No Border for Water: Defining a State Obligation to Share Water, Part II
By Chi Emeruwa, Staff Contributor
About 70% of the earth’s surface is covered with water. While access to water is vital to every human’s ability to survive, not all states have equal access to it because of their geographic location on the earth. In this three-part series, GIELR Online explores whether there is a viable claim that a state has an obligation to share water across borders. Part I will introduce the origin of the human right to water and various factors that can trigger an obligation to share water. Part II will discuss the several sources of law upon which a potential human right to water claim may be made. Part III will conclude by defining the proposed obligation to share water and assessing counterarguments, as well as outlining a potential compromise.
A human rights claim under the right to water resolution can be based on several sources of law, including existing treaties, international custom and principles, and prior judicial decisions.
The human right to water has been recognized through negotiation in forums and though ratification by 178 states. In addition, the UN Human Rights Council has determined the right to water to be legally binding. The Council declared that “the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity.”
“The UN Human Rights Council has determined the right to water to be legally binding.”
Moreover, the UN Committee on Economic, Social and Cultural Rights defines the legal basis for the right to water in other guarantees. Comment 15 requires states, depending on the availability of resources to, “facilitate realization of the right to water in other countries, through provision of water resources, financial and technical assistance, and providing the necessary aid when required.” The priority for enforcing these rights begins with personal and domestic uses, followed by the prevention of starvation and disease, and finally the state requirement to meet the core obligations of each covenant right.
The doctrine of “limited territorial sovereignty” is now widely accepted and integrated into international law. It serves as the basis for recognizing a claim to natural resources. Limited sovereign integrity emerged from the United States’ unilateral proclamation of the Harmon doctrine in 1895, which established a concept of absolute territorial sovereignty for water that was eventually largely discredited. Under the doctrine, which promotes the equitable sharing of benefits, a state may use the waters as long as there is no threat to the rights of co-riparians. States’ willingness to move beyond the doctrine of exclusive sovereignty by embracing shared sovereignty is evidenced by bilateral and regional treaties that have opted for a sharing approach to international waters, not complete control.
In the absence of formal international legal agreements to define or enforce a response to a water crisis, general principles have developed that could imply an obligation based on broader humanitarian objectives of peace and community protection. Both the doctrines of necessity and the common concern of humankind could be invoked in a human right to water case. States already recognize obligations that have cross-border implications.
“Both the doctrines of necessity and the common concern of humankind could be invoked in a human right to water case.”
The International Law Commission’s Articles of State Responsibility define parameters for states’ reactions to “internationally wrongful acts.” Article 33 states that “the obligations of the responsible state…may be owed to another state, to several states, or to the international community as a whole, depending in particular on the character and content of the international obligation, and on the circumstances of the breach.” In international water law, the Gabčíkovo-Nagymaros case recognized Article 33 as customary international law. In a water crisis situation, the internationally wrongful act may be defined as a violation of the human right to water.
The doctrine of necessity is grounded in a state’s right to self-preservation, and may be invoked as a defense for non-compliance with human rights obligations. On the one hand, a state could violate the territorial integrity of another state to obtain fresh drinking water for its population, and justify its actions as required to preserve its existence. But the source state could also apply the same doctrine to claim that the water is integral to the preservation of its own population.
“A state could [use the doctrine of necessity to] justify its actions as required to preserve its existence, and could also apply the same doctrine to claim that the water is integral to the preservation of its own population.”
The language proclaiming a “common concern of humankind” was included as an international principle in 1988 when the UN General Assembly passed a resolution on the global climate for present and future generations of mankind. The opening sentence of the UN Framework Convention on Climate Change states that change in the earth’s climate and its adverse effects are a “common concern of humankind.” The common concern recognition also applies to biological diversity as defined in the 1992 UN Convention on Biological Diversity that affirms that the conservation of biological diversity is a common concern of humankind. Although a universally accepted definition of the doctrine has not been adopted, recognition of guaranteed access to safe drinking water, or a similar preservation of the human right to water, as a common concern of humankind could have an impact by obligating states, through laws, guidelines, or practice to ensure the fulfillment of the right.
