Human Rights – Jus Cogens : The International Law Podcast & Blog

Relevance of Human Right to Water for The Silala

April 23, 2022Posted in International Law and WaterTagged Human Rights, international law, WaterLeave a comment

By Otto Spijkers

Otto Spijkers is Professor at the China Institute of Boundary and Ocean Studies (CIBOS) and Research Institute of Environmental Law (RIEL) of Wuhan University. He can be contacted at ottospijkers@whu.edu.cn.

On the 6^th of June 2016, the Republic of Chile (‘Chile’) initiated a case against the Plurinational State of Bolivia (‘Bolivia’), before the International Court of Justice (‘Court’ or ‘ICJ’), requesting the Court to confirm that the use of the Silala is governed by general principles of international water law, as developed in customary international law and partly codified in the Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention). This convention was opened for signature on 21 May 1997 and entered into force 17 August 2014. It currently has 37 Parties, not including either Bolivia or Chile.

Provided the Court accepts – in this currently pending litigation where oral hearings are taking place at the time this post was written, i.e. April of 2022 – that the use of the Silala is indeed governed by these general principles of customary international water law, then Chile requests the Court to confirm that it has been acting in compliance with these general principles, but that Bolivia has acted in breach of them. The most important substantive principles of international water law are firstly the principle of equitable and reasonable utilization and secondly the obligation not to cause significant transboundary harm. These substantive principles are complemented by procedural principles that all have something to do with transboundary cooperation – such as the duty to consult, inform, and share information.

The dispute currently pending before the ICJ is framed as a dispute between two neighbouring states: Chile and Bolivia. This is because the Court’s contentious jurisdiction is limited to deciding disputes of a legal nature between states, in accordance with international law. These proceedings at the ICJ thereby only reinforce the impression that this is a classic inter-state controversy. In this inter-state frame, the rights of individual people in the governance of the Silala do not receive the attention they deserve.

One might point out that rights and interests of people living close to the Silala waters are best regulated and adjudicated at the national level, and that they are beyond the reach of international law. However, the proper use and management of the Silala, no matter how tiny the Silala might be, does concern people residing on both sides of the border, and these people relate to each other in various transboundary ways. It therefore cannot be left to the Chilean and Bolivian jurisdictions, operating in isolation, to accommodate these local rights and interests, and settle these local controversies. No matter the outcome of the inter-state dispute before the ICJ, this blog post calls for a recognition by the two states of the participatory rights in the governance of the Silala enjoyed by local individuals.

The key question I wish to address in what follows is whether a right for local individuals to participate in the freshwater governance of the Silala can be derived from international human rights law, the human right to water in particular.

The human right to water is not explicitly mentioned in any of the international human rights covenants, may nevertheless be derived inter alia from the human right to an adequate standard of living, included in Article 11.1 of the International Covenant on Economic, Social and Cultural Rights. Chile ratified this treaty in 1972 – even before its entry into force; while Bolivia acceded to it in 1982 – shortly after, making them both parties to the treaty. In its General Comment No. 15 on the Right to Water of 20 January 2003 (page 2, paragraph 3). the Committee on Economic, Social and Cultural Rights (‘Committee’) confirmed that the right to water can be based on established human rights, most importantly the human right to an adequate standard of living.

Under the international human right to water, individuals are entitled to participate in decision-making processes relating to freshwater resources they rely on to enjoy that right. General Comment 15 contains quite detailed instructions on participatory rights in relation to the human right to water. In the view of the Committee,

The formulation and implementation of national water strategies and plans of action should respect, inter alia, the principles of non-discrimination and people’s participation. The right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral part of any policy, program or strategy concerning water. Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties.

In the view of the Committee, everyone within the jurisdiction of the state, without discrimination based on nationality, has the “right to seek, receive and impart information concerning water issues” (12(c)(iv)).

This raises the question of which individuals fall within the jurisdiction of Chile and/or Bolivia. All individuals situated within the territory of a state automatically fall within that state’s jurisdiction, but some human rights can also apply extraterritorially, under certain conditions. To answer the question of whether Boliva must respect the participatory rights of people residing in Chile, and vice versa, it needs to be established that the human right to water applies extraterritorially, and what that means exactly. In other words, does a state have an obligation to secure the enjoyment of the right to water by persons residing outside its territory, but within its jurisdiction and control? And if so, which local actors fall in casu within the jurisdiction and control of which State? And what kind of participatory rights do these extraterritorial actors enjoy?

It can be argued that Bolivia is obliged, inter alia, to allow the people in the Chilean communities of Baquedano and Sierra Gorda access to the Silala waters, and to allow them meaningful participation in the development of any plans regarding the exploitation and management of these waters. In fact, based on the extraterritorial application of the human right to water, Bolivia might even be under an obligation to maintain and repair the canals in the Silala as far as they are situated within Bolivia, at its own cost, for the benefit of these Chileans who are owed access to the waters.

