Access to Water Plays a Role in Armed Conflicts too -- conversation with Mara Tignino

You have been teaching and researching a quite unique and also timely area of international law that is international water law. Looking back over the history of international law, one can see that “water” has played an increasing role and appears in a rising number of areas of international law. While it only used be a subject of territorial questions of sovereigns, it has become ordinary part, if not center of attention of many areas of international law such as human rights, humanitarian, environmental law or even international criminal law. How can you explain the growing presence of “water” in the context of international law?

Water is an essential resource that constitutes the lifeblood of the human environment. There is no substitute for water and people have relied on it in many different ways throughout the ages. Although water is the most abundant resource on Earth, only a small quantity – around 2.53 per cent – is fresh water that can be used for agriculture, human consumption, and industrial purposes. Moreover, a significant part of this fresh water is locked up in ice or in groundwater resources. Some of the latter, because they are insignificant or have no way of being replenished by surface waters, can become non-renewable resources and risk being exhausted.

While the size of the world’s population has tripled over the last century, water consumption has increased by a factor of six.

With this rate of exploitation, the non-renewable character of water resources (especially fossil aquifers not connected to surface waters) will come into sharp focus in the coming years.

What are the challenges of this area?

This context highlights some of the challenges that the law applicable to water resources has to deal with. Water scarcity, competing water uses and raising tensions on the management of transboundary water resources between riparian States all prompt a reflection on the role of international water law.

This area of law has mainly been concerned with the regulation of international watercourses and lakes as well as transboundary aquifers. There is however

an increasing interaction between international water law and other areas of international law such as international environmental law, human rights law, international economic law and international humanitarian law.

At the end of the 1960s, international water law underwent significant developments. The regulation of the utilizations other than navigation had become the focus of interest for international law. The development of the world economy, concerns about the limited availability of water, as well as an increased awareness of the need to protect water resources prompted the adoption of the 1966 Rules on the Uses of the Waters of International Rivers – the so-called “Helsinki Rules” – by the International Law Association (ILA) and the initiation of the work on this issue by the International Law Commission (ILC).

Within the United Nations, efforts towards the design of a multilateral framework on international watercourses and lakes started in the 1970 and took almost three decades, which led to the adoption by the General Assembly of the United Nations Convention on the Law Applicable on the Uses other than Navigation, the UN Watercourses Convention on 21 May 1997. This Convention entered into force on 17 August 2014. The long duration of negotiations within the ILC, as well as the long process of ratification, evidence the difficulty of identifying and specifying principles and norms at the universal level dealing with the whole range of non-navigational uses of international watercourses and lakes.

The 1997 UN Watercourses Convention and the UNECE 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, the UNECE Water Convention codify many principles of customary law. They complement each other with respect to pollution control, reasonable and equitable use and cooperation between riparian States. However, these instruments put emphasis on certain aspects such as the protection of the environment and the obligation of cooperation with a different degree. For example, the protection of water ecosystems is addressed in a more extensive manner by the UNECE Water Convention than by the UN Watercourses Convention. The precautionary principle, the polluter-pays principle as well as an ecosystem approach are affirmed in the UNECE Water Convention.

Both the UN Watercourses Convention and the UNECE Water Convention must be complemented by more precise legal regimes, which take into account the specificity of each water basin. In this context, it is interesting to note that both the UN Watercourses Convention and the works which led to its adoption have been taken into account for formulating international agreements. Examples include the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) of 7 August 2000, the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, as well as the Nile Cooperative Framework Convention of 2010, all of which were inspired by the ILC’s work. The 1992 UNECE Water Convention has also led to the adoption of, agreements such as the 1994 Convention on Cooperation for the Protection and Sustainable Use of the Danube River and the 1999 Convention on the Protection of the Rhine. The 1997 UN Watercourses Convention and the 1992 UNECE Water Convention constitute frameworks that leave space for particularities in the formulation of norms at the basin level.

