Water Conflict and Cooperation/Legal and Institutional Approaches

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Contents


This article is based on Water security and peace - A synthesis of studies prepared under the PCCP-Water for Peace process, compiled by William J. Cosgrove, as part of a UNESCO-IHP, PCCP Series Publication (2003).

International Law in Conflict Prevention and Resolution [1]

A national framework of laws, legal conventions, treaties, and regulations is ultimately built to codify accepted standards of behavior in that society. International law offers a series of means to resolve international disputes, both diplomatic (negotiations, consultation, good offices, mediation, fact-finding, inquiry, conciliation, and the use of joint bodies and institutions) and legal (arbitration and adjudication). Generally, water conflicts are settled through negotiations. with an agreement as the final outcome. While conflicts may arise over scarce water resources between users within a country and sometimes between states or provinces within a country, this chapter deals with cases of possible conflict across national borders.

In fact, most transboundary water resources are subject to a treaty regime of some form. Some 3,500 international agreements govern the use of most of the world’s shared waters. The agreement may be watercourse-specific (e.g. The Columbia River Treaty), a boundary agreement (e.g. the 1909 CanadaUnited States Boundary Waters Treaty) an umbrella agreement regulating all regional waters (e.g. 1992 Helsinki Convention on Transboundary Waters), or an instrument for dispute resolution to maintain the “friendly” relations between neighboring states. The key issues of these agreements for international lawyers are:

  • The material terms of the agreement.
  • The duration of the agreement.
  • Whether or not the agreement is being adhered to by all parties (implementation).
  • How (or if) the agreement may be modified in the event of changed or unforeseen circumstances. In some cases the legal rules for each of these elements may be ascertained from rules that are external to the treaty in question.

Of particular relevance to the PCCP–WfP process is the way disputes are resolved within the existing legal regimes governing the international waters under consideration. Review of a number of cases where international law has been a part of resolving conflict has shown that successful achievement of cooperative solutions is facilitated by:

  • the legal framework in place (series of treaties)
  • the relatively good neighborly relations between the parties
  • the creation of joint commissions to address the problems
  • agreement to submit the matter to arbitration
  • absence of significant adverse impact on the quantity or quality of waters flowing into the neighboring country.


Unfortunately, these enabling factors are seldom present in water conflicts between watercourse states. Quite often relations between the parties to water disputes are tense or openly hostile, and the legal basis for regulating transboundary waters may be either lacking or insufficient. Sometimes a planned or existing use of a shared water resource may cause serious adverse impacts in another state, depriving it of its “equitable and reasonable use.” In such a case international law, including various mechanisms for conflict resolution, is traditionally used by states to facilitate seeking and securing a mutually acceptable solution. International law, while admittedly not a panacea for all water conflicts, provides a transparent range of rules, instruments and mechanisms capable of transforming conflicts into cooperation. Unfortunately enforcement of decisions and agreements under international law may remain problematic.

International Law: What it is and How it Works

International Law: Definition

International law is sometimes defined as a system of principles and rules of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some other persons, natural or juridical. What distinguishes international law from domestic law is that the former is both created and enforced by states (at the international level) primarily in order to regulate interstate relations in various areas of human activities, while the latter involves matters within a state’s borders. It is also important to note that international law – “the law of nations” – is not comparative national law, for example the system of different national legal systems. International law operates as a separate system of law, with its own distinct rules and mechanisms.

The ultimate purpose of international law is to ensure peaceful relations between states and to prevent and resolve interstate conflicts and controversies. The pacific settlement of disputes has been enshrined in the United Nations Charter as one of the main goals of the United Nations. The principal UN organs – the General Assembly, the Security Council, and the International Court of Justice (ICJ) in particular – are each entrusted with various dispute avoidance/settlement duties and functions. Nevertheless, a judgment received as a consequence of adjudication may have more effect than an agreement reached through mediation, unless the latter is also confirmed by a court.

Sources of International Law


The “Sources” of International Law:
Statute of the International Court of Justice Article 38 (1): “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply":
i) international conventions, whether general or particular, establishing rules expressly recognized by contesting States;
ii) international custom, as evidence of a general practice accepted as law;
iii) general principles of law recognised by civilised nations;
iv) judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.


