The uneven distribution of water resources, and the competition between the multiple uses of those resources combined with the growth of the world's population has given rise to a debate on future ‘water wars’. While some predict such wars,Footnote 1 others indicate that no ‘water war’ has taken place since 4,500 years ago.Footnote 2 According to the latter view, increased competition for water could become the catalyst for more intense co-operation in the future.Footnote 3 Beyond the arguments about the existence of ‘water wars’, when one looks at the interactions between riparian states over shared water resources, it may be noticed that those interactions include forms of both conflict and co-operation between states.Footnote 4
Naturally, water is the most abundant resource on earth. However, only a small quantity – around 2.53% – of it is freshwater that can be used for agriculture, human consumption, and industrial purposes. Moreover, a significant part of this freshwater is locked up in ice or in groundwater resources. Some of those resources, having insignificant or no source of recharge by surface waters, can become non-renewable resources and risk being exhausted.Footnote 5 As a scarce resource, water has the potential for triggering conflict and these may become increasingly important as water scarcity is accelerated by human factors.
One of the main concerns regarding the possibility of conflict over water, is the occurrence of armed hostilities between states. Hostilities may take several forms, such as intra-state armed conflicts, national violence, skirmishes, and occupation of a territory.Footnote 6 In looking at the linkage between water and international peace and security, one may consider water not only as a factor triggering war but also as a weapon and an objective of armed conflict, often a neglected topic in studies on the relationship between water and armed conflict.Footnote 7 Finally, 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 objective of this article is to look at the linkage between water and international peace and security, highlighting the potential of water as a path for contributing to the return to peace. First, the article will analyse the role of water scarcity as one of the causes in triggering armed conflict. It will focus on a number of international documents dealing with the role of water in the maintenance of international peace and security. In this context, the practice of the United Nations Security Council will also be addressed. Then, the article will turn to the norms of international humanitarian law ensuring the protection of water in time of armed conflict. Beyond international humanitarian law, norms of other areas of international law contribute to the protection of this vital natural resource. They include human rights law and the law on transboundary water resources. Thus, in the final section, the article will examine the contribution of those areas of international law to the protection of water during armed conflict.
Water scarcity as a cause for armed conflict
Causes that may bring on conflict over water include natural and human factors. Among the human causes are the degradation of freshwater resourcesFootnote 8 and the impacts of climate change.Footnote 9 Many regions that are already relatively dry, such as the Middle East and North Africa, are likely to experience further decreases in water availability. Moreover, availability of water is also likely to be reduced by the decline of water supplies stored in glaciers and snow cover. As an illustration, climate-change-induced glacial melt in the Himalaya, which is the source of the ten largest rivers in Asia, risks affecting half a billion people in the Himalayan region. Finally, climate change will also have an impact on the quality of water. Increasing water temperatures may raise the threat of toxic substances in drinking water.Footnote 10
Climate change risks accelerating drought and desertification, and those phenomena could lead to a loss of agricultural land and a decrease of food production and water supplies. A significant example of this is the impact of climate change on water availability in Sudan. According to the United Nations Environment Programme (UNEP), climate change has reduced agricultural production owing to a decline in rainfall and this is a contributing factor for the conflict in Darfur.Footnote 11 Climate change is therefore an issue that fuels the debate over conflicts triggered by water, by accelerating droughts and scarcity of water resources.Footnote 12
The analysis on the linkage between water and armed conflict finds its origin in the studies on the role of environmental factors as drivers of conflict between states. Environmental security studies have underlined the role of water as the potential trigger for armed struggles,Footnote 13 and several analyses have seen the Middle East as the ideal scenario for ‘water wars’. Water was considered as the main issue of several wars in the past and it is assumed likely to trigger new wars in the future.Footnote 14 This scenario is not completely new, since some similar analyses have been made in regard to oil.Footnote 15 Along with the scarcity of water resources, the shared character of some international watercourses such as the Jordan river and the Nile river have been mentioned as factors that would be able to trigger conflicts in the regions of the Middle East and North Africa.Footnote 16
Between the 1990s and the 2000s, the debate over water and armed conflict changed its contours. Analysis of the scarcity of water resources and its relation to armed conflict was accompanied by the study of other factors such as population growth and inequitable allocation of natural resources.Footnote 17 The idea that water scarcity could be the only cause of a conflict, along with that of the existence of ‘water wars’, was nuanced or even rejected.Footnote 18 At the same time, the co-operative side of shared water resources has been increasingly recognized.Footnote 19
Rejecting the analysis on ‘water wars’ does not mean denying that water is a cause of armed conflict. In this regard, one should mention the studies of Homer-Dixon, which have established a methodological framework followed by other scholars.Footnote 20 The scarcity and inequitable allocation of water resources, along with the growth of population, are counted among the causes of armed conflict. Moreover, the studies of the International Peace Research Institute of Oslo have underlined that deforestation and degradation of soil and water, along with authoritarian regimes, increase the risks of conflicts and hostilities.Footnote 21 Political and socio-economic aspects interact with the degradation of the environment in complex ways. Those interactions can have an impact on poverty and social insecurity and become triggers for armed conflict. Furthermore, other elements studied as causes for violence are related to national policies on the management of water. Privatization of water services and the development of hydroelectric installations have been considered as possible sources of violence within states.Footnote 22 In this context, the violence triggered by the privatization of water services in Cochabamba during the spring of 2000 has been cited as a new kind of ‘water war’.Footnote 23
There is one further dimension of the relation between water and international peace and security. Water can be read both as a factor triggering armed conflicts and also as a weapon and an objective of armed conflict. The research conducted by Gleick found that the use of water as a weapon of war and military target is common during hostilities. With his research group, Gleick has developed a chronology of conflicts enumerating over 200 examples in which water has been used as a means of warfare or as a military target.Footnote 24 Moreover, many environmental assessment reports conducted by UNEP have highlighted the impact of armed conflict on water resources and water facilities.Footnote 25 The relationship between water, international peace, and security therefore has two main facets. One of them relates to the emerging role of water in the maintenance of international peace and security, while the other deals with the impact of armed conflicts on water.