Professor Bruno Simma once pointed out that international law and especially one of its most powerful regimes, international economic law is currently “asymmetrical” because it favors transnational economic interests over the protection of the human beings and communities. Accordingly, there are many sad examples of transnational economic activities such as the extraction of natural resources that involved destruction of environment including water sources. How do you see that “asymmetry” with regards to the protection of “water”?

The body of norms associated with the protection and management of fresh water was primarily developed in the context of inter-State relations. However, this corpus juris is becoming increasingly concerned with issues related to the rights and duties of non-State actors. The concept of human needs and the emerging recognition of the human rights to water and sanitation have progressively found their place in the law applicable to transboundary water resources as well as with respect to other sources of water.

Both the UN Watercourses Convention and the 2008 ILC Draft Articles on the Law of Transboundary Aquifers contain provisions that speak to human needs. Human needs are to be taken into consideration in applying both the principle of equitable and reasonable utilization and the prohibition on causing significant harm. In the case of the notification of planned measures, human needs should also be taken into consideration for their impacts on riparian communities.

How do international courts take into account these requirements?

In the case-law of international tribunals too, human needs have been considered in the adjudication of disputes over watercourses. For example, in the Kasikili/Sedudu case, the International Court of Justice reminded the Parties of their commitment to cooperate with each other regarding navigation and environmental protection. In highlighting this, the International Court of Justice put

a human focus on the issues concerning the delimitation of rivers.

It recognized that social and economic interactions between the people living in the two co-riparian States must be preserved and encouraged.

Over and above a mere cognizance of human needs, there has been in recent years a definite movement towards the recognition of the human right to water. Several international documents recognizing the right to water have been adopted. These include the General Comment No. 15 adopted by the UN Committee on Economic, Social and Cultural Rights in 2002 as well as the resolutions adopted by the UN General Assembly and the Human Rights Council in 2010. These resolutions call for the need to recognize and protect the right to access drinking water and sanitation. In particular, the General Assembly “recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”. As such, the General Assembly links the right to water and sanitation to the right to life and views it as a prerequisite for the realization of all human rights.

It should be noted that the recognition of the right to water is not only reflected within human rights law. Agreements dealing with the law of international watercourses also recognize this right. This is the case with the London Protocol on Water and Health to the 1992 UNECE Water Convention, the Charter of the Senegal Waters of 2002, the Charter of the Niger Waters of 2008 and the 2012 Water Charter of the Lake Chad Basin.

The effective realization of the human right to water cannot be isolated from health and environmental concerns, and a comprehensive approach is required that links the human right to water to other rights. Cases brought before human rights bodies and courts illustrate these linkages. The African Commission on Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have all been active in this area, shedding light on various aspects of access to water and their linkages with various existing human rights. In this context, the treatment of indigenous populations deserves particular attention. The Inter-American bodies on Human Rights have rendered important decisions. In its decision Xakmok Kasek Indigenous Community v. Paraguay, the Inter-American Court spoke of the right to access to water as part of a right to an adequate standard of living. More particularly with respect to access to and quality of water, it stated that: “the Court considers that the measures taken by the State … have not been sufficient to provide the members of the Community with water in sufficient quantity and of adequate quality, and this has exposed them to risks and disease”.

In New Zeeland as well as in other countries certain rivers have been recognized as “living species” and are given legal personalities to grant them more protection. What are the domestic and international legal status of different water sources and what are its consequences and challenges in your view?

Since the 2000s, there has been a growing recognition of the rights of nature at the domestic level. This increasing practice has influenced the emergence of a new approach in international law which considers that nature should be protected in its own right. There is a call to shift from an anthropocentric perspective to an eco-centric one to environmental protection.

The ‘rights of nature’ and the ‘rights to nature’ are two different but complementary approaches.

The first notion promotes the view that nature should have a legal personhood, guardians to protect it and a legal standing before judicial mechanisms. For example, in 2017, national legislations and domestic tribunals have granted legal personhood to four rivers: the Whanganui river in New Zealand, the Ganges and Yamuna rivers in India, and the Rio Atrato in Colombia.