International law incorporates the rules that have emerged and developed as a result of many centuries of interstate relations and practice. Those rules that legally bind states may be found in international treaties, international customary law, and, general principles of law: the so-called “sources” of international law. International treaties and international custom are the primary sources of law. The decisions of international courts and arbitral tribunals, and legal doctrine (the teachings of the “most highly qualified publicists” of various nations) are also used to determine the applicable rules of law, as “subsidiary” sources.

Until relatively recently the rules of customary – or unwritten – law, played the most dominant role among the sources of international law. International custom is a legal rule that has evolved from the practice of states, usually in the absence of formal agreements (although agreements may contain rules of customary law). To become binding, customary law must be the subject of a general widespread practice that demonstrates the rule is considered by states to be a “law” that governs their activities. The evidence of customary law (state practice) can be found in the form of agreements, statutes and decrees, diplomatic correspondence, statements of states’ representatives in international organizations and conferences, and so forth.

Over the last fifty years many customary rules have been “codified” (written down) in the form of special international treaties – “codification” conventions. Today international treaties have replaced customary law as the most important and prevalent source of international legal rights and obligations. Given their particular significance, especially in the area of water law, treaties will be discussed in some detail in this part of the study.

In the rare instances where rules of customary law or treaty law are lacking or inadequate, “general principles” of law may provide a source of international law, largely through providing a method to use existing sources. These rules are generally gleaned from the domestic practice of all legal systems, and traditionally represent laws that are common to all legal systems. The general principles of law are identified through inference, analogy, and inductive reasoning from existing international or domestic (national) law. Examples include the principles of “good faith,” estoppel (consistency with previously held positions or actions), and proportionality.

Additionally, some non-legally binding acts of a normative character (such as declarations, resolutions, and recommendations adopted by the UN General Assembly and various international organizations and conferences) can be considered as “subsidiary” sources of international law. While resolutions and recommendations lack a legally binding quality, they play an increasingly important role in the development of international law, especially in the field of environmental protection and natural resource utilization.

International Treaties

International treaties have now replaced customary law as the primary source of international law. Compared with rules of customary law, international treaties are considered to have many advantages. They provide a clearer manifestation of the legal undertakings made by states; their norms are often more precise and more easily accessible. They are also able to deal with questions of a highly technical nature (such as freshwater quality and quantity standards, norms of water abstraction, permissible levels of discharges and emissions, and so on).

Multilateral treaties, which are often called international conventions, are normally adopted by specially convened international conferences, usually under the auspices of the United Nations General Assembly or of UN specialized agencies. Among the most important are conventions that “codify” customary international law in particular fields of interstate relations or activities such as the law of the sea, diplomatic and consular relations, and the law of the non-navigational uses of international watercourses, to name a few examples.

The Vienna Convention on the Law of Treaties codified and “progressively developed” international treaty law: the customary and other rules governing conclusion, implementation, interpretation, and termination of international agreements. See text Treaties are concluded, or become legally binding, only after a series of specific actions by the state parties to them. The actions are designed to signify clearly the consent or agreement of states to be bound by their legal undertakings. States can demonstrate by signing, and in the case of important treaties, through their subsequent ratification, the act of giving consent. In modern practice ratification is usually necessary, as the constitutional law in many countries requires an elected representative body to approve of the agreement before it becomes legally binding.


1997 UN International Watercourses Convention

There is only one universal treaty dealing with the use of freshwater resources: the 1997 UN Convention on the Non-Navigational Uses of International Watercourses (1997 IWC Convention). The initial attempt to draft a treaty with universal application to shared international waters dates back to 1970, when the UN General Assembly asked its International Law Commission (ILC) to prepare a set of rules governing the non-navigational uses of IWC. The Commission, which consists of thirty-four international lawyers serving in their individual capacities and representing the major legal systems of the world, is a special UN organ entrusted with the codification and progressive development of international law. In 1994, the ILC adopted Draft Articles on the law of the non-navigational uses of international watercourses, following close to thirty years of work on the topic. This project went forward to the UN General Assembly and its Sixth (Legal) Committee, which provided the forum for negotiating and eventually adopting the 1997 IWC Convention.

