Universiteit van Amsterdam
The right to water in a
non-international armed
conflict: the case of Syria
By Nataly Tzirtzipi
Student ID: 11316241
Master-Track: International and European Law: Public International Law Email: nataly.tzirtzipi@student.uva.nl
Supervisor: Dr. P.A. (Antoinette) Hildering
Abstract
This research aims to endorse the protection of the right to water during an armed conflict. The impact of armed conflict on access to drinking water and resources is not a new concern.1 However, the humanitarian disaster in several Syrian towns engendered by the Syrian civil war is cause for immediate and pressing reaction.
In the case of an international armed conflict, which is regulated extensively by international humanitarian treaty law, the interpretation of the breadth and the depth of the relationship between water and armed conflict and the protection of access to water is difficult. The issue becomes even more complex in the case of a non-international armed conflict, where the applicable international humanitarian law (IHL) is narrowed down significantly.
Following an internal perspective from the position of an international judge, this research first assesses the current protective framework of the right to water under IHL. It examines its deficiencies to decide whether there is a need to turn to other fields of international law for protection, mainly international human rights law (IHRL) which is also of application during an armed conflict and stands in a complementary relationship with IHL. In order to establish this relationship between IHL and IHRL, the research makes use of the ruling of the International Court of Justice in two of its Advisory Opinions. The advisory opinions and decisions of the ICJ, the so-called ‘World Court’, have played a vital part in the evolution of international law.2 After establishing the complementary relationship between IHL and IHRL, the research examines whether IHRL provides effective protection for the right to water. Concluding that both of branches of law have deficiencies in protecting the right to water, it remains to examine which branch of law will nevertheless provide the most suitable protection. Keeping in mind the scope of protection and available tools under these two branches of law, the research concludes that the protection under IHRL is the most suitable. Lastly, it examines the potential scenario under which the IHRL could offer protection of the right to water during a non-international armed conflict.
1 For example, the ‘Summer War’ of 2006 between Israel and Syria; see Mark Zeitoun, Karim Eid-Sabbagh and Jeremy Loveless, ‘The analytical framework of water and armed conflict: a focus on the 2006 Summer War between Israel and Lebanon’ at Disasters (2014) 38(I) Overseas Development Institute 22-44.
In conclusion, this research attempts to give a right to claim and a legal basis for standing before a domestic or international tribunal to victims of war suffering from lack of water, regardless of the reasons therefor.
1. Introduction ... 4
2. Access to water during the Syrian armed conflict ... 6
A. Introduction ... 6
B. Lack of water among the civilian population ... 6
3. Applicable law during the Syrian armed conflict ... 7
A. Introduction ... 7
B. Relevant applicable humanitarian law ... 7
C. The protection under Human Rights Law ... 11
i. The relationship between IHL and IHRL ... 11
ii. The concept of ‘minimum core obligations’ and ‘minimum essential level’ ... 14
iii. The right to water under IHRL ... 15
a. The human right to water as customary law ... 17
b. The right to water – the technique of legal derivation ... 18
c. The General Comment No. 15 of the ESCR-‐Committee ... 19
d. Derivation from the right to life ... 22
e. Application of the current IHRL on the case of Syria – deficiencies of the current legal status of the right to water ... 23
4. A right to water ... 26
A. Introduction ... 26
B. A human right to water ... 27
i. Main concerns ... 27
ii. The potential legal value of a right to water under ICESCR ... 29
5. Conclusion ... 30
1. Introduction
The non-international armed conflict3 in Syria is marked by serious violations of international
humanitarian law and of international human rights law.4 This research examines incidents
and potential violations related to the disruption of access to water. It focuses on the Syrian non-international armed conflict mainly because the water crisis in Syrian during the armed conflict is a humanitarian disaster, and the narrow protective framework of the international humanitarian law (IHL) highlights the current deficiencies of the international human rights law (IHRL) on the protection of the right to water.
This research follows a human rights perspective and aims to examine to what extent the current legal status of the right to water can guarantee access to water during an armed conflict and therefore, to examine the potential contribution of an inherent human right to water in an armed conflict situation.
Aside from the obligations and responsibilities of the oppositions groups and non-state actors, what are the obligations and responsibilities of the Syrian Government? What is the applicable law during a non-international armed conflict? How the right to water is protected under IHL? What is the relationship between IHL and IHRL and why is this relationship important for the right to water? Can the current legal status of the right to water create legally binding obligations? What is the protection of the right to water under international human rights law (IHRL)? Why is the establishment of core obligations and minimum standards of the right to water essential for the protection of access to water during an armed conflict? Under which branch of law could this right be better protected; IHL or IHRL? And thus, which is the best potential scenario for the protection of the right to water?
The research methodology follows three steps that correspond to three chapters. The first chapter introduces the reader to the living conditions of Syrian civilians and the problems that they experience in relation water access. Here, the period of February to April 2017 is used as illustration. The following chapter examines the applicable law during the Syrian armed conflict. It examines the protection of the access to water under IHL to further address whether there is a need to turn to IHRL for protection. After establishing that there is indeed a
3 For the characterization of the armed conflict in Syria as a non-international see Terry D Gill “Classifying the Conflict in Syria” (2016) 92 International Law Studies 353-380 p 379.
