Access to water in Donbass and Crimea: Attacks against water infrastructures and the blockade of the North Crimea Canal
| Author | Sondra Faccio,Marco Pertile |
| DOI | http://doi.org/10.1111/reel.12316 |
| Date | 01 April 2020 |
| Published date | 01 April 2020 |
56
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RECIEL. 2020;29:56–66.wileyonlinelibrary.com/journal/reel
1 | INTRODUCTION
The events lead ing to the Russian annex ation of Crimea origi nated
from the ‘Europ ean movement’ protest s of late 2013. The movement
asked for closer coo peration with the Eu ropean Union, whi ch the
Ukrainian president prevented. Protests turned into revolution and
led to the overth row of the government in Feb ruary 2014. Meanwhil e,
a pro-Russia moveme nt took power in Crimea , backed by the pres-
ence of Russian troo ps that soon after the overth row of the govern-
ment had moved into th e region. On 11 March 2014, a ‘Declar ation of
independen ce of the Republic of Crimea’ was ado pted, followed by a
referendum.1 The majority of Cr imeans voted to join the Ru ssian
Federation, w hile Russian troops kept watch. O n 17 March 2014, the
Republic of Crimea declared its independence from Ukraine and sub-
mitted a formal r equest to the Russian government to b e integrated
into Russia. The day af ter, the Autonomous Rep ublic of Crimea and
the City of Sevas topol were annexed by the Rus sian Federation.2
It is by now widely acce pted that such events amou nt to a forc-
ible annexation prohibited by international law.3 In 2014 and in
2016, the United Nati ons General Assembl y (UNGA) adopted res-
olutions aff irming its commit ment to Ukraine’s sovereig nty and
territorial int egrity, underscoring the inval idity of the referendum
and condemning t he occupation of Crim ea by the Russian
Federation.4 In 2017, the International Crimin al Court (ICC) quali-
fied the situat ion within the territor y of Crimea and Sevastopol as
an international armed conflict.5 More recently, the same le gal ar-
1 ‘Statemen t of the Ministr y of Foreign Affa irs of Ukraine’ (11 Mar ch 2014)
gov.ua/en/press-cente r/news/19328-zajava-minis terst va-zakor donnih-sprav-ukrajini>.
2 For an overvi ew of the events, se e N Tünde and C Maria n, ‘The War Whic h Brings in the
Cold – Ukrain e and Crimea – Mas kirovka and Dis informatsia’ (2 014) 2 Research and
Science Today Sup plement 87; P Dumbe rry, ‘Requiem f or Crimea: Why Tribu nals Should
Have Decline d Jurisdicti on over the Claims of U krainian Inve stors agains t Russian under
the Ukrain e–Russia BIT’ (2018 ) 9 Journal of Inter national Disp ute Settleme nt 506,
507–508; J Bering, ‘ The Prohibiti on on Annexatio n: Lessons from C rimea’ (2017) 49 New
York Universit y Journal of Inte rnational La w and Politics 748 , 755–756.
3 Bering (n 2) 755–756, 768; Dumb erry (n 2) 511; M Arcari, ‘ Violazione d el Divieto di Uso
della Forza , Aggressio ne o Attacco Arm ato in Relazione a ll’Interve nto Militare de lla
Russia in Crim ea?’ (2014) 2 Diritt i Umani e Diritt o Internaziona le 476; A Tancredi, ‘The
Russian Anne xation of the Cri mea: Questio ns Relating to the U se of Force’ (2014)
Questions of Int ernational Law 5.
4 UNGA ‘Territo rial Integrit y of Ukraine’ UN D oc A/RES/68/262 (27 March 2 014); UNGA
‘Situatio n of Human Rights i n the Autonomou s Republic of Cri mea and the Cit y of
Sevastopo l (Ukraine)’ UN D oc A/RES/71/205 (19 Dec ember 2016); Nort h Atlantic
Council, ‘S tatement by the N orth Atlanti c Council on the So -called Refer endum in
Crimea’ (17 March 2014) ://www.nato.int/cps/en/natoh q/news_108030.
htm?selec tedLo cale=en>; Org anization for S ecurity and Co -operation i n Europe (OSCE)
Parliamen tary Assem bly, ‘Resolutio n on Clear, Gross and U ncorrected V iolations of
Helsinki Pr inciples by the Ru ssian Federat ion’ (2014)
ngs/annual-sessi ons/2014-baku-annual-sessi on/2014-baku-final-decla ratio n/1850-06>.
5 Internatio nal Criminal Co urt (ICC), ‘Rep ort on Prelimi nary Exami nation Activi ties 2017’
(4 December 20 17) 88 Docum ents/2017-PE-rep/2017-
otp-rep-PE_ENG.pdf>.
DOI: 10 .1111/reel .12316
SPECIAL ISSUE ARTICLE
Access to water in Donbass and Crimea: Attacks against water
infrastructures and the blockade of the North Crimea Canal
Marco Pertile | Sondra Faccio
© 2019 John Wiley & Sons Ltd, 9600 Garsi ngton Road, Oxford OX4 2DQ, UK and 350 Main Stre et, Malden, MA 02148, USA.
Correspondence
Email: marco.pertile@unitn.it This article analyses two situations currently endangering water security in Donbass
and Crimea, highlighting the international law obligations of the actors involved. First,
the article analyses the ongoing armed conflict in Donbass, exploring what responsibili-
ties may be envisaged under the applicable rules of international humanitarian law and
international criminal law for the actors involved in the continuous attack and damaging
of water facilities. Second, the article focuses on the legality of Ukraine’s decision to
block the North Crimea Canal, thereby stopping the flow of water towards the occu-
pied territory of Crimea. The question is whether this action can be qualified as a lawful
sovereign decision or whether there are international rules limiting Ukraine’s discretion.
The article analyses the legal obligations of both Ukraine and the Russian Federation
under general international law, international humanitarian law and human rights law.
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PERTILE and FaCCIO
guments have been employe d by a World Trade Orga nization
(WTO) pa nel called in a case invol ving transit r estrictions a pplied
by Russia vis-à-vis Ukraine.6
It is also known that , while Russia took cont rol of Crimea, the
situation in the Donetsk an d Luhansk regions (Donba ss), along t he
border betwe en Ukraine and Russi a, deteriorated. Ru ssian-backed
separatist s progressively took control of th e region and engaged in
guerrilla war w ith the Ukrainian mi litary. It has been rep orted that
since the beginn ing of the conflict in mid-Apri l 2014 ‘at least 10,090
people, inclu ding 2,777 civilian s, have been killed, an d at least
23,966 injured’.7
What is perh aps le ss well known i s that si nce th e Russi an occu -
pation of Crimea a nd the eruption of civil war in Do nbass, serious
deterioratio n of the water and sanit ation services in t hese areas
has been repor ted, with massive re percussions on publ ic health,
agriculture an d more broadly on the econ omic development of the
region.8 In Donbass, w ater facilities located al ong the contact line
have become a const ant shelling target by Stat e armies and armed
groups, leavin g 3.4 million people in need of sus tainable access to
drinking water.9 In Crimea, Ukraine’s bloc kade of the North Cr imea
Canal (the Can al) plunged the regio n into chronic water
shortage.10
Against this background, the present article will discuss sit-
uations current ly endangering wate r security in Don bass and
Crimea, highl ighting the internat ional law obligations of t he ac-
tors involved. Fir st, the artic le will analyse the on going armed
conflict in Donbass, exploring what (criminal) responsibilities may
be envisaged for t he actors involved in th e continuous attack a nd
damaging of water f acilities. Considering the i nvolvement in the
conflict of both St ate and non-State actor s, the article wi ll take
into account both th e perspective s of non-international a nd in-
ternational ar med conflicts in the ide ntification of the appli cable
rules of international humanitar ian law (IHL) and internatio nal
crimi nal law (IC L). Secon d, the ar ticle wi ll focus o n the lega lity of
Ukraine’s decisio n to block the Canal thereby stop ping the flow
of water towards the o ccupied territory of Crim ea. The question
is whether this a ction can be quali fied as a lawful sovere ign de-
cision or whether there are international rules limiting Ukraine’s
discretion. We will discuss the re levant legal arguments starting
from the assumpt ion that the occupati on of Crimea is unlawf ul
and investigat ing the legal obligat ions of both Ukraine a nd the
Russian Federation under general international law, IHL and
human rights law (HRL). Specific attention will be paid to the
possible quali fication of the blockade as co untermeasure.