That the effort to codify international law of water resources was a challenging task is evidenced by the time it has taken to come to agreement and by the differences in legal positions that had to be reconciled. Until the very last deliberations of the UN Working Group of the Whole in April 1997, it was uncertain whether or not states could find agreement and adopt a universal convention. Seemingly irreconcilable views on the nature and extent of a state’s right to use transboundary water resources that had divided upstream and downstream countries in the past resurfaced during the debate. Three central issues dominated the UN debate. They included: first, the status of existing treaties and the effect of the convention on future agreements; second, the relationship between the “no harm” rule and the principle of “equitable and reasonable utilization,” including environmental considerations; and third, the provisions on dispute settlement.

Notwithstanding the serious disagreements that for some time threatened the negotiations, the text was finally agreed on by the majority of state representatives in the Sixth Committee and adopted by the UN General Assembly on May 21 1997. There were 104 in favor, three against, and twenty-six abstentions. So far twelve countries have become parties to the 1997 IWC Convention, and eight additional states have signed but not yet ratified it. To enter into force it needs to be ratified or approved by thirty-five states. [2] Regardless of when and whether the Convention enters into force, it is clear that it will play a very important role in all relations involving watercourse states.


The 1997 IWC Convention applies to uses of IWC for purposes other than navigation and to measures of protection, preservation, and management related to those uses. “Preservation” includes conservation, but does not extend to living resources unless these are affected by other uses. Navigation is covered only to the extent that it affects other uses or is affected by them. The term "international watercourse" is defined as a system of surface and connected groundwater located in more than one state. The IWC does not govern the use of “confined” transboundary groundwater (also called "confined aquifers") or fossil aquifers.

Substantive rules normally defines those customary or treaty rules, which deal with the creation, definition, and regulation of rights and duties. The issue of “entitlement” is the fundamental issue. Entitlement is a legal right to use the waters of a shared watercourse located in the territory of a watercourse state.

The primary substantive rules of the 1997 IWC Convention include the governing rule of “equitable and reasonable utilization” and the obligation to take all measures necessary not to cause significant harm. A non-exhaustive list of factors to be considered in the determination of an “equitable and reasonable use” covers two broad categories. These are, first, scientific (hydrographic, hydrological, climatic, ecological, factors of a natural character; effects of use on other watercourse states, existing and potential uses, conservation measures, and availability of alternatives), and second, economic (social and economic needs, population dependent on watercourse). The convention directs that “the weight to be given each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is an equitable and reasonable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.”

The ILC suggests that a watercourse state should first attempt to determine its legal entitlement to the beneficial uses of an IWC in its territory. States should take into account, in an ongoing manner, all factors that are relevant to ensuring that the equal and correlative rights of other watercourse states are respected.” The primary rule of “equitable and reasonable use” includes consideration of “all relevant factors” as they may arise in the context of new or increased uses. Thus, factors such as vital human needs, in-stream flow requirements, pollution harm, sustainable development requirements, and so forth are all part of the calculus. Implementation of the rule is flexible and tied to specific uses at specific points of time.

Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki I Convention)[3]

The Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki I Convention) forms the backbone of the UN Economic Commission for Europe (UNECE) water-related legislation. However two other UNECE conventions (the Espoo Convention on Environmental Impact Assessment in a Transboundary Context and the Helsinki II Convention on the Transboundary Effects of Industrial Accidents) are of key importance for transboundary water management.

The UN/ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes was signed in 1992 at Helsinki by twenty-five countries, and by January 2002 ratified by thirty-two countries including the EU. The aims of the Convention may be summarized as follows:

To that end, parties have the obligation to take measures for prevention, control and reduction of pollution, where possible at source. This applies both to point and diffuse sources.

The Convention explicitly recognizes the need to apply a number of basic principles. The precautionary principle implies that action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances and the potential transboundary impact. Costs of pollution prevention, control and reduction measures shall be borne by the polluter (the “polluter pays” principle). Water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.

The essential obligation of all Parties is to develop, adopt, implement and render compatible relevant legal, administrative, economic, financial and technical measures with respect to a number of issues including:

  • application of low- and non-waste technologies
  • introducing emission limits for and licensing of wastewater discharges
  • applying at least biological treatment to municipal wastewater
  • applying best available technology (BAT) and best available practices to reduce nutrient inputs from industrial and diffuse sources
  • application of environmental impact assessment
  • promoting sustainable water resources management including the application of the ecosystems approach
  • contingency planning and minimization of the risk of accidental pollution
  • monitoring the conditions of transboundary waters
  • research and development on effective techniques for the prevention, control and reduction of transboundary impact.