4 Amnesty International Annual Report 20016/17 pp 50, 349-354 available at
complementary relationship between IHL and IHRL, it examines the protection of the right to water under IHRL. It then applies the provisions of IHRL to the case of Syria to examine any deficiencies. The next chapter examines which branch of law is more suitable for the protection of the right to water during an armed conflict: IHL or IHLR. It concludes that the latter is more suitable, and further discusses under which Covenant - the International Covenant on Civil and Political Rights5 or the International Covenant on Economic, Social and Cultural Rights6 - the right to water is more effectively protected. Lastly, it examines the potential legal value of a right to water under ICESCR.
5 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
6 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
2. Access to water during the Syrian armed conflict
A. Introduction
During the current armed conflict in Syria, both Government and opposition groups have sought to deprive the overwhelmingly civilian population within besieged areas of basic necessities. This includes, inter alia, cutting off access to water.7 In addition, both parties use starvation and deprivation of water supplies as methods of forcing populations to evacuate.8 There have been incidents where both parties prevented United Nations humanitarian assistance from reaching the civilian population.9 Furthermore, both parties use starvation and the cutting-off of water supplies as methods to enforce populations to evacuate.10
B. Lack of water among the civilian population
During the period February to April 2017, reports indicate perpetual problems regarding access to water in besieged areas within the territory of Syria. For example, the southern suburbs of Damascus that were surrounded by Syrian military forces and sectarian pro-government militias, did not have access to running water.11 Similarly, humanitarian condition in Yarmouk were dreadful, with civilians suffering under, inter alia, a scarcity of bread and water. Concurrently, the conditions in the towns of Madaya and Zabadani were equally serious. Civilians faced sustain deprivation of food, water and fuel.12 Northern Homs, faced problems with securing clean water.13 Similarly, the towns of Al-Rastan and Talibesh struggled to pump enough water for the population, while the situation reached a plateau when ‘pro-government strikes targeted the water system, casing several damages to both pumps and pipes’.14 Civilians remain deprived of clean drinking water and food since the low
water level has led to farming difficulties and a depletion of fish stock in the levee.15 The
town of Al-Houleh was targeted by intense airstrikes and shelling while the only road that
7 Updated Briefing on Sieges Across Syria by Amnesty International (2014) MDE 24/023/2014 p1 available at <https://www.amnesty.org/en/documents/MDE24/023/2014/en/> accessed 20 July 2017.
8 ibid.
9 Amnesty International Annual Report 20016/17 p 351 available at
<https://www.amnesty.org/en/countries/middle-east-and-north-africa/syria/report-syria/> accessed 20 July 2017. 10 PAX & TSI ‘Siege Watch’ (2017) 6 Quarterly Report available at
<https://www.paxforpeace.nl/publications/all-publications/siege-watch-6> accessed 20 July 2017. 11 ibid p 35.
12 ibid p 39. 13 ibid p 48. 14 ibid p 49. 15 ibid p 49.
connected the town with neighbouring towns was destroyed.16 Syrian and Russian aircraft launched an aggressive wave of airstrikes against the Al-Houleh communities.17 As a
consequence, water wells stopped functioning.18 The areas of Rastan, Fabised and
Al-Houleh face a growing water crisis.19 The local councils of these areas are increasingly unable to provide water for drinking or irrigation.20 It is clear from the above mentioned reports that civilian populations faced problems relating to access to water due to aggressive airstrikes, indiscriminate attacks, the use of forbidden weapons and tactics that aimed to force people to evacuate. At this point it is crucial to address the applicable legal regime and identify which are the obligations of the parties to the armed conflict in Syria.
3. Applicable law during the Syrian armed conflict
A. Introduction
During an armed conflict, the primarily applicable law is the relevant international humanitarian law (IHL) that is lex specialis. However, the application of international human rights law does not cease during an armed conflict. According to the case law of the International Court of Justice21, human rights remain applicable in armed conflicts, but only bind in so far as they add something to the applicable primary norms of international humanitarian law.22 This part of the research aims to examine how the right to water is protected under IHL and moreover, to answer the question whether there is a need to turn for protection at the IHRL.
B. Relevant applicable humanitarian law
The applicable humanitarian treaty law for the protection of the population during the non-international armed conflict in Syria is Common Article 3 of the Four Geneva Conventions of 1949.23 Common Article 3 does not include a water provision, nor does it guarantee the
16 ibid pp 49-50. 17 ibid p 50. 18 ibid p 50. 19 ibid p 68. 20 ibid.
21 International Court of Justice (ICJ).
22 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 92.
23 Four Geneva Conventions of 1949 (adopted 12 August 1949, entered into force 20 October 1950) art 3 available at <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp> (accessed 19 July 2017); see
access to water. However, access to water can be derived from the requirement of humane treatment24, from the prohibition of cruel treatment and torture25 and from the prohibition of
disgraceful acts against human dignity.26
Beyond codified IHL, there are certain principles that apply in the armed conflict in Syria as a matter of customary international law.27 The main principles are the principles of military necessity and humanity.28 The first one allows the military discretion to achieve legitimate military aims while the second protects the vulnerable parties of the armed conflict.29 These main principles result in the corollary principles of proportionality; the principle of discrimination; the precautionary principle; and the principle of unnecessary suffering.30 The proportionality principle requires a balance between the time and place of the attack and the military advantage anticipated, on the one hand, and the potential loss of human life amongst the civilian population and to civilian objects on the other.31 The precautionary principle is part of the proportionality principle and implies that all feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.32 Thus it obliges the military to minimize human losses by taking
also Dieter Fleck, ‘The law of non-international armed conflict’ in D Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) p 593 para 1205.