2 | ATTACKS AND DAMAGE S TO WATER
INFRASTRUCT URES IN D ONBASS:
A TENTATIVE ASS ESSMENT OF THE
RELEVANT CONDUCTS
2.1 | Factual background
In parallel wit h the 2014 referendum and subsequ ent occupation
of Crimea by Russia, i n the Donbass region p ro-Russia protest s
escalated into a n armed conflict bet ween the self-proclai med
Donetsk and Luhansk Pe ople’s Republics and the Ukrai nian gov-
ernment.11 In 2015, two agreeme nts stipulated in M insk at-
tempted to esta blish a ceasefire in th e area, but hostili ties have
continued until t oday with serious imp lications for the s tandard
of living of the popu lation.12 Hundreds of civilian o bjects, includ-
ing water infras tructures, have been d estroyed or damaged since
the inception of t he hostilities, la rgely by shelling, on both sides
of the contact line, dividing government-controlled territory and
areas controlled by armed groups.13 For example, it has been re-
ported t hat shelling by ar med groups in th e Luhansk region d am-
aged the Svitlychn e water plant located u nder the Ukrainia n
government’s cont rol. The water plant was oc cupied by Ukrainian
armed forces, which increased the likelihood of the plant being
made a target for s helling. Shelling i ncidents, appa rently involv-
ing both Ukrain e’s armed forces and rebe ls, have also affec ted
facilities lo cated in non-government-contr olled areas, such as the
village of Alchevs . Moreover, in many cases cont inuous fighting
in the proximit y of water infrastru ctures has prevente d their
6 WTO, Russia – Mea sures Concer ning Traffic in Transi t, Panel Repor t (5 April 2019) para
7.1.2.2.
7 United Natio ns (UN) Office of t he High Commiss ioner on Human R ights, ‘Confl ict in
Ukraine Ente rs its Fourt h Year with No End in Sigh t – UN Report’ (13 Ju ne 2017)
://www.ohchr.org/EN/NewsE vents/ Pages/ Displ ayNews.aspx?NewsI D=21730 >; S
Walker, O Gryt senko and H Amos , ‘Ukraine: Pro -Russia Separ atists Set for V ictory in
Eastern Reg ion Referendum’ ( The Guardia n, 12 May 2014); ‘State ment of the Minis try of
Foreign Aff airs of Ukraine o n So-called “O bservers” at P seudo “Elec tions” in Cert ain
District s of Donbas Regio n’ (2 November 2014) : //mfa.gov.ua/en/press-cent e r/
comme nts/2458-zajava-mzs-ukraj ini-shhodo-tak-zva nih-spost eriga chiv-na-psevd ovibo
rah-na-donbasi>.
8 OSCE Special M onitoring Mis sion to Ukraine , ‘Access to Water in Conf lict-affected
Areas of Done tsk and Luhans k Regions’ (Septe mber 2015) (OSCE Re port).
9 Under-Secret ary-Gener al for Humanita rian Affair s and Emergenc y Relief Coordin ator,
Stephen O’B rien, ‘Statem ent on Ukraine ’ (12 June 2017)
s i t e s / un o c h a / f i l e s / s t a t e me n t - a n d - sp e ec h / U S G - E R C % 2 0 O Br i e n % 2 0 s t a te m e n t % 2 0
on%20Ukr aine.pdf>; UN Secu rity Counci l (UNSC) ‘8461st M eeting’ UN Do c S/PV.8461
(2019); ‘Interv ention by Y Klyme nko, Permanent R epresentat ive of Ukraine at th e a.i. 3
of the 39th HRC se ssion (ID with Sp ecial Rappor teur on the hum an rights to safe d rinking
water and san itation)’ (10 Septe mber 2018) gover nment.ru/en/news/11368/ >.
on/head/speec hes/6368-vistup-postp reda-ukraj ini-jukli menka-u-khodi-inter aktiv
nogo-dialo gu-zi-specd opovi dachem-shho do-prava-na-bezpe chnu-pitnu-vodu-ta-sanit
ariju-p-3-p orya dku-denno go-39-ji-sesij i-rpl>; Internatio nal Committe e of the Red Cross
(ICRC), ‘Mor e than 350,00 0 People Face Acut e Water Shortag e in Eastern Ukr aine’ (12
June 2017) ://www.icrc.org/en/docum ent/more-350000-people-face-acute-wa-
ter-short age-easte rn-ukraine>.
10 ‘Governme nt Meeting on Sup porting the S ocioeconomi c Development of C rimea and
Sevastopo l’ (24 March 2014) >; ‘Gover nment
Meeting: So cioeconomic D evelopment of C rimea and Sevas topol’ (31 March 2 014)
11 Walker et al (n 7); St atement of the Mi nistry of Fore ign Affairs of Uk raine (n 7).
12 UNSC ‘Resolu tion 2202 (2015)’ U N Doc S/RES/2202 (17 Febr uary 2015); Eur opean
Parliamen t, ‘A UN Peacekeepin g Mission in East ern Ukraine?’ ( March 2014)
www.europ arl.europa.eu/RegDa ta/etude s/ATAG/2018/61473 7/EPRS_
ATA(2018)614737_EN.pdf>; K Pishchi kova, ‘Russia in th e Donbas: Not Up fo r
Compromis e’ (9 March 2018) ://www. ispio nline.it/it/pubbl icazi one/russia-d on-
bas-not-compr omise-19821 >.
13 OSCE Report ( n 8) 8.
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PERTILE and FaCCIO
manning and repairs.14 Finally, the prese nce of armed groups,
landmines or un exploded ordnan ce on both sides of the cont act
line has hampere d residents from accessing w ells or from receiv-
ing water supply by t rucks.15 The acute wate r shortage deter-
mined by the above sit uation has been repeatedly d enounced by
Ukraine as well as by a n umber of international or ganizations and
agencies.16 Most recently, UNICEF has repo rted that ‘[the] esca-
lation in fightin g is threatening acces s to safe water and sanit a-
tion for 3.2 mill ion people, including 50 0,000 children, as w ell as
the safety of wor kers risking the ir lives to repair damaged infra-
structur e in Eastern Ukraine’.17
As will be discus sed further be low, the conflict in Donb ass
opposes Ukra inian armed forces ag ainst non-State acto rs, that
is, anti-government armed groups, with evidence pointing to-
wards some form of i nvolvement of the Russian a rmy. Some in-
formation, in f act, seems to suggest th at the Russian Federation
has been exercisi ng at least a form of overall control ove r armed
groups in easter n Ukraine and that t he Russian army has even
taken direct p art in the fightin g.18 The ascertainment of these
circumstan ces might clearly have an impact on t he qualification
of the conflict (a non -international armed confl ict, a single inter-
national armed conflict or two parallel international and non-in-
ternational ar med conflicts) and on the a pplicable law in relation
to the above conduc ts impairing water supp ly. Given the current
uncertaint ies on the factua l situation, however, the aut hors do
not deem it possib le to take a position here on the nat ure of the
conflict and th ey will accordingly cons ider in the following s ec-
tions all possib le alternative classif ications of the arm ed con-
flict(s) in Donbass and related applicable IHL and ICL
provisions.
2.2 | A legal assess ment of the attacks and damages
to water infrastructures
It is evident that , prima facie, the above conduct s call into question
core pr inciples a nd norms of IH L such as: the principle of distinc tion
between civi lian objects and m ilitary objec tives; the princip le of
proportio nality; the prohibition of the u se of starvation as method
of warfare; an d the prohibition to atta ck, destroy, remove or render
useless objec ts indispensa ble to the surviva l of the population,
comprising water i nfrastructu res. As has been sa id, however, the
qualificati on of the situation in ter ms of non-internationa l or inter-
national arme d conflict has an impac t on the norms applic able to the
actors involve d. Unsurprisingly, the p rotection of water infr astruc-
tures is wider in in ternational armed conf licts. First of al l, the obliga-
tion to always dist inguish between ci vilian objects, to which water
infrastruc tures generall y belong, and milit ary objective s is clearly
spelt out by Ar ticle 52 of Protocol I Additio nal to the Geneva
Convention.19 Furthermore, Ar ticle 54(2) of Protocol I prohibit s to
‘attack, des troy, remove or render useless’ a numbe r of civilian ob-
jects inclu ding ‘drinking water ins tallation and sup plies and irriga-
tion works’.20 Article 54(3) fur ther specifies t hat even if such object s
are used ‘in direc t support of military ac tion … in no event shall ac-
tions … be taken whi ch may be expected to le ave the civilian popula-
tion with such ina dequate food or water as to c ause its starva tion or
force its movement’.21 Finally, Article 56(2) limit s attacks to dams or
dykes to cases wh en such objects ar e ‘used for other than [the ir]
normal functions and in regular, significant and direct support of
military op erations and if such att ack is the only feasible way to t er-
minate such support’.22 In international a rmed conflicts, these p ro-
tective norms c an also be read in light of the genera l protection of
the environmen t as provided by Artic les 35(3) and 55 of Protocol I.23
By contrast, the law applicable to non-international conflicts is less
detailed. While A rticles 14 and 15 of Protocol II Additi onal to the
Geneva Conventi on replicate the pro hibition of star vation and the
protection of wor ks and installat ions containing dan gerous forces,
both article s do not include the exceptio ns provided under Protoco l
I.24 The distinc tion between civilian o bjects and militar y objectives,
moreover, is not clearl y established by treat y law and its customary
14 ICRC (n 9).
15 OSCE Report (n 8 ) 6–11. The report provi des examples of w ater shorta ges in the
Donetsk an d Luhansk regio ns, including : (i) targeting o r collateral da mage of already
ageing water in stallation s; (ii) power shor tages impac ting the func tionality of t he water
pumps; (iii) a ccess issues du e to the presence of a rmed groups, l andmines or une xploded
ordnance; (i v) restricti ons limiting fr eedom of movemen t and supply of goo ds and water;
and (v) need for c hlorination p roducts.
16 See n 9 and OSCE Re port (n 8).
17 UNICEF, ‘Millio ns of People Risk B eing Cut Off fr om Safe Water as Host ilities Esca late
in Eastern Uk raine’ (4 July 2019) ://www.unicef.org /ukrai ne/press-relea ses/milli
ons-people-risk-being-cut-safe-water-hosti lities-escal ate-easte rn-ukraine>; OSCE
Report (n 8).
18 ICC, ‘Repor t on Prelimina ry Examinat ion Activiti es’ (5 December 2 018)
icc-cpi.int/items Docum ents/181205-rep-otp-PE-ENG.pdf> (ICC Report 2018) 73.
19 Protocol Add itional to the Ge neva Conventio ns of 12 August 1949 and re lating to the
Protectio n of Victims of Inte rnational Ar med Conflict s (adopted 8 June 197 7, entered
into force 7 Dece mber 1979) 1125 UNTS 3 (Prot ocol I) art 52.
20 ibid art 54( 2).
21 ibid art 54 (3).
22 ibid art 56(2) .
23 E Benvenisti , ‘Water, Right to, Inte rnational Pro tection’ in R Wolfr um (ed), Max Planc k
Encyclopaedia of Public International Law (Oxford University Press 2010) 24.
24 Protocol Add itional to the Ge neva Conventio ns of 12 August 1949 and Re lating to the
Protectio n of Victims of Non -internation al Armed Confli cts (adopted 1 2 December 1977,
entered into fo rce 7 December 1978) 1125 U NTS 609 (Protoc ol II) arts 14–15. For
example, Ar ticle 54(3) of P rotocol I (n 19) estab lishes that ‘[t]he p rohibitions in p aragraph
2 [attack, de stroy, remove or ren der useless ob jects indis pensable to the s urvival of th e
civilian pop ulation] shall n ot apply to such of th e objects cove red by it as are used by a n
adverse Par ty: (a) as suste nance solely fo r the members of i ts armed force s; or (b) if not
as sustenan ce, then in direc t support of mil itary acti on, provided, h owever, that in no
event shall ac tions against t hese object s be taken which m ay be expected t o leave the
civilian pop ulation with su ch inadequate f ood or water as to ca use its star vation or force
its movement ’; while artic le 14 of Protocol II onl y states that ‘[s]t arvation of civ ilians as a
method of comb at is prohibite d. It is therefore p rohibited to at tack, destr oy, remove or
render usel ess, for that pur pose, objec ts indispens able to the sur vival of the civil ian
populatio n, such as foodst uffs, agric ultural areas f or the produc tion of foodstu ffs, crops,
livestock , drinking wate r installatio ns and supplies a nd irrigatio n works.’ See also A rticle
56 of Protocol I an d Article 15 of Pro tocol II both tit led ‘Protect ion of Works and
Installations Containing Dangerous Forces’.
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nature is still de bated; the same holds tru e for the protection of the
environment.25
One should recall that the violation of the above IHL obligatio ns
might also entail the international criminal responsibility of the indi-
vidual perpe trators for war crim es under the Statute of t he
International Criminal Court (ICC).26 In 2013 and 2014, in fact,
Ukraine lodge d two declarations pu rsuant to Article 12(3) of t he ICC
Statute acceptin g the jurisdiction of the Cour t over crimes commit-
ted on its terri tory from 21 November 2013.27
The above conducts could thus be qualified as war crimes under
Article 8 of the ICC Statute. The intentional shelling of water facilities,
for instance – if the relevant intent were to be proved – could be qual-
ified as an attack against civilian objects under Article 8(2)(b)(i) and (ii)
of the Statute. Moreover, incidental damages to water facilities may
well fall within the war crime of excessive incidental damage to civilian
objects under Article 8(2)(b)(iv) of the Statute. The conduct of hostili-
ties in Donbass may also be judged under Article 8(2)(b)(xxv) that pun-
ishes the starvation of civilians as a method of warfare. This provision,
however, applies only in cases where there is evidence that starvation
is intentional and not merely a side effect of the perpetrator’s con-
ducts and so far there is no such evidence in relation to events taking
place in Donbass.28 All these provisions refer to conducts carried out
in the context of international armed conflicts.
In case of armed co nflicts not of an inter national charac ter, by
contrast, ref erence can merely b e made to Article 8 (2)(e)(i) of the ICC
Statute that conce rns the war crime of inte ntional attack ag ainst
civilians and es sentially reprodu ces the content of Art icle 8(2)(b)(i)
above.29
The above asymmetry between the legal framework regulating in-
ternational armed conflicts and non-international ones makes the
question of the qualification of the armed conflict(s) ongoing in the
eastern part of Ukraine crucial. In this regard, the Office of the
Prosecutor started a preliminary investigation on the hostilities in
Donbass, with special reference to the conduct of hostilities between
the governmental authorities of Ukraine and armed groups of the
Donetsk and Luhansk self-proclaimed republics, but also to the alleged
direct military engagement of Russian armed forces. The direct in-
volvement of Russia vis-à-vis Ukraine, in fact, ‘would suggest the exis-
tence of an international armed conflict … in parallel to the
non-international armed conflict’ involving Ukraine and rebel forces.30
The Office of the Prosecutor has also investigated ‘allegations that the
Russian Federation has exercised overall control over armed groups in
eastern Ukraine’, as this would entail ‘[t]he existence of a single inter-
national armed conflict’.31 The Office of the Prosecutor has not
reached any conclusion as to the nature of the armed conflict(s) in
eastern Ukraine yet and in its 2018 report it has ‘consider[ed] provi-
sions of the Rome Statute applicable in both international and non-in-
ternational armed conflict’.32
Finally, it is worth re calling that Ukraine, as the ter ritorial State
where the confli ct is taking place, rem ains bound by its human r ights
obligations re lated to access to water, mainly derived f rom the right
to an adequate st andard of living and t he right to health.33 T he
September 2015 re port of the OSCE Monitoring Missi on describes
the appalling condition of the civilian population with specific refer-
ence to access to water, but do es not shed light conclusively o n the
25 If from the per spective of IHL , the customa ry nature of the p rinciple of dis tinction
appears con solidated even i n non-internat ional armed conf licts, som e uncertaint ies still
emerge in the d ebate on the rele vant crimes und er ICL. As to IHL , see E David, Principes
de Droit des Con flits Armés ( Bruylant 20 08) 308: ‘[l]a rè gle [sur l’interd iction d’atta quer
des biens de ca ractère civi l] est coutumi ère et applicab le dans les confl its armés non
internatio naux’; GD Solis , The Law of Armed Co nflicts. Inte rnational Hum anitarian La w in
War (Cambri dge Universit y Press 2010) 254 (‘[d ]espite frequ ent disregard of t he concept
by insurgent s and other non-s tate actors , distinctio n is embedded in v irtually all a spects
of LOAC and IHL. It a pplies in all ty pes of conflict s, including g uerrilla war fare and
insurgencies’); Y Dinstein, Non-international Armed Conflicts in International Law
(Cambridg e University Pr ess 2014) 137. Also the edito rs of the ICRC Stud y on Customary
IHL have taken t he view that the ob jective dimen sion of the princ iple of distinc tion has
attained c ustomary st atus in non-inte rnational arm ed conflicts . See JM Hencka erts and
L Doswald-B eck, ‘Custom ary Internat ional Humanit arian Law. Volume I: R ules’
Internatio nal Committe e of the Red Cross (C ambridge Unive rsity Press 20 05) (ICRC
Study) Rule 7. As to ICL , see A Zimmerm ann and R Geiß, ‘Ar ticle 8 para 2 (c)–(f ) and para
3: War Crimes Co mmitted in an Ar med Conflict n ot of an Internati onal Charact er’ in O
Triffterer a nd K Ambos (eds), The R ome Statute of the Inte rnational Cr iminal Court : A
Commentary (Beck/Har t 2016) 918. According t o the authors, t he prohibiti on not to
direct att acks agains t civilian objec ts ‘is not refle cted in the par t on serious vio lations of
the laws and cus toms of war commi tted in interna l armed conflic t. This is mainl y due to
the fact tha t a provision simi lar in nature to ar ticle 52 para. 1 of Ad d. Prot. I is lacki ng in
Add. Prot. II a nd that accordin gly the custom ary law nature of s uch a prohibiti on in
internal arm ed conflict se emed to be doubt ful.’ But see M Both e, ‘War Crimes’ i n A
Cassese P Ga eta and JRWD Jon es (eds), The Rome Stat ute of the Internati onal Crimina l
Court: A Commentary (Volume i) (Oxf ord Universit y Press 2002) 379, 421. Acc ording to
Bothe, ‘the g eneral protec tion provide d by Article 13(1) an d (2) of Protocol II wo uld by
implicati on also cover the pr otection of civ ilian object s and the princi ple of proport ional-
ity which is in herent in the pr inciple of human ity’. As to the pro tection of the
environmen t, see ICRC Study, Ru les 43–45.
26 Rome Statute of t he Internatio nal Criminal Co urt (adopted 17 Ju ly 1998, entered int o
force 1 July 20 02) 2187 UNTS 3.
27 ICC, ‘Repor t on Prelimina ry Examinat ion Activiti es’ (14 November 2016)
www.icc-cpi .int/iccdo cs/otp/161114-otp-rep-pe_en g.pdf> (ICC Repo rt 2016) 147–149.
28 ICC, ‘Eleme nts of Crime’ (2011)
3 D 8 - A 6 A D - 4 0 E C - A D 7 B - 4 5 B F 9 DE 7 3 D 5 6 /0 / E l em e n t s O f C r i m e s E n g . p df > .
29 Zimmerman n and Geiß (n 25) 971. Acco rding to the auth ors, ‘[g]ive n that the war crim e
of intentiona lly directin g attacks aga inst civilian o bjects as it is la id out in articl e 8 para. 2
(b) (ii) as well as t he war crime of inte ntionally cau sing dispropo rtionate coll ateral
damage, as lai d out in article 8 p ara. 2 (b) (iv) of the S tatute, were de liberately om itted
from the cat alogue of war cri mes applicab le to non- interna tional armed co nflicts in
article 8 pa ra. 2 (e) of the Statut e, the crime cont ained in arti cle 8 para. 2 (e) (xii ) should
not be interpr eted to apply to th e conduct of hos tilities as suc h’, but may apply only i f ‘at
least a minim um degree of de fac to territoria l control’ is pre sent.
30 ICC Report 2016 (n 27 ) 168–169. As to the involvement of Ru ssian forces, se e also:
UNSC, ‘Se nior Officia ls Urge Steps to Make E astern Ukrai ne Ceasefire Ir reversible,
Telling Securi ty Council Min sk Accords Remain L argely Unimp lemented’ (12 Feb ruary
2019) 98.doc .htm>; S Fischer, ‘Not Fr ozen!
The Unresol ved Conflict s over Transnistri a, Abkhazia, S outh Ossetia a nd Nagorno-
Karabakh i n Light of the Crisi s over Ukraine’ (G erman Instit ute for Internat ional and
Security A ffairs 2016) ://ww w.ssoar.info/ssoar/ handl e/docum ent/48891 > 9.
31 ICC Report 20 16 (n 27) 170; ICC Report 2 018 (n 18) 73; Prosecutor v. Dusko Tad ic aka
‘Dule’, Decisi on on the Defence M otion for Inter locutory Ap peal on Jurisdi ction (2
October 1995) 70.
32 ICC Report 2018 ( n 18) 73.
33 Internation al Covenant on Econ omic Social an d Cultural Righ ts (adopted 16 Dec ember
1966, entered int o force 3 Januar y 1976) 993 UNTS 3 (ICESCR). U kraine ratif ied the
ICESCR in 1973. In it s General Co mment 15, the Com mittee on Econo mic, Social an d
Cultural Ri ghts determi ned that the righ t to water ‘falls w ithin the catego ry of
guarantee s essential for s ecuring an ade quate standa rd of living … is also in extricab ly
related to the r ight to the highe st attainabl e standard of he alth (art 12, pa ra 1) and the
rights to ade quate housing a nd adequate foo d (art 11, para 1) [and it] s hould also be se en
in conjunct ion with other ri ghts enshrin ed in the Interna tional Bill of Hum an Rights,
foremost am ongst them th e right to life and hu man dignity’. Se e UN Economic and S ocial
Council, Co mmittee on Econ omic, Social a nd Cultural Rig hts ‘Genera l Comment No 15
(2002), The R ight to Water (Ar ts. 11 and 12 of the Int ernational Cov enant on Economi c,
Social and Cu ltural Right s)’ UN Doc E/C.12/20 02/11 (20 January 2 003).
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PERTILE and FaCCIO
violation of the r ules.34 In particula r, one may wonder to what extent
a State whose terr itory is ravaged by a high-inten sity conflict can be
bound by positive o bligations to provide acce ss to water to its popu-
lation. As we sha ll see in the ensuing sect ion with respect to Cr imea,
this is especial ly true when the confli ct puts into quest ion the State's
territorial con trol thereby creating situati ons of material impossibil-
ity to interve ne in some regions.
3 | ACCESS TO WATER IN OCCUPIED
TERRITORIES: ASSESSING THE LEGALITY
OF THE BLOCKADE OF THE C ANAL
3.1 | Factual background
In the aftermat h of the Russian intervention in Cri mea, Ukraine took
temporar y measures to interrupt the flow of t he North Crimea Canal
and in 2015 allocate d money for a permanent d am on the Canal.35 The
Canal, which is f ed by the river Dniepr, an inte rnational river who se
source is in centra l Russia, was built by the S oviet Union during the
1960s–1970s to secure water supply to Crime a. Water supply security
was also one of the mai n reasons that deter mined the transfe r of
Crimea to Ukrai ne from Russia in 1954. The Can al used to supply
Crimea with up to 3 b illion cubic metres of water a year, equi valent to
85 percent of Crimea’s drinking and i rrigation water.36 Its blockade
plunged Crime a into chronic water shortage a nd gave rise to protests
from Russia. It has b een reported that the interr uption of the flow of
the water from th e Canal had ‘nearly elimi nated agriculture in Crim ea’,
where the amou nt of irrigated land fell a lmost 30-fold fro m almost
400,000 hectares.37 Au sein of the d ebate at the United Nations (UN)
Security Council, the Russian representative observed:
Such activities undertaken by the Ukrainian authorities
undermine hum an rights and a whole sle w of interna-
tional humanita rian norms, in par ticular the right to
fresh water and sanita tion and the right to food, as wel l
as the relevant resolu tions of the Security Cou ncil on
human rights, l et alone article 25 of the Un iversal
Declaration of Hum an Rights, and art icle 11 of the
International Covenant on Economic, Social and
Cultural Rights.38
The Ukrainian representative objected to the argument, highlight-
ing the ‘inabilit y of the Russian occupation autho rities to address the
essential nee ds of the local population’ and ad ded that Russia should
‘start by endi ng the diversion of sca rce water resources in Crimea to
feed the needs of t he growing military inf rastructure and mil itary per-
sonnel’ and sh ould ‘start the pr ocess of deoccupying [sic] th e
Autonomous Rep ublic of Crimea and th e city of Sevastopol , thereby
contributing … to a ddressing the issue of wate r availability’.39
As has been ment ioned in the introduc tion, the territoria l situation
of Crimea can be q ualified as that of a territor y occupied as a result of
the unlawful u se of force by Russia. From this p erspective, th e legal
argument offe red by Ukraine to just ify the blockad e of the Canal is
straightfo rward and revolves around the a bsence of title to territory:
the only realis tic solution to the hydri c crisis in Crimea would b e first of
all the ‘de-occupat ion’ of the territory. This reasoni ng is centred upon
the illegalit y of Russia’s physical control over Crimea u nder the ius ad
bellum and would seem to imp ly three crucial assumpti ons: (i) that the
presence of Russia n authorities in Cri mea is unlawful and th at it should
be reversed in ord er for the problems of access to w ater to be tackled
by the lawful sove reign; (ii) that pending th e occupation, the legal o bli-
gations related to a ccess to water in Crimea are incum bent on Russia;
and (iii) that Ukr aine has no legal obli gations to provide wate r to the
territory un lawfully occupied. In the n ext subsections we will anal yse
each of those assu mptions thereby asse ssing if the rationales for the
blockade of the C anal ‘hold water’.
3.2 | The unlawfuln ess of territorial control over
Crimea and its impac ts on the allocation of water
The first assumption could be elaborated as follows: since territorial
control has been acquired by Russia in breach of a peremptory norm
such as the prohibition of the use of force in international relations,40
such illegality cannot be cured and does not give rise to a lawful title
to territory.41 From this perspective, Russia is therefore under a legal
obligation to relinquish control over Crimea and only when the terri-
tory will be administered again by Ukraine the lawful sovereign will be
in a condition to fulfil its legal obligations related to access to water.
This legal argument, however, albeit tenable with reference to the ius
ad bellum, ignores that there are other legal regimes having an impact
on the allocation of water to the population of the occupied territory,
such as IHL and HRL, whose applicability is oblivious to the question
of the legality of territorial control. We will analyse the impact of such
bodies of rules on the obligations of the occupying power and of the
ousted sovereign in Sections 3.3 and 3.4, respectively. Before doing
so, it is important to specify that the unlawfulness of Russian
34 OSCE Report (n 8) .
35 Olena Makar enko (Euromeida npress), ‘Crim ea’s Growing Water P roblem Might
Provoke New Russ ian Attack Ag ainst Ukrain e’ (20 June 2018) ai dan press.
com/2018/06/20/crime as-growi ng-water-probl em-might-provo ke-new-russi
an-attack-again st-ukrai ne/>.
36 A Wilson and R Ba ri Urcosta, ‘C rimea: Russia’s Ne west Potemkin V illage’ (Europe an
Council on For eign Relations 3 0 April 2019) ://www.e cfr.eu/artic le/comme
ntary_crimea_russi as_newest_potem kin_village>.
37 ‘Dam Leaves Cr imea Populati on in Chronic Water S hortage’ (A l Jazeera, 3 Janu ary
2017); K Hille an d R Olearchyk, ‘C rimea Plunged i nto Blackout af ter Power Line Bla sts:
Reminder of Pe ninsula’s Heavy E conomic Relian ce on Ukraine af ter its Annexa tion by
Russia’ (Fina ncial Times, 2 2 November 2015); D B ond and R Olearc hyk, ‘Ukrain e: On the
Front Line of Euro pe’s Forgotten War ’ (Financial T imes, 6 Septem ber 2018).
38 UNSC ‘7818th Meet ing’ UN Doc S/PV.7818 (22 N ovember 2016) 22.
39 ibid 28.
40 A De Hoogh, ‘Jus Coge ns and the Use of Arm ed Force’ in M Weller (e d), The Oxford
Handbook on t he Use of Force in Inter national Law (O xford Univer sity Press 2015 ) 1161,
1162–1164.
41 On the prohi bition of conque st under inter national law, see , among many, S Korman ,
The Right of Con quest: The Acq uisition of Territo ry by Force in Inter national Law an d Practice
(Oxford Uni versity Pres s 1996).
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PERTILE and FaCCIO
territorial control over Crimea rules out the applicability of another
body of rules which could regulate the sharing of the waters of the
Canal: the law of international watercourses. If the Canal were quali-
fied as an international or transboundary watercourse, under the ap-
plicable treaty and customary law, Ukraine and Russia could be called
to share its waters in accordance with the principle of equitable and
reasonable sharing and the no-harm principle.42 Both countries have
ratified the UN Economic Commission for Europe Convention on the
Protection and Use of Transboundary Watercourses and International
Lakes,43 but are not parties to the subsequent UN Convention on the
Law of the Non-navigational Uses of International Watercourses.44 A
first element of uncertainty, however, lies in the fact that the applica-
bility of the law of international watercourses to artificial canals has
not been clearly established.45 In this regard, it is noteworthy that the
1994 International Law Commission (ILC) Commentaries to the Draft
Articles on the law of the non-navigational uses of international wa-
tercourses specify that ‘[t]he term “watercourse” is defined as a “sys-
tem of surface waters and groundwaters”’ further clarifying that ‘[t]he
phrase “groundwaters” refers to the hydrologic system composed of a
number of different components …’, including ‘rivers, lakes, aquifers,
glaciers, reservoirs and canals’.46 The 1994 Commentaries add that ‘[s]
o long as these components are interrelated with one another, they
form part of the watercourse’ and that in the text of the 1997 UN
Convention ‘[t]his idea is expressed in the phrase [of article 2(a)] “con-
stituting by virtue of their physical relationship a unitary whole”’.47 In
the case at hand, the fact that the Canal is fed by an international river
such as the river Dniepr would thus seem to justify the applicability of
the law of international watercourses. However, it is also worth recall-
ing that a subsequent passage of the Commentaries acknowledges
that ‘[c]ertain members of the Commission expressed doubts about
the inclusion of canals among the components of a watercourse be-
cause, in their view, the draft had been elaborated on the assumption
that a “watercourse” was a natural phenomenon’.48
Be that as it may, the fact remains that the unlawfulne ss of
Russian territorial control over Crimea reverberates itself on another
aspect of the qu alification of the Cana l, which in any case cannot b e
defined as a water course ‘parts of w hich are situated in dif ferent
States’.49 As a result, irre spectively of its potenti al qualification as a
‘watercourse’, the C anal is not international or ‘tr ansboundary ’ and
Ukraine has no ob ligations to share its wat ers under the law of inter-
national watercourses.50
3.3 | The obligations of the Russi an Federation
with respect to the provision of water to t he
occupied territory
With regard to the sec ond assumptio n, one should fi rst analys e the
rules of IHL related to the provisi on of water to an occupi ed territory.
In this respec t, if one takes the view th at Russia has acquired effe ctive
control over the for eign territory of Crimea in t he context of an inter-
national arme d conflict, then its posit ion can be equated to that of an
‘occupying power’ u nder Article 42 of the 1907 Hag ue Regulations
(HR).51 In such a c ase, a duty to ensure that the po pulation of the oc-
cupied territo ry has adequate access t o water will ensue under th e law
of occupation.52 The rel evant rules are chie fly Article 43 H R and Article
55 of the Fourth Geneva Convention (IV GC). 53 Article 43 HR, which is
probably the m ost important r ule of the law of occupation , sets out the
obligations of th e occupying power introducing t he need to adopt ‘all
the measures in h is power to restore and en sure, as far as possibl e,
public order an d life while respecti ng, unless absolute ly prevented, the
laws in force in the cou ntry’.54 It is clear therefore that t he occupying
power has a duty to ma ke the continuation of ordinary li fe in the oc-
cupied territo ry possible as long as thi s is feasible in a state of conflic t.
42 S McCaffr ey, The Law of International Watercourses (Oxford University Press 2019)
444–506.
43 Convention on t he Protection a nd Use of Transbound ary Watercour ses and
Internatio nal Lakes (adop ted 17 March 1992, enter ed into force 6 Oct ober 1996) 1936
UNTS 269 (UNECE Con vention).
44 Convention on th e Law of the Non-nav igational Use s of Internation al Watercourse s
(adopted 21 May 1997, enter ed into force 17 Augus t 2014) 36 ILM 700 (Wate rcourses
Convention).
45 The content of th e law applicab le to canalizat ion works is an obj ect of controver sy
between Bo livia and Chile i n the Silala case , currently pe nding before th e Internationa l
Court of Jus tice (ICJ). See I CJ, Dispute over th e Use and the Status o f the Waters of the
Silala (Chile v Bolivia) (Application i nstituting p roceedings) (6 Ju ne 2016)
icj-cij.org/files/ case-relat ed/162/162-20160 606-APP-01-00-EN.pdf>.
46 Internation al Law Commissi on (ILC), ‘Draf t Articles on t he Law of the Non-n avigational
Uses of Intern ational Watercou rses and Comm entaries The reto and Resolu tion on
Transboundar y Confined G roundwater’ i n Yearbook of the Int ernational L aw
Commission , 1994, vol. II, Par t Two (1994) 90.
47 ibid.
48 ibid.
49 UNECE Convent ion (n 43) art 2(b).
50 The inapplic ability of the l aw of internatio nal watercours es to the presen t case derives
from the fac t that, formal ly, the occupied te rritory of Cri mea is still unde r Ukrainian
sovereignt y. The internatio nal element of th e situation is thu s technicall y lacking.
However, it is wort h recalling th at the applica bility – by way of ana logy or custom ary law
– of the law of inter national water courses to othe r cases of occupa tion, where th ere is
no identit y between the so vereign of the ter ritory from wh ich the watercou rse is
originatin g and the formal s overeign of the occ upied territo ry, is left unpre judiced by this
reasoning . With respect t o the Occupied P alestinian Terr itory, see, for ins tance, J
Niehuss, ‘T he Legal Impli cations of the Is raeli–Palest inian Water Crisi s’ (2005) 1
Sustaina ble Developme nt Law & Policy 13.
51 Conventio n (IV) Respec ting the Laws an d Customs of War on La nd and its Anne x:
Regulation s Concerning th e Laws and Custo ms of War on Land (ado pted 18 October
1907, entered into force 26 J anuary 1910) ://ihl-d atab ases.icrc.org/ih l/INTRO/
195> (HR) .
52 Human Right s Council ‘Rep ort of the Spec ial Rapporte ur on the Situati on of Human
Rights in th e Palestinian Ter ritories Occu pied since 1967’ UN Doc A /HRC/40/73 (15
March 2019) paras 2 9–43; S Vité, ‘Th e Interrelatio n of the Law of Occup ation and
Economic, S ocial and Cultu ral Rights: Th e Examples of Fo od, Health and P roperty’
(2008) 90 In ternational Re view of the Red Cros s 644.
53 Convention (I V) Relative to th e Protection of C ivilian Perso ns in Time of War, Genev a
(adopted 12 Aug ust 1949, entered into for ce 21 October 1950) 75 UNT S 287 (IV GC).
Other oblig ations of the occ upying power wit h respect to the n atural resou rces of the
occupied ter ritory – water i ncluded – may der ive from the prov isions of the Hagu e
Regulation s on the treatme nt of property s uch as, in the cas e of public immov able
propert y, Article 55 HR. O n this, see ILC ‘Fi rst Report on t he Protectio n of the
Environmen t in Relation to Arm ed Conflict s by Maria Lehto, Sp ecial Rappor teur’ UN Doc
A/CN.4/720 (13 Apr il 2018) (ILC, Fir st Report) 15–22. Fu rthermore , according to Dra ft
Principle 19 of t he ILC Draft Prin ciples on the Pr otection of the E nvironment in re lation
to armed confl icts, the occ upying power is un der a general ob ligation ‘to re spect and
protect the e nvironment of th e occupied terr itory’. See ILC ‘ Protection of t he
Environmen t in Relation to Arm ed Conflict s’ UN Doc A/CN.4/L .911 (20 July 2018).
54 HR (n 51) art 43.
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PERTILE and FaCCIO
This general du ty, together with the obl igation to respect the laws in
force in the countr y, implies a positive obliga tion to adopt measures to
ensure that the po pulation of the occupied terr itory has access to es-
sential goods suc h as foodstuffs a nd water. Such interpreta tion is
rooted in the consid eration that there can be n o ‘public order and life’
without an ade quate amount of water res ources and is direct ly rein-
forced by a more specific rule of the IV GC. Art icle 55 IV GC, in fact,
states that th e occupying power ‘[t]o the ful lest extent of the me ans
available to it … has th e duty of ensuring the fo od and medical supp lies
of the populatio n’. The article al so specifies that the occup ying power
‘should … bring in th e necessary foodstuf fs, medical stores and oth er
articles if t he resources of the occ upied territory a re inadequate’.55
There is no theo retical obstacle w hatsoever, in our view, in readi ng the
concepts of ‘foo d’, ‘necessary foodstuf fs’ and ‘other articles’ as im ply-
ing an obligatio n to ensure access to an adequ ate quantity of water for
the populatio n of the occupied territor y.
In addition, interpreting IHL in the light of the relevant rules of HRL
can furthe r support this vi ew. As is known, the appl icability to situ ations
of armed conflic ts and occupation s of the International C ovenant on
Economic and Soci al Rights (ICESCR), the most i mportant treaty from
which the existe nce of the right to water has bee n established by impl i-
cation,56 is favoure d by the absence in the leg al text of a derogatio n
clause and of any refe rence to the concept of jurisdict ion as a concept
limiting its geographical scope.57 There are no c lear textual obst acles, in
other words, to th e application of the I CESCR in times of arme d con-
flicts and ex traterritori ally. In its Advisory O pinion on the Legal
Consequences of t he Construction of a Wall in t he Occupied Palestin ian
Territory, the International Court of J ustice noted that the a bsence in
this treaty of a pr ovision on the scope of app lication could be due t o the
fact that the r ights protected by t he Covenant are ‘essentia lly territo-
ria l’.58 None theless, the Cou rt did not exclude the a pplication of the
Covenant ‘both to ter ritories over which a State part y has sovereignty
and to those over whi ch that State exercises te rritorial jurisdi ction’.59
Furthermor e, the applicabil ity of the ICESCR to occ upied territories
may derive directly from Article 43 HR, which binds the occupying
power to respec t the ‘laws in force in the country ’ and turns therefore
the territor y into a ‘medium’ transferring t he obligations of the ousted
sovereign to the occu pying power.60 In this respect, the abovemen-
tioned passage of A rticle 43 HR may b e interpreted as maki ng reference
to the legislation of the ousted sovereign implementing its international
human rights ob ligations. The ICESCR, t ogether with the other human
rights treati es that are relevant for t he right to water and have be en
ratified by Russi a,61 therefore be comes a tool to interpret t he applicable
rules of IHL and also to est ablish the right to water of the populatio n of
the occupied ter ritory as an independent obl igation of the Occupyi ng
Power under HRL . In this rega rd, wherea s IHL rules ar e mainly con-
cerned with the ‘r espect’ and ‘pr otect’ dimensio n of economic, social
and cultu ral rights, HR L might offer guida nce on the ‘fulfi l’ dimension of
the relevant obligations.62 The interpretive practice of the Committee
on Economic, Soc ial and Cultural Ri ghts (CESCR) and, m ost of all, its
General Com ment 15 on the right to water may thus b e used to legally
qualify the o bligations of Russia in occupi ed Crimea. The thesis a ccord-
ing to which the imp lementation of the right to water i n Crimea is pri-
marily an oblig ation incumbent on Rus sia is therefore fully g rounded
both in IHL and in HRL.
In conclusion, it i s worth noting that – sh ould one consider
Crimea as a terri tory over which Russian sovereignt y is lawfully ex-
ercised – Russia it self would be fully boun d by the applicable huma n
rights treati es. In particula r, having ratified the ICE SCR,63 Russia
would be bound to a dopt ‘to the maximum of i ts available re-
sources’64 all the measures in its power to e nsure that the inhabi-
tants of Crime a enjoy their rights to an adequate s tandard of living
and their right to h ealth, including , under the interpre tation provided
for by the CESCR in G eneral Comment 15, their r ight to have access
‘to sufficie nt, safe, acceptab le, physically acce ssible and afforda ble
water for personal and domestic uses’.
3.4 | The blockade of the Ca nal and the
obligations of the ousted sovereign
We now turn to the t hird assumption, according to which there
would be no legal o bligations incumb ent on Ukraine with re spect
to the provision of wate r to the territory of Crime a. Here, in the ab-
stract, t he question is whethe r the ousted sovereign is s till bound by
economic, soc ial and cultural right s with respect to a terri tory which
is still under it s nominal sovereignt y, bu t over which the sovereign
cannot e xercise any for m of control. We are dea ling with a case of
separation be tween formal sovere ignty and jurisdic tion and we need
to assess its imp acts on the rules of IHL a nd HRL.
First, w ith reference to IH L, it is worth n oting that those r ules,
by definition, d o not protect the nati onals of a given belligere nt
from the actio ns of such belligerent. In oth er words, as spelled out
by Article 4 I V GC, their subjecti ve scope does not include t he re-
lationship bet ween a belligerent an d its nationals. On e might
55 IV GC (n 53) art 55.
56 See n 33. On the l egal bases of the r ight to water unde r internationa l agreements , see
AJ Kirsch ner, ‘The Human Ri ght to Water and Sani tation’ (2011) 15 Max P lanck Yearbook
of United Natio ns Law 445, 455–46 3.
57 F Coomans, ‘T he Extrate rritorial Sco pe of the Internat ional Covenant o n Economic,
Social and Cu ltural Right s in the Work of the Uni ted Nations Com mittee on Econo mic,
Social and Cu ltural Right s’ (2011) 11 Human Right s Law Review 1, 5–7.
58 Legal Consequ ences of the Cons truction of a Wall i n the Occupied Pa lestinian Terri tory
(Advisor y Opinion) [200 4] ICJ Rep 136, 180 (p ara 112).
59 ibid.
60 G Giacca, ‘Eco nomic, Social , and Cultural R ights in Occup ied Territories’ i n A Clapham,
P Gaeta and M Sa ssoli (eds), The 1949 Geneva Conventions: A Commentary (Oxford
University Press 2015) 1491.
61 Among the hu man rights tre aties making ex plicit refere nce to water, Russia has r atified
the 1979 Conventio n for the Elimina tion of All Forms of D iscriminatio n against Women ,
the 1989 Conventi on on the Rights of t he Child and the 2 006 Conventi on on the Rights
of Persons with Disabilities.
62 N Lubell, ‘Ch allenges in App lying Human Ri ghts Law to Arme d Conflict’ ( 2005) 87
Internatio nal Review of the Re d Cross 751. For a similar re asoning, but w ith reference to
the right to hea lth, see ILC, F irst Report (n 5 3) 32–38.
63 Russia ratifi ed the ICESCR in 1973 . See
64 ICESCR (n 33) ar t 2(1).
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therefore take t he view that Ukraine is not bound to p rovide access
to water to its natio nals residing in Crime a by virtue of the appli cation
of the rules of I HL. A pos sible counterar gument could be grounded
on the fact tha t the inhabitants of Crim ea have been naturalized as a
result of the impo sition of the Russian legal order on t he territory.65
Their national ity no longer being Ukra inian, one might argue that t he
rules of IHL would e xpand their applica bility to their access to wate r.
From the per spective of IHL, however, an ar gument bas ed on the
change of status of t he inhabitants of an occupie d territory pending
the occupation is u nacceptable as any renuncia tion or deprivation of
the ri ghts pr otecte d by GC IV is pr eclude d by its Ar ticle s 866 and 47. 67
In gene ral terms, therefore, IHL does not create obligations on
the ousted sover eign with respect t o the provision of water to th e
occupied terri tory. A partial exception is rel ated to the obligation of
third countrie s to allow free passage of re lief consignments to t he
occupied territory.68 If the inh abitants were ina dequately supplie d,
the ousted sover eign itself could be bou nd to allow the free passage
on its territor y of relief consignments (inclu ding water). This provi-
sion, however, does not bin d the ousted sovereign to al locate part of
its own water reso urces to the occupied terr itory.
The legal oblig ations of the ousted sove reign are instead mo re
penetrating under HRL. It is true that, instinctively, one could consider
as unrealistic t hat a State should be bo und to respect, p rotect and
fulfil human ri ghts (as per the classic al tripartite subdi vision of the ob-
ligations arisi ng from economic, social and c ultural rights)69 also with
regard to situati ons taking place in a part of i ts territory seized by an -
other countr y. The very essence of econ omic, social and cul tural
rights seems to r equire, as a precondition , some form of territorial ju-
risdiction by t he obliged State. However, there are at leas t two legal
arguments mi litating in favour of part ial application of the ob ligations
of the ousted sover eign to situations taking p lace in the occupied ter-
ritory. The fir st argument has been alread y mentioned above and re-
volves around th e absence of a provision cle arly linking to the con cept
of jurisdictio n the scope of the oblig ations arising from th e treaty.
Unlike the Interna tional Covenant on Civil and Pol itical Rights, which
refers to ‘terr itory and jurisdicti on’,70 there is no textual hurdle to the
application of t he ICESCR beyond the a rea controlled by a given c oun-
try. The proble m of the separation be tween formal sovere ignty and
jurisdictio n is thus more related to the r easonableness (and fe asibility)
of requiring a Stat e to respect, protec t and fulfil the right s of individu-
als located in a po rtion of territory b eyond its control.
In this respec t, the second arg ument is connecte d to the very nature
of economic, soc ial and cultural righ ts, which cannot be s een as uniform
(black or white) prescriptions, are subject to progressive implementa-
tion and are simil ar in their structure to a b undle of obligations (related
to the three dif ferent key dimensions mentione d above). First, it is im-
portant to not ice that, in the practice of hum an rights monitoring sys-
tems, a separat ion between forma l sovereignty and ter ritorial control
has not been considered an absolute impediment to the implementation
of human rights by t he ousted sovereign. In its inte raction with States
that had lost cont rol over portions of t heir territories, t he CESCR has
acknowledged t he presence of ‘a major dif ficulty’ to the implement a-
tion of human right s, but has not excluded t he application of the ob liga-
tions deriving from the treaty.71 More specifically, the Europe an Court
of Human Rights h as considered a number of cases of s overeignty de-
tached from jurisdiction72 clarifying that the ousted sovereign,
even in the absence of ef fective control … still has a po si-
tive obligation und er Article 1 of the Convention to take
the diplomatic, economic, judicial or other measures that
it is in its power to take and ar e in accordance with inter-
national law to secure to th e applicants the rights guar-
anteed by the Convention.73
The Court, h owever, also added that:
[i]n determining the scope of a State’s positive obliga-
tions, regard mus t be had to the fair balance that has to
be struck betwe en the general interest and the intere sts
of the individual, the diversity of situations obtaining in
Contracting States an d the choices which must be ma de
in terms of prioritie s and resources.74
It seems clear, in this c ase, that before the occu pation of Crimea,
Ukraine was ful filling its oblig ations related to the ri ght to water
65 Open Societ y Justice Init iative, ‘Huma n Rights in the Co ntext of Automat ic
Naturaliz ation in Crimea’ ( June 2018) ://www.o pens ociet yfo un d atio ns.org/sites /
defau lt/files/ report-osji-crimea-20180 601.pdf>.
66 IV GC (n 53) art 8 rea ds: ‘Protecte d persons may in no c ircumstanc es renounce in pa rt
or in entiret y the rights se cured to them by th e present Conven tion, and by the sp ecial
agreement s referred to in th e foregoing Ar ticle, if such th ere be.’
67 ibid art 47 rea ds: ‘Protecte d persons who ar e in occupied terr itory shall no t be
deprived, i n any case or in any man ner whatsoev er, of the benefit s of the present
Convention by a ny change introd uced, as the resu lt of the occupat ion of a territor y, into
the institu tions or governm ent of the said ter ritory, nor by any ag reement concl uded
between th e authoritie s of the occupied te rritories an d the Occupying Po wer, nor by any
annexatio n by the latter of th e whole or part of t he occupied ter ritory.’
68 See ibid art 23; a nd Protocol I (n 19) art 70 .
69 See the Maas tricht Guidel ines on Violat ions of Economic , Social, and Cul tural Rights
(guidelin e 6), reproduced i n UN Economic and S ocial Council , Committee on Ec onomic,
Social and Cu ltural Right s ‘Substant ive Issues Arisi ng in the Implem entation of the
Internatio nal Covenant on Eco nomic, Socia l and Cultural R ights’ UN Doc
E/C.12/200 0/13 (2 October 200 0) 16.
70 Internatio nal Covenant on Ci vil and Politic al Rights (adop ted 16 December 1966 ,
entered into fo rce 23 March 1976) 999 UNTS 171 ar t 1.
71 UN Economic an d Social Counc il, ‘Concludi ng Observati ons of the Commit tee on
Economic, S ocial and Cultu ral Rights, Cyp rus’ UN Doc E/C.12 /CYP/CO/5 (12 June 2009)
para 8; UN Econo mic and Social C ouncil, ‘Conc luding Obser vations of the Co mmittee on
Economic, S ocial and Cultu ral Rights, Re public of Moldov a’ UN Doc E/C.12/1/Add.91 (12
December 20 03) para 10.
72 In such cases , the European C ourt of Human Ri ghts affirm s the existence of a
rebuttab le presumpti on of jurisdict ion by the ousted s overeign, whic h has the burden of
proof on the ex istence of except ional circums tances limiti ng its respons ibility. See
Assanidze v Georgia App No 71503/01 (ECtHR , 08 April 20 04) para 139; Ilaş cu and Others
v Moldova and Rus sia App No 48787/99 (ECtHR , 8 July 2004) pa ras 322–331; Ivanţoc and
Others v Mold ova and Russia App N o 23687/05 (ECtHR, 15 Novem ber 2011) paras
105–106; Catan and O thers v the Repub lic of Moldova and R ussia App Nos 4 3370/04,
8252/05 and 18454/0 6 (ECtHR, 19 Octob er 2012) paras 109–110; Mozer v the Re public
of Moldova and Ru ssia App No 11138/10 (ECtHR , 23 February 2016) p aras 99–100;
Sargsyan v Azerbaijan App No 40167/06 (ECtHR, 16 June 2 015) paras 127–129.
73 Ilaşcu and Oth ers v