The main and core obligation to the riparian parties, i.e. the parties bordering the same transboundary waters, is to enter on the basis of equality and reciprocity into bilateral or multilateral agreements or other arrangements. These are to define their mutual relations and conduct regarding the prevention, control and reduction of transboundary environmental impacts. Such agreements shall provide for the establishment of joint bodies, covering well-defined catchment areas, with their tasks including to:

  • collect, compile and evaluate data on and inventories of pollution sources
  • elaborate joint monitoring programs
  • elaborate emission limits for wastewater and evaluate effectiveness of control programs
  • elaborate joint water quality objectives
  • develop concerted action programs for the reduction of pollution loads
  • establish warning and alarm procedures
  • exchange information on existing and planned uses of water and on BAT.


The work of the joint bodies specifically also includes cooperation with coastal states, as well as with the joint bodies established by coastal states for the protection of the marine environment directly affected by transboundary impact.

Whether or not in the framework of joint bodies, the riparian states have very detailed obligations on consultations, joint monitoring and assessment, common research and development, exchange of information, warning and alarm systems, mutual assistance and public information

Under the Helsinki I Convention, several additional instruments – either binding or non-binding – have been negotiated, and others are still under negotiation. These include the following:

  • The Protocol on Water and Health (negotiated jointly under the auspices of UNECE and the WHO/EURO Regional Committee), adopted in London on 18 June 1999.
  • Guidelines on Monitoring and Assessment of Transboundary Rivers (2000a); Guidelines on Monitoring and Assessment of Transboundary Groundwaters (2000b); Guidelines on Monitoring and Assessment of International Lake(2002).
  • Guidelines on Sustainable Flood Prevention (2000c).
  • An Intergovernmental Group on Civil Liability started in November 2001 negotiation on a binding instrument on civil liability for transboundary damage caused by hazardous activities, within the scope of the Helsinki I and Helsinki II Conventions.

Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)

Environmental impact assessment (EIA) has already proven to be a very important instrument for implementing and strengthening sustainable development. It combines the precautionary principle with the principle of preventing environmental damage, and arranges for public participation. EIA has become the major tool for an integrated approach in the UNECE region for the protection of the environment, since it requires a comprehensive assessment of the impacts of an activity on the environment, contrary to the traditional sector approach. Moreover, it looks into alternatives to the proposed activity, and brings facts and information on environmental impacts to the attention of the decision makers and the public. The EIA Convention was adopted at Espoo (Finland) on February 25 1991. It was signed by twenty-nine countries, and by July 2000 ratified by thirty countries including the EU.

This convention is the first multilateral treaty to specify the procedural rights and duties of Parties with regard to transboundary impacts of proposed activities and to provide procedures, in a transboundary context, for the consideration of environmental impacts in decision-making procedures. The EIA Convention stipulates the obligations of parties to assess the environmental impacts at an early stage of planning. The EIA Convention prescribes measures and procedures to prevent, control or reduce any significant adverse effect on the environment, particularly any transboundary effect, likely to be caused by a proposed activity or any major change to an existing activity.

International Water Law

What is It?

International water law (also known as international watercourse law, or international law of water resources) is a term used to identify those legal rules that regulate the use of water resources shared by two or more countries. The primary role of international water law is to determine a state’s entitlement to the benefits of the watercourse (substantive rules) and to establish certain requirements for states’ behavior while developing the resource (procedural rules).

The development of international water law is inseparable from the development of international law in general. Such fundamental principles and basic concepts as the sovereign equality of states, non-interference into matters of exclusive national jurisdiction, responsibility for the breach of a state’s international obligations, and peaceful settlement of international disputes apply equally in the area governed by international water law.


At the same time, this relatively independent “branch” of international law has developed its own principles and norms specifically tailored to regulate states’ conduct in a rather distinct field: the utilization of transboundary water resources. The basic rules are: the right to use waters of the transboundary watercourse located in the territory of the state (“equitable and reasonable utilization”) and a correlative duty to ensure similar rights are enjoyed by co-basin states.


International water law and international water-related cooperation are undergoing changes in a very dynamic way with the introduction and/or adaptation of various water-related agreements: global, regional, basin-related, and bilateral. These are not just the result of legal and professional expertise in the field, but are determined by the outcomes of negotiations, which form the tool and the forum for reconciling the interests of various sectors, disciplines, and countries. The mere fact of negotiations taking place means that the risk of an escalating conflict is limited.