24 Art 3(1). 25 Art 3(1)(a). 26 Art 3(1)(c).
27 Elizabeth Mottershow, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’(2008) 12(3) The International Journal of Human Rights 449-470p 460; Mary Ellen O’Connell ‘Historical Development and legal basis’ in Dieter Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) pp 34-38 paras 132-134.
28 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 64; see also Elizabeth Mottershow, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’(2008) 12(3) The International Journal of Human Rights 449-470 pp 460-464; see also Mary Ellen O’Connell, ‘Historical Development and legal basis’ in D Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) pp 34-38 paras 132-134.
29 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 pp 64-65.
30 Dieter Fleck, ‘The law of non-international armed conflict’ in D Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) p 591 para 1203; see also Nikolai Jorgensen ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 64.
31 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 65.
32 OHCHR legal note, “Indiscriminate Attacks and Indiscriminate Weapons in International Humanitarian Law,” March 2016, p 7 available at
< https://www.humanitarianresponse.info/system/files/documents/files/indiscriminate_weapons_legal_note_-_final_new_format_-_en_3.pdf> accessed 20 July 2017.
advance precautions.33 The principle of discrimination requires a distinction between civilians and combatants and between military and civilian targets.34 Lastly, the principle of
unnecessary suffering prohibits means and methods of warfare designed to inflict unnecessary moral or physical suffering.35 These principles highlight the protective regime in force during the Syrian armed conflict and are capable of addressing the protection of the right to access to water.
Regarding the principle of discrimination, it is necessary to address whether water is a civilian object. In principle, fresh water appears to be a civilian object benefiting from a general immunity from attack during an armed conflict.36 However, the general rule of immunity for civilian objects from attack in armed conflict allows for derogations when the civilian object is used for military purpose.37 This derogations creates the ‘dual-use’ problem that leaves to the discretion of the party whether or not it will attack the civilian object.38 In the specific case of water, the rule of prohibition of starvation as a method of warfare39 would limit the discretion of the party and limit the consequences of the ‘dual-use’ problem, in this way creating a more effective regime for the right to access to water. The question remains as to whether the prohibition on the cutting off of water supplies or the prohibition to attack water supplies and installations can be considered as a primary rule of IHL that is derived from the prohibition of starvation as a method of warfare.
According to the International Committee of Red Cross40, the prohibition of attacking objects
indispensable to the survival of the civilian population is part of customary law and a corollary rule to the prohibition of starvation as a method of warfare.41 Drinking water
33 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 65.
34 ibid.
35 ibid; see also Dieter Fleck ‘The law of non-international armed conflict’ in D Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) p 592 para 1204.
36 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 66.
37 ibid. 38 ibid.
39 Rule 53 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule53> accessed 19 July 2017.
40 International Committee of Red Cross (ICRC).
41 Rule 54 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule54> accessed 20 July 2017.
installations and supplies are objects indispensable to the survival of the civilian population.42 Thus, the destruction of water supplies and cutting off of water as a method of warfare might violate the prohibition of starvation. However, beyond the fact that water could be seen as indispensable to the survival of the population and thus, be protected under the above-mentioned prohibition, the right to water itself is not part of international customary law.43
In addition, Rule 55, which secures access for humanitarian relief for civilians in need,44 and Rule 56, that demand the freedom of movement of authorized humanitarian relief personnel which is essential to the exercise of their functions,45 are also a corollary to the prohibition of starvation of civilians as a method of warfare. Hence, attacking objects indispensable to the survival of the civilian population and denying access to humanitarian aid or restricting the freedom of movement of humanitarian relief personnel, may constitute violations of the prohibitions of starvation.46
By applying the above-mentioned rules in the case of Syria, the right to water is prima facie protected. For instance, the targeting of water systems in the areas of Al-Rastan and Talibesh47 violated the principle of discrimination and the prohibition to attack civilian objects and objects indispensable for the survival of the civilian population. It further might violate the prohibition of starvation as a method of warfare. Similarly, the aggressive wave of airstrikes against the Al-Houleh communities that disrupted the proper functioning of water wells violated the principle of proportionality, since no balance was achieved between the military advantage anticipated and the potential loss of civilian objects. Furthermore, it
42 See the ‘Definition of objects indispensable to the survival of the civilian population’ at Rule 54 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule54> accessed 20 July 2017; see also Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 pp 697-69.
43 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 92.
44 Rule 55 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule55> accessed 20 July 2017.
45 Rule 56 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule56.> accessed 20 July 2017.
46 Rule 53 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross (ICRC) available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule53> accessed 20 July 2017.
47 PAX & TSI ‘Siege Watch’ (2017) 6 Quarterly Report p 49 available at
violated the precautionary principle since it appears that no feasible precautions were taken to avoid or minimize damage to civilian object. Lastly, the Syrian Government’s strategy, “surrender or die”48, that created conditions in the siege to force people to evacuate by, inter
alia, deprived people of water, might have violated the prohibition of starvation as a method of warfare.
Against this background of law and facts, is there a need to turn for protection for the right to water at the IHRL? The protection under the principles of IHL covers the protection of water supplies and installations and the water as a civilian object. However, these principles do not cover other elements of the right to access to water such as quantity and quality. For instance, the prohibition of starvation as a method of warfare is not enough for the protection of the right to water during an armed conflict since the link of water with starvation is only an aspect of the human right to water.
