Oleksii Plotnikov, PhD (International Judiciary)
On September 14, the Standing Committee on International Cooperation in Human Rights of the Council for Civil Society and Human Rights before the President of Russia issued a statement “in connection with the deterioration of fresh water supply to residents of the Crimean Peninsula”. The statement was allegedly sent to the UN High Commissioner for Human Rights and the Council of Europe Commissioner for Human Rights. According to Russian media, this statement was indeed addressed to these international structures [for example 3]. There is currently no information on the receipt of a request from the UN or the Council of Europe, and no reaction to this request. However, in the light of the situation with water supply in the occupied territory of the Autonomous Republic of Crimea and the City of Sevastopol, and the threat of non-fulfilment by the Russian Federation as an occupying power of its obligations to ensure a minimum standard of living, the arguments presented in the address warrant consideration from the legal point of view. However, it should be born in mind that the Council is nothing but an advisory body, and therefore the address can hardly be attributed to the Russian government. Rather it is a “semi-official” declaration of intent.
One can outline two groups of arguments in the address: related to the allegations of human rights violations by Ukraine, and related to allegations of violation by Ukraine of international agreements on transboundary watercourses. This note will start by the analysis of the first of these arguments: the alleged violation of human rights by Ukraine due to the termination of water supply through the Crimean canal.
The appeal states that “the right to water is recognized in international law as an inalienable human right.” At the same time, the authors of the address avoid references to any specific treaty or customary norm of international law, or any interpretation of the existing norm, which lead to a conclusion that the right to water is a separate inalienable human right.
Yet the position stated in the address is not without any justification. Indeed, the UN General Assembly Resolution of July 28, 2010 № 64/292 proclaimed the human right to water and sanitation . This right was previously mentioned in the UN Convention on the Elimination of All Forms of Discrimination against Women  and the Convention on the Rights of the Child  as a part of the right to an adequate standard of living. The UN Committee on Economic, Social and Cultural Rights clarified the nature of the right to water in General Comment № 15 . This Comment was developed on the basis of Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights , according to which States parties to the Covenant recognize the right of everyone to an adequate standard of living and to the highest attainable standard of physical and mental health. In the Committee’s view, the human right to water includes the opportunity for everyone to receive sufficient quality water for personal and domestic use. In addition, it is only through water that some other rights can be exercised, including the right to adequate food, health, etc.
According to reports, the situation with the provision of water to the population of the occupied Autonomous Republic of Crimea and the city of Sevastopol is deteriorating due to the dry summer of 2020 . Given that the occupation authorities did not allow representatives of international organizations and international non-governmental human rights organizations to enter the peninsula, it is impossible to accurately assess the impact of water supply restrictions on the state of human rights in Crimea. However, assuming that the situation in the ARC and Sevastopol already constitutes or could potentially constitute a violation of the right of their residents to water within the meaning of the International Covenant on Economic, Social and Cultural Rights, there is a problem of liability for this violation. This problem can be considered in two aspects.
On the one hand, under the International Covenant on Economic, Social and Cultural Rights, it is the duty of the state to ensure all the rights provided under the Covenant to all persons under its jurisdiction. This is explicitly stated in the above-mentioned General Comment № 15: “water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party”. In other words, the Covenant, including the right to water, has extraterritorial application. This means that when a State exercises its jurisdiction over another State, including through military occupation, it is the State exercising jurisdiction that must ensure the exercise of the rights enshrined in the Covenant [see: 6]. In the case of Crimea, this means that the Russian Federation is solely responsible for providing the population of Crimea with water.
Currently, Ukraine’s position on the issue of water for Crimea is based on the presumption that Russia as an occupying power is obliged to bring water to the population of the Crimea. This position seems to be quite strong, as it is based both on a well-established international legal norm on the responsibility of the state to ensure human rights under its jurisdiction and on the norms of international humanitarian law. On the other hand, Ukraine cannot turn a blind eye to the position of the Russian Federation, which could potentially refer to Ukraine’s breach of its obligation to cooperate in ensuring the right to water. Therefore, the issue of the right to water in the light of the Russian power activities on Crimean situation deserves further in-depth study.
Contemporary international law lacks any visible practice on the right to water, and a hypothetical dispute between the Russian Federation and Ukraine could initiate such a practice. However, it is unlikely that Russia will try international legal mechanisms to force Ukraine to resume water supplies to Crimea, as any consideration of such a case would raise the question of the international legal status of the Crimea. In addition, submission to an international court will inevitably require careful preparation, including a study of the actual availability of water in Crimea and its assessment by independent international organizations. At present, such an assessment cannot be made in principle due to the non-admission to Crimea of any independent international experts, including representatives of the UN and the Council of Europe, to which the Russian appeal is addressed. Therefore, the publication of the Russian Human Rights Council should be considered as a fact of political life and of propaganda, rather than as the Russian legal position.
We will also investigate the alleged violation of Ukraine’s international legal obligations regarding transboundary watercourses. This argument is based on Article 2 of the UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes, according to which the parties “shall take all appropriate measures to prevent, control and reduce any transboundary impact” . In the text of the Russian statement, however, this wording is presented in a distorted form as “take all appropriate measures to prevent, control and reduce any transboundary impact on watercourses passing through their territory”. In other words, the formula of the Convention is “amended” by adding a phrase “to watercourses flowing through their territory”. This phrase does not appear in the text of the Convention. It is not entirely clear whether such a distorted wording is the result of a technical error or a deliberate desire to adapt the text of the Convention to the needs of the Russian address.
In any event, the reference to the Convention raises several questions, primarily whether or not this Convention can be applied to the situation with the cessation of water supply to Crimea through the North Crimean Canal. Nothing in the Convention seems to exclude artificial watercourses, such as canals, from its scope, as it defines transboundary waters as “any surface or ground waters which mark, cross or are located on boundaries between two or more States”. Moreover, the channels are directly mentioned in the UN Economic Commission for Europe’s Guide to the application of this Convention . However, there are at least three considerations that lead to the conclusion that the Convention cannot be applied to the situation with around water supply to Crimea.
Firstly, the purpose of the Convention, which is stated in the preamble, is to protect transboundary watercourses and to combat transboundary pollution. Indeed, the preamble mentions the impact of transboundary watercourses on the economy and welfare of EEC Member States, but emphasizes that the damage in question stems from pollution and emissions.
Secondly, the Convention is a framework instrument . In essence, it cannot create absolutely strict international obligations, but only establishes a common framework and opportunities for cooperation between Member States.
Thirdly, the Convention applies only to transboundary waters. By definition, it cannot be applied to the internal waters of the state. The territory of Kherson region and the Autonomous Republic of Crimea are parts of the territory of Ukraine. The North Crimean Canal does not pass through the territory of the Russian Federation in any of its sections. The occupation of a part of the territory of Ukraine by the Russian Federation does not affect the Ukrainian sovereignty over that territory [13; 14]. Thus, the UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes cannot be applied to the situation with the cessation of water supply through the North Crimean Canal.
The second document referred by Russians is the Berlin Rules on Water Resources of 2004 . However, the reference to these Rules raises even more fundamental questions than the reference to the Convention.
First, the Rules are not an international treaty. It is a document prepared by the Association of International Law, a non-governmental organization based in London. Indeed, it is a reputable structure that brings together the most prominent experts in the field of international law and has consultative status with some specialized UN bodies. The composition of the committee of the Association, which developed the Berlin Rules, does cause certain piety. The rules themselves state that they mediate customary international law. However, it should be borne in mind that the Rules are not in themselves a treaty or a custom, so they do not create obligations for states. Moreover, the question whether the Rules are reflective of customary international law seems controversial, as not even all members of the Water Resources Committee of the Association agreed with their text.
Secondly, the authors of the Russian appeal refer to Article 16 of the Rules, according to which “basin States, in managing the waters of an international drainage basin, shall refrain from and prevent acts or omissions within their territory that cause significant harm to another basin State having due regard for the right of each basin State to make equitable and reasonable use of the waters”. The wording of the article immediately raises the question of the possibility of its application in the situation around the North Crimean Canal, because the article concerns activities by one state that may cause transboundary damage to another state. Therefore, the application of the Rules again raises the question of the territorial affiliation of Crimea.
Thirdly, even if the wording of the article is interpreted as meaning that damage may be caused by one state to another, regardless of the occupation by the latter of the territory of another state, a question arises whether Ukraine can be considered a basin state for the North Crimean Canal. According to the wording of Article 3 of the Rules, a basin state is a state whose territory includes any part of an international watercourse. “Drainage basin” means an area determined by the geographic limits of a system of interconnected waters, the surface waters of which normally share a common terminus. An “international drainage basin” is a drainage basin extending over two or more States.
Even not considering the definition of an international basin, which refutes the assumption that harm in the sense of the Berlin Rules can be done by a sovereign state to the occupying power, the question remains whether the North Crimean Canal can be considered part of the basin. The canal is aimed at diverting part of the water from the Dnipro for economic needs. It does not bring water to the Dnipro, and has no common end point with Dnipro. The definition of a river basin, for example given by the European Environment Agency, indicates that the basin includes waters flowing into the river, not those coming out of the river . For sure, the interpretation of the norm requires further research, but consideration of the wording of the article prima facie prevents conclusion that the North Crimean canal belongs to the Dnipro basin. Therefore, the definition of Article 16 of the Rules is inapplicable.
Finally, there is another fundamental problem with the statement of the Russian Human Rights Council. It is addressed to international structures tasked with human rights protection. Such address is explainable in the case of alleged violation of the right to water as a human rights. However, these structures can in no way address the issue of Ukraine’s alleged breach of obligations regarding international watercourses. If the Russian Federation decides to seek Ukraine’s compliance with its allegedly violated international obligations regarding watercourses, it should use the arbitration mechanism provided for in the 1992 Convention. Neither Ukraine nor Russia has made reservations against such arbitration when signing the Convention, so this method of dispute resolution is open to the Russian Federation. Since nothing is known about the preparation by Russia of such arbitration, the publication of the Russian Human Rights Council should be considered as a fact of political life rather than as a legal position, for transboundary watersources also.
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