property of the union, the states, and the municipalities.55 Common waters were mainly restricted to non-navigable currents.56
Underground waters received modest treatment in six articles of the 1934 Water Code. The Code allowed the owner of a given property to appropriate, by wells, galleries, or other means, water existing beneath the surface of his property, as long as the appropriation did not harm existing utilization by others and did not affect the natural course of other surface waters.57
The 1934 Water Code did not embrace an ecological perspective on water use regulation. Water was not seen as one of the natural resources that deserved conservation or sustainable use regulation.58 In this regard, there is little difference between the Water Code and the Civil Code of 1916. Although still in force, the Water Code was revoked in many significant ways by three important recent enactments: the Federal Constitution of 1988 (which excludes private property in waters), the National Water Act, and the Civil Code of 2002.
3. The Environmental Phase.-The legal regime for water continued without major changes until 1981, when the National Environmental Policy Act was promulgated.59 This Act recognized for the first time water's environmental value. A few years later, the Assemblia Nacional Constituinte (National Constitutional Assembly) elaborated a new constitution that symbolized the end of the military regime installed in 1964. At the end of the 1990s, a set of new laws was enacted. Among them was the 1997 Lei da Poltica Nacional dos Recursos Hdricos (National Water Act), for whose implementation the Agnda Nacional de guas (National Water Agency or ANA) was subsequently created. These laws signaled a departure from the 1934 Code's vision of water as an inexhaustible, power-generating resource.60 The National Environmental Policy Act defines environmental resources as: the atmosphere; internal waters, both surface and underground; estuaries; the territorial sea; the soil and the subsoil; and fauna and flora.61
One of the National Environmental Policy Act's most important principles is the racionalizao do uso (sustainable use) of soil, subsoil, water, and air.62 The law also outlines the responsibilities of the Conselho Nacional do Meio Ambiente (National Council on the Environment or CONAMA) "to establish norms, criteria and methods for the control and maintenance of the quality of the environment, with a view towards the rational use of environmental resources, principally waters."63
The shift to an environmentally focused legal water regime was spearheaded by President Fernando Henrique Cardoso.64 In the words of the former President, water resource management must be "comprehensive" and is "relevant to all Brazilians."65 Evidencing an intergenerational concern, Cardoso also noted that "one of the principal problems for the next century will be the question of what to do about water and water resources in general."66
Brazil's tradition of legislative neglect of its abundant water resources is undeniable. To what, then, can the complete shift of the last 20 years be attributed? Law is a vehicle for cultural, economic, and political transformations. It responds to international movements or pressures. The growing preoccupation with water shortages and pollution finally forced Brazilian policymakers to realize that water is a finite resource that requires ecological considerations, and that its management must be national, integrated, and participatory. Progress in the last 70 years has been remarkable. The current model of water management laws certainly would be unrecognizable to the crafters of the 1916 Civil Code, not only because of the current model's rejection of private water ownership, but also and principally because it is based on new concepts like the user-pays principle, water basin committees, participatory management, and ecological concerns.
B. The Constitutional System and Its Impact on the Water Regime
The texts of the Brazilian Constitutions of 1934,67 1937,68 1946,69 and 1967(70) all assigned dominion over rivers and lakes. The approach to water in the Federal Constitution of 1988 is fuzzy and still not totally settled. It addresses water in two main ways;71 it assigns the ownership rights and legislative and enforcement responsibilities of the union, the states, and the municipalities.72 The Federal Constitution of 1988 marks the end of the 1934 Water Code's private ownership system and (following the example of the Constitution of 1967) the elimination of its provision for municipal river ownership.
Brazilian law still does not clearly address the question of a fundamental right to water. In the same way that the Constitution protects the right to life and the dignity of human beings, the right to water should also be seen as a fundamental human right since "life without water" does not exist. "Access to water of sufficient quality and quantity to serve human needs can be found, then, among the indispensable prerequisites for the existence of a dignified life."73
1. Ownership of Water.-Under the Federal Constitution of 1988 and the National Water Act of 1997 all Brazilian waters are publicly owned.74 The Constitution states that "the lakes, rivers and any watercourses in lands within its domain or that bathe more than one state, that serve as boundaries with other countries or that extend into foreign territory or proceed therefrom, as well as bank lands and river beaches" are the public property of the union.75
Federal waters include, for example, the Rivers Amazon (crossing the states of Amazonas and Par), Paran (forming the frontier of Brazil, Argentina, and Paraguay), and So Francisco (bathing the states of Minas Gerais, Bahia, Pernambuco, Alagoas, and Sergipe), as well as Lake Mirim (forming the frontier of Brazil and Uruguay).
The Federal Constitution of 1988 designates as state property "surface or subterranean waters, flowing, emerging or in deposit, with the exception, in this case, of those resulting from work carried out by the union, as provided by law."76 Waters belonging to the states include the Rivers Tiet (State of So Paulo), Das Velhas (State of Minas Gerais), and Jaguaribe (State of Cear), as well as the Lake dos Patos (State of Rio Grande do Sul).
Thus, the great water basins contain rivers that belong to both the union and the states. This "double dominion" may be more of a theoretical than a practical problem, but it certainly makes the operation of a national water management system difficult, as it "demand[s] coordinated and harmonized actions by the Union and the states."77
2. Legislative and Enforcement Jurisdiction.-The 1988 constitutional regime established a political-administrative organization consisting of three levels: union, states, and munipalities. Each level is autonomous, and each has the power to adopt and implement laws.
The union was entrusted with certain exclusive legislative powers in areas such as water,78 navigation,79 mineral resources,80 and indigenous peoples.81 Note, however, that various matters relating directly or indirectly to water are subject to the concurrent jurisdiction of the union, the states, and the federal district. These include fishing; conservation of nature; defense of soil and natural resources; protection of the environment and control of pollution;82 protection of the historic, cultural, artistic, touristic, and landscape patrimony;83 liability for harm to the environment and to aesthetic, touristic, and landscape patrimony;84 and the protection and defense of health.85
The Constitution stipulates that the union is limited to establishing general norms,86 which can then be supplemented by state legislation,87 in instances of concurrent state and federal jurisdiction. In the absence of federal legislation, the states may exercise full legislative authority.88 Overall, general federal laws supercede the effect of state laws passed contrary to national norms.89 Municipalities can only legislate on "matters of local interest"90 or to "supplement federal and state legislation as appropriate."91
Before and after the 1997 promulgation of the National Water Act, different states, including So Paulo, had promulgated broad laws on water resources.92 The unresolved question is how to make these state laws compatible with the union's exclusive legislative power over water issues. Some advocates for states' legislative jurisdiction argue that state legislation does not per se "regulate" water, but rather that such legislation serves to protect the environment and control pollution, matters over which the states and the union share concurrent jurisdiction. Others prefer to read the constitutional grant of exclusive legislative power as applicable only to waters owned by the union.
3. State Constitutions.-State constitutions also address water issues. The following discussion analyzes the state constitutions of two very contradistinct states-So Paulo93 and Amazonas.94 These states differ from each other in their geographical locations, stages of economic development, population density levels, territorial extension activities, and water resources diversity.
