Governing transboundary waters for the benefit of people through the human right to water

By Ha Le Phan, LLM (University of Essex)

Brahmaputra river in Assam, India, (c) Rita Willaert,

Brahmaputra river in Assam, India, (c) Rita Willaert

A number of contemporary challenges put a strain on the world’s freshwater resources including rivers, lakes and groundwaters, as well as their sensitive ecosystems. The effects of climate change and man-made conflicts are intensifying global water stress, while global demand and competition for water rises with ever growing industries and populations. Water is thus considered “blue gold”. For example, India and China are competing in the construction of dams on the Ganga-Brahmaputra in a race to exploit the rivers’ energy potential. In the long run, this will heavily impact water and food security in many riparian states and threaten the livelihoods of millions of people depending on these rivers. Interstate disputes over shared ground and surface waters can lead to the destabilisation of entire world regions. Some even argue that the next world war will be fought over water.

Although this is often suggested by the media and public opinion, the scarcity of water resources is, however, not the main cause of conflict. The UNDP Human Development Report (2006) concluded that “the global water crisis is rooted in power, poverty and inequality, not in physical availability”. The actual problem thus revolves around the question of water allocation, both within and among countries. How to weigh conflicting water uses and set the right priorities? The highly fragmented system of international law suggests a complex interplay of different legal regimes applicable to transboundary water governance. International water law emerged as the main specialised regime providing rules for coordination and cooperation between countries sharing freshwater resources. In August 2014, the UN Watercourses Convention (UNWC) has entered into force as the first universal framework convention on transboundary water use.

Besides, the human right to water evolved in response to the global water crisis and shifted attention to its main reason: unequal access to water. In 2010, the UN General Assembly and the UN Human Rights Council explicitly recognised the human right to water as part of the right to an adequate standard of living in Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights. With the emergence of states obligations to respect, protect and fulfil human rights extraterritorially, the application of the human right to water will no longer be limited to a state’s national territory, but extends to people in riparian countries. From a legal perspective, both international water law and international human rights law provide pertinent criteria for water allocation in a transboundary context.

 

Divergence between international water law and human rights law

Both regimes of international law can prescribe differing water allocation criteria, when the access to water for residents in one state is heavily affected in quantity or quality by a water use with transboundary effects in another riparian state. For example, residents in downstream riparians can be impaired in their enjoyment of the right to water, when an upstream country chooses to excessively withdraw or pollute a shared river. The right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use. It places priority on the allocation of water for the satisfaction of most basic human needs such as drinking, cooking and showering. Consequently, states must at least abstain from activites that impede on the realisation of the right to water in their territory as well as in other basin states.

While the human right to water requires a prioritisation of water for personal and domestic uses, the UN Watercourses Convention only covers vital human needs at the survival level and considers these on a quasi-equal footing with other considerations. In international water law, the customary cornerstone rule of equitable and reasonable use seeks to establish a fair weighting of the interests of all states in the regulation of shared waters. However, the balancing process does not provide for the preferential treatment of any factor (Article 10 (1) UNWC). While the principle of equitable and reasonable use requires states to give “special regard” to the protection of “vital human needs” (Article 10 (2) UNWC), it does not stringently and expressly set out the superiority of these needs.

Only to some vague degree, vital human needs are more important than other considerations, but they still remain one amongst many factors to determine the equitable and reasonable use of a shared river (Article 6 UNWC). In this way, international water law leaves the door open for other aspects such as economic needs to outweigh the requirements of vital human needs. In situations where, for example, the economic exploitation of a river competes with the transboundary realisation of the human right to water, a so-called normative conflict in the wider sense can be provoked across the regimes of international water law and international human rights law.

 

Resolving normative conflicts among regimes through dynamic and harmonious interpretation

A number of legal techniques to overcome the fragmentation of different regimes of international law were suggested by the UN International Law Commission in 2006. In accordance with the principle of harmonisation, states could resolve differing water allocation criteria by reading the human right to water and the cornerstone principles of international water law in a mutually supportive light. Harmonious interpretation allows human rights standards and principles to enter the normative environment of international water law. Moreover, international water law is highly dynamic and its notions are not frozen in perpetuity, but will necessarily evolve over time in response to new global challenges and developments in other branches of international law.

Recent developments in international water law reflect a strong convergence with human rights law on the prioritised satisfaction of basic human needs. The 2004 ILA Berlin Rules on Water Resources (BR) marked a significant shift towards the comprehensive protection of basic human needs in international water law. The Rules took full account of the developments in the past decade regarding the scope and content of the right to water. The Berlin Rules recognised the human right to water (Article 17 BR) and broadened the concept of vital human needs (Article 3 (20) BR) in international water law. While the Rules are not legally binding, they aim at codifying emerging norms of customary international law which are expected to become settled in the near future. They therefore demonstrate that international water law is becoming closely aligned with the human right to water.

If legal tensions are resolved, both branches of public international law will be able to complement and mutually reinforce each other in order to set clear legal and political priorities for the allocation of water in a transboundary context. On the one hand, the human right to water and its associated extraterritorial obligations are likely to put flesh on the bones of existing and emerging international water law by filling in its concepts and notions. On the other hand, the principles of international water law can be applied to ensure and foster the extraterritorial realisation of the right to water. Given these synergies, the international legal landscape can serve as an effective framework to shape policy decisions regarding transboundary water allocation which allow for the satisfaction of basic needs as a matter of priority. The human right to water thus shines light on the needs of those who tend to suffer the most from transboundary water conflicts.

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