Searching for holistic approaches to protect water in relation to armed conflict

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Searching for holistic approaches to protect water in relation to armed conflict

TIGNINO, Mara, SJÖSTEDT, Britta

TIGNINO, Mara, SJÖSTEDT, Britta. Searching for holistic approaches to protect water in relation to armed conflict. Review of European, Comparative and International Environmental Law , 2020, vol. 29, no. 1, p. 3-6

DOI : 10.1111/reel.12334

Available at:

http://archive-ouverte.unige.ch/unige:135567

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E D I T O R I A L

Searching for holistic approaches to protect water in relation to armed conflict

1  | INTRODUCTION

The relation between water and armed conflict is complex. Water scarcity can have destabilizing effects and exacerbate existing ten- sions within and between countries. It can even contribute to the outbreak of an armed conflict, in particular in dry and semi-dry areas, such as the Sahel area, Middle East and East Africa. For instance, prior to the outbreak of the armed conflict in Syria, several years of drought had been experienced, causing massive movements of peo- ple from the countryside to cities where they faced unemployment and poverty, which is claimed to have sparked the conflict. Water scarcity as such may not necessarily lead to conflict, but in many places there is evidence of increased cooperation to overcome water crises, for instance in the case of the Senegal river basin with the establishment of the Senegal River Development Organization. Yet, war-torn countries that have weak governance systems or that are in the process of rebuilding their legal and institutional frameworks are much more fragile and exposed to the risk of outbreak of conflicts. In such cases, water-related crises could contribute to the outbreak of an armed conflict. Nearly two-thirds of the world population are ex- periencing grave water scarcity during at least one month every year.¹ Climate change is exacerbating water scarcity, worsening se- curity threats for access to water, food security, ecosystem services and energy. By 2050, almost 6 billion people are expected to suffer from clean water scarcity.² Seven hundred million people worldwide risk being displaced due to intense water scarcity by 2030,³ which will aggravate access to water. The adverse impacts of climate change and water scarcity are increasingly being discussed as a mat- ter of international peace and security, and have been up for discus- sion at the United Nations (UN) Security Council on several occasions.⁴ Furthermore, given how precious water resources are, in particular drinking water, they need adequate protection during armed conflict. This is evident in the ongoing fight to stop the spread of the COVID-19 pandemic. It shows how water is essential to

protect our health. Handwashing is one of the most efficient ways to prevent the spread of this infectious disease, but the World Bank estimates that 3 billion lack basic handwashing facilities.⁵ Given the risk of the spreading of the virus in conflict-affected areas, the lack of access to water may have dramatic consequences.⁶

Currently, under international humanitarian law, water is pre- sumed to be a civilian object and in such cases it must not be at- tacked.⁷ The 1977 Additional Protocols confer additional protection to water as an object indispensable to the survival of the civilian population.⁸ Yet, if there is a direct anticipated military advantage to attack a water-related facility that outweighs the collateral damage in accordance with the proportionality principle,⁹ international hu- manitarian law falls short in providing protection for such a facility.

This would be the case if for instance a water pump is used for both civilian and military purposes and such an attack is considered to meet the requirements of the proportionality principle. Also, a simi- lar assessment would apply in case of an attack on a military objec- tive located nearby a lake or another important freshwater resource.

If the collateral damage is proportional to the expected military ad- vantage, such an attack would be lawful despite the devastating ef- fects on water. In addition, water is protected under human rights law to some extent. The human right to drinking water covers per- sonal and domestic uses and must be ensured both during peace time and armed conflict.¹⁰ Yet, the recognition of the implications of the human right to drinking water in situations of armed conflicts is still understimated. For example, it is only in the last years that the UN General Assembly and the Human Rights Council started to refer to the impacts of the conduct of hostilities on the access to

 ¹MM Mekonnen and AY Hoekstra, ‘Four Billion People Facing Severe Water Scarcity’

(2016) 2 Science Advances 1.

 ²A Boretti and L Rosa, ‘Reassessing the Projections of the World Water Development Report’ (2019) 2 npj Clean Water 15.

 ³<https://www.unwat er.org/water-facts/ scarc ity/>.