C. The protection under Human Rights Law i. The relationship between IHL and IHRL
Before examining the protection of the right to water under IHRL, it is essential to examine whether IHRL applies during an armed conflict and thus examine what the relationship between IHL and IHRL is. The research follows the ICJ’s approach on the application of the
lex specialis principle in two of its Advisory Opinions. The two Advisory Opinions do not
address a case of non-international armed conflict. However, since the ICJ in the relevant paragraphs examines the relationship between IHL and IHRL, there is no indication that it does not remain conceptually applicable to the Syrian conflict.
The ‘applicability of the law of human rights is not limited to times of peace, unless and to the degree a state has used possibilities of derogations’.49 The application of IHL during an armed conflict does not exclude that IHRL may also be applicable to a particular situation.50
48 PAX & TSI ‘Siege Watch’ (2017) 6 Quarterly Report p 10 available at
<https://www.paxforpeace.nl/publications/all-publications/siege-watch-6> accessed 20 July 2017. 49 Dieter Fleck, ‘The law of non-international armed conflict’ in Dieter Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxford University Press 2013) p 586 [1201].
50 Jann K Kleffner ‘Scope of application of international humanitarian law’ in D Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxford University Press 2013) p 72 [251].
The relationship of these two branches of law is characterized by ‘mutual complementarity and the lex specialis principle’.51
Human rights remain applicable in armed conflicts, but are only binding insofar as they add something to the applicable primary norms of International Humanitarian Law.52 According to the case law of the ICJ, the relationship of IHL and IHRL in an armed conflict is complementary.53 The question remains as to how the ICJ justifies this relationship. What seems essential for the ICJ is the ‘added value’ of the human right in question against the background of the lex specialis rule. In its Advisory Opinion on nuclear weapons, the ICJ clarified that the International Covenant on Civil and Political Rights does not cease in its application in times of war except by operation of Article 4 of the Covenant that provides for derogations in time of emergency.54 However, in the case of the right to life, that is not included as derogable under Article 4, the principle of prohibition of arbitrary deprivation of life remains binding in case of armed conflict.55 What changes is the ‘test’ of what an arbitrary deprivation constitutes.56 Since in an armed conflict IHL is primarily lex specialis, whether a loss of life should be considered as arbitrary should be decided with reference to IHL and “not deduced from the terms of the Covenant itself”57. In cases where the provisions of the International Covenant on Economic Social and Cultural Rights are applied during an armed conflict, the ICJ follows a similar path in legal argumentation of the applicability of the ICESCR. In its Advisory Opinion on The Wall, regarding the relationship between IHL and human rights law, it pointed out three possible situations: “some rights may be exclusively matters of International Humanitarian Law; others may be exclusively matters of Human Rights Law; yet others may be matters of both these branches of International Law”.58 Therefore, it had to take into consideration both human rights law and, as lex
51 Jann K Kleffner, ‘Scope of application of international humanitarian law’ in Dieter Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) p 72 para 252; Elizabeth
Mottershow, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’(2008) 12(3) The International Journal of Human Rights 449-470 p 455-457. 52 Nikolai Jorgensen, ‘The Protection of Freshwater in Armed Conflict’ (2007) 3(2) Journal of International Law and International Relations 57-96 p 92.
53 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 (Advisory Opinion on nuclear weapons) para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Advisory Opinion on the Wall) paras 105, 106, 110, 114. 54 Advisory Opinion on nuclear weapons para 25.
55 ibid. 56 ibid. 57 ibid.
specialis, International Humanitarian Law.59 However, the ICESCR plays a more prominent role than the ICCPR because the rights that are contained in the ICESCR are not rights that can be defined by IHL. In the absence of a provision for derogations in the ICESCR, the ICJ referred to the potential to limit social, economic and cultural rights under Article 4 of the ICESCR.60 Those rights can therefore be limited in the case of an armed conflict but the test of the acceptable limitation remains the wording of Article 4 of the ICESCR and thus, they can be restricted "solely for the purpose of promoting the general welfare in a democratic society".61 Against this background, as Lubell points out, the common approach when dealing with civil and political rights is to speak of the possibility of derogation from human rights obligation in accordance with the specific clauses on derogation, as well as turning to IHL as the lex specialis.62 This approach operates easily for the ICCPR, while it faces some obstacles for the application of the ICESCR mainly because of the absence of a derogation provision and because, as Dennis argues, the ICESCR does not set forth “sufficiently clear and precise substantive legal standards to permit adjudication of individual complaints even during peacetime”.63 There is a debate as to whether or not the reasonableness of a State’s actions, that interfere with the economic, social and cultural rights of individuals in an armed conflict, should be evaluated on the basis of international humanitarian law or on the basis of the ICESCR.64
In any case, the wording of the ICJ in the Advisory Opinion on the wall indicates that it prefers the second approach. Its formulation should not necessarily be considered as different from the one of the Advisory Opinion on nuclear weapons, but it might be understood to mean that in the case of the relationship between the IHL and the ICESCR, “the human rights obligation would remain of primary relevance’’65. According to this argumentation, the economic, social, and cultural rights are clearly a matter of both branches of law and it is ‘self-evident’, as Mottershaw notes, that the law that provides the most detail will have the
59 ibid.
