The principle of state sovereignty in the Agreement on the Guarani Aquifer and legal problems specific to Argentina

Abstract

The Agreement on the Guarani Aquifer (AGA) devotes its first three articles specifically to the state sovereignty of the parties with regard to the Guarani Aquifer System (GAS). The AGA reveals its intention to establish two inherent points concerning dominion over the water resource in question: the first refers to the ownership of the GAS by the parties involved (without the Agreement’s expressly alluding in its Art. 1 to the territorial scope of this dominion, as it does in the following point), and the second refers to the implementation of the law, which, according to Art. 2, subordinates it to “constitutional and legal requirements and pursuant to the rules of applicable international law”, a passage which leaves us with two questions: Does it entail an order of regulatory precedence? Is “international law” reduced to the observance of legal precedents?

For Argentina, the ruling in Art. 2 of the AGA will require great efforts to reconcile its legislative and judicial criteria on the two points mentioned: ownership and the environmental aspects of the different activities allowed on the surface above the GAS. In my opinion, Argentina must tackle the following legal issues:

a) To amend the Civil Code (resolving the matter of the extent of the private dominion belonging to the owner of the ground above the groundwater);

b) To legislate on aquifers at the federal level, bearing in mind the existing state norms;

c) To restrict the access to and use of the GAS to the local people, being as it is the only resource of water for many communities.