The Constitution of the State of So Paulo dedicates an entire section to water resources.95 Its main features include: the obligation of sustainable use of surface and underground water; the placement of priority on human water use; the recognition of multiple water uses; the protection of waters against activities that may compromise current and future use; and the integration of water resource management (taking into account the unique characteristics of water basins) with the decentralized and participatory management of other natural resources.96 The most controversial provision of So Paulo's Constitution97 prohibits the discharge of untreated effluent and urban and industrial sewage into the state's watercourses.98
The State of Amazonas contains Brazil's most important water basins and sub-basins, yet its constitution does not separately treat water resources. Instead, treatment of the state's water management powers is incorporated into a few provisions in the constitution's chapter on the environment. The main features of these provisions include: the authorization of control over polluting industrial activities, especially those located at the edge of watercourses;99 the protection of water resources through water basin management;100 the establishment of "areas of permanent environmental preservation," including springs,101 river heads as spawning grounds for aquatic species,102 and river banks where turtles deposit their eggs;103 the relinquishment of power to municipalities to establish "fishing reserves" in lakes and rivers for stocking fish;104 and the assignment of governmental priority to the reforestation of riverbanks and lake banks.105
C. The National Water Act
The heart of federal legislation applicable to water is the Lei da Poltica National de Recursos Hdricos (National Water Act) of January 8, 1997,106 the substance of which was strongly influenced by European law. The Act brings together the objectives, principles, and legal instruments of the National Policy on Water Resources Management. The National Water Act espouses three main objectives,107 which provide judges and administrative enforcement agents with an important road map for the Act's interpretation. The first and second objectives express intergenerational concerns for water protection. The Act's first objective is to preserve water quantity and quality for present and future generations.108 The Act's second objective is to assure the sustainability of water uses.109 The Act's third objective is to protect human beings and the environment against what it calls critical hydrological events, both natural and man-made.110
The National Water Act also lists seven fundamental legal principles111 that provide a coherent structure for the system.112 First, it treats water as public property,113 as mandated by the Federal Constitution. Second, it treats water as a limited natural resource,114 contrary to Brazil's traditional vision of water's inexhaustibility. Third, it recognizes that water, along with its ecological attributes, has economic value115 that justifies charging for its use. Fourth, the Act requires that water management value multiple uses.116 Fifth, it makes the use of water for human and animal consumption an absolute priority in times of shortage.117 Sixth, it designates the water basin as the territorial unit for the implementation of the National Policy and the National System of Water Resources Management.118 Finally, it determines that water management should be decentralized and democratic.119
The National Water Act specified several instruments for use in implementing the objectives and principles discussed above. These include water resources plans, water classification schemes, water use rates, and water resource information systems.120
1. Water Administration Structure.-The Water Code of 1934 assigned water resource management to the Minister of Agriculture. This assignment indicated the Code's continued preference for agricultural uses, despite the industrial philosophy that guided its drafting. During the height of the country's hydroelectric infrastructure development in the 1960s,121 this authority was passed on to the electric sector and its Ministrio de Minas e Energia (Ministry of Mines and Energy), which administered water programs through the Departmento National de guas e Energia Eltrica (National Department of Water and Electric Energy). This system lasted until 1995, when the separate position of Secretaria de Recursos Hdricos (Secretariat of Water Resources) was created under the Ministrio do Meio Ambiente (Ministry of the Environment).122
Brazil's current administrative organs for water management include the National Council for Water Resources (CNRH), the National Secretariat for Water, the National Water Agency, Water Basin Committees, and State Water Agencies. The National Secretariat of Water Resources (answerable to the Environmental Ministry), the National Water Agency, and the National Council for Water Resources sit atop the federal administrative structure. Water Basin Committees and state agencies have been established in various regions of the country.
2. National Water Agency.-The Agncia National de guas (National Water Agency) is the independent federal entity responsible for implementing the National Water Act and coordinating the National System of Water Resources Management. A five-member management team heads the Agency. Each member is nominated by the President of the Republic and confirmed by the Senate; team members serve staggered four-year terms with the possibility of a single second consecutive term.123 The President of the Republic also chooses the director of the National Water Agency.124
3. Secretariat of Water Resources.-Created in 1995 as part of the structure of the Ministry of the Environment, the Secretariat of Water Resources's responsibilities are regulated by Decree No. 2.972 of February 26, 1999.125 The Secretariat's duties include formulation of the National Policy on Water Resources, integration of water management with environmental management, and service as Executive Secretary of the National Council on Water Resources. The Secretariat is also the "national focal point" of the United Nations Convention to Combat Desertification,126 and as such is required to develop a National Plan to Combat Desertification.
4. Water Basin Committees.-Until quite recently, Brazil administered water programs in a fragmentary manner-management either took into account certain users' interests (such as those of the hydroelectric establishment) or sectoral political concerns (such as the pressure to combat drought or floods), without considering the effects of water management decisions on the basin at large.127 Therefore, two of the National Water Acts' most important innovations are its provision for management by water basin units and its creation of water basin committees. The committees are responsible for decisions about the use of water resources in their designated basins.128 Note, however, that committees have not yet been created in the majority of the country's water basins.129
This delay in establishing water basin committees demonstrates that, despite the legal advances envisioned by the National Water Act, it is at the institutional level that the new system's effectiveness will be tested. The committees that have thus far been established are predominantly located in the developed regions of the country. As such, large portions of Brazil (including the Amazon) are still without these participatory decisionmaking bodies. Water basin committees were created early on in Brazil's southern and southeastern regions, which have an institutional tradition of environmental resource management. But because not all of Brazil's regions have such a tradition, successful implementation of the National Water Act will require time for adjustment as well as enormous financial and social investments in all parts of the country.
D. State Legislation
Despite the Federal Constitution's reputedly exclusive grant of legislative jurisdiction over water issues to the union, states have continued to pass water resource legislation.130 Practically all the Brazilian states (with the exception of Roraima) have now promulgated state laws on water resources. As discussed above, two arguments have been expounded to justify the constitutionality of state legislative intervention. One argument maintains that under Article 26(1) of the federal constitution states have the jurisdiction to pass legislation concerning their own waters. The second argument insists that states retain the legislative jurisdiction to pass laws on "environmental" aspects of water, even if they are prohibited from legislating on the subject per se.131 Even if either of these two arguments is valid, state legislation still cannot validly undercut the minimum standards set by federal statutes. As a rule, those states that have enacted water laws tend to follow the model of the National Water Act, which requires water permits and a management system consisting of a state council, a state water management body, and state water basin committees.
E. Multiple Uses132
Several Brazilian authorities have recognized and addressed the potential for conflicts created by water's suitability to multiple uses. Former President Fernando Henrique Cardoso made the following announcement upon the National Water Agency's creation:
Now, we have to discuss not only the availability of water but also the demand for water. Water has multiple uses. Many of these uses are concurrent, which may, eventually, lead to conflicts. It is necessary to better regulate this issue since water is public property in order that the 'law of the water jungle' does not govern . . . [and] the user of the river is not exempt from responsibility for the use of water.133
The National Water Act expressly embraces the principle of multiple uses134 that was imperfectly addressed by Article 143 of the 1934 Water Code.135 In rare instances, such as energy production and flood control, uses of water resources are compatible with one another. Otherwise, uses tend to conflict, especially in areas and periods characterized by water shortages. For example, water use for industrial waste discharge plainly conflicts with its use for human consumption. During drought periods, the Act prioritizes the supply of water available for human and animal consumption.136 Other uses, including hydropower generation, irrigation, navigation, industrial supply, and leisure are given no such priority.
Multiple uses have also been addressed at the state level. The Constitution of the State of So Paulo, for example, mandates that "the State will take into account multiple uses and the control of water, drainage, the correct utilization of fields, aquatic flora and fauna, and the preservation of the environment."137
F. Water Permits
The Federal Constitution of 1988 abolished private ownership of water. However, it continues to recognize rights to private use.138 Since waters are public property, the government must issue a permit (outorga de uso139) prior to any private interference with the quantity (such as capture for domestic, industrial, or irrigation uses) or quality (such as discharge of industrial or urban effluent or construction of dams and canals) of water contained in rivers, lakes, or aquifers.140 There are common sense exceptions to the permit requirement, however, such as when the diversion, capture, or discharge is "insignificant."141 The National Water Agency issues permits for the use of federal waters; state agencies issue all other permits.142 The permit must be published in the official publication of the authority granting it (the Dirio Oficial da Unio in the case of the National Water Agency).
G. The User-Pays Principle and Charges for Water Use
Charging fees for the use of water encourages its conservation.143 Brazil's National Environmental Policy Act of 1981 based the authority for water-use charges on the user-pays principle.144 This principle was vaguely referred to in the Civil Code of 1916, which permitted the utilization of public property either gratuito (free) or retribudo (for payment).145 This language was repeated in the Water Code of 1934.146 The same principle appeared in state laws. The So Paulo Constitution, for example, declared that the "use of water resources will be charged according to the particular characteristics of each hydrographic basin."147
The National Water Act specifies three justifications for its imposition of charges for water use.148 First, the Act classifies water as an economic good. As such, the government may charge the user for the actual value of the water being utilized. Second, the Act intends the charges to create incentives for the rational use of water. And third, the Act aims to amass resources for the implementation of water programs and projects through the collection of water charges.