 ⁴See M Tignino, ‘Water in the Practice of the United Nations Security Council: Trends and New Perspectives’ in M Tignino and C Bréthaut (eds), Research Handbook on Freshwater Law and International Relations (Edward Elgar 2018) 116.

 5<https://www.world bank.org/en/topic/ water/ overview>.

 6P Maurer, ‘Covid-19 Presents People in the Crosshairs of Conflict with a New Terrifying Threat’ (The Guardian, 27 March 2020).

 7This follows from Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 art 52(2).

 8ibid art 54; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 art 14.

 9Protocol I (n 7) art 51(5)(b).

 10See UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant)’ UN Doc E/C.12/2002/11 (20 January 2003) paras 21–22.

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drinking water.¹¹ It is necessary to clarify how human rights law may inform and complement international humanitarian law in the pro- tection of the access to water during armed conflict, in particular since international humanitarian law prevails in case of a normative conflict as the lex specialis rule. International law has clear limitations in this regard.

In post-conflict situations, the supply of freshwater carried out in an equitable and non-discriminatory manner is essential to build a sustainable peace. The reconstruction of water infrastructure is often referred to as a technical and depoliticized issue, which is rarely the case.¹² Instead, in post-conflict situations, the focus needs to be redirected to coordination among stakeholders, ensuring that aid workers and donors are working to achieve common objec- tives.¹³ Often, there are many projects related to water taking place, but without any coordination with other, similar projects. Also, the provision of water supplies should follow a human rights-based ap- proach rather than a needs-based one. Thus, there are many com- plex and intertwined issues with regard to water protection in relation to armed conflict.

2  | A MULTIDISCIPLINARY AND

STAKEHOLDER APPROACH

The issue of water security and protection in relation to armed con- flicts has been examined from various perspectives and approaches, including by academics in law, political science, peace and conflict studies as well as by decision makers and practitioners from States, international organizations and civil society. To ensure that compe- tence from various backgrounds is gathered and explored systemati- cally and comprehensibly, it is important to create platforms for the various stakeholders to exchange experiences and knowledge. For that purpose, on 15–16 February 2018 at Lund University, an ex- perts’ workshop on ‘Water in Post-conflict Situations and the Role of the Security Council’ was co-organized by the Geneva Water Hub, hosted at the University of Geneva, and Lund University to explore the security dimension of water issues. More specifically, the aim of the workshop was to discuss the shortcomings of international law and policies in relation to armed conflict as well as provide for sug- gestions on how to safeguard water in the future. The workshop gathered international experts including leading academics as well as representatives from the UN Environment Programme, the Swedish and Finnish governments, the Swedish International

Development Aid Agency (Sida), WaterAid, the World Resources Institute, Conflict and Environment Observatory and others, to en- sure that perspectives from the academic community, policymakers, civil society as well as from the field were represented and shared.¹⁴ During the workshop, the strengths and weaknesses of international law to protect natural resources in general, and water in particular, before, during and after armed conflicts were discussed from a theo- retical, political as well from a practical point of view. The bounda- ries between the different phases of conflict can be difficult to distinguish given the protracted nature of conflicts. Post-conflict contexts can frequently be seen as interim periods or even pre-con- flict situations in the context of recurring conflicts.

In the light of the fruitful discussions during the workshop, we are seeking to further explore these issues in this Special Issue.

Given the complexity of current armed conflicts, the Special Issue takes a comprehensive approach, covering the analysis of principles and norms of international humanitarian law, human rights law, in- ternational water law and international environmental law, and being informed by other disciplines.

The Special Issue also examines the link between water stress and security, which affects energy, food and ecosystem services.

As climate change further exacerbates water scarcity and worsens existing security threats, a comprehensive and robust response from the international community to deal with these issues is pressing. Thus, the Special Issue analyses the role of international law in protecting the access to water from various perspectives in- cluding in peace agreements, in UN peace operations and in times of occupation. The contributions also include governance and en- vironmental protection dimensions. For instance, UN operations may provide water to the civilian population as well as repair water facilities. More generally, the UN Security Council emphasizes the need to give water a more prominent position when setting an agenda for peacebuilding mechanisms. The Special Issue also includes contributions devoted to the exploration of the relation between peacebuilding and the protection of water resources and infrastructure.