Principal Sources

The law governing international watercourses has evolved through both custom (practice of states) and international treaties, and has been influenced by other “sources” of law: general principles of law, judicial decisions, and resolutions and recommendations of international organizations.

International customary law is the primary source of two fundamental obligations of states regarding transboundary water resources: to use them in an “equitable and reasonable” manner and to avoid causing significant harm to other riparian states. There have been several attempts to put these and other customary rules “on paper.”

In 1966, the International Law Association (ILA) adopted the Helsinki Rules on the Uses of the Waters of International Rivers, a comprehensive set of rules that codified and progressively developed the law that governs utilization of the waters of international drainage basins. The ILA Helsinki Rules could be considered as a “statement of the existing rules of international law” at the time they were adopted. The most important among these was the cornerstone principle according to which each river basin state was entitled to an equitable and reasonable share in the uses of the waters of an international drainage basin.

Since 1966, the ILA has adopted a number of resolutions that provide supplementary rules dealing with specific issues of transboundary water resources: flood control, international groundwater, and regulation of flow, pollution, administration, and so forth, most of which are contained in their Campione Consolidation (1999). Although the ILA resolutions are not legally binding they are widely acknowledged by many states and numerous international water resource experts to be an authoritative statement of the international law governing transboundary water resources.


International judicial decisions played a particularly important role in the evolution and clarification of the customary rules of international water law. On a number of occasions international tribunals were asked to settle disputes over transboundary waters between riparian countries. The most recent and probably the most important dispute over water brought before the International Court of Justice (ICJ) is the Gabčikovo–Nagymaros case (also known as the Danube River Case), involving Hungary and Czechoslovakia (at a later stage Slovakia, as a successor state).

The range of legal issues that the court had to address was without precedent. It ranged from the validity of international treaties, succession of states and international responsibility to environmental protection and the law of international watercourses. In essence, the Court decided that both parties acted unlawfully. Hungary had done so by abandoning work on the project, Slovakia by putting into operation Variant C and thus diverting for its use and benefit between 80 and 90 percent of the waters from the part of the river that constituted the boundary between the two countries. The Court also upheld the legal validity of the 1977 Treaty, which allowed the parties to adjust the project in order to address environmental concerns, and ruled that that its purported termination by Hungary was ineffective. The joint operational regime of the entire project would have to be reinstalled, and the parties, unless they agreed otherwise, would have to compensate each other for the harm caused by their unlawful acts.


National judicial decisions, although not a source of international law as such, can serve as models for resolution of international disputes or be used to identify applicable general principles of law. This is especially true when considering decisions of the supreme courts that were called on to settle water controversies between different constituent units (states, länder) in federal states. The US Supreme Court, in particular, has greatly influenced the articulation of some of the fundamental rules of water law. The Court unequivocally endorsed the approach to water allocation based on the equality of rights of upper and lower riparian states: the former have no entitlement to undiminished stream flows, while the latter are not entitled to claim exclusive rights to use water only because it originates within their territory. In resolving interstate conflicts over water sharing the Supreme Court developed and applied the doctrine of “equitable apportionment” which eventually evolved into the international legal principle of “equitable and reasonable utilization.”


International treaties are the primary instruments of cooperation in the field of water resource utilization as well as the most important source of international water law. More than 3,600 international agreements, bilateral and multilateral, that deal with water-related issues are known. The first general treaty dealing with international watercourses – the 1923 Geneva Convention relating to the Development of Hydraulic Power affecting more than one state – failed to achieve its objectives. Only ten countries, none of them having common borders, ratified it.


There are a significant number of multilateral–regional and basin-wide agreements, the most significant being the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (1997 UN IWC Convention). The other most important water treaties are:

Examples of bilateral water-related treaties are numerous. Among the earliest was the 1909 Boundary Waters Treaty concluded between the United States and Canada (Great Britain), which established an International Joint Commission: one of the most successful models of bilateral cooperation. Many bilateral treaties that established international boundaries also deal with the waters that are crossed or constitute an international boundary (one example is the 1973 agreement between Czechoslovakia and the USSR on the regime of state frontiers and cooperation in frontier questions). Some bilateral agreements may also have a “framework” character that establishes certain general legal rights and obligations, and creates institutional mechanisms of cooperation for all “ transboundary” waters. Examples are the 1956 treaty between Hungary and Austria concerning the regulation of water economy questions in the frontier region, or the most recent agreement of May 24 2002 between Russia and Belarus on cooperation in the field of protection and rational use of transboundary water bodies. Finally, bilateral agreements are often concluded to regulate different activities on specific watercourses (such as the series of agreements between France and Switzerland concerning Lake Leman). They may also be related to the implementation of joint projects (such as the 1977 treaty between Hungary and Czechoslovakia concerning construction of a system of barrages and ship locks on the Danube). Thus, water treaties may be bilateral or multilateral ; they may have a “framework” character governing all transboundary waters or deal with a specific international watercourse (IWC) or part of it; they may regulate a particular use, be project specific or be concerned with the watercourse protection and pollution control.


The Obligation to Cooperate and its Procedural Applications [4]

The duty to cooperate is the bridge between the substantive and procedural rules under customary international water law. The obligation of notification is one key element of such cooperation. States must notify other riparian states of planned measures in watercourses that could potentially affect them. This does not imply that they must obtain prior consent to plan the works. Procedural rules to be followed by states when they seek to undertake new works are one of the strengths of the 1997 UN Watercourses Convention. Following such rules would be a sine qua non for the involvement of the World Bank in the project.

The obligation to give notice of environmental (or social) impact studies, though well established in domestic law, is not yet a rule of customary international law. It is not provided for in the 1997 UN Watercourses Convention. It is, however, included in a number of international legal instruments, including the 1992 Helsinki Convention.

The obligation to give notice in emergency situations is a rule of customary international law. However questions remain as to who must be notified, and when.

The obligation to notify automatically entails the obligation to enter into consultations or negotiations. This is, however, an obligation of conduct not of results!

Procedural obligations have been repeatedly affirmed in treaties and other international legal instruments. Except for the obligation to notify in emergency situations there is still some debate whether these obligations are rules of general customary international law. It is desirable that institutional mechanisms be established to facilitate such consultations, but this has not always been the case nor is it obligatory. New treaties being established tend to promote higher levels of cooperation, together with the establishment of the supporting institutional mechanisms. Under the UN Watercourses Convention, binding settlement procedures – including compulsory fact-finding, arbitration, and adjudication – are to be resorted to after all other measures of dispute resolution through negotiation, good offices, mediation, conciliation, and joint watercourse institutions have failed. Some flexibility is provided in how the initial stages of the dispute is handled, but where the matter is not resolved impartial fact-finding is compulsory if the parties have not agreed to another means of compulsory dispute settlement.

Protection of Water Facilities under International Law [5]

Existing International Law

International law has evolved in response to the changing character of international conflict. Most conventions and treaties were designed to cover “war” or conflicts of an international nature. The concept of war is changing, and the term is used more often in the international war against terrorism. The changing nature of conflict and shortages of fresh water will certainly increase the potential for instability in the years ahead. Water facilities, watercourses, and their sources in the environment are protected to some extent under law, both domestic and international. Each state has its own criminal laws that make the destruction of property a crime, but international law is a different matter. There are numerous documented cases where the destruction of a regional water supply as a result of armed conflict has resulted in widespread suffering for the local population. The international response to terrorism presents a number of different challenges.

The Geneva Convention at its origin addressed the treatment of sick and wounded soldiers in time of war. Revisions addressed international humanitarian issues as a result of the atrocities witnessed in the First and Second World Wars. They also contained the beginnings of modern concepts of environmental protection during wartime. In addition to the prohibition of “willfully causing great suffering or serious injury to body or health,” the conventions prohibit the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Water and its associated storage and delivery facilities can be considered to come under this prohibition.

The fundamental principles of customary international law applicable to the protection of water facilities are those of humanity, discrimination, proportionality, and military necessity. In addition to these four fundamental principles, a fifth has recently emerged, providing that “nature is no longer fair game in human conflicts.” This can be seen in the World Charter for Nature (see World Charter for Nature text) , which provides that “nature shall be secured against degradation caused by warfare” and “military activities damaging to nature shall be avoided.”