Charges only apply to uses that require a permit.149 Thus, insignificant uses, diversions, captures, or discharges of water are free.150 The determination of what qualifies as an insignificant use requires the consideration of specific criteria. When issuing permits for diversions, capture, or extraction, authorities consider the volume withdrawn and the degree of fluctuation of the water level.151 For waste discharges, authorities consider the volume discharged and the degree of fluctuation of the water level, as well as the physical, chemical, and biological characteristics of the effluent, including its toxicity.152
One problem with the application of the user-pays principle is the destination of the fees collected. The National Water Act clearly states that the funds should be used to maximize the utilization of each water basin at its source,153 to improve the quality and quantity of water, and to cleanup polluted bodies of water.154 Another problem is industry and interest group opposition to the charges. With the exception of a few states (such as Cear),155 Brazilian water agencies do not regularly collect charges at this time.
H. Groundwater
The current body of Brazilian water legislation was clearly designed to address surface water regulation. As such, the problems facing underground water supplies have been largely ignored. Groundwaters do not yet have the benefit of a special legal regime that takes into consideration their own particular characteristics, their fragility, and their economic and social importance.
In Brazil, groundwater plays a significant social role. For example, over 60% of the water demands of So Paulo's 5.5 million people are satisfied "totally or partially from groundwater sources."156 As Afranio de Carvalho asserts:
Groundwaters increase in importance as the human population grows and, with it, the consumption of water; what is naturally scarce in some regions becomes scarce in others because of the intensity of use. The importance of groundwater [protection] grows after the discovery that, alongside permeable layers of rock that are rechargeable, exist others that are not renewable, constituting immense closed basins in the subsoil.157
It is estimated that around 90% of the rivers, lakes, and lagoons in Brazil are supplied by underground waters, especially in periods of drought.158 The potential volume of exploitable rechargeable water in Brazil is approximately 112,000 cubic kilometers.159
Both the Federal Constitution and the National Water Act contain references to groundwater that raise as many questions as they resolve.160 The National Water Act has been justly criticized for its inadequate treatment of groundwater. For example, the entire text refers generically to "water resources" and "water," giving the sense that its protections apply primarily to surface waters.
Groundwaters are not explicitly mentioned in Article 20(III) of the Federal Constitution, which defines the property of the union. But they are named directly in Article 26(I), which pertains to the property of the states.161 These different forms of expression have led most scholars to defend the idea that groundwaters are-always and in whatever circumstances-owned by the states and not the union. This appears to be an equivocal interpretation of the constitutional text. First, on the ideological level, the terms of Article 20 of the Federal Constitution justify federal ownership of surface waters-waters occupying federal lands, flowing over more than one state, marking an international border, or arising from a foreign country.162 Underground waters in the same circumstances should be considered property of the union in the same way. Second, although Article 20 uses broader terms than Article 26, it does not clearly exclude groundwater. It speaks of "the lakes, rivers and any watercourses in lands within its domain or that flow over more than one state, that serve as boundaries with other countries or that extend into foreign territory or proceed therefrom, as well as bank lands and river beaches."163 This section of the Constitution does not make any reference to whether such rivers, lakes, and currents are, in fact, surface or underground waters.
On the other hand, Article 26 had to specify the term "groundwater." Otherwise, it risked the interpretation that groundwaters belonged to the union in all circumstances, because it is currently impossible to determine the exact perimeter of an aquifer to measure whether groundwaters are totally within one state. Therefore, one may conclude that the union is not excluded from ownership of groundwater, but that a piece of that ownership is guaranteed to the states under the same terms as surface waters.
In any case, whether groundwaters belong to the federal or state governments, it is certain that in Brazil privately owned groundwaters no longer exist. This fact reflects a major departure from previous legal regimes. It is also certain that the National Water Act made the use of groundwater subject to water permits.164 On the state level, the Constitution of the State of So Paulo declares that "groundwaters, strategic resources for economic and social development and valuable for supplying water to the population, should have a permanent program of conservation and protection against pollution and overexploitation, as a matter of law."165
Although the 1934 Water Code contains an entire title on groundwater,166 it should be read in conjunction with the 1988 Federal Constitution and the National Water Act. Likewise, the new Civil Code of 2002, which also addresses groundwater, should be read in conjunction with these two enactments.167 Finally, CONAMA Resolution Number 20, the main statute for the control of water pollution in Brazil, expressly prohibits the release of pollutants into groundwaters.168
I. Control of Water Pollution
In Brazil, as in other countries, economic development in the areas of agriculture and industry proceeded without major concern for protection of the environment or water resources. Up to a certain point, such disregard can be explained by the abundance of natural resources and the vastness of the territory, which gave Brazilians the false impression that their country's resources were inexhaustible. This mistaken perception caused systematic degradation of Brazilian water resources,169 especially those serving rapidly expanding urban centers.170
Brazilian water resources are currently protected from pollution through administrative, penal, and civil provisions of law. Nothing similar to the United States' Clean Water Act exists in Brazil, which leaves the matter to be governed by an accumulated complex of federal and state norms. It is interesting to note that the National Water Act does not address water pollution per se, but cedes regulation of the matter to other environmental statutes.171
The 1934 Water Code established that "[n]o one has the legal right to pollute or contaminate the waters they consume, to the prejudice of third parties."172 Commenting on this provision in 1962, Antnio de Pdua Nunes recognized that "[t]he problem of water pollution assumes ever greater importance due to the increasing frequency of contamination of the rivers and streams caused by the waste from industrial establishments."173 The states have also legislated on this subject.174
The 1940 Penal Code's text included provisions protecting water, though not all types of water.175 Thus, for example, Article 271 made it a crime, punishable by two to five years' imprisonment, "[t]o corrupt or pollute drinking water, for shared or individual use, making it unclean for consumption or a threat to health."176 Today, water pollution is covered by the Lei dos Crimes contra o Meio Ambiente de 1998 (Law on Crimes against the Environment of 1998).177
J. Classification of Waters
Watercourse classification is one of the instruments of the National Water Resources Policy promulgated by the National Water Act. Bodies of water are organized or divided into classes according to their primary uses. The National Water Act has two objectives: first, to guarantee that the quality of water is compatible with the most demanding uses for which it is destined;178 and second, to reduce the costs of combatting water pollution by means of permanent prevention.179 Here, water legislation and environmental legislation intersect. The National Water Act states that "[t]he classes of water bodies are to be established by environmental legislation."180 The system of classification of waters in Brazil, as well as the regime controlling emissions of pollutants, is regulated by CONAMA Resolution Number 357 of March 18, 2005.181
K. The Civil Code of 2002
After more than twenty years of discussion in the National Congress, a new Civil Code was approved in 2002 that revoked the 1916 Code.182 The Code addresses water resources in various parts of the text, but does so principally in its chapter on nuisance ("direitos de vizinhana"). As a consequence of its 1975 drafting, the Code conflicts with the language of the Federal Constitution. For example, it refers to the "individual owner of the spring."184 As we have seen, there are no private waters in the 1988 constitutional regime.
Another provision that must be harmonized with the Constitution of 1988 (especially with the right to an ecologically balanced environment) is Article 1.291, which affirms that "the one who possesses land upstream cannot pollute water that is indispensible for the primary necessities of life of the downstream landowners; other waters that he pollutes should be restored, [and he should pay] compensation for damages suffered by the downstream landowners if restoration or diversion of the polluted waters are not possible."185 Current Brazilian environmental law prohibits any form of discharge without a permit, so in this context it is irrelevant whether the water is "indispensible for the primary necessities of life" or not.
Finally, the Code prohibits activities capable of polluting or rendering unfit for ordinary use preexisting wells or springs arising elsewhere.186 It also prohibits excavations or any works that affect a neighbor's well or spring water that is needed for ordinary use.187 A violator of these provisions is obligated to demolish the works, and is responsible for losses and damages.188 All these provisions have to be read in harmony with the 1988 Constitution, the National Water Act, and other relevant environmental statutes.
II. "Hidden Treasures": Groundwaters in Brazil and the Relevance of International Law in the Case of the Guarani Aquifer189
Brazil is rich in surface waters. Thus, lawmakers concentrate primarily on rivers and make few references to Brazil's hidden treasure: groundwaters.190 The largest of the country's subterranean reserves is the giant Guarani Aquifer that underlies Argentina, Brazil, Uruguay, and Paraguay. Named in honor of the Guarani Indigenous Nation,191 the Guarani Aquifer is estimated to cover an area of 1.2 million square kilometers.192
The Guarani Aquifer, more so than other Brazilian aquifers, is a good case for exploring the challenges and potential of supranational regulation of an important water resource in the South American context. The discussion is relevant not only for the Guarani itself, but it also illustrates the complexity and opportunity for integrated management of the great surface water basins such as the Amazon and the Plate.
