No Border for Water, Part III – Georgetown International Environmental Law Review

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No Border for Water: Defining a State Obligation to Share Water, Part III

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.

Multilateral agreements, customary doctrines and judicial decisions provide scope for defining an obligation to share water resources across borders. However, the legal requirement does not yet exist in international law. No law specifically requires a state to share its territorial water resources with another state.

To prove that a source state has this obligation under human rights law, a state in a water crisis situation could focus on the projected outcome of the source state’s inaction as evidence of the state’s complicity in a potential or actual human rights violation. The claim would likely state that the result of not sharing safe drinking water could lead to significant harm, escalating conflict, and environmental damage. The key assumption is that the water scarce state has severely limited or no access to safe water, and that other options for relief are not available or have been exhausted.

The obligation to do no harm provides the foundation for such a claim. States also have specific duties to avoid conflict and to respond to climate events. Sharing water may become an obligation in such situations if it serves as a means for avoiding the adverse impacts of broader climate-related events.

The “Do No Harm” Obligation

The obligation to “do no harm” is bound in the international human rights law of duty to respect, which is a legal obligation of states to refrain from taking action that impairs the realization of human rights.[1] The doctrine implies that a state’s use of resources in its own territory should not cause significant harm to another state.[2]

In a water crisis case, only proactive water uses such as infrastructure projects or diverting resources away from users would typically fall under this doctrine. The home state has to prove that the actions of the source state inflicted injury on by disrupting the water supply. Indirectly, continuing to overuse, waste, or not use water resources that could be shared may be seen as inflicting harm on a dehydrated population. If the source state’s actions lead to the diminishment or elimination of another state’s water supply, an obligation to provide replacement water may be imposed.

Conflict Prevention and Management

The water law obligations for riparian states to peacefully negotiate water use overlap with international law doctrines to avoid and manage conflict. The United States intelligence community has predicted that “water problems – when combined with poverty, social tensions, environmental degradation, ineffectual leadership and weak political institutions contribute to social disruptions that can result in state failure.”[3] When water becomes scarcer, a state is more likely to come into conflict with its riparian neighbors.[4] A pre-determined obligation to share could avert these tensions. However if a conflict were to arise, then international law also requires that states preserve the local population’s access to water.[5] This codification, which appears in four Geneva Conventions and two additional protocols, indicates that there is an understanding of a moral responsibility that supersedes acts of aggression.[6]

Environmental Issues

Several multilateral declarations, treaties and formal agreements commit states to pursue policies that support a sustainable, protected environment. Groups that have challenged environmental degradation under human rights claims have found increasing recognition of their claims, especially when the populace has been threatened by such degradation.[7] Therefore, it is feasible that a state bring a human rights claim based on loss of water supplies as a result of environmental degradation.

The Argument against an Obligation to Share

Although the possible outcome of not sharing water could lead to a conflict or a humanitarian crisis, a state defending against an obligation to share its water resources has a more defined legal argument. The state would likely establish that human rights violations are to be enforced against an individual’s home state, and that it has no obligation to fulfill a human right that another government has failed to deliver. Inversely, the defending state has an obligation to its own population to provide sustainable water resources. The defending state would also likely invoke the doctrine of national territorial sovereignty, and the right to determine the use of its own territorial resources, as another indication that there is no obligation to share. Finally, the state could point to the numerous international frameworks for negotiating a water usage agreement, and the responsibility of the home state to work cooperatively with other states to achieve a solution for securing water resources. The human right to water rests, therefore, with a claimant’s home state and does not impose a cross-border obligation on another state.

The Potential Compromise on an Obligation to Share

Although international law does not impose an obligation on states to share water resources, mechanisms have been designed to facilitate negotiation of cooperative agreements that are conducive to the intent to ensure equitable utilization and cooperation over water resources. If the only recognized obligations as defined in the human right to water are the requirements to cooperate, and provide technical assistance, then states have agreed to an approach that may only lack an incentive to become more robust and enforcement measures to ensure compliance. Since “co-riparians are significantly more cooperative in those basins with established water treaties, than in similarly developed basins without treaties,”[8] examples exist to promote a strategy for future negotiations. For example, a requirement for compliance could be voluntarily offered in lieu of imposing an extra-territorial obligation to share.

Conclusion

The UN resolution for the human right to water ensured that the requirement to provide safe, clean, and accessible drinking water to all was recognized on its own as a vital human need. The UN resolution could provide an opening for states to reset the agenda for negotiating and finalizing water management agreements around the world. The UN’s decision to clarify and recognize the human right to water provides an incentive for states to solidify their water resource protection, conservation, and management practices. States may pro-actively address outstanding issues in established forums designed to settle the disputes in a cooperative fashion before an unprecedented crisis emerges.

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[1] Frank Seier, Respecting Human Rights: What Does it Mean to “Do No Harm”?, Right2Respect (Apr. 27, 2011), http://www.right2respect.com/2011/04/respecting-human-rights-what-does-it-mean-to-do-no-harm.
[2] Id.
[3] See Global Water Security, Office of the Director of National Intelligence (Feb. 2, 2012), available at http://www.dni.gov/files/documents/Special%20Report_ICA%20Global%20Water%20Security.pdf.
[4] Jaroslav Tir & Douglas M. Stinnet, Weathering climate change: Can institutions mitigate international water conflict? 49 J. Peace Res. 211, 217-18 (2012).
[5] See generally The Hague Conferences in 1899 and 1907 and the Geneva Conventions from 1864 to 1975 (respecting the law and customs of war on land governed state behavior during times of war).
[6] See U.N. Secretariat, United Nations Peacekeeping Operations: Principles and Guidelines (2008), at 15, http://pbpu.unlb.org/pbps/library/capstone_doctrine_eng.pdf (defining international humanitarian law).
[7] Kaniye SA Ebeku, The right to a satisfactory environment and the African Commission, 3 Afr. Hum. Rts. L. J. 149, 155 (2003).
[8] Meredith A. Giordano & Aaron T. Wolf, Sharing Waters: Post-Rio international water management, 27 Nat. Resources F. 163, 166 (2003).

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