Previous Judicial Decisions
In a water crisis situation, a human rights claim to the UN Human Rights Council would only be considered if it had not previously been heard through a special procedure, a treaty body or other multilateral or regional human rights complaints procedure. Domestic remedies must also be exhausted, unless they have been ineffective or unreasonably prolonged.  Further, there must be a gross violation of the human right, and it must be reliably attested.
“The human right to water has not been addressed explicitly, but prior judicial decisions relating to resource use or analogous activities may provide insight into whether sharing water would be considered an obligation.”
The human right to water has not been addressed explicitly in this context, but prior judicial decisions relating to resource use or analogous activities may provide insight into whether sharing water would be considered an obligation. In 1996, the International Court of Justice (ICJ) issued an advisory opinion on the use of nuclear weapons that stated that the “existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.” In Uganda v. Congo, the ICJ recognized a state’s standing to bring a case that included claiming a violation of broader community values. In a water crisis situation, the activities of the source state may be carefully reviewed to determine if there had been a broader environmental impact, or assault on understood global community values aimed at the claiming state.
Part III will conclude by defining the proposed obligation to share water and assessing counterarguments, as well as outlining a potential compromise.
 It is assumed that the context for water sharing refers to water that exists exclusively within one state’s territory, or is sourced within a territory, but does not include pre-existing shared resource cooperation agreements that have already defined a joint response to changes in water capacity or usage.
 Alex Gordon & Christopher Akinrele, Right to Water, Advocates for International Development (June 1, 2011), http://a4id.org/resource/right-water.
 The Human Right to Water and Sanitation, G.A. Res. 64 U.N. Doc. A/RES/64/292 (July 28, 2010).
 United Nations, Econ. & Soc. Council, Comm. on Econ., Soc. and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. Doc. E/C.12/2002/11 (2002).
 Id. ¶34.
 Id. ¶6.
 Muhammad Mizanur Rahaman, Principles of international water law: creating effective transboundary water resources management, 1 Int’l. J. Sustainable Soc’y 207, 209 (2009).
 Id. at 210.
 A. Dan Tarlock, International Water Law and the Protection of River System Ecosystem Integrity, 10 BYU J. Pub. L. 181, 191 (1996).
 Albert E. Utton, Regional Cooperation: The Example of International Water Systems in the Twentieth Century, 36 Nat. Resources J. 151, 152 (1996).
 See generally Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 Y.B. Int’l L. Comm’n 31, U.N. Doc. A/56/10.
 Id. at 94.
 See Gabčíkovo-Nagymaros (Hungary/Slovakia), 1997 I.C.J. 7 (Sept. 25).
 Roman Boed, State of Necessity as a Justification for Internationally Wrongful Conduct, 3 Yale Hum. Rts. & Dev. L. J. 4 (2000).
 See generally Cedric Ryngaert, State Responsibility, Necessity and Human Rights, 41 Netherlands Y.B. Int’l L. 79 (2010).
 Boed, supra note 16 at 4.
 G.A. Res. 43/53, U.N. Doc. A/RES/43/53 (Dec. 6, 1988).
 United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107.
 United Nations Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79.
 Edith Brown Weiss, The Coming Water Crisis: A Common Concern of Humankind, 1Transnat’l Envtl. L., 153, 164 (2012).
 Id. at 166.
 See Human Rights Council Complain Procedure, Office of the United Nations High Commissioner for Human Rights, http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureIndex.aspx (last visited Mar. 15, 2014).
 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 95 (July 8) ¶29.
 See generally Armed Activities on the Territory of The Congo, (Democratic Republic of the Congo v. Uganda), 2005 I.C.J. 168 (Dec. 19).
 Patricia Wouters and A. Dan Tarlock, The Third Wave of Normativity in Global Water Law, 23 J. Water L. 51, 60 (2013).