The second approach, i.e. the rights to nature, underlines the obligation of States to protect nature as well as the human right to a healthy environment which has recently been recognized at the global level by the Human Rights Council. The complementarity between the rights of nature and the rights to nature is reflected in the case law of the Inter-American Court of Human Rights as well as in international documents such as the ‘World Declaration on the Environmental Rule of Law’ of the International Union for Conservation of Nature (IUCN) adopted at the World Environmental Law Congress in 2016.

As a result of the recognition of a new set of rights that nature would hold in itself, a new actor would emerge in international law. However, the current legal developments at the international level are still only a few to affirm that nature is an actor in itself in the international scene. Moreover, the question arises if the approach based on the rights of nature would also imply rethinking the obligations of States in relation to nature. Are the principles of international environmental law, such as the principles of prevention and precaution, still sufficient to deal with the protection of the environment? Relying on the case-laws of Colombia adopting an eco-centric approach, these principles are still crucial to ensure adequate protection of nature.

This shows

a new perspective on international environmental law grounded on an eco-centric perspective.

Contrary to an anthropocentric view, nature is being protected not for the needs of human beings but for the values that the nature has in itself.

The recognition of the rights of nature at the international level may bring a new perspective on the principle of sustainable development

underling its environmental dimension and the rights of future generations to a healthy environment. The anthropocentric and eco-centric perspectives on the protection of nature should not be viewed in an antagonistic view but on the contrary as mutually reinforcing. In this context, the jurisprudence from Colombia is particularly emblematic of the need to read the rights of nature as a tool for the better protection of the human rights of indigenous communities. However, judicial decisions of other jurisdictions such as India and Bangladesh depict practices that could bring tensions between the rights of nature and the rights of local communities especially vulnerable groups who may not have the resources to bring claims for the protection of their human rights before national courts.

Would it be proper to recognize water sources and aquifers as integral parts of the culture of a certain community and thus be protected by human rights law? Can you shed light on this dilemma through practical examples?

As already mentioned, in 2002, the UN Committee on Economic, Social and Cultural Rights adopted General Comment No. 15 on the Right to Water. Emphasising the interdependence of human rights, the General Comment demands that priority has to be given to the uses of water required to prevent starvation and underscores the need to consider the right to water beyond personal and domestic use. This right also covers water for securing livelihoods, including food production, which is pivotal for ensuring priority and sustainability of access to water for use in agriculture and pastoralism.

The General Comment further enunciates the importance of providing equitable access to water for disadvantaged and marginalised farmers and indigenous communities, including women farmers. The General Comment also emphasises the need for sustainable rain harvesting and irrigation technology, as states are under obligation to ensure that local communities are not deprived of their means of subsistence. Concerning sanitation, it stresses that access to adequate sanitation is not only fundamental for human dignity and privacy but one of the principal mechanisms for protecting the quality of drinking water supplies and resources. Accordingly, states should progressively extend safe sanitation services, particularly to rural and deprived urban areas, taking into account the needs of women and children.

In 2012, the UN General Assembly adopted by consensus the UN Guiding Principles on Extreme Poverty and Human Rights. The UN Guiding Principles are the first global policy guidelines focused specifically on the human rights of people living in poverty, including people living in rural areas, with a strong emphasis on the importance of the right to water as a means to eradicate extreme poverty in rural areas. Although non-legally binding per se, they stem from legally binding provisions included in international human rights instruments. Another example is the UN Declaration Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). The rights to water and sanitation are explicitly recognised under article 21 of the UNDROP, stating that peasants and rural workers have the right to water for personal and domestic use, farming, fishing, and livestock. Moreover, the Declaration explicitly states their right to equitable access to water and to be free from arbitrary disconnections and the contamination of water supplies. It also emphasises that states have to prioritise water necessary for human needs, small-scale food production, ecosystem needs and cultural use.