The changing contours of international peace and security
The maintenance of international peace and security has been mainly understood as the protection of a state's territory and sovereignty. Despite the fact that the risks of conflict over water have been recognized since the 1980s,Footnote 26 and are known to be accelerated by climate change, water still has a modest role in the maintenance of international peace and security. This can be explained by the fact that the latter is mainly understood as connoting the protection of the state's territory from military attacks by other states. Nevertheless, while focusing originally on military use of force, the maintenance of international peace and security has been moulded into other contours, which include economic,Footnote 27 social, and environmental aspects, as well as military ones.Footnote 28
Since the end of the 1990s, the Security Council has paid attention to the management and protection of natural resources within the framework of conflict prevention and post-conflict peace-building.Footnote 29 Other UN institutions have also underlined the role of natural resources as a means for strengthening peace and security. Since competition over water use and water shortages may be among the causes of conflict, ensuring access to and protection of water may contribute to peace and security. Water is one of the factors triggering or aggravating conflicts and tensions, but it is also a path for dialogue and building confidence between states. As the article will point out later, joint commissions on transboundary water resources have been resilient during armed conflicts and they have sometimes been the only available fora for discussion between riparian states involved in war.
The role of water in international peace and security
During the 1970s and 1980s, the linkage between natural resources and peace started to find some expressions in international documents. It was in the Declaration of the United Nations Conference on the Human Environment held at Stockholm in 1972 (Stockholm Declaration) that the connection between natural resources, social development, and peace was first recognized. The Stockholm Declaration opened the door to the perspective that environmental protection of natural resources is a fundamental objective of states ‘together with, and in harmony with, the established and the fundamental goals of peace and of worldwide economic and social development’.Footnote 30 Three years later, the Helsinki Final Act of 1975, adopted at the Conference on Security and Cooperation in Europe, constituted another step in affirming the relationship between natural resources and international peace and security. The Act underscores the importance of environmental co-operation for the maintenance of peaceful relations between states.Footnote 31
During the 1980s, the analysis of the linkages between natural resources, peace, and security took a larger perspective with the inclusion of socio-economic dimensions. As an example, one may cite the Independent Commission on Disarmament and Security, chaired by Olof Palme, which included environmental and socio-economic factors in its analysis of the notion of security.Footnote 32
The report ‘Our Common Future’ of the World Commission on Environment and Development of 1987 (also known as the Brundtland Report) deals with the theme of peace and security within the context of the need for environmental protection sustainable development and of increased scarcity of water resources.Footnote 33 Some instruments adopted during the 1990s have followed its approach on the causes of armed conflict. The relation between environment, development, and peace is recognized in the Rio Declaration on the Environment and Development of 1992. Its Principle 25 affirms that ‘[p]eace, development and environmental protection are interdependent and indivisible’.Footnote 34 Moreover, in the Agenda for Peace of 1992 the environment and sustainable development are mentioned as means for the maintenance of peace.Footnote 35
Between the end of the 1990s and the 2000s, the issue of access to water took a specific place in international instruments.Footnote 36 Water is considered as a natural resource with a particular statute. The Ministerial Declaration on Water Security in the 21st Century adopted at the Second World Water Forum in The Hague in 2000 addressed the linkage between water and security. This Declaration affirms that ‘water security’ goes together with political stability.Footnote 37 The protection of water resources and their ecosystems, as well as the access to safe and sufficient water, are included in the concept of water security promoted by this text.
The definition of water security given by the Ministerial Declaration of 2000 is broad; it includes not only environmental but also human aspects, such as the access to water, indicating that water security should be read through the concept of human security.Footnote 38 According to the approach promoted by this concept, individual human beings and not just states are entitled to benefit from peace and security.Footnote 39 Meeting vital human needs such as the protection of water supplies contributes to the decrease of conflicts and to the return to peace.