Because the uncertainties in this field are great, it is likely that Brazil will find it difficult to protect its water resources without the cooperation of its neighbors. Advances in Brazilian law in the past few years, especially the National Water Act of 1997 and the creation of the National Water Agency, are not sufficient, as many of the sources of rivers that cross Brazilian territory are in other countries, principally those of the Amazon Basin. In the case of the Plate Basin, the question is not so much one of protecting the sources of rivers, since most are within Brazil, but is rather one of the creation of mechanisms for shared management of the Guarani Aquifer.
While other regions of the world, most notably Europe, have begun addressing transboundary groundwaters, the continent containing some of the largest reserves of groundwater in the world is only now beginning to consider the formulation of an appropriate legal framework. Part II of this Article provides information about the Guarani Aquifer and its importance to Brazil, describes several draft proposals for international groundwater law, and reviews selected articles of the only multilateral treaty on the subject-the 1997 United Nations Convention on the Non-Navigational Uses of Transboundary Watercourses, a document which applies to both surface waters and some types of groundwaters. This existing international law may be relevant to Brazil in drafting future integrated water resources management plans as well as a regional legal regime for the Guarani Aquifer.193
Part I of this Article presented the evolution of Brazilian water law, focusing on the national regulatory system, especially in reference to surface waters. Part II highlights the question of groundwaters and the role of international cooperation, especially through the institutions of Mercosul and regional projects. As Alejandro Iza recalled, water "is an essential element of our integration procedure."194
A. Underground Water in Brazil: "Out of Sight, Out of Mind"
Groundwater forms part of the natural hydrological cycle which takes place within underground strata of porous rock, also called "aquifers."195 This kind of water is "out of sight and, unfortunately, all too often out of mind"196 with lawmakers and those charged with natural resources management responsibilities.197 Today in South America, groundwater is increasingly understood as a vital source of drinking water, as well as an important resource for industrial and agricultural uses.198 In Brazil, the Environment Ministry estimated that 51% of the potable water supply originates in groundwater reserves,199 a figure that is lower than in many other countries,200 although the National Water Agency estimated that 80% of urban centers are served totally or partially by groundwater sources.201
Law and policy must now include groundwater as part of the system of water resources, reflecting the scientific understanding that groundwater is intimately linked to the quantity and quality of surface waters, hydrological systems, and the biodiversity of a region. Therefore, with the increasing use of groundwater in Brazil, conjunctive legal protection of both groundwater and surface water resources is imperative. Currently, there is only a weak and confusing national regulatory framework for groundwater.202 The problem is only compounded when transboundary aquifers are considered.
In formulating a new federal law, the European example may be an effective model. According to the United Nations Economic Commission for Europe (ECE) Charter on Groundwater, "Ground water-as a natural resource with both ecological and economic value-is of vital importance for sustaining life, health and the integrity of ecosystems."203 Since the 1980s, a specific ECE directive on the protection of groundwater against pollution caused by certain dangerous substances has been in effect.204 More recently, the European Union has adopted an ecosystem approach to the management of water resources that requires each member state to adopt national laws within the "Water Framework" to protect the water quality and quantity of river deltas and wetlands. This community-wide-framework law will impact groundwater protection as well.205 Both approaches-the control of pollution and integrated water resources management-may be useful in considering a new Brazilian law on protection of groundwater, as well as in designing a regional system to manage a transboundary aquifer.
1. Groundwater and the Brazilian National Council for Water Resources.-Subpart I(H) of this Article discussed Brazilian law's neglect of groundwater regulation, for which the National Water Act has been criticized. With an eye to closing this gap, the Conselho Nacional de Recursos Hdricos (National Council for Water Resources (CNRH)) began publishing regulations intended to provide a minimum legal framework for groundwaters. One of these regulatory initiatives was Resolution Number 15 of January 11, 2001, which addressed aquifer pollution as a consequence of opening illegal wells. Pollution is a serious problem when clandestine wells are drilled on private property without water or environmental permits, especially when the wells are abandoned without being properly capped to prevent pollution from entering the aquifer.
Article 1 of Resolution 15 defines groundwaters as "those that run naturally or artifically in the subsoil."206 Integrated management of groundwater is addressed in Article 3(I). Article 3(III) concerns water permits.207 Transboundary aquifers are addressed by Article 5. The CNRH promotes the integration of governmental bodies on the federal, state, and federal district level. Nevertheless, the failure, with the notable exception of Resolution 15, to recognize the interrelationships between surface waters and groundwater has resulted in a weak and confusing national regulatory framework.
It is clear that the regulatory intervention of CNRH is not sufficient. The intervention of the National Congress and, in the case of transboundary aquifers, the elaboration of treaties and mechanisms of cooperation are needed to prevent pollution from entering the aquifer and to determine shared criteria for its use. In response to this problem in Brazil, Resolution CNRH Number 15 was adopted.208
2. Jurisdiction Over Groundwater: Again, States Versus the Union.-The lack of clarity of state and local governments' roles in water ownership, coupled with the confusion surrounding legislative jurisdiction over groundwater, have created a regulatory vacuum. While in theory states like So Paulo or Rio Grande do Sul own water assets and are responsible for the underground water reserves in their territory, the fact that the Guarani Aquifer is a transboundary water resource has led to the interpretation (discussed above in Part I) that legislative jurisdiction over international waters belongs to the union.
This position is logical in that the union has the infrastructure and institutional capacity to understand and administer a sensitive natural resource like the Guarani Aquifer, with its national and international importance. Furthermore, any administrative or legal system adopted for this transboundary aquifer will involve sensitive diplomatic measures and negotiation by the federal government of international treaties or agreements with the other nations who share the Guarani Aquifer.
B. The Case of the Guarani Aquifer: Rising International Interest in the Giant Aquifer Under Argentina, Brazil, Paraguay, and Uruguay
"Groundwater, like surface water, often ignores political boundaries, and there are many large aquifers, which are shared by several countries."209 This is the case of the huge Guarani Aquifer, shared by Brazil, Argentina, Uruguay, and Paraguay, which is the subject of rising international interest. The United Nations, the World Bank, the Organization of American States (OAS), and Mercosul are all interested in the sustainability of this transboundary groundwater reserve, a source of precious drinking water. In 2004, the OAS recognized the Guarani Aquifer as "an opportunity for international cooperation."210 Technical assistance for research into the physical characteristics of the Guarani Aquifer is being provided by the International Atomic Energy Agency (IAEA),211 a United Nations specialized agency. The United Nations Food and Agriculture Organization (FAO), the World Meteorological Organization (WMO), the United Nations Children's Fund (UNICEF), and the World Health Organization (WHO), and other specialized agencies of the United Nations are involved in issues of water and sanitation. The United Nations Environment Programme (UNEP) is working on freshwater protection and sustainable use; the United Nations Commission on Sustainable Development (CSD) is charged with implementing and monitoring Agenda 21 (from the 1992 Rio Conference on Environment and Development); and the Johannesburg Plan of Implementation (JPOI) includes water and sanitation on its work agenda for 2004-2005.212 The United Nations Educational, Scientific, and Cultural Organization's (UNESCO) research and studies on fresh water include the Guarani Aquifer and support the International Groundwater Resources Assessment project (IGRAC) with WMO. A four-year project on the Guarani Aquifer is the first transboundary aquifer project in the world, funded by the World Bank and Global Environment Facility,213 in cooperation with the OAS and with matching funds provided by the four countries involved. The project has a secretariat in Uruguay located at the headquarters of Mercosul, which itself created an ad hoc committee on the Guarani Aquifer in 2004. The Guarani Aquifer is thus a strategic fresh water resource attracting increased international interest from many sectors.214
Before it is possibile to develop new institutional responses and the best practices to create cooperative and sustainable management of the Guarani Aquifer, more needs to be known about its dimensions as well as its hydrological and geological characteristics. The Guarani Aquifer lies under parts of the River Plate Basin (or La Plata Estuary),215 a large transboundary surface water basin composed of ten rivers (including the Rivers Paran, Paraguay, Uruguai, Iguau, Tiet, and Rio Grande) flowing from Brazil, Paraguay, and Bolivia into Uruguay and Argentina. The Guarani Aquifer "extends over an area the equivalent of the territories of England, France and Spain combined."216 The Guarani Aquifer is only partially connected to the surface in limited areas of recharge or "outcropping," and is primarily a "confined" aquifer in up to 90% of its total area, formed by sandstone covered by a layer of basalt.217 The portion of the Guarani Aquifer located within Brazil encompasses more than two-thirds of the total area of the system,218 with another 20% within Argentina and the rest within Uruguay and Paraguay.