3  | GOVERNANCE IN POST-CONFLICT

SITUATIONS AND PEACEBUILDING

The first articles explore mechanisms to ensure good governance of water in post-conflict situations and peacebuilding. This is crucial, as water scarcity in itself does not cause conflicts. However, in coun- tries lacking functional management of water, it can be the spark that fuels underlying tensions into a full-blown conflict. Bruch, Weinthal and Troell argue that environmental governance is critical not just to restoring livelihoods and basic human wellbeing but also

 11UNGA ‘The Human Rights to Safe Drinking Water and Sanitation’ UN Doc

A/C.3/74/L.33/Rev.1 (12 November 2019); Human Rights Council ‘The Human Rights to Safe Drinking Water and Sanitation’ UN Doc A/HRC/RES/39/L.11 (21 September 2018).

 12K Aggestam, ‘Depoliticization, Water, and Environmental Peacebuilding’ in A Swain and J Öjendal (eds), Routledge Handbook of Environmental Conflict and Peacebuilding (Routledge 2018) 97.

 13See conclusions of ‘Experts’ Workshop Water in Post-conflict Situations and the Role of the Security Council’ (Lund, 2018) <https://www.genev awate rhub.org/sites/ defau lt/

files/ atoms/ files/ expert_works hop_water_and_secur ity_counc il_summa ry_report_

may_2018_20180 723.pdf>.

 ¹⁴The full programme is available at <https://www.genev awate rhub.org/news/trans formi ng-water-strat egy-war-asset-peace>. See also the workshop report <https://www.

genev awate rhub.org/sites/ defau lt/files/ atoms/ files/ expert_works hop_water_and_secur ity_counc il_summa ry_report_may_2018_20180 723.pdf>.

to supporting sustainable development and to addressing challenges such as droughts and floods that may threaten many of the peace dividends that water may provide at the end of an armed conflict.¹⁵ Through the prism of water governance, the authors point out the different institutions and actors involved in water management and shed light on the importance of building resilient and flexible water governance institutions.

Dam-de Jong explores the role of peace agreements in ensuring good governance after the end of armed conflicts.¹⁶ She argues that it is of the utmost importance, both from a security and development perspective, to address natural resources as an integral part of the peace process. From this perspective, she assesses how the provi- sions on natural resources in peace agreements interact with general international law. In some cases, water resources arrangements in peace agreements may fall within the jurisdiction of more than one State, requiring cooperation with other States. Such arrangements may also have the potential to shape the international legal frame- work for the governance of natural resources as part of post-conflict peacebuilding. In the context of this analysis, the article shows the relevance of human rights law, international environmental law and international water law for the implementation of peace agreements.

The study of these agreements also illustrates how these instru- ments can reinterpret, confirm and build upon the norms of interna- tional law.

4  | PR ACTICAL AND THEORETICAL

ASPECTS OF WATER SECURIT Y

The theme of the need for more research is carried through into the following articles, which examine the concept of water security.

Tignino and Irmakkesen explore water security from a practical point of view, namely through the role of the UN peace operations.¹⁷ The article examines the mandates and practice of UN peace opera- tions in relation to water as well as the relationship between these operations and human rights law, in particular the right to water.

Through the analysis of the cholera epidemic in Haiti, the authors shed light on the processes undertaken to engage the responsibility of the UN. The responsibility of the UN in general, and its peace operations specifically, is an issue which deserves further discus- sion. In the case of the right to water specifically, the obligations of the UN and its subsidiary organs have been scarcely discussed.

However, on the basis of general international law, peace forces are bound to respect and protect all human rights, including the right to water.

Magsig studies the various legal dimensions of the concept of water security.¹⁸ He provides an analysis of how international law may play a role in turning the buzzword ‘water security’ into a mean- ingful concept for addressing the global water crisis. A contempo- rary understanding of water security, rooted in the notion of common concern, provides an impetus for riparian countries to re- think their existing approach to water diplomacy and base it on meaningful cooperation and truly joint management of shared water resources. The concept of water security may be of particular inter- est to the future development of international water law. Although its focus lies on common benefits, it considers the benefits from common action rather than those derived from the mere exploita- tion of a resource. If this contemporary understanding of water se- curity gains traction and advances towards a perception of cooperative sovereignty, international water law can demonstrate its crucial role in facing increasingly complex challenges such as cli- mate change and biodiversity loss.