The role that natural resources play in the context of international peace and security is indicated in the Report of the High-Level Panel created by the former UN Secretary-General, Kofi Annan, which was released in 2004. The objective of the Panel was ‘to assess current threats to international peace and security’ and to recommend measures ‘for strengthening the United Nations so that it can provide collective security for all in the twenty-first century’.Footnote 40 The Report identifies six clusters of ‘threats’ including poverty, infectious disease, and environmental degradation. This wide understanding of ‘threats’ to security was criticized by a number of states, who perceived it as a means for expanding the powers of the Security Council.Footnote 41
The approach taken by the High-Level Panel may be considered as an attempt to ‘securitize’ the issue of the protection of natural resources. In fact it closely associates natural resources with security concerns of states. Natural resources and environmental degradation are topics that are very different from other issues dealt with by the High-Level Panel, such as terrorism and the use of nuclear, radiological, chemical, and biological weapons. Since natural resources can either be a factor fuelling conflict or play the role of promoting co-operation between states, this ‘securitization process of natural resources’Footnote 42 may run the risk of underlining only one dimension of the role played by those resources.Footnote 43
Another way to look at the function of natural resources in promoting peace and security is to analyse the practice of the UN Security Council. While the practice on water of the Security Council is modest or almost non-existent, since the end of the 1990s, it has increasingly been paying attention to the protection of natural resources as a tool for preventing conflicts and building peace in post-conflict countries.Footnote 44
Water and the Security Council
In conformity with its mandate conferred by the UN Charter, the Security Council has the ‘primary responsibility for the maintenance of international peace and security’.Footnote 45 Over the years, it has dealt with water issues on very few occasions. During the 1950s, it adopted two resolutions concerning some development projects on the waters of the Jordan river in the demilitarized zone established under the General Armistice Agreement between Israel and Syria of 1949.Footnote 46 The Security Council requested the suspension of works while establishing criteria for determining what kind of projects could be realized in the demilitarized zone.Footnote 47
After the Six Day War and the occupation of the Golan Heights, West Bank, and Gaza Strip, the Security Council once again dealt with the situation of water resources in the Middle East. In 1979, it established a Commission, composed of three Security Council members appointed by the President of the Council, whose aim was to analyse the situation relative to settlements in the Arab territories occupied since 1967.Footnote 48 In 1980, the Security Council included water issues in the mandate of the Commission. It indicated the need of the Commission ‘to consider measures for the impartial protection of private and public land and property, and water resources’ in the Occupied Palestinian Territories and other Arab territoriesFootnote 49 and it charged the Commission with investigating the ‘serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation’.Footnote 50 The Commission released its report in the same year, indicating the use of water by Israel as ‘an economic and even political weapon to further its policy of settlements’.Footnote 51 Although these concerns were expressed in the report, no measure dealing with water was taken.
While the Security Council has rarely dealt with water issues, there has been a more frequent focus on the role of other natural resources such as diamonds and timber in fuelling armed conflicts in some countries of Africa, such as the Democratic Republic of Congo (DRC), Liberia, and Côte d'Ivoire.Footnote 52 Additionally, the Security Council has noted in some of its resolutions the need to address the root causes of armed conflict in a comprehensive manner, and has highlighted sustainable development as an essential factor of peace-building.Footnote 53 In this regard, the mandate of the Peace-building Commission established in 2005 states that one of its purposes is to ‘lay the foundation for sustainable development’Footnote 54 and the Security Council ‘acknowledges the crucial role that the Peace-building Commission … can play, in post-conflict situations, in assisting governments, upon their request, in ensuring that natural resources become an engine for sustainable development’.Footnote 55
Thus it can be seen that there has so far been little focus on water and natural resources in the resolutions of the Security Council. It may be argued that the protection of water belongs to the mandate of the General Assembly and the Economic and Social Council more than to that of the Security Council.Footnote 56 The former bodies present a more ‘democratic’ character and they may be more adapted to dealing with environmental and socio-economic issues.Footnote 57 However, as the main body for the maintenance of international peace and security, the Security Council, by promoting sustainable development as a conflict prevention strategy and as a tool for peace-making, could play a significant role in addressing the root causes of armed conflict in a more comprehensive way.
The emerging recognition of the function of natural resources in the maintenance of international peace and security may contribute to emphasizing that water resources must be better protected in time of armed conflict. The post-conflict environmental assessments made by UNEP have underscored that reconstruction efforts should include strategies for ensuring access to water and for the environmental rehabilitation of water resources. Those elements are needed for the successful return to peace.Footnote 58
The linkages between the maintenance of international peace and security and the protection of water during armed conflict
An assessment of the relation between water, international peace, and security includes looking at the impacts of armed conflict on water. Armed conflict affects water in several ways: destruction and damage to water facilities, attacks against power plants providing water supplies, and the collapse of water treatment and sewage systems are all aspects. The limitations on access to water as well as the over-utilization and pollution of water resources in the Occupied Palestinian Territories illustrates the many dimensions of the consequences of the conduct of hostilities and of the regime of occupation on water.Footnote 59 Meanwhile, armed conflict may affect the environment and ecosystem of water resources. This was the case, for example, in the conflict in Kosovo in 1999, when the attacks against industrial facilities situated along the Danube river caused the release of polluting substances in the river. The bombing of Pančevo and Novi Sad oil refineries spread the fear of widespread ecological damage to water resources.Footnote 60
The connection between water and international peace and security can be analysed through the norms of international humanitarian law dealing with the protection of water. Those norms play a significant role in ensuring human security, with the protection of the basic needs of the population lying at the centre of that concept.Footnote 61 Protecting human security implies meeting basic water needs of the population and thus contributing to the peace process. Some provisions of international humanitarian law deal with the protection of access to water and environmental protection of water resources.