Other than providing clean drinking water, the aquifer's uses include industrial and agricultural demands and wastewater treatment. The normal temperature of the aquifer is high enough to indicate a potential use for geothermal energy as well as ecotourism featuring thermal spas. Also important to consider is the allocation of some portion of the groundwater as a permanent undisturbed reserve.
Overall, some 15 million people are estimated to live above the Guarani Aquifer.219 Each day, they destroy its freshwater resources through overdrafts (withdrawing more water from the aquifer than can be recharged through natural means) or through pollution, which can result from pesticide runoff or perforation of artesian wells allowing pollution to enter directly into the aquifer.220 The Guarani Aquifer flows southward from Brazil at an extremely slow rate. Thus, pollution entering the aquifer in one state may not reach another state for many years or even decades, depending on the direction of its flow and other factors affecting velocity and time.221
The quantity of water that can be extracted from the Guarani Aquifer is unknown. Extraction is limited by the aquifer's depths and its recharge capacity, which is still undetermined.222 Although estimates differ,223 some suggest that the aquifer's total recharge area in Brazil covers 100,000 square kilometers and that 160 billion cubic meters of water are recharged annually throughout the entire aquifer.224 According to a recent study, approximately 8 to 10 million cubic kilometers of water, from a depth of less than 4,000 meters, may be available from the aquifer.225
Throughout the lands above the aquifer, several locations are especially sensitive to pollution and merit protection. These locations provide either direct recharge, by water filtering through fissures in the adjacent rock; indirect recharge, by water draining into the aquifer as part of surface drainage and subterranean flow; or discharge, by water leaving the aquifer to feed rivers or being extracted through artesian wells.226
Professor Ludwig A. Teclaff recalled "an old Chinese saying that a city can be moved, but not a well."227 Once groundwater is contaminated by construction, landfills, sewage, or leakage of toxic substances, "it is extremely slow to purify itself."228 The cleanup process is not as easy for groundwater as for surface waters, and it is difficult to determine the source of pollution in order to allocate responsibility:
The main risk factor in using the groundwaters comes from the large number of shallow and deep wells that are constructed, operated and abandoned without sufficient technology, due to the lack of control and verification at the federal, state and municipal levels. Studies have shown that the waters of the Guarani Aquifer are still free from contamination. However, considering the fact that the recharge areas coincide with important Brazilian agricultural zones, where herbicides are used intensively, urgent control, monitoring and reduction in the use level of agro-chemicals will become necessary.
Another danger related to the exploitation of the water from the Guarani comes from its uncontrolled and excessive use, mainly in artesian areas, where rigid controls are necessary in order to avoid water waste and a consequent loss in the internal pressure of the system, which would cause damage to other local users of the outpouring spring.229
[Further], [d]ue to the great differences in use of the Guarani waters among the countries that have access to this resource, it is evident that Brazil's necessities in relation to the aquifer are related more to the protection and sustainable management of this resource, while other countries need to perform research in order to better understand the system in their territories. The lack of knowledge is, however, related to all four countries.230
C. International Law and the Guarani Aquifer
In recent years, groundwater and transboundary aquifers231 have received greater attention in the international community,232 which has begun to call "for the holistic management of freshwater as a finite and vulnerable resource."233 Yet traditionally, international law has focused on the problem of transboundary surface waters, referring to transboundary groundwater234 only marginally or not at all, or limiting the reference to those groundwaters that "flow into a common terminus."235 Indeed, until 1997 and the opening for signature of the United Nations Convention on the Law of the NonNavigational Uses of International Watercourses,236 no international treaty existed to provide a legal framework for the regulation of transboundary groundwater as well as surface water.237 Even then, this first framework treaty offered only partial protection for transboundary groundwaters as part of "watercourses" generally, as discussed below. More comprehensive and specific legal principles for transboundary groundwater are found in "soft law"238 declarations of conferences and global organizations and in the codification of customary international law, particularly in the International Law Association's (ILA)239 rules on fresh water, discussed below. Only in the last several years has the United Nations International Law Commission addressed as a specific topic the theme of "Shared Natural Resources: Transboundary Groundwaters," with a proposed draft convention beginning to be elaborated.240
1. Many International Documents, Yet Still an Insufficient Legal Framework.
a. Soft Law Rules on Groundwater: The Bellagio Draft Treaty.241-A proposed set of rules on groundwater, the Bellagio Draft Treaty, was prepared in 1977 by a group of academics in a U.S.-Mexico Transboundary Resources Study Group.242 The Bellagio Draft Treaty suggests the use of joint commissions in the case of groundwater, a technique especially helpful for information sharing, notification of planned measures, and prevention of harm to groundwater. Further, the document "is based on the proposition that water rights should be determined by mutual agreement rather than be the subject of uncontrolled, unilateral taking, and that rational conservation and protection actions require joint resource management machinery."243 The Bellagio Draft Treaty sought to identify the "basic requirements for present and future protection, control and equitable use" of transboundary groundwater, with awareness of the sensitivities involved in any proposed regulation of a natural resource valued on both sides of a national border.
b. The International Law Association Rules.-The International Law Association (ILA) has made major contributions to the codification of customary international law on transboundary waters,244 beginning with its 1966 Helsinki Rules on the Uses of the Waters of International Rivers.245 Twenty years later, during the 1986 ILA conference in Seoul, Korea, four additional articles were adopted to include the waters of confined aquifers. Called the 1986 Seoul Rules on International Groundwaters, the document reflected concern for the inclusion of all types of groundwater.246 Article 1 of the Seoul Rules defined international groundwaters as the "waters of an aquifer that is intersected by the boundary between two or more States" and declared that "such an aquifer with its waters forms an international basin or part thereof," characterizing states containing such an aquifer as basin states "within the meaning of the Helsinki Rules whether or not the aquifer and its waters form with surface waters part of a hydraulic system flowing into a common terminus."247 In 2004, the ILA adopted its Berlin Rules on Water Resources, which "express international law applicable to the management of the waters of international drainage basins and applicable to all waters,"248 consolidating many efforts into one code that could be used as a model for the voluntary regulation of a transboundary aquifer like the Guarani Aquifer.
The 2004 Berlin Rules both summarize and expand other specific rules about groundwater. Chapter VIII assures the application of the rules to all aquifers, "including aquifers that do not contribute water to, or receive water from, surface waters or receive no significant contemporary recharge from any source."249 The Rules apply sustainability concepts to groundwater,250 aim to protect aquifers against pollution,251 and recognize that precautionary management of aquifers is necessary.252 The Berlin Rules also call upon states to "manage surface waters, groundwater, and other pertinent waters in a unified and comprehensive manner."253 Article 6 calls for management of waters to be integrated with the management of other resources.254
Article 13 on "Determining an Equitable and Reasonable Use" of internationally shared waters expands the factors used in the Helsinki Rules and the United Nations Watercourses Convention, detailed below in subsection II(C)(1)(c), by adding two new factors for water allocation decisions: "the sustainability of proposed or existing uses" and the "minimization of environmental harm."255 In another departure from the earlier rules, "[t]he term 'hydrogeographic' has been added [to the] list in (2)(a) to reflect the greater attention in these Rules to groundwater."256
In the chapter on groundwater, the Berlin Rules specifically call for precautionary management,257 sustainability applied to groundwater,258 and protecting aquifers.259 Finally, a specific article addresses transboundary aquifers,260 as explained in the commentary to Article 42:
Paragraph 4 makes explicit the most central obligation regarding internationally shared aquifers. States cannot exploit more than their appropriate share of groundwater, whether from a renewable or from a non-renewable aquifer, under the principle of equitable utilization . . . . In setting drawdown rates for transboundary aquifers, basin States are to have due regard for the obligation not to cause significant harm to another State (Article 16) and to the obligation to protect aquifers (Article 41). Paragraph 5 indicates that States are to cooperate in protecting the recharge of aquifers.261
As reiterated by the Berlin Rules, the general rules of international water law262 are applicable to the use and management of groundwater as well as to surface waters, although there are now some specific rules applicable to groundwater. Most of these rules are recommendations, soft law, or model laws (like the Bellagio Draft Treaty) which can be used as inspiration or as evidence of developing customary law related to groundwater;263 therefore, they are useful as a framework to integrate planning and management of transboundary water resources even if the rules currently have little legal effect and cannot be enforced in any court. The principles in the Berlin rules, however aspirational, may be a model for regional elaboration measures tailored to a specific aquifer like the Guarani.