On examination, these fundamental and emerging principles of international customary law are directly applicable to the protection of water facilities, including mobile delivery systems. However, the nature of modern conflict makes it particularly difficult to protect water facilities by the use of these principles. The principles of discrimination, humanity, proportionality, and damage to the environment apply to actions taken during times of armed conflict where belligerent armed forces are under an identifiable command structure. The recent increase in the activity of international terrorist groups evidences the changing nature and complexity of conflict that threatens water facilities around the world. Additionally, the concept of collateral damage further complicates the picture, when there are unintended consequences of an otherwise lawful attack by state actors.

Weaknesses in the Existing Law

International courts have limited utility in dealing with terrorism. There exists no “normative fabric to international law,” just bits and pieces of overlapping norms, with significant gaps in coverage with respect to terrorism. The International Court of Justice (World Court) can hear only matters between states (nations) and it has no criminal jurisdiction, while the International Criminal Court (ICC) is years away from effective operation. It came into existence in July 2002, but without US support.

There are a number of deficiencies with respect to international law and the protection of water facilities and watercourses.

  1. Terrorist acts are increasingly becoming the choice of groups unable to directly challenge world militaries. The term “armed conflict” does not include isolated attacks on water installations from terrorist groups. International humanitarian law was not designed to cover terrorism or short-term criminal activity. Coverage under the Statute of the International Criminal Court is problematic, even if that court begins to function effectively. Drafting and agreeing upon a comprehensive definition of terrorism has eluded the participants in all the previous meetings of the ICC committees.
  2. The principal conventions and treaties of international humanitarian law apply to water facilities only indirectly. There is a lack of clarity in the text and principles of proportionality, and military necessity could be used to justify an attack on a water facility even when there is substantial harm to the civilian population.
  3. The problems in identifying law in its customary form, and in determining the legality of a particular act, are made more difficult by the aspirational nature of many conventions and resolutions. But these aspirational documents, like the Stockholm declaration, serve an important function in the development of international humanitarian law. Parties who are now unable to accept a particular formulation as law are given the time to make the necessary political changes to accept the law in the future. Perhaps more important, public perception of the law, or what it should be, may be a factor for positive change when public support is necessary for the conduct of a conflict.
  4. Dissemination issues may exist. Belligerents may be unaware of the provisions of international humanitarian law, or may choose to disregard them. There is a general lack of understanding of the rules, and how they apply to water facilities and mobile delivery systems. The results can be seen in the recent conflicts described earlier in this report.
  5. Enforcement mechanisms may be lacking. It can be fairly stated that impunity is the rule for those responsible for attacks against water facilities and related infrastructure. The UN Centre for International Crime Prevention has been underfunded and powerless, and INTERPOL has been only marginally useful. No effective international criminal court exists, and domestic legal systems are often unavailable as a result of the same conflict that results in damage to water facilities. International crime-fighting institutions have been historically ineffective.

Measures to Correct the Weaknesses

There are two general areas in which water facilities, watercourses, and the environment in general deserve a greater degree of protection. The first is the protection afforded under international humanitarian law during times of armed conflict, and the second is protection from terrorist attack. Even without a new treaty or convention that formally establishes new law for the protection of water facilities, much can be done to move in that direction. Specific measures to address the identified weaknesses are proposed in the Toolkit section on Means and Tools. Through these actions, existing international legal obligations and state practice can be clarified and strengthened. This will promote an active interest in, and concern for, the protection of water facilities by the armed forces of all states.

References

  1. This section is drawn from the PCCP Series Volume Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law, Dr Sergei Vinogradov, Dr Patricia Wouters, and Patricia Jones, University of Dundee.
  2. As of September 2002, the 1997 IWC Convention has been ratified by: Finland, Hungary, Iraq, Jordan, Lebanon, Namibia, Netherlands, Norway, Qatar, South Africa, Sweden, and the Syrian Arab Republic. Signatories are Côte d’Ivoire, Germany, Luxembourg, Paraguay, Portugal, Tunisia, Venezuela, and Yemen.
  3. See PCCP Series document Negotiation in the Context of International Water-Related Agreements, Dr Branko Bošnjaković.
  4. This section relies in part on material drawn from Notification, Consultation, and Negotiation in International Water Resources Law, presented by Maria Manuela Farrajota University College London, at the International conference From Conflict to Cooperation in International Water Resources Management at IHE Delft November 21 2002.
  5. Based on the PCCP Series volume The Protection of Water Facilities under International Law, Fredrick M Lorenz, Jackson School of International studies, University of Washington.

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