The Inter-American Court of Human Rights was the first regional human rights body to refer to the UNDROP to protect the right to land and other natural resources. In the case Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, the court recognised for the first time autonomous violations of the rights to a healthy environment, adequate food, water, and cultural identity. The case involves a claim from indigenous communities in Argentina composed of over ten thousand members and united under the association Lhaka Honhat (‘our land’). They claimed Argentina violated their right to communal property by failing to provide legal security to their territory and allowing Creole settlers to reside on their lands. In doing so, their rights to a healthy environment, adequate food, participation in cultural life, and judicial protection were also breached. The Inter-American Court ordered Argentina, among other things, to grant titles to the indigenous communities, to refrain from doing anything on the indigenous property that might affect the property’s value or use without prior consultation, to create a fund for community development, and to prepare a study on actions to be taken for water conservation and to remedy contamination and to avoid loss of forest resources and recover lost food sources.

Many scholars, states and activists would like to see that international criminal law as well as the competence of the International Criminal Court would extend to “ecocide”. How do you see the reform options in this area of law?

One of the main concerns regarding the possibility of conflict over water is the occurrence of armed hostilities between or within States. Research has showed that water has rarely been a factor triggering war between States, however it is often at the center of disputes between local communities, for example between pastoralists and herders. Moreover, water is often a weapon and an objective of armed conflict. Limitations on access to water and the environmental damage to water resources caused by armed conflict endanger the security of a population as a whole, rendering the return to peace longer and more difficult in countries affected by war. The 1977 Additional Protocols to the Geneva Conventions contains specific rules for protecting water during an armed conflict. Notably the destruction of dams and reservoirs that provide access to water for civilian population is prohibited. Further still, through the provision on the interdiction of destruction of indispensable objects for their survival, civilians are protected against actions conducive to famine.

In times of armed conflict, international human rights law can enhance the protection of access to water.

This was emphasized in the case Sudan Human Rights Organization v. Sudan. The decision of the African Commission on Human and Peoples’ Rights makes reference to the General Comment No.14 on the Right to Health of the Committee on Economic, Social and Cultural Rights. In a situation of occupation under international humanitarian law, human rights such as the right to water also find application. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice stressed this point.

The law on transboundary water resources also contributes to ensure water basic needs. This is the case with the principle of equitable and reasonable utilization and the obligation not to cause a significant damage to the environment of the other watercourses States. The application of watercourse regimes such as the regimes of the Senegal, Danube, Mekong, or Indus in times of armed conflict has demonstrated the usefulness in contributing to the protection of water as well as spaces for dialogue. The institutional mechanisms established by these agreements appear as

“sanctuary” for maintaining cooperation between riparian States even in case of armed conflict.

To restore peace and create stability, it is critical to guarantee credibility and legitimacy to institutions of post-conflict societies. International criminal tribunals may help to ensure a more credible reconstruction and peace building because they offer a vital opportunity to redress wartime activities related to access to water and sanitation. Intentional starving of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies, is recognized as a war crime in the Statute of the International Criminal Court (ICC) (Art. 8 (2) (b) (xxv), ICC Statute). Intentional attacks against civilians and the use of poison are also crimes within ICC jurisdiction (Art. 8 (2) (b) (ii) and (xvii), ICC Statute). In other words, international criminal law defines violations of the laws of war directly linked to the protection of the right to water and sanitation. The indictment brought by the ICC prosecutor against President Omar Al-Bashir of Sudan serves to illustrate this linkage. The prosecutor invited the judges to recognize that destruction, pollution and poisoning of water resources in Darfur constituted an act underlying the crime of genocide (ICC 2008). While in its decision of 4 March 2009, issuing an arrest warrant against President Omar Al-Bashir, a majority of the Pre-Trial Chamber judges dismissed the charge of genocide, in a dissenting opinion, which is attached to the arrest warrant, Judge Usacka highlighted the large amount of evidence regarding the destruction of essential means of survival. She stated that she would recognize the charge of genocide based on Article 6 (c) of the ICC Statute. Judge Usacka’s opinion accepts the argument put forward by the prosecutor, stipulating

that destruction of water sources and the resulting deprivation of the population’s means of survival was an act underlying the crime of genocide.

The judgments of international criminal courts have historically been centred on deliberate and systematic killing, torture and rape; such judgments rarely address crimes tied to violations of socio-economic rights. The rule, however, is not universal as indicated by the indictment brought by the ICC prosecutor against President Omar Al-Bashir of Sudan.