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

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.

Water as a source for life, food and health is the vital thread that has mapped the migration and settlement of human populations since the beginning of time. However, a changing world of competing resources and disputed territorial boundaries prompted the United Nations to specifically address the issue of the right to water. In 2010, the UN General Assembly passed a resolution establishing the human right to water and sanitation.[1] This article reviews the possibility that the right to water resolution has provided an opening for a human rights claim that a state has an obligation to share its water resources. The obligation would apply to a state that has the ability to make clean water accessible to a population in another state in order to meet vital human needs in the event of a water scarcity crisis. The obligation would not likely extend to water for agriculture, industrial uses or energy. The terms of compensation for the source state would also have to be negotiated.

The loss of existing water resources could arise through different scenarios. With the exception of island nations, almost every nation in the world is hydrologically connected to its neighbors.[2] Neighboring states must agree on the management of existing shared resources, but an uncooperative state may theoretically divert all of the water from a shared watercourse for its own uses.[3] A state could inadvertently alter the geography or capacity of shared resources through economic and infrastructure development.[4] Agricultural and energy development projects in upper riparian states could slowly reduce or eliminate the allocation of water flowing downstream.[5] In these scenarios, a water scarce state could argue that the intention of the UN human right to water resolution extends across boundaries because water is a vital human need.

“A state could argue that the intention of the UN human right to water resolution extends across boundaries because water is a vital human need.”

The legal and moral support for a human right to water has been established, both implicitly and explicitly, in the statements and agreements under the United Nations. Without mentioning water, the Universal Declaration of Human Rights supports the reach of human rights into ensuring the stability of every human’s ability to sustain life.[6] The International Covenant on Civil and Political Rights (ICCPR) declared that every human being has the inherent right to life, that the right shall be protected by law, and that no one shall be arbitrarily deprived of his life.[7] This definition was expanded by the International Covenant on Economic, Social and Cultural Rights (ICESCR), which defined several rights related to food and freedom from hunger.[8] The legal obligation for providing all factors necessary for life is captured in articles 11 and 12 of the ICESCR, which states “every state party…undertakes steps, individually and through international cooperation and assistance, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights.”[9]

The right to water was specifically recognized in the 1979 Convention on the Elimination of Discrimination Against Women that expressed the right to enjoy adequate living conditions, particularly in relation to water supply.[10] Ten years later, the Convention on the Rights of the Child included the requirement to combat disease and malnutrition through the provision of clean drinking water.[11] The right to water was also inherent in the 1999 Right to Development Resolution which included the language that the right to food and clean water are fundamental human rights, and their promotion constitutes a moral imperative.[12] However, despite these direct statements, states did not universally accept that there was a human right to water.

“The Right to Water resolution confirmed that states have the legal obligation to ensure, within available resources, that their population has access to water and sanitation within the human rights criteria.”

In November 2002, the UN Committee on Economic, Social and Cultural Rights adopted General Comment 15 to define the implementation of the right to water provisions in articles 11 and 12 of the ICESCR.[13] Comment 15 stated that the Committee had been confronted with a denial of the right to water by both developed and developing states, and called on state parties to recognize the right to water without discrimination.[14] With the recognition still not globally endorsed, in July 2010, the UN General Assembly adopted a resolution explicitly acknowledging the human right to water. The resolution “recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”[15] The Right to Water resolution confirmed that states have the legal obligation to ensure, within available resources, that their population has access to water and sanitation within the human rights criteria.[16] With the recognition of a human right to water, all states equally share the overall obligation to protect basic human rights by cooperating to ensure water availability for all.[17] Yet this goal is not being universally fulfilled, and as the options for meeting long-term needs become more constrained, an unforeseen water shortage could trigger an obligation to share to prevent a human rights disaster.

The claim of an obligation to share water may be triggered by various factors. First, the failure to finalize and enforce water-sharing agreements could be a trigger for the obligation to share water if the negotiations are superseded by an irreversible alteration in the available supply. The home state may claim that the source state’s failure to cooperate has created the crisis that has prevented it from securing water resources for its citizens, and justify that the source state now has a requirement to fulfill the human right obligation on behalf of the home state.