All this is based on the extraterritorial application of the internationally recognized human right to water. In 2017, Roberta Greco suggested that:

[…] due to the external dimension of the human right to water, States should be prevented from adopting measures that can impair the enjoyment of adequate level of water for human and domestic consumption in other countries.

In casu, this meant the following:

A unilateral diversion of the [Silala] river by Bolivia which prevented the Chilean population from enjoying the right to water would run counter to the negative obligation to respect, that is to say to refrain from actively jeopardizing the enjoyment of the right to water abroad.

The extraterritorial application of the human right to water is supported by General Comment No. 15 of the Committee, already referred to above. Under the heading of ‘international obligations’, the Committee proclaimed the following:

To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction.

From the above, we can conclude that both Chile and Bolivia are under an obligation to provide individuals, including those situated on the other side of the border but within their jurisdiction and control, the opportunity to participate meaningfully in decision-making processes that potentially affect the enjoyment of their human right to water.

In 2011, the Special Rapporteur on the human right to water, Catarina de Albuquerque, further elaborated on the participatory aspect of the right to water. In her view,

Participation must be active, free, and meaningful. It must go beyond mere information-sharing and superficial consultation, and involve people in decision-making, providing real opportunities to influence the planning process. The organization of a truly participatory process is challenging. Different mechanisms and approaches will be required, including consultations with various stakeholders, public meetings, and hearings as well as the opportunity to submit written comments and feedback (paragraph 69).

Meaningful participation of local actors in the governance of the Silala thus requires that their participation be not merely ‘tolerated’ only to give the appearance that the two states are interested in what local actors have to say. Meaningful participation can indeed be ‘challenging’, as Catarina de Albuquerque noted. It requires that local actors can participate, even if their participation leads to complications, frustrations, and delays. In other words, their participation should be considered inherently valuable, not of instrumental value. Importantly, this right to meaningful participation is not restricted to stakeholders found within a jurisdiction; it also provides extraterritorial stakeholders – i.e., those situated in a neighbouring jurisdiction – with participatory rights.

The Use of Digital Open-Source Information as Evidence in Human Rights Adjudication: A Reality-Check

February 15, 2022Posted in International Law and TechnologyTagged adjudication, Human Rights, technologyLeave a comment

[Ruwadzano Patience Makumbe is a doctoral researcher under the ERC funded project DISSECT: Evidence in International Human Rights Adjudication at the Human Rights Centre, Ghent University in Belgium.]

User-generated content, such as social media material posted on Facebook, Twitter and Facebook, has arguably become the most depended on source of information by society including the media and civil society for developments on human rights violations. Content posted by witnesses, victims, perpetrators and independent civil society groups provides relatively comprehensive accounts of events. For instance, Syrian opposition activists provided information on the conflict which has been a useful basis for various actors to act upon. It has been pointed out that more hours of video footage now exist of the Syrian conflict than the actual length in hours of the conflict itself. There is also a surging interest by practitioners, lawyers and legal scholars on how digital open source information can be utilized as evidence that meets standards accepted in courts. How digital open source information and investigations has triggered an immense shift in international justice and accountability is receiving so much scholarly and practitioner attention particularly the complexities around using this type of information as evidence in international courts. This blog post contributes to this discussion by highlighting some of the key challenges inhibiting the harnessing of digital open source information as evidence and proposes solutions to address these challenges.

Globally, courts are progressively transitioning to the new machineries proffered by digital technologies and adapting the manner in which law is practiced. Forensic evidence such as finger prints or DNA evidence has for long been used as evidence unlike digital open source evidence. With regards to digital open source evidence such as electronic images, video footage and satellite imagery, its use is still maturing particularly so in human rights related cases. In recent years, there has been changes in the evidential system and digital open source evidence is being used in human rights violations related prosecutions before the International Criminal Court (ICC) and in Europe particularly in Germany, the Netherlands, Sweden and Finland where universal jurisdiction prosecutions of (often) asylum seekers from Syria and Iraq who are identified as alleged perpetrators of international crimes are investigated and prosecuted. Despite the increase in the production of digital open source information, it is not yet commonly used as evidence in courts. However, this is set to shift with the increasing quantities of digital information being gathered by human rights practitioners, lawyers, victims and witnesses that is useful to cases and its widespread availability and accessibility.