60 Advisory Opinion on the Wall para 136. 61 ibid.
62 Noam Lubell, ‘Challenges in applying human rights law to armed conflict’ (2005) 87 (860) International Review of the Red Cross 737-754 p 752.
63 Michel J Dennis, ‘ICJ Advisory Opinion on Construction of a Wall in Occupied Palestinian Territory: Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law 119-140 p 139.
64 Dennis argues that in reasonableness of the State’s actions should be evaluated on the basis of the international humanitarian law and not on the basis of the ICESCR. (p141).
65 Noam Lubell ‘Challenges in applying human rights law to armed conflict’ (2005) 87 (860) International Review of the Red Cross 737-754 p 752.
most relevance.66 Thus, against this background, since the ICESCR provides more detailed protection on economic, social and cultural rights, it might be seen as the lex specialis.
In conclusion, the rule that IHL is the lex specialis law in times of an armed conflict is not absolute.67 In certain areas, IHRL provides more specific provisions and the most specific standards even in the case of an armed conflict.68 When this is the case, IHRL is the lex
specialis law.
ii. The concept of ‘minimum core obligations’ and ‘minimum essential level’
The International Court of Justice refers to ‘derogations’, ‘arbitrary deprivation’ and ‘acceptable limitations’. At this point it is useful to examine how these concepts operate under international human rights treaty law and moreover, to explain the concept of ‘minimum core obligations’ and the ‘minimum essential level’ of protection.
Each substantive right imposes upon States a variety of core obligations that they are obliged to satisfy.69 For the beneficiaries of the right it is crucial to know the normative content and thus the core obligation of each right. As Aston pointed out in 1987, there would be no justification for elevating a ‘claim’ to the status of a right if its normative content could be so indeterminate as to allow for the possibility that the right-holders possess no particular entitlement to anything.70 Thus, each right must give rise to core obligations that corresponds
to an absolute minimum entitlement in the absence of which the State is to be considered to be in violation of its obligations.
Thus, the core obligations establish an international minimum threshold applicable to all States Parties to an international human right treaty which is not derogable.71 It is necessary
to first explain the concept of derogations and limitatinos.
66 Elizabeth Mottershow, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’(2008) 12(3) The International Journal of Human Rights 449-470 p 457.
67 Jann K Kleffner, ‘Scope of application of international humanitarian law’ in Dieter Fleck (ed) The Handbook of International Humanitarian Law (3rd edn Oxfort University Press 2013) p 74 para 253.
68 ibid.
69 Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Intersentia 2003) p 366.
70 P Alston, ‘Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights’ (1987) 9 (3) Human Rights Quarterly 332-381 pp 352-353.
71 Statement adopted by the ESCR-Committee on ‘Poverty and the International Covenant on Economic, Social and Cultural Rights’ on May 4, 2001. E/C.12/2001/10 para 16.
The majority of human rights are not absolute and thus they can be limited.72 A human right can be limited through specific provisions of the international treaty (limitations) or by derogation in times of emergency.73 Limitations explicitly provide circumstances in which
the enjoyment of the right can be limited.74 However, they do not grant states the ability to abuse rights, but rather they define the actual scope of rights and thus, determine the minimum treatment of the right in question.75 An example of permitted limitation would be Article 9 of the ICCPR, which guarantees the right to personal liberty and security, and protects from arbitrary arrest or detention, but allows deprivation of liberty “on such grounds and in accordance with such procedure as are established by law”.76
Derogations permit States to suspend some of their obligations under human rights treaties.77 Such derogations are available to States in limited circumstances, such as in case of public emergency where a threat to the life of the nation exists.78 However, an armed conflict will not automatically justify the recognition of public emergency.79 Nevertheless, since a situation of public emergency is established, the derogations should specific their territorial and temporal reach, and can only have a temporal and exceptional nature.80 In addition, even in situations of emergency, States have to provide remedies to individuals whose rights may have been violated.81 However, not all rights are derogable. One of the absolute rights is the
right to be free from torture.
iii. The right to water under IHRL
Having established the complementary relationship between IHL and IHRL, the research turns now to an examination of the protection of the right to water under IHRL. There are three human rights instruments that include explicit provisions concerning the right to water;
72 Frederic Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivaknumaran International Human Rights Law (2nd edn Oxford University Press 2014) p 110.
73 ibid. 74 ibid 111. 75 ibid pp 110-111. 76 ICCPR article 9(1).
77 Frederic Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivaknumaran International Human Rights Law (2nd edn Oxford University Press 2014) p 113.
78 ibid.