Other future-oriented efforts in the international community affecting groundwater include the United Nations Millenium Declaration264 and its goal of providing clean drinking water to the world's population,265 and the work of the United Nations Commission on Sustainable Development (CSD) on water and sanitation, and its special agenda for annual meetings in 2004 and 2005.266
c. 1997 United Nations Watercourses Convention.-The only international treaty explicitly applicable to groundwaters is the 1997 United Nations Convention on the Non-Navigable Uses of International Watercourses,267 developed through some twenty years' work of the International Law Commission of the United Nations (ILC) under several Special Rapporteurs,268 culminating in a General Assembly Resolution269 adopting the text as a multilateral treaty.270 The treaty has not yet entered into force; the states where the Guarani Aquifer is located have not signed or ratified the Convention, with the sole exception of Paraguay.271
Unconfined groundwater is included in the term "watercourses" in the ILC drafts and in the subsequent United Nations Watercourses Convention. As noted by the Special Rapporteur for the ILC draft articles from 1985-1991, Professor Stephen C. McCaffrey:
Up to this point the discussion of fundamental obligations in respect of international watercourses has assumed that the same rules apply to surface water and groundwater alike. Indeed, this conclusion is suggested by the ILC's draft articles and the UN Convention, both of which define the term "international watercourse" to include groundwater that is related to surface water systems. Yet groundwater has been largely "out of sight and out of mind" in the practice of states and, albeit to a lesser extent, in the work of international organizations and expert groups. This has resulted in a legal regime for groundwater that is rather crude, especially given groundwater's abundance and vulnerability relative to surface water.272
The scope of the Watercourses Convention is determined by Article 1(1): "The present Convention applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters."273 In a departure from earlier law, including the navigability phase of Brazilian water law discussed in section I(A)(1) above, Article 1(2) of the Watercourses Convention states: "The uses of international watercourses for navigation is not within the scope of the present Convention except insofar as other uses affect navigation or are affected by navigation."274
Article 2 defines the terms used in the Convention:
(a) "Watercourse" means a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus;
(b) "International watercourse" means a watercourse, parts of which are situated in different States.275
Article 2(a) is the basis for the conclusion that groundwater is only addressed by the Watercourses Convention if it is linked physically with surface water such that it "flows into a common terminus."276 Thus, confined groundwaters, those that do not share a "common terminus" with surface waters, would be excluded from the Convention. Specifically, this weakness in the treaty excludes up to 90% of the Guarani Aquifer from coverage (since the Guarani's groundwater is 90% confined).277
Other important articles in the Watercourses Convention highlight the two most important principles of the treaty: equitable utilization of watercourses (Article 5) and the duty not to cause harm to other states (Article 7), the latter derived from long customary use rooted in the principle of good neighborliness and the law of nuisance. Of possible relevance to Brazil and the other Guarani Aquifer states are the obligations suggested in Article 5 for sustainable utilization of water and adequate protection of the watercourse, as well as the participatory and cooperative aspects of the use, development, and protection of the resource:
Article 5, Equitable and reasonable utilization and participation
(1) Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.
(2) Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.278
Of special interest for a regional compact on the Guarani Aquifer may be the factors suggested in Article 6:
(1) Utilization of an international watercourse in an equitable and reasonable manner within the meaning of Article 5 requires taking into account all relevant factors and circumstances, including:
(a) Geographic, hydrographie, hydrological, climatic, ecological and other factors of a natural character;
(b) The social and economic needs of the watercourse States concerned;
(c) The population dependent on the watercourse in each watercourse State;
(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;
(e) Existing and potential uses of the watercourse;
(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;
(g) The availability of alternatives, of comparable value, to a particular planned or existing use.
(3) The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.279
These factors are similar to those used in the Bellagio Draft Treaty280 and the Helsinki Rules.281 In addition, the Berlin Rules created two additional factors to add to the list, as discussed above in subsection II(C)(1)(a), stressing sustainable use and minimization of environmental harm.
Another important provision of the Watercourses Convention is Article 20 on the protection and preservation of ecosystems: "Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses."282
The United Nations Watercourses Convention, even if it never enters into force, provides a useful framework or guideline for future regional agreements governing specific transboundary freshwater bodies, including both surface and groundwater: In addition, it serves a purpose as a codification of customary international law on the subject of non-navigational uses of transboundary watercourses, including some types of groundwater:
[T]he authoritative guideline function of the Convention is corroborated by the fact that, even before its adoption, it has served as a model and a catalyst for the conclusion of special watercourse agreements which have applied its basic principles, as they had been drafted by the ILC.283
d. Progressive Development of International Law on Transboundary Groundwater.-As shown above, these few sources of international law fail to solve the complexity of groundwater law: some exclude the subject of confined groundwater entirely, as in the 1966 Helsinki Rules and the United Nations Watercourses Convention, and some merely acknowledge the difficulty of adapting rules for surface waters to the different geophysical configurations of groundwater, as in the 2004 Berlin Rules of the ILA. The progressive development in international law can be charted in the relationship of the Helsinki Rules to the ILC draft that became the 1997 United Nations Convention on Watercourses and the relationship of both to the 2004 Berlin Rules.284 It is interesting to note, however, that four members of the ILA Committee on Water Resources objected to the Committee's effort in the Berlin Rules to engage in the progressive development of international law, rather than simply to codify existing customary law.285 Nevertheless, according to Eckstein, "[t]here is now a growing need for the clarification and progressive development of international law as it applies to ground water resources."286 Other contributions to the progressive development of international law on shared water resources, in addition to sections of the Berlin Rules and the ILC draft treaty on transboundary groundwaters, include the IUCN-World Conservation Union Draft International Covenant on Environment and Development.287
In the case of the Guarani Aquifer, the opportunity exists to create new law on groundwater for the prevention of harm and the equitable utilization of the groundwater and to adopt integrated water resources management plans and systems for the four affected states of Argentina, Brazil, Paraguay, and Uruguay.
2. Regional Efforts Toward Cooperative Management.-There are very few bilateral or regional environmental treaties concerning water that may apply, directly or indirectly, to groundwater in the region of the Guarani Aquifer.288 Most regional water law, like international water law generally, concerns surface waters without explicitly mentioning groundwater. Two such regional treaties are discussed below: the Treaty of the River Plate Basin and the Treaty on Amazonian Cooperation. With regard to groundwater, one commentator has noted:
In Latin America, major cities have looked more and more to groundwater as the least expensive means of obtaining water, and shortages of surface waters (accentuated by prolonged droughts) have stimulated farmers in arid and semiarid regions to expand the use of groundwater, particularly in those areas which do not have reliable surface water supplies. Again the result often has been the overpumping of aquifers and the consequent deterioration of water quality occurring generally when water pressure of the aquifer is reduced allowing the intrusion of overlying saline waters.289
a. Treaty on the River Plate Basin.-One regional treaty relevant to the Guarani Aquifer is the 1969 Treaty on the River Plate Basin.290 The Guarani Aquifer lies under part of the great River Plate Basin. The history of the River Plate has been one of conflict between colonial powers, rights claimed bycompeting states, and a series of early bilateral and multilateral agreements governing navigation on the river.291
A goal of the 1969 Treaty on the River Plate Basin is to "promote the harmonious development and optimum use of the natural resources."292 Accordingly, most of the articles in the treaty deal with navigation, jurisdictional issues, ports, channels, pilotage, and related issues. This treaty, a product of its time, does not consider ecosystem protection or sustainable use of water, and is geared toward surface waters. Chapter IX deals with pollution, defined as "the direct or indirect introduction by man into the aquatic environment of substances or energy which have harmful effects." Chapter VII applies to the regulation of exploration and exploitation of natural resources on the river bed and subsoil. An interesting feature is its creation of a joint intergovernmental management committee, known as the CIC.293
This river basin thus has an established system for joint water management.294 The Treaty on the River Plate Basin has been cited approvingly by two international environmental law scholars as an example of "ecosystem regime building";295 relevant also to joint management of the River Plate is the call from an OAS scholar for planning at the level of ecosystems, seeking to "link integrated water-resources management programmes to social and economic development and address land and water uses and biodiversity conservation within the context of river basins and aquifers."296 In addition to the Treaty on the River Plate Basin (a regional treaty affecting the four Guarani Aquifer states), there is the Treaty of Asuncin of March 26, 1991, which created Mercosul with the same four states and Bolivia.