The protection of water in the conduct of hostilities
The first norms of modern international humanitarian law dealing with the protection of access to water pertain to the protection of specific categories of individuals such as prisoners of war and internees. Those norms were provided for by the Third and Fourth Geneva Conventions of 1949 respectively.Footnote 62 Yet, it was not until the adoption of the Additional Protocols of 1977 to the 1949 Geneva Conventions that the protection of access to water was included in the regime of the limitations imposed on military operations during international and non-international armed conflicts.
Water installations and water resources are generally understood as civilian objects and as such they are immune from attacks.Footnote 63 In addition, international humanitarian law grants special protection to water essential to the survival of the civilian population. Both Article 54(2) of Additional Protocol I and Article 14 of Additional Protocol II,Footnote 64 provide for the protection of objects indispensable to the survival of the civilian population, such as ‘drinking water installations and supplies and irrigation works’.Footnote 65
Neither Article 54(2) of Additional Protocol I nor Article 14 of Additional Protocol II contains an exhaustive list of indispensable objects.Footnote 66 In this respect, one may raise the issue as to whether or not the ‘objects indispensable to the survival of the civilian population’ include water resources such as rivers, lakes, or groundwaters. When water is scarce and climate harsh, protecting water resources may be indispensable to ensuring the survival of the civilian population. Another issue that has also been raised is whether or not ‘drinking water installations’ encompass ‘electricity-generating plants that supply the power necessary for the purification and pumping of drinking water’.Footnote 67 In so far as the civilian population is concerned, it can make little difference whether the attack is against a drinking water installation or against infrastructure that is indispensable to the functioning of a utility providing essential water services. In both cases, the impact of the military operation can be the same, implying the denial of water supplies indispensable to the survival of the civilian population.Footnote 68
Although both Additional Protocols provide for the ban on attacking objects indispensable to the survival of the civilian population, this prohibition is defined slightly differently for international and non-international armed conflicts. In the latter case, Article 14 of Additional Protocol II (which does not admit any exception to the prohibition of attacks against water supplies) states an absolute proscription of attacks with the purpose to starve civilians. In the context of an international armed conflict, by contrast, Article 54 of Additional Protocol I provides for some exceptions to the prohibition.Footnote 69 The criteria for derogation, however, are restrictive.Footnote 70 Article 54(3)(b) of Additional Protocol I states that ‘in no event’ shall attacks against targets such as drinking water installations be undertaken when they may be ‘expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement’. At this point, prosecutions of attacks against essential means of survival, such as drinking water supplies, before international judicial or quasi-judicial bodies are still rare.Footnote 71
Access to water also can be affected by attacks against works and installations containing dangerous forces, such as dams and dykes. Attacks against dams and dykes used for providing water supplies indispensable to the survival of the civilian population and made for the specific purpose of denying water to the civilian population are against both Articles 54(2) and 56(1) of Additional Protocol I. Both Additional Protocols provide for the prohibition of attacking dams and dykes, ‘even where these objects are military objectives’.Footnote 72 As in the case of the protection of objects indispensable to the survival of the civilian population, there are some differences in the regime of protection accorded to dams and dykes during international and non-international armed conflicts. While Article 15 of Additional Protocol II does not admit any exception, Article 56(2) of Additional Protocol I establishes specific requirements under which the special protection conferred to dams and dykes would cease.Footnote 73 Yet, even in cases where protection ceases, the civilian population is entitled to the protection accorded ‘by international law, including the protection of the precautionary measures provided for in Article 57 [of Additional Protocol I]’.Footnote 74
Dams may often provide the energy indispensable to bring water supplies or even provide water supplies. However, it can be difficult to prove a violation of the prohibition against attacking installations containing dangerous forces. An example is provided by the Armed Activities on the Territory of the Congo case brought by the DRC against Uganda before the International Court of Justice (ICJ). Although the DRC raised the violation of Article 56 of Additional Protocol I in its application to the ICJ in 1999,Footnote 75 it then decided not to develop this argument during the written and oral phases of the procedure before the Court.Footnote 76 This approach shows that taking possession of the dam was not considered sufficient for proving a violation of Article 56 of Additional Protocol I. According to this article, an attack against a dam is prohibited ‘if such [an] attack may cause the release of dangerous forces and consequent severe losses among the civilian population’.Footnote 77 Both elements are required to prove a violation of the article. The same difficulties in applying the prohibition of attacks against works containing dangerous forces could arise with regard to Article 15 of Additional Protocol II.