79 HRC, General Comment 29 para 3.
80 Frederic Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivaknumaran International Human Rights Law (2nd edn Oxford University Press 2014) pp 113-114.
the Convention on the Elimination of All Forms of Discrimination against Women82, the Convention on the Rights of the Child83 and the Convention on the Rights of persons with
Disabilities84. Article 14(2)(h) of the CEDAW requires that State parties shall ensure that
women have the right to enjoy adequate living conditions particularly in relation to, inter alia, water supply. Article 24(2)(c) of CRC requires States to combat disease and malnutrition by, inter alia, provide children with clean-drinking water. This relates to the provision of primary health care. Article 28(2)(a) of the UNCRPD requires States to ensure equal access of persons with disabilities to clean water services. This is an element for the realization of the right of persons with disabilities to an adequate standard of living and social protection.85 Although these provisions are the only explicit codifications of the right to water in international human rights treaties, they are not comprehensive.86 Despite the fact that their common denominator is access to water, the CRC and the UNCRPD, for instance, refer to “clean water” - thus covering only one aspect of the right to water; that of quality.87 Therefore, aspects such as quantity and accessibility are overlooked. At the same time, the relevant provisions of CRC and UNCRPD are framed in relation to other rights; the right to the highest attainable standard of health, and the right to an adequate standard of living and social protection respectively. The relevant provision of CEDAW is framed in relation of the right to adequate standard conditions against the background of eliminating discrimination against women in rural areas. Consequently, the right to water is framed as an essential element of the realization of other rights, and not as an entirely separate and independent rights. The right to water “derives” from other rights and is an element for their realization. This framing is in accordance with the current view of human rights, provisions and standards, but creates a problematic blurring of boundaries with related rights.88 Additionally,
the lack of determination of the scope and core content of the right to water creates problems for its realization. The problems relating to the derivation of the right to water from other
82 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).
83 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC).
84 Convention on the Rights of persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (UNCRPD).
85 UNCRPD art 28.
86 Amanda Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 (3) The International Journal of Human Rights 389-410 p 391. 87 ibid p 391.
88 Amanda Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 (3) The International Journal of Human Rights 389-410 p 391.
rights and from the lack of explicit core content of the right will be will be examined in a later section.
a. The human right to water as customary law
According to Article 38(1)(b) of the Statute of the ICJ, the formation of international custom requires two elements: a general practice, and the conviction that this practice is accepted as law (opinion juris). The conceptualization or not of the right to water as customary law is relevant and essential for the applicable law during the non-international armed conflict in Syria. The prevailing opinion in the legal literature is that the right to water has not reached customary law status.89 There is no clear opinion iuris or state practice in favor of a right to water.90 Although the customary international law on the human right to water is debatable, important political steps such as the UN General Assembly's Resolution of 201091 and the Human Rights Council’s Resolution of 201092 have been made. On July of 2010, the UN General Assembly adopted Resolution 64/292 that declared the right to safe and clean drinking water (and sanitation) an essential human right which is necessary for the full enjoyment of life and all human rights. The non-binding character of the GA resolution does not leave the resolution without a value. GA resolutions may reflect opinion iuris, one of the elements of international customary law, and thus it would contribute to the creation of a binding norm.93
As with the UNGA Resolutions, the HRC Resolution is also legally non-binding but similarly could reflect opinion iuris. In addition, it is necessary to examine the analytical foundation that the HRC adopts, and to discuss whether the analytical foundation by the Council for the recognition of the human right to water is an appropriate one. The Council relied on two analytical foundations. The first foundation is derivation from other human rights. According to the Council, the right to water derives from the right to an adequate
89 Pierre Thielborger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) 15 Human Rights Law Review 225-249 p 236; A Hildering International Law, Sustainable Development and Water Management (Eburon Academic Publishers 2004) p 75.
90 Antoitte Hildering, International Law, Sustainable Development and Water Management (Eburon Academic Publishers 2004) p 75.
91 UNGA Res 64/292, The human right to water and sanitation.
92 HRC Res 15/9, Human Rights and Access to Safe Drinking Water and Sanitation, 30 September 2010. A/HRC/RES/15/9.
standard of living (Article 11 of the ICESCR), the right to the highest attainable standard of physical and mental health (Article 12 of the ICESCR) and the right to life and human dignity (Article 1 and Article 3 of the Universal Declaration of Human Rights). The second foundation is prior recognition of the right to water by other instruments.94 These instruments are the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities. Thus, the analytical foundation of the HRC, either from the derivation from other rights or from the prior recognition of other instruments, has problematic aspects that are related to the linking of the right to water with other rights and the prior recognition of other instruments.
b. The right to water – the technique of legal derivation
The technique of legal derivation is to be essentially understood as the process by which one right is inferred from another.95 A derivate right is inferred from another right that is explicitly accepted in international legal treaties.96 Derivation of a human right from another human right is not unfamiliar to human rights provisions and standards. On the contrary, legal derivation is in some ways a natural part of treaty interpretation.97 The Human Rights Council, the Committee on Economic, Social and Cultural Rights and the UN Human Rights Committee98 opted to address the human right to water in this way. Although the derivative
right stands in line with the other provisions of the source-right,99 a lack of clarity of the legal
concept for the derivate right might be created.
94 M A Salman ‘The Human Right to Water- Challenges of Implementation’ [2012] ASIL Proceedings p 45. 95 Pierre Thielborger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) 15 Human Rights Law Review 225-229 p 228.
96 ibid 226. 97 ibid p 229.