b. Treaty for Amazonian Cooperation.-One other regional treaty involving Brazil relates to environmental protection of freshwater resources: the Treaty for Amazonian Cooperation of 1978,297 endorsed subsequently in the 1989 Amazon Declaration.298 Article VII of the Treaty addresses conservation of flora and fauna, Article VIII addresses sanitation, and Article IX addresses technical and scientific cooperation, while other articles address navigation, communications, and tourism. The Declaration acknowledges the Amazon states' common interest in sustainable development and the need for environmental protection and conservation for the benefit of present and future generations. The importance of Amazonian ecosystems is recognized in the affected states as well as internationally by scholars299 because it addresses the unique conditions existing in the region containing one of the world's longest rivers as well as an extensive rainforest habitat.
The 1969 Treaty on the River Plate Basin recognizes common interests in navigation, conservation, inventory, and assessment of the area's natural resources, and "reasonable utilization of water resources, particularly through regulation of water courses and their multiple and equitable uses."300 Technical experts in various disciplines have contributed to the cooperative management of the basin and the success of the "Hydrological Warning System" to prevent damage from floods, for example, through the existing system of a Coordinating Intergovernmental Committee (CIC) and Conference of Ministers of Foreign Affairs, but one of the Treaty's "fundamental flaws is due to the lack of a permanent technical organization."301
The 1978 Treaty for Amazonian Cooperation provides for exchange of information and operational agreements to achieve the goals of "harmonious development . . . in such a way that these joint actions produce equitable and mutually beneficial results and achieve also the preservation of the environment, and the conservation and rational utilization of the natural resources of those territories."302 In 1989, heads of states party to the treaty met to promote "co-operation between our countries in all areas of common interest for the sustainable development of the Amazon region," and they issued a statement known as the "Amazon Declaration."303 The scope of the Treaty itself is extremely broad, but the system of joint work programs in specific areas has produced research and publications as well as meetings of experts and representatives of governments from the region; the creation of a Permanent Executive Secretariat of the treaty in Braslia may reinforce the institutional network and facilitate the political dialogue at governmental levels.304
c. The Water Basin Unit and Groundwater in Regional Agreements.-Seventy percent of the freshwater in South America is contained in the basins of the two great rivers, the River Plate and the Amazon River; of these two, 60% and 45%, respectively, of the area of the drainage basins is located in Brazil.305 Both the Amazonian Cooperation Treaty and the Treaty on the River Plate Basin are based on the water basin concept, found in subsequent soft law documents such as the 1992 Dublin Statement on Water and Sustainable Development,306 which recognized that the "most appropriate geographical entity for the planning and management of water resources is the river basin, including surface and groundwater." The river basin as a unit of water management is also the unit given official endorsement by the United Nations in the International Law Commission and the Economic Commission for Europe (ECE)307 and in the IEA Helsinki Rules, as well as in regional water agreements in the OECD.308
While regional treaties that focus on transboundary water basins may be useful as a framework for designing a joint management system in the case of the Guarani Aquifer and provide essential information for designed integrated water management systems, there are few explicit references to groundwater in these treaties. The Treaty for Amazonian Cooperation and the Treaty on the River Plate Basin, for example, do not mention groundwater at all; "[t]reaties that focus on pollution usually mention groundwater, but do not quantitatively address the issue."309 Furthermore, the River Plate Treaty does not contain any criteria for water allocations, nor does it create any supralegal authority, relying for compliance on each member state's own legal system.310
A second problem is the plurality of cooperation treaties in seeking to establish legal obligations and binding principles of law, as well as institutional authority. In the area of the River Plate Basin alone, there are eighteen bilateral and multilateral treaties311 in addition to the multilateral framework Treaty of the River Plate Basin of 1969. The potential difficulties and duplication of efforts are obvious. "Conflicts between regulations within the same legal system are problematic, from a policy point of view, because they interfere with the coherence and, as a result, the efficiency of the respective legal system."312
d. A Specific Initiative: The Guarani Aquifer Project.-The "Environmental Protection and Sustainable Development of the Guarani Aquifer System Project" (Guarani Aquifer Project or SAG) is an initiative funded by the Governments of Argentina, Brazil, Paraguay, and Uruguay, matched by funds from the World Bank's Global Environment Facility,313 with the Organization of American States (OAS) as the project's administrative agency through its Unit for Sustainable Development and Environment (USDE).314
The Guarani Aquifer Project is preventive in nature, seeking to delineate and implement a common institutional framework for managing and preserving the Guarani Aquifer for current and future generations. The long-term objective of the process is thus the Sustainable management and use of the Guarani Aquifer. Joint development and implementation of a "Guarani Aquifer Management Framework" is the core of the Project; the other project components are designed to provide the scientific, technical, social, legal, institutional, financial, and economic basis for this framework.315
Legal and management regimes needed to protect this resource require better knowledge of the aquifer itself, including delineating the western border of the aquifer in Argentina and determining the character and dimensions of the aquifer as "unconfmed" (connected to surface waters).316 The Guarani Aquifer Project is preparing comprehensive, standardized inventories of the aquifer data (physical and biological resources, demographic, social, and economic uses). There is also a special academic fund for research on the Guarani Aquifer. SAG is developing and implementing a system to collect data, stimulate information exchange, and provide access to data for concerned states, the general public, and nongovernmental organizations (NGOs) for better planning and cooperative management of this resource.
Other priorities of the Guarani Aquifer Project include analyses of the national and international legal framework; enhanced public participation, especially for indigenous peoples; and assessment of the geothermal energy potential.317 Four case studies, or pilot projects, focus on important transboundary areas where the quality or quantity of water may be particularly threatened: Concordia-Salto, Rivera-Santana, Encarnacin-Ciudad del Este, and Riberio Preto near So Paulo.318
There are global and regional benefits to be derived from the Guarani Aquifer Project even at this stage of rudimentary knowledge and administration of the aquifer's waters. The new data and better scientific understanding of the acquifer provide the four countries involved with an opportunity to plan for the integrated management and use of this important reserve of drinking water. SAG thus promises to provide a mechanism and stimulus within a short time frame (2003-2007) to enable the planning of strategic and cooperative measures to protect the transboundary water resource of the Guarani Aquifer.
e. Principles of International Environmental Law and International Water Law Applicable to the Guarani Aquifer.-Soft law, customary international law, and regional and multilateral treaties related to fresh water all contain references to common legal principles that can be used as a foundation for the shared management of the Guarani Aquifer.
International soft law or customary law on the environment319 applicable to groundwater, as well as international law on fresh water, such as the framework guidelines of the 1997 United Nations Watercourses Convention, include, at a minimum, the following principles:320 a duty to cooperate;321 a commitment to balancing short-term demands with long-term objectives in the interest of present and future generations;322 a commitment to sustainable use and freshwater resource protection;323 a commitment to the prevention of harm and the precautionary principle or approach;324 a duty to notify neighboring states of activities which may affect water quality or quantity (both planned measures and data sharing);325 a duty to combat pollution;326 a commitment to the principle of equitable utilization of groundwater resources;327 a commmitment to the principle of causing no significant harm to other states;328 and a commitment to the preservation of ecosystems.329 Further, the ILA Berlin Rules on Water embrace concepts of ecological integrity330 and conjunctive management.331
Principles of international water law and management techniques developed for surface waters, such as equitable utilization (and the factors for determining "equitable and reasonable use") and integrated water resources management (IWRM),332 are equally applicable to groundwater if care is given to accommodate the special conditions of all types of groundwater and specific characteristics and vulnerabilities of transboundary groundwater resources like the Guarani Aquifer.