“The failure to finalize and enforce water-sharing agreements could be a trigger for the obligation to share water if the negotiations are superseded by an irreversible alteration in the available supply.”

Infrastructure projects and industrial development directly on or near freshwater resources, along with the demands of growing populations for water for drinking, sanitation and agricultural production, contribute to diminishing the availability of clean drinking water sources as well.[18] Some states are continuing to implement development plans with limited or no analysis on the impact to water resources. Regardless of which state is responsible for the development, this situation could also strain any previously negotiated allocation of water resources beyond the anticipation of existing agreements.[19]

Finally, climate change alters the geographic parameters of existing water resources. While the negative impact of development activities may be managed and corrected to achieve a positive outcome, the disruption to the availability of water resources resulting from climate change would likely be unforeseeable and possibly irreversible.[20] The alteration of the world’s water resources due to climate change could also force changes to the commonly understood sovereignty over water resources.

Under these circumstances, a population’s access to water may be reduced or eliminated, and leave no viable alternatives within the state’s territorial boundaries. This scenario may imply that the human right to water requires that another state provide clean drinking water to an affected population before a severe crisis develops.

Part II will discuss the several sources of law upon which a potential human right to water claim may be made.

[1] The Human Right to Water and Sanitation, G.A. Res. 64, U.N. Doc. A/RES/64/292, (July 28, 2010).
[2] Gabriel Eckstein and Yoram Eckstein, A Hydrogeological Approach to Transboundary Ground Water Resources and International Law, 19, no. 2 Am. U. Int’l L. Rev., 201, 205 (2003).
[3] M.M. Rahaman, Principles of international water law: creating effective transboundary water resources management, Vol. 1, No. 3, Int. J. Sustainable Society, 207, 209 (2009).
[4] A. Dan Tarlock, International Water Law and the Protection of River System Ecosystem Integrity, 10 BYU J. Pub. L., 181, 184 (1996).
[5] J.W. Dellapenna, The customary international law of transboundary fresh waters, 1 Int’l. J. Global Envtl. Issues, Nos. 3/4, 264, 280 (2001).
[6] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 25, U.N Doc. A/RES/217(III) (Dec. 12, 1948).
[7] UN Treaty Series, International Covenant on Civil and Political Rights, Vol. 999, No. 1-14668 (Dec. 19, 1966) art. 6 (1).
[8] UN Treaty Series, International Covenant on Economic, Social and Cultural Rights, (Dec. 16, 1966) art. 11, 12.
[9] Id.
[10] UN Treaty Series, Convention on the Elimination of all forms of Discrimination against Women, (1979) art. 14(2)(h).
[11] UN Treaty Series, Convention on the Rights of the Child, Resolution 44/25 (Nov. 20, 1989) art. 24(2)(c).
[12] The Right to Development, G.A. Res. ¶ 12 U.N. Doc. A/RES/54/175 (Feb. 15, 2000).
[13] E. S. C., Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the implementation of the International Covenant on Economic, Social and Cultural rights, General Comment no. 15, U.N. Doc. E/C.12/2002/11 (2002).
[14] Id.
[15] H.R.C. Res., U.N. Doc. A/HRC/15/L.14 (Sept. 24, 2010).
[16] Maude Barlow, Our Right to Water: A People’s Guide to Implementing the United Nations Recognition of the Right to Water and Sanitation, (The Council of Canadians, June 2, 2011), at 13.
[17] Patricia Wouters and A. Dan Tarlock, The Third Wave of Normativity in Global Water Law, 23 J. Water L. 51, 58 (2013).
[18] See generally Thomas C. Winter, Judson W Harvey et al, Ground Water and Surface Water: A Single Resource, US Geological Survey Circular 1139 (1998).
[19] Albert E. Utton, Regional Cooperation: The Example of International Water Systems in the Twentieth Century, Vol. 36 Nat. Resources J. 151, 154 (Spring 1996).
[20] See generally Lucia DeStefano, James Duncan et al, Mapping the resilience of International River Basins to Future Climate Change-Induced Variability, (Water Sector Board Discussion Paper Series, No. 15, March 2010).