98 The UN Human Rights Committee has the competence to make suggestions and general recommendations on the ICCPR.
99 Pierre Thielborger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) 15 Human Rights Law Review 225-229 p 226 and 227.
c. The General Comment No. 15 of the ESCR-Committee
The research now will examine how the Committee on Economic, Social and Cultural Rights100, which is the body of international independent experts tasked with monitoring the
ICESCR and developing general interpretations of its provisions,101 recognized the right to water. The focus of this examination will be the General Comment No 15102. General Comments clarify the provisions of the Covenant and their adoption takes place under the competence of the CESCR.103 However, General Comments are not binding.104
The CESCR recognized the right to water as a human right contained in Article 11 of the ICESCR,105 and related the right to water to the right to the highest attainable standard of health (Article 12 (1) of the ICECSR).106 In 2002 the Committee declared in its General Comment No 15107 that the right to water derives from the right to an adequate standard of living (Article 11 of the ICESCR) and constitutes an essential guarantee for securing the right under Article 11 of the ICESCR. Furthermore, according to the Committee, the right to water is “indispensable for leading a life in human dignity”108, and is “inextricably related to the right to the highest attainable standard of health and the rights to adequate housing and adequate food”109, and finally, the right to water is in “conjunction with the right to life”110. The Committee’s analytical foundation on the establishment on the right to water is not the
100 Un Committee on Economic, Social and Cultural Rights (CESCR or ESCR-Committee or Committee). 101 Dinah L, Shelton Advanced Introduction to International Human Rights Law ( Edward Elgar Publishing Limited 2014) p 51-54; also see ECOSOC Res 1985/17 of 22 May 1985; P Thielborger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) 15 Human Rights Law Review 225-229 p 229.
102 CESCR ‘General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant)’ (20 January 2003) UN Doc E/C.12/2002/11 (General Comment 15) available at
<http://www.refworld.org/docid/4538838d11.html> accessed 19 July 2017.
103 Christine Chinkin, ‘Source’ in D Moeckli, S Shah and S Sivaknumaran International Human Rights Law (2nd edn Oxford University Press 2014) p 80.
104 ibid.
105 CESCR ‘General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons’ (8 December 1995) UN Doc E/1996/22 <http://www.refworld.org/docid/4538838f11.html> (19 July 2017)
106 CESCR ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (11 August 2000) UN Doc E/C.12/2000/4 paras 11, 12(a),(b) and (d), 15, 34, 36, 40, 43 and 51. <http://www.refworld.org/docid/4538838d0.html> (19 July 2017).
107 CESCR ‘General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant)’ (20 January 2003) UN Doc E/C.12/2002/11 (General Comment 15) <http://www.refworld.org/docid/4538838d11.html> (19 July 2017).
108 General Comment 15 para 1. 109 General Comment 15 para 3. 110 General Comment 15 para 3.
concept of an independent, inherent right, but rather the derivation from other rights and/or the establishment of the right to water as a necessary condition, or element, for the realization of human rights guaranteed under the ICESCR. The reaffirmation of the ineluctable place of water in the rights to life, liberty, and human dignity contained in the UDHR offers significant reinforcement of the concept of the human right to water, since it is presented as a requirement for the meaningful realization of those rights. 111 However, the question remains whether derivation from other rights or the establishment of it as an element of other rights, is capable of offering sufficient protection for the human right to water . According to the Committee, the catalogue of rights in conjunction with the right to an adequate standard of living was not intended to be exclusive. It suggests that, since the right to water is “one of the most fundamental conditions of survival”112, water is included in article 11(1). This suggestion is supported by the difficulty to define the term “adequate standard of living’ when the covenant was drafted.113 In addition to the fact that the “adequate standard of living” is extremely difficult to define, the lack of a generally accepted definition in human rights jurisprudence or scholarships and the several decisive factors that should be taken in account, such as the environment and social conditions, support the later inclusion of the right to water in Article 11(1) of the ICECSR.114 Moreover, the ICECSR as a human
rights instrument should be interpreted in the light of present day conditions. Thus, against this background, the Committee’s interpretation of Article 11(1) does not seem problematic. The general problem with this relationship of the right to water and other elements of the right to adequate standard of living, health and other human rights is that the nature of these relationships is not determined.115 However, it is true that the General Comment 15 aims to
clarify the normative content of the right to water and to set standards and guidelines for States to realise their obligations.116 In paragraph 2 of General Comment 15, the Committee declares that “the right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use”.117 Regarding the Committee, the right to water includes freedoms and entitlements. Freedom is, for example, the right to
111 M A Salman ‘The Human Right to Water- Challenges of Implementation’ [2012] ASIL Proceedings p 45. 112 General Comment 15 para 3.
113 I T Winkler The Human Right to Water (2012 Hart Publishing Oxford, Oregon) p 42 and 43. 114 ibid p 43.
115 Amanda Cahill ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 (3) The International Journal of Human Rights 389-410 p 394. 116 ibid p 392.
maintain access to existing water supplies and the right to be free from interference like arbitrary disconnections.118 Entitlement is, for instance, the right to a system of water supply
and management that provides to people equal enjoyment of their right.119 Thus, following
the reasoning of the Committee, targeting water systems, for instance in the Syrian towns of Al-Rastan and Talibesh, violates the right to water.
The Committee adopt a broad interpretation of the element of adequacy connecting it with Article 11 (1) and Article 12 of the ICESCR. Additionally, it declares that while the required adequacy of water may vary on the specific conditions of each case, some factors apply in all circumstances. Thus, under this reasoning the situation of the armed conflict in Syria cannot justify the lack of these factors, meaning availability, quality and accessibility. The element of availability requires sufficient and continuous water for “personal and domestic use” in accordance to the World Health Organization guidelines.120 However, the Committee does not determine the meaning of ‘availability’ in practice. In terms of the element of quality, General Comments 15 is more enlightening, whilst leaving at the same time room to determine what might be considered a “threat” to a person’s health in practice.121 This is essential for some of the cases in Syria, where civilians might have access to drinking water, but the quality of water is not adequate to prevent the spreading of deadly diseases.122
Accessibility requires physical reach of water, economically affordable for all, and accessible to all in law and in fact, including the most vulnerable groups of the population.123 Thus, the
Committee follows the line that it adopted in its previous General Comment 20124. It requires
states to remove ‘de facto discrimination’ and to ‘provide those who do not have sufficient means with the necessary water and water facilities’.125
118 General Comment 15 para 10. 119 General Comment 15 para 10. 120 General Comment 15 para 12(a). 121 General Comment 15 para 12(b).