5  | APPLYING INTERNATIONAL L AW IN

REL ATION TO OCCUPATION AND ARMED CONFLICT

The two last articles of the Special Issue focus on international law in relation to occupation and armed conflict, to address the security dimension of water. Pertile and Faccio examine the case of the blockade of the North Crimea Canal in the light of the rules of gen- eral international law, and in particular the right of States not to ac- quiesce to the unlawful annexation of their territory, and the implementation of economic, social and cultural rights in occupied territories.¹⁹ The authors compare this case with the existing situa- tion in another region of Ukraine, notably in Donbass, where water infrastructures are targeted. While the situation in Crimea can be qualified as international in nature, the qualification of the conflict in Donbass is still disputed as it involves some non-State actors whose relationship with the Russian Federation has not been clearly de- fined. Pertile and Faccio highlight the implications of the qualifica- tion of a conflict for the protection of water infrastructure under both international humanitarian law and international criminal law.

Marja Lehto, Special Rapporteur for the topic Protection of the Environment in relation to Armed Conflict in the UN International Law Commission, explores more broadly how environmental protec- tion in relation to armed conflict can contribute to also protect water.²⁰ Her analysis focuses on the Draft Principles adopted at first reading by the Commission in 2019. Lehto highlights in particular the

 ¹⁵C Bruch, E Weinthal and J Troell, ‘Water Law and Governance in Post-conflict Settings’

(2020) 29 Review of European, Comparative and International Environmental Law 7.

 ¹⁶D Dam-de Jong, ‘Building a Sustainable Peace: How Peace Processes Shape and are Shaped by the International Legal Framework for the Governance of Natural Resources’

(2020) 29 Review of European, Comparative and International Environmental Law 21.

 ¹⁷M Tignino and Ö Irmakkesen, ‘Water in Peace Operations: The Case of Haiti’ (2020) 29 Review of European, Comparative and International Environmental Law 33.

 18BO Magsig, ‘Water Security: A Litmus Test for International Law’ (2020) 29 Review of European, Comparative and International Environmental Law 44.

 19M Pertile and S Faccio, ‘Access to Water in Donbass and Crimea: Attacks against Water Infrastructures and the Blockade of the North Crimea Canal’ (2020) 29 Review of European, Comparative and International Environmental Law 56.

 20M Lehto, ‘Armed Conflicts and the Environment: The International Law Commission’s New Draft Principles’ (2020) 29 Review of European, Comparative and International Environmental Law 67.

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Draft Principles’ defining features, namely: the temporal approach, meaning that all phases of an armed conflict are covered (before, during and after); the interplay of several areas of international law, including international humanitarian law, international environmen- tal law and human rights law; the reliance on the enhanced under- standing of the environmental impacts of armed conflicts; and, lastly, the normative nature of the draft principles, which represents different stages of crystallization as international legal norms. While some of the Draft Principles are based on existing treaty rules – some representing international customary law – some other Draft Principles are more clearly of a recommendatory character. The gen- eral environmental protection provided by the Draft Principles are likely to expand the protection of water in relation to armed conflict.

6  | CONCLUDING REMARKS

This Special Issue is intended to provide a space for examining and reflecting on the multiple facets of water, including as a critical

infrastructure and an indispensable natural resource. The differ- ent contributions also illustrate the interactions between concepts of general international law such as State sovereignty and the re- sponsibility of international organizations and the management and protection of water resources. The need of cooperative frameworks based on human rights and environmental approaches also emerge as promising avenues to prevent the risks of water conflicts that be- come increasingly evident in the context of the impacts of climate change. The law plays a crucial role in providing stable mechanisms to protect water under different times, including in wartime. This can be done beyond international humanitarian law, including using norms of non-binding character. This Special Issue is a contribution to further explore this pressing topic from new angles.

Mara Tignino¹ Britta Sjöstedt²

1Faculty of Law, University of Geneva

2Department of Law, Lund University