There are other rules ensuring protection of access to water during armed conflict, which deal with the protection of the environment. The safe character of water supplies is indispensable to preventing threats to the health of the civilian population and the spread of waterborne disease. The release of polluting substances caused by the attacks to industrial facilities may contaminate sources of water, especially groundwater resources that are particularly vulnerable to the risks of pollution.Footnote 78
Rivers, lakes, and groundwater resources are generally considered as civilian objects, and as such they are entitled to all of the protection afforded to ‘civilian objects’.Footnote 79 Additional Protocol I, providing in Articles 35(3) and 55 the prohibition of causing ‘widespread, long-term and severe damage’, establishes a very high threshold of damage. The adjectives ‘widespread, long-term and severe’ used in Additional Protocol I mean that it is a triple, cumulative standard that needs to be fulfilled.Footnote 80 The conditions for the application of Articles 35(3) and 55 of Additional Protocol I are thus extremely stringent. For instance, the notion of ‘long-term’ employed by Additional Protocol I was defined as lasting for a period of years rather than months.Footnote 81 The report adopted by the Committee established to review the NATO military operations in the Federal Republic of Yugoslavia (FRY) in 1999 illustrated well the difficulties regarding the application of Articles 35(3) and 55 of Additional Protocol I in respect to the pollution of water resources.Footnote 82 In the view of the Committee, the application of these Articles could be only invoked in situations of extreme pollution of water resources.
Military operations on transboundary water resources may affect the environment of other states. Those attacks violate the protection granted to civilian objects by international humanitarian law and they are also in violation of a general principle of international law providing that states have ‘to ensure that activities within their jurisdiction and control respect the environment of other States’.Footnote 83 Moreover, the impacts on the environment have to be taken into account when states are ‘assessing what is necessary and proportionate in the pursuit of legitimate military objectives’.Footnote 84 Thus, general principles of international humanitarian law may play an important role in protecting water resources against environmental damage caused in both international and non-international armed conflicts.
Many of the impacts on water are caused not by attacks against the resource itself but by military operations against industrial facilities and the consequent release of polluting substances. For example, during the conflict in Kosovo, the NATO bombing of industrial facilities caused a significant contamination of water resources, particularly in the Danube river, its tributaries, and groundwater resources. The report adopted by the Committee established to review the NATO military operations against the FRY took into account the principle of proportionality and it considered that ‘military objectives should not be targeted if the attack is likely to cause collateral environmental damage which would be excessive in relation to the direct military advantage which the attack is expected to produce’.Footnote 85 This approach is significant because it opens an alternative protection to the environment to that provided by Articles 35(3) and 55 of Additional Protocol I. Although the Committee underscored the importance of the principle of proportionality, it concluded that it was not necessary that the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) open an investigation because there was a lack of sufficient information to evaluate the environmental damage.Footnote 86 However, one of the responsibilities of a judicial body such as the Committee is to gather the pertinent information in order to evaluate facts such as the damage caused to water resources and to determine the legal consequences of those facts.
The protection of water under the regime of occupation
The 1907 Hague RegulationsFootnote 87 and the Fourth Geneva Convention, containing norms on the protection of property and on the treatment of civilians, are the two principal sources of law regulating the use of water resources and the access to water in occupied territories.Footnote 88 The contribution of the rules on property to the uses of natural resources has been illustrated by the judgement of the ICJ in the case Armed Activities on the Territory of Congo. The DRC claimed that Ugandan forces systematically looted and exploited the assets and natural resources in the occupied territory in violation of the norms of international humanitarian law. The Court, relying on United Nations reports and other international sources, considered that the Ugandan troops involved in the looting and exploitation of natural resources in the territory of the DRC ‘acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign army in the territory where it is present’.Footnote 89 The Court reached this conclusion on the basis of the prohibition of pillage contained in both the 1907 Hague Regulations and the Fourth Geneva Convention.Footnote 90
The 1907 Hague Regulations contain a nuanced legal framework on property, distinguishing between private and public property as well as between movable and immovable property. Both of these distinctions are important factor in the assessment of the extent to which the occupying power can control water resources. Legal scholars have taken different approaches on the qualification of water under the law of belligerent occupation: whereas some treat the exploitation of water resources as a private property right enjoyed by the owner of the land, others see water as a public resource.Footnote 91 Depending on the domestic legislation, water can be either private or public property. Water wells or pumps privately owned must be respected and cannot be confiscated.Footnote 92 Moreover, water installations owned by municipalities have to be treated as private property.Footnote 93 Regarding the qualification as movable or immovable property, water may be included in both kinds of property. While bottles of water are movable property, water in rivers, lakes, or groundwater resources, can be qualified as immovable property.Footnote 94
Although water sources constitute assets that can be either private or public depending on domestic legislation, transboundary rivers, lakes, and aquifers are a unique type of resource and they are not usually privately owned.Footnote 95 As noted above, the 1907 Hague Regulations make a distinction between state-owned movable and immovable property. Both Articles 53(1) and 55 of the 1907 Hague Regulations place limitations upon the occupant's right of seizure and utilization.Footnote 96 The right of using water resources does not include the privilege to commit waste of the property involved nor can the population of the occupied territory be deprived of its essential means of survival.Footnote 97
Article 53(1) of the 1097 Hague Regulations provides that an occupying power may take public movable assets only if they ‘may be used for military operations’. For example, bottles of water owned by an army and used for the provisioning of its troops, may be considered as used for military operations and may be taken by an occupying power.Footnote 98 Article 55 of the 1907 Hague Regulations deals with the protection of immovable public property. The occupying power is prohibited from claiming ownership over public property as it ‘shall be regarded only as administrator and usufructuary’.Footnote 99 Although Article 55 has been criticized for its referral to concepts of private law, such as the usufruct, that would be particularly difficult to apply,Footnote 100 it contributes to limiting the rights and obligations of an occupying power on the uses of public property such as water resources.