122 Jason Moltagh, ‘Fighting Polio Amid the Chaos of Syria’s Civil War’ (5 March 2015) National Geographic available at < http://news.nationalgeographic.com/2015/03/150305-polio-syria-iraq-islamic-state-refugees-vaccination-virus-jihad/> accessed 20 July 2017.
123 General Comment 15 para 12.
124 CESCR ‘General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights’ (2 July 2009) Un Doc E/C.12/GC/20 (General Comment 20) available at <http://www.refworld.org/docid/4a60961f2.html> accessed 19 July 2017. 125 General Comment 20 para 8(b).
States are obligated to at least satisfy the minimum core obligation of the right to water,126 which is of immediate effect and non-derogable.127 The minimum core obligations include,
inter alia, access to the minimum essential amount of water, and to water facilities on a non-discriminatory basis, access in reasonable distance and without long waiting times, and the adoption of strategies and methods paying particular attention to all disadvantaged and vulnerable groups.128 Their satisfaction is a matter of priority.129
Furthermore, General Comment 15 notes that States are bound by the obligation to protect the right to water under humanitarian law.130 It also adds a specific obligation to respect the right to water during an armed conflict,131 and provides analytical provisions indicating the way in which States should treat specific individuals or groups that traditionally faced difficulties in exercising their right to water, such as women, children, internally displaced persons, prisoners and detainees.132
The Committee also mentioned that the cutting-off of water is allowed as an action from the State under specific conditions including reasonable notice.133 However, under no circumstances shall an individual be deprived of the minimum essential level of water.134
d. Derivation from the right to life
The traditional view sees the right to life as a negative right and thus not as a right that implies the adoption of positive measures.135 In this respect, it would not protect an individual against death due to the lack of water.136 This view follows a narrow interpretation of the right to life.137 Thus, this view would not consider Article 6 of the ICCPR as a source of the right to water, nor of water as an element of the right to life. However, new interpretations of
126 General Comment 15 para 37(a)-(i). 127 ibid paras 37, 39.
128 ibid para 37.
129 General Comment 15 para 41. 130 General Comment 15 para 22. 131 General Comment 15 para 21.
132 General Comment 15 para 16 and specific para 16 (g) and (f). 133 ibid para 56.
134 ibid para 56.
135 Pierre Thielborger, The right(s) to water: the multi-level governance of a unique human right (Springer-Verlag Berlin Heidelberg 2014) p 116.
136 ibid.
137 Amanda Cahill ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 (3) The International Journal of Human Rights 389-410 p 397.
the right to water are coming to light and support a broader view.138 The UN Human Rights Committee, the body that monitors the implementation of the ICCPR,139 in their General
Comment 6 on article 6 of the ICCPR, stated that the right to life not only obliges States to refrain from acts, but also obliges States to adopt positive measures ‘to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’.140
Although the nature of the substantive content of the right to life is under discussion and subject to disagreement,141 it cannot be denied that water is a crucial element for the existence of human life. In light of this, the right to water might be derived from the right to life and thus be protected under Article 6 of the ICCPR.
e. Application of the current IHRL on the case of Syria – deficiencies of the current legal status of the right to water
The currently prevailing opinion on the recognition of the human right to water is one that sees the right to water as a derivate treaty right.142 The republic of Syria has ratified both the ICCPR and ICESCR. Accordingly, the Syrian civilian population and thus, potential beneficiaries of the right to water, have two legal bases for the right. The first option is to address the right to water within the context, or as derived from, the right to life, as explained above. In this scenario, the Syrian Government should fulfill obligations related to the right to life without covering all the aspects of the right to water. For example, civilians of the towns of Malaya and Zabadani that faced sustain deprivation of water might be protected under the right to life, whilst the people of Northern Homs, who faced problems securing clean water, might not be protected. In addition, derivation of the right to water from the right to life cannot guarantee to the areas of Al-Rastan, Fabised and Al-Houleh water for irrigation use. In
138 Pierre Thielborger, The right(s) to water: the multi-level governance of a unique human right (Springer-Verlag Berlin Heidelberg 2014) p 116; Antoinnet Hildering, International Law, Sustainable Development and Water Management (Eburon Academic Publishers 2004) p 75.
139 Dinah L Shelton, Advanced Introduction to International Human Rights Law ( Edward Elgar Publishing Limited 2014) p 52-53.
140 UN Human Rights Committee (HRC) ‘CCPR General Comment No. 6: Article 6 (Right to Life)’ (30 April 1982) para 5 available at <http://www.refworld.org/docid/45388400a.html> accessed 18 July 2017.
141 Amanda Cahill ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 (3) The International Journal of Human Rights 389-410 p 397.
142 Pierre Thielborger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) 15 Human Rights Law Review 225-229 p 228.