These principles of international environmental law and international or transboundary water law were recognized as a basis for cooperative management of a river basin area by the International Court of Justice (ICJ)333 in the case concerning the Gabckovo-Nagymaros Dam Project between Slovakia and Hungary.334 The Court addressed Hungary's contention that changed circumstances (subsequent understanding of the harmful effects of dams on freshwater ecosystems and species) obviated their prior treaty obligations to Czechoslovakia (to which Slovakia succeeded) regarding a joint project to construct a dam on the Danube River,335 a project that altered the course of the river and otherwise affected wetlands. The Court upheld the treaty,336 and ordered the two states to jointly manage the project as originally contemplated, recognizing "[b]oth the obligation of sustainability and the obligation of protection of the environment."337 This case has been interpreted as an example of international case law affecting transboundary groundwater.338 In a famous separate opinion upholding Hungary's environmental protection claims in this case, Vice President Weeramantry provided a moral, ethical, and religious justification for sustainable development and the protection of water and wetlands that has become frequently quoted by governments and nongovernmental organizations alike, recognizing sustainable development as an integral part of modern international law.339 It remains to be seen what new cases involving joint management of water resources will arise and in which tribunals.
III. Recommendations for Groundwater Management
A. Next Legislative Steps: Brazilian National Law on Groundwater
In the absence of a stable regulatory framework, clarity regarding ownership of assets, or rules governing the award of water permits, it will be very difficult to attract private investments and other forms of private participation in and acceptance of any public management system or legal regime needed for the protection of groundwaters. A federal law on groundwater management and sustainable uses would be a good step for Brazil to take in the near future, including the promulgation of legal provisions tailored specifically to groundwater. For example, there could be a new chapter in the 1997 National Water Act for this purpose. Legislation should include clear definitions of the legislative jurisdiction of the relevant government authorities and application of uniform principles on groundwater based on principles of international environmental law and international water law.
Specifically, governmental rights to control groundwater abstraction and use, as well as all activities with a potential impact on the quantity and quality of groundwater resources, should be explicitly stated. Furthermore, existing provisions of Brazilian law related to water resources generally, explicitly or implicitly including groundwater as outlined in Part I of this Article, should be enforced, including the Constitution of 1988, the 1997 National Water Act, and the Civil Code of 2002. Water Basin Committees should be created in all water basins in Brazil pursuant to law, fees for the use of water, as appropriate, should be collected throughout the country, and water permits for every activity, as required by law, should be provided to trained inspectors on a regular basis, with severe penalties for noncompliance with the permit or fee system. References to "multiple uses" should also include "non-use" of some specific quantity of groundwater to be preserved beyond the recharge capacity of the aquifer, adequate to protect biological diversity and ensure availability of clean and sufficient supplies of groundwater in the future.
Public ownership by the national government of all groundwater should be clearly defined in national legislation, in Brazil and neighboring countries affecting the Guarani Aquifer,340 through, for example, the cooperative Guarani Aquifer treaty or agreement proposed below. This harmonization effort could reinforce the authority of government to issue permits to restrict the use of groundwater in the public interest, again taking the Brazilian model, and include mechanisms for public participation in groundwater management.
To this end, it would be necessary to draw up precise rules concerning the selection of criteria applicable for the recognition of groundwater use rights and for the granting of permits, taking into account orders of priority for the allocation of available water and the necessities of conservation and sustainable use. Such rules should also determine conditions of transfer, modification, or abolition of use rights. Priorities to use groundwater, however, should be kept flexible so as to satisfy present and future requirements, such as socioeconomic factors. Monitoring and assessment of compliance with regulations, permits, and means of collecting and interpreting data on pollution of groundwater and multiple uses of groundwater need to be recognized as important components of any legal regime or management plan for the transboundary aquifer. In addition, information gathered should be made available to the public and civil society organizations, with an opportunity to comment on or to contribute data.
B. Next Legislative Steps: International Law on the Guarani Aquifer
The exclusion of confined groundwaters makes the applicability of the United Nations Watercourses Convention to the Guarani Aquifer of questionable utility. Conceivably, the Guarani Aquifer (at least as to its limited, unconfined portion) is potentially subject to the Convention, should the relevant states eventually ratify the Watercourses Convention. However, confined aquifers are not subject to the Convention. This is an untenable legal position for a single natural resource. In any case, the Watercourses Convention has not yet created any binding legal obligations on the majority of states involved with the Guarani Aquifer and is unlikely to be signed or ratified by Brazil, Argentina, or Uruguay before they must, by necessity, adopt some binding regional arrangements for their shared aquifer.
Nevertheless, it is useful to consider the Watercourses Convention as a guide or framework for a draft regional agreement for the Guarani Aquifer. As Professor McCaffrey noted, "the law of international groundwater may only be said to be, at best, in the embryonic stages of development. The different characteristics and behaviour of groundwater would seem to justify stricter standards and more stringent protection than is applicable to surface water."341 An example of more stringent protection for groundwater would be a requirement to protect fragile recharge zones to prevent pollution of groundwater, which is more sensitive to permanent degradation than surface waters; the legal standard for such an obligation, applying the Watercourses Convention, is that of due diligence.342 Other legal elements of any future law to protect transboundary groundwater could be considered by Brazil, Argentina, Uruguay, and Paraguay in negotiating either a new regional treaty or a joint management plan for the Guarani Aquifer.
1. A New "Guarani Aquifer Cooperation Treaty?"-The current political climate would likely be receptive to a specific treaty dealing with the Guarani Aquifer. Governments in Brazil and Argentina have shown a willingness to engage in environmental treaty-making, and there is a growing regional awareness of the need for integrated water resources management to protect sources of safe drinking water.
Although soft law is la mode,343 to adequately protect the Guarani Aquifer we need binding obligations enforceable through appropriate dispute resolution mechanisms. A specific new "Guarani Aquifer Cooperation Treaty" would lead to a clearer understanding of the role each state plays in the preservation and equitable utilization of the aquifer and the unique challenges in managing groundwater to prevent pollution and overuse. The first results of the Guarani Aquifer Project could well provide the basis for part of such a treaty or agreement. The practical experience of Argentina, Brazil, Paraguay, and Uruguay with the River Plate Cooperation Committee (CIC)344 and other bilateral agreements constitute positive models for achieving cooperative intergovernmental management of this giant transboundary aquifer. Furthermore, the integration efforts of these same four countries in Mercosul provide an additional cooperative experience on which to build a new common groundwater treaty, much as the E.U. is doing through directives and framework policies.
Any Guarani Aquifer Cooperation Treaty should contain, at a minimum, rules on: preventing contamination, especially in sensitive areas of recharge and discharge; liability in case of pollution; allocation of water on an equitable basis including preservation of groundwater; cooperation and sharing of information; participation requirements; and a system of dispute resolution. As a choice of tribunal, recourse to the International Court of Justice seems too remote or expensive for the states involved. Perhaps the new Mercosul Permanent Arbitration Court could be used as optional arbiter of regional disputes arising under the treaty. A nonmandatory provision would allow each state to choose the preferred or appropriate tribunal on a case-by-case basis and to apply to that tribunal with questions on how best to interpret relevant laws. The fact that a comparable approach has already been adopted in Mercosul argues strongly for its incorporation here. This procedure adopted within Mercosul could be useful for inclusion in the proposed Guarani Aquifer Cooperation Treaty345 involving the same four states with scientific and environmental advisors.
2. A General Regional "Guarani Aquifer Joint Management Agreement?"-As attainable as it may be, however, a Guarani Aquifer Treaty would not provide a permanent or complete management solution. One danger of focusing on the treaty formulation to solve the Guarani Aquifer problems is that the political will needed to implement the treaty may evaporate in the future. Another risk of depending on a treaty is that the final document may be drafted with too much specificity to allow for flexible management and effective response to changing scientific information, or it may be too general to provide any concrete obligations for the states party. Even if the drafting challenges can be met, perhaps through the use of existing international law as desc