According to the most common interpretation, this provision prohibits wanton dissipation and destruction of public property.Footnote 101 Article 55 of the 1907 Hague Regulations imposes on an occupying power the duty to act as a bonus paterfamilias and to safeguard the capital of a source of water. This reading of Article 55 is linked to the obligations contained in Article 53 of the Fourth Geneva Convention prohibiting destruction of property.Footnote 102
The obligations of an occupying power should be, however, the object of a broader interpretation. Preventing the destruction or wanton dissipation of water resources is not sufficient to ensure adequate protection for this indispensable resource for life.Footnote 103 The fact that water is an increasingly scarce resource in many regions of the world and that, in some cases, it may be non-renewable necessitates a broad interpretation of Article 55 of the 1907 Hague Regulations.
Beyond Article 55 of the 1907 Hague Regulations, larger duties imposed on the occupying power in the use of water resources may be supported by the principle of permanent sovereignty over natural resources. One of the main features of this principle, which emerged during the 1960s, is that it is both a state's right and a people's right.Footnote 104 In the case of occupation, full exercise of the right to use freely, control, and dispose of natural resources could take place only with the restoration of control (namely sovereignty) over the occupied territories to the states and peoples concerned.Footnote 105 As long as that does not materialize, the occupying power is under an obligation not to interfere with the exercise of permanent sovereignty by the population of occupied territories.Footnote 106 The principle of permanent sovereignty over natural resources underscores the standpoint that water resources may only be used in connection with the needs of the occupation forces.Footnote 107 The limitations on the rights of using water resources rely on the fact that powers of an occupying power are transitory and that it only exercises a de facto authority.Footnote 108
A number of rules on the treatment of civilians included in the Fourth Geneva Convention contribute to the protection of access to water. The occupying power must ensure the survival of the population, as well as of public health, by preventing the spread of contagious diseases and epidemics.Footnote 109 Although Articles 55 and 56 of the Fourth Geneva Convention are confined to food and medical supplies, water supplies should be considered as included in those provisions.Footnote 110 The fact that Additional Protocol I was extended to the provision of the ‘supplies essential to the survival of the population’Footnote 111 and that Article 54(1) and (2) of the same instrument prohibit starvation and attacks on drinking water installations, underscores the qualification of water as a food supply indispensable for the survival of the civilian population. Even if Article 54(1) and (2) of Additional Protocol I is not directed specifically to occupied territories, it is usually considered as applicable to themFootnote 112 and it highlights the status of water as an essential means of subsistence in occupied territory.
The contribution of other areas of law to the protection of water during armed conflict
International humanitarian law is not isolated from other areas of international law. It should be interpreted and applied within the context of general international law, taking into account other norms and instruments of international law such as those of human rights law and the law on transboundary water resources. The interplay between international humanitarian law and other areas of international law raises the issue of the application of the principle of lex specialis, as well as that of treaty interpretation.Footnote 113
A way to consider the relationship between several norms of international law is to look at treaty relations according to the principle of systemic integration.Footnote 114 While international humanitarian law, human rights law, and the law on transboundary water resources confer different degrees of protection to water during armed conflict, the principle of systemic integration calls for interpreting different treaties and norms within the framework of international law regarded as a system. Moreover, this principle also pleads in favour of a search for compatibility between rules of law. When two or more rules exist on the same subject, they should, to the fullest extent possible, be interpreted in a compatible way. The principle of systemic integration may allow for reducing the risks of fragmentation between norms owing to different areas of law. At the same time, the application of this principle does not imply that possible conflicts or overlaps of norms cannot occur. However, its application may reduce the risk of possible conflict.Footnote 115
Water and human rights law
The right to drinking water plays an increasingly important role in the international legal order. Among the most recent recognitions, an independent expert on the right to water and sanitation was appointed by the Human Rights Council in 2008 and a resolution recognizing the right to water and sanitation was adopted by the UN General Assembly in 2010.Footnote 116 The right to water, which entitles everyone to have ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’,Footnote 117 has been included in various international human rights instruments, such as the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),Footnote 118 the 1989 Convention on the Rights of the Child (CRC),Footnote 119 and the 2006 Convention on the Rights of Persons with Disabilities.Footnote 120 Other instruments provide implicitly for it, including the 1966 International Covenant on Economic, Social and Cultural Rights (ESCR Covenant).Footnote 121
The protection of the right to drinking water during armed conflict is included among the ‘obligations to respect’ embodied in General Comment No. 15 adopted by the Economic, Social and Cultural Rights Committee (ESCR Committee) in 2002. This document, stating that ‘the right to water embraces those obligations by which States parties are bound under international humanitarian law’, recognizes the close relationship of the obligations embodied in human rights law and international humanitarian law.Footnote 122
The limitations on the access to water supplies indispensable to the survival of the civilian population are a violation of both international humanitarian law and human rights law. Although the application of human rights instruments in time of armed conflict is contested by some states, the jurisprudence of international courts such as the ICJ,Footnote 123 as well as UN bodies, has affirmed their application to situations of armed conflict.Footnote 124 On the subject of water, both the ESCR Committee and the Committee on the Rights of the Child addressed the issue of access to drinking water in occupied territory.Footnote 125 In favour of the argument that the obligations resulting from the ESCR Covenant are applicable in times of armed conflict, one may also mention that the ESCR Covenant does not contain provisions for derogation in case of armed conflict. The only derogations to the Covenant that a state may invoke are stated in its Article 4. This Article indicates that the limitations to the 1966 ESCR Covenant have to be ‘determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. This establishes restrictive criteria for the derogation of the ESCR Covenant.Footnote 126
Beyond the issue of the derogation of human rights obligations during armed conflict, the application of these instruments also raises the issue of extraterritoriality. In other words, one may ask whether or not the right to water is applicable to acts performed by a state outside its own sovereign territory. Contrary to the 1966 Covenant on Civil and Political RightsFootnote 127 and the CRC,Footnote 128 the ESCR Covenant does not contain provisions regarding its scope of application. This may be explained by the fact that the rights covered by this instrument are essentially territorial.Footnote 129 Protecting the right to water against the acts made by one state in the territory under its own control may however play an important role in limiting the impact caused by an armed conflict on the access to water. For example, one could consider the control that an occupying power might exercise over the management, distribution, and extraction of water resources in a territory under its control. On several occasions, both the ESCR Committee and the Committee on the Rights of the Child have reminded the government of Israel of its obligations regarding access to an equitable distribution and management of water resources in the Occupied Palestinian Territories.Footnote 130
The impacts of an armed conflict on a population's means of survival should be considered in the light of the specific conditions of water scarcity and aridity of some regions. For instance, in the context of Darfur – harsh terrain in which water and food sources are scarce – the destruction and poisoning of water wells and pumps could provide sufficient ground to believe that destruction of the means of survival of the civilian population constitutes a violation of both international humanitarian law and the right to water.
The right to water should be read in conjunction with the duties imposed by the rules of international humanitarian law governing the regime of occupation. Under this regime, it may be argued that, in some cases, water resources are exploited beyond the limit set by the rule of usufruct affirmed in Article 55 of the 1907 Hague Regulations and put at risk the survival of the civilian population, which must be ensured according to the Fourth Geneva Convention and Additional Protocol I.Footnote 131 An argument of this kind could be made in the context of exploitation of the coastal aquifer in the Gaza Strip by Israel.Footnote 132 In 2003, the UNEP Desk Study on the Environment in Occupied Palestinian Territories described the condition of the coastal aquifer as alarming, since it was characterized by ‘lowering groundwater table, reduction in availability of fresh groundwater, and increased seawater intrusion and potential intrusion of deep brines’.Footnote 133 Many years of over-pumping by the occupying power have resulted in seawater intrusion and upcoming of saline groundwater. Moreover, the pollution of the groundwater in Gaza was also cited as a major problem.Footnote 134 This over-exploitation of water has strongly limited the access of the Palestinians to water, and the pollution of the groundwater has threatened the survival and health of the population. This indicates that lack of respect of the norms of international humanitarian law may lead to simultaneous violations of the right to water.
The contribution of the law on transboundary water resources
The protection of water in times of armed conflict may also be read through the lens of the law on transboundary water resources. There are few instruments of this area of law that deal with the protection of water resources and water installations during such periods. The Helsinki Rules on the Uses of the Waters of International Rivers, adopted by the International Law Association (ILA) at its Helsinki Conference in 1966, contain only one article (Article XX) that refers to problems arising from armed conflict, and that article is confined to the limited subject of navigation.Footnote 135 Realizing the lacunae in the legal protection of water in wartime, the ILA addressed the issue ten years later. Thus, during its fifty-seventh Conference, held at Madrid in 1976, the ILA adopted a resolution on the protection of water resources and water installations in wartime.Footnote 136
While international humanitarian law protects water as a civilian object in general and as an object indispensable to the survival of the civilian population in particular, human rights law protects water through the right to sufficient and safe drinking water supplies. Yet neither area of law envisages the protection of water per se. The application of water agreements during armed conflict may provide for this protection, although this application raises the issue of the effects of armed conflict on treaties.Footnote 137 Some water instruments adopted at the beginning of the twentieth century contain explicit provisions on this topic.Footnote 138 Recent instruments such as the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses (hereafter 1997 UN Watercourses Convention) and the 2008 ILC Draft Articles on Transboundary Aquifers also provide for norms in this respect.Footnote 139 In its Article 29, the 1997 UN Watercourses Convention affirms that international watercoursesFootnote 140 ‘shall enjoy the protection accorded by the principles and rules of international law applicable in international and non-international armed conflict and shall not be used in violation of those principles and rules’.Footnote 141 In this regard, it was commented that the obligation of riparian states to protect and use international watercourses in accordance with the UN Watercourses Convention remains in effect during an armed conflict.Footnote 142
Some specific agreements on water resources have continued to be in force during armed conflicts. For example, the Mekong Committee continued its activities during the conflict in Vietnam.Footnote 143 In the 1960s, it conducted analysis on the uses of the Mekong River and it gathered information on the characteristics of the river, including its topography and hydrography.Footnote 144 Similarly, during the armed hostilities between India and Pakistan in the 1960s and 1970s, the Indus Water Treaty of 1960 remained in force and the Permanent Indus Commission established by this Treaty continued to serve as the channel of communication between the two parties.Footnote 145 Another example of the fact that water provides one of the few paths for dialogue during an armed conflict is given by the role of the Joint Water Committee between Israeli and Palestinians.Footnote 146 This Committee set up under the Interim Agreement of 1995,Footnote 147 adopted a Joint Declaration for Keeping the Water Infrastructure Out of the Cycle of Violence in 2001.Footnote 148 This Declaration illustrates that, even in time of thorny relations and violence between the parties, the Committee continued to hold its meetings and showed a common willingness to protect water from the effects of the hostilities. A final example to mention is related to the Senegal river: the relation between two of the riparian states of this river, Senegal and Mauritania, has, from time to time, been heated by issues relating to the boundary delimitation of this river. However, the common management of the river between riparian states has prevailed over the years, including in times of tension.Footnote 149
Both the 1997 UN Watercourses Convention and the 2008 ILC Draft Articles on the Law of Transboundary Aquifers consider the socio-economic needs of the riparian populations as one of the relevant factors to be considered by riparian states and aquifer states in order to realize an equitable and reasonable utilization of international watercourses and transboundary aquifers.Footnote 150 Moreover, they point out that ‘special regard shall be given to vital human needs’ in weighing different kinds of utilization.Footnote 151 This requirement implies that riparian states cannot threaten the ‘provision of sufficient water to sustain human life, including both drinking water and water required for the production of food in order to prevent starvation’.Footnote 152 These norms included in instruments belonging to the area of the law on transboundary water resources thus support the obligation of international humanitarian law to protect objects indispensable to the survival of the civilian population, as well as the right to water.
Beyond the protection offered by water agreements, there are also other international agreements that may be of help for protecting water per se. This is the case in the instruments of international environmental law. Examples include the Convention on Wetlands of International Importance especially as Waterflow Habitat (Ramsar Convention), which provides for the protection of specific ecosystems of watercourses such as deltas, and the Convention on Biological Diversity, which protects the biological resources of water resources.Footnote 153 The importance of the application of these instruments of international environmental law during an armed conflict has been indicated by the Rio Declaration noting that ‘States shall … respect international law providing protection for the environment in times of armed conflict’,Footnote 154 although that document did not expressly mention the issue of the effects of armed conflicts on environmental agreements. For their part, the Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict have indicated that environmental agreements ‘may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed conflict’.Footnote 155
International water agreements provide a tool for dialogue and co-operation between parties involved in a dispute. In regions where there are risks of conflicts over water, instruments dealing with transboundary water resources may contribute to preventing the violence and hostilities between parties. For example, the issue of an uneven distribution of water resources is viewed as one of the potential reasons for conflict in the Central Asia region. The significance of water, especially related to its nexus with energy supplies along the Syr-Daria river, has caused incidents between Kirghizstan, Uzbekistan, and Kazakhstan.Footnote 156 The Environment and Security Initiative emphasized the risks of potential conflict caused by water in Central Asia and indicated the need for strengthening joint water bodies set up between the states in this region.Footnote 157
Water agreements may play an important role before and after an armed conflict. In particular, the agreements on transboundary water resources may contribute to mitigating the risks of conflicts and tensions between parties as well as create the conditions for durable peace in post-conflict countries.Footnote 158 They serve as a channel of information and communication and build trust between states. Joint mechanisms and commissions established by water agreements may serve as an avenue for dialogue not only when peaceful relations between riparian states prevail but also when the relations are heated or even marred by violence.
Conclusion
The linkage between water and international peace and security should be studied taking into account both the fact that water may be a driver of hostilities between states and of national violence and the impact that armed conflict causes on water. Ensuring access to water, along with the protection of water resources, contributes to preventing conflicts and to the transition to peace in post-conflict states.Footnote 159
The damage or destruction caused by armed conflict on water installations and water resources needs to be minimized in order to ensure access to sufficient and safe water for the civilian population. Some norms of international humanitarian law, such as the obligation of not causing ‘widespread, long-term and severe damage’ to the environment, provide for a very high threshold of application. The violation of these norms may be difficult to prove, however, and may be insufficient to prevent risks to human health caused by unhealthy water.Footnote 160 Moreover, the norms of international humanitarian law do not deal with the protection of water per se. For instance, within the regime of occupation, international humanitarian law deals with water as a property as well as a food supply. However, the rules applicable to water in occupied territory should be read taking into account the specific characteristics of water as an indispensable natural resource for life as well as a part of the ecosystem. The linkage between international humanitarian law and other areas of law such as human rights law and the law on transboundary water resources may ensure better protection of water during armed conflict. The strengthening of the protection of water may contribute to a return to peace and to ensuring the satisfaction of vital human needs of the population.
Reading the relationship between the different norms protecting water during an armed conflict through the lens of the principle of systemic integration allows us to take into account the specificities of water and to ensure a better protection for it. As water is particularly vulnerable to the impacts of armed conflict, its protection should be vigorously pursued, with more emphasis placed on the similarities between norms of instruments of international law than on their differences. This will contribute to strengthening the protection of this natural resource in times when it is most at risk.