The lack of clarity on the use of digital open source information presents challenges and questions to lawyers and human rights practitioners who may potentially want to present it before courts as evidence. This is largely due to it being less tested in human rights courts and also its inherent relatively flawed characteristics. Potential hinderances to harnessing digital open source information as evidence are also experienced by open source investigators and judicial officers. This post highlights three key challenges;

First, digital information is inherently instable. This poses a significant difficulty to ensure that the material can be relied on for evidence, proof and truth in court proceedings. That digital information is generally susceptible to be manipulated is well-documented here, with this danger also having been discussed specifically in relation to international criminal investigations here and its vulnerabilities and mitigation strategies here. Concerns have been raised as to the appropriateness of relying on material that is impermanent, can be easily manipulated and is vulnerable to attack from misinformation and disinformation campaigns. This is even more worrying with tools such as deep fake technologies constantly being improved such that it is difficult to tell when a piece of digital information such as a video has been manipulated. The perceived credibility deficit from which digital information suffers thus is met with a bias position which requires much more efficient authentication and verification mechanisms that can reverse this bias.

Second, digital open source information may vanish in that it is often/always at risk of being taken down by third party companies particularly those that run online social media platforms like Facebook, Twitter and Youtube. Content is usually taken down because it incites or promotes violence. A video containing hate speech or an extra-judicial killing is for example generally considered as restricted material by the third party entities who remove content from their platforms in order to protect their user community against being subjected to harmful content. It is possible, however that this material would have been very precious to victim representatives/human rights lawyers to prove what happened and corroborates or substantiates further the accounts of victims and witnesses.

Once deleted the material is no longer available to the public. Although it is usually retained by the social media company, it is not archived within a system that allows relevant authorities or institutions to access it as part of online investigations. Facebook even tried to fight the application for discovery which the Gambia had filed in June 2020 with the U.S. District Court for the District of Columbia in order to compel it to provide information related to the personal Facebook accounts of Myanmar officials who allegedly had perpetrated human rights violations against the Rohingya. Facebook had argued that complying with the request would violate the Stored Communications Act (SCA) (28 USC §2702) which restricts entities that provide an electronic communication service to the public from sharing the information. However, the Court disagreed and granted the application. Highlighting that only permanently removed content may be divulged, it noted that failure to produce the requested information “would compound the tragedy that has befallen the Rohingya”, thereby recognising and prioritising the need for accountability for international human rights violations. However, a sustainable measure has to be designed to address the uncertainty caused by takedowns while enhancing the already existing responsibility of social media platforms to moderate the information posted on their platforms.

Third, the use of digital open-source information as evidence in human rights courts has not yet been tested so that it remains to be seen how these courts will approach this type of evidence. As digital open source information is increasingly becoming useful in human rights work, more cases will inevitably be developed with digital open-source evidence as primary evidence. This in particular applies to regional human rights courts where the use of digital open-source information as key evidence is still in the early stages. Additionally, unlike in international and domestic criminal courts, human rights courts apply complex and varied evidentiary rules and are not distinctively designed to conduct fact-finding thus they are not equipped with forensic specialists who may be useful in processing digital open source evidence. Nevertheless, testing its use will allow for an understanding of key issues attached to digital open source evidence including proving its credibility, how the metadata and source information should be presented to the court and a consideration of the sufficiency and detail required to adequately ensure that the evidence is considered as admissible and credible by the courts.

The challenges discussed are complex and require multi-stakeholder responses designed to withstand temporality as technology is advancing rapidly. Essentially, the inherent instability of digital information is a key issue that is difficult to address particularly because digital open source information is often user-generated and thus at the risk of manipulation. Online open source investigators have the task to continually keep up with misinformation, disinformation campaigns and deep fake technologies by developing verification and authentication tools as well as archival techniques to preserve digital information. They also require financial resources to adequately meet the changing technological tools. Further, it may be difficult to regulate takedowns but laws that address what social media companies do after takedowns will be useful in a digital landscape. This law can ensure that relevant content removed on social media platforms is archived in such a manner that it is shareable with authorities and credible institutions involved in accountability efforts. The lessons learnt in international and domestic criminal prosecutions are certainly useful in human rights courts and practice. However, the practices cannot necessarily be duplicated as the systems in place for criminal courts are different for human rights courts. This includes the lack of specialised investigative and fact-finding mechanisms in human rights courts. Human rights courts and lawyers have the opportunity to design a working mechanism to deal with the use of digital open source evidence which includes identifying key evidentiary considerations that will be useful in assessing the admissibility, credibility and probative value of digital open source evidence.

Conclusion

Digital open source information will increasingly become important evidence in court proceedings. International justice institutions including both domestic and international courts should be prepared to handle the upsurge in cases that are built on digital open source evidence. Actors involved in justice processes have the opportunity to contribute to the use of digital open source evidence by ensuring that approaches that are designed are responsive and adaptive to the changing landscape prompted by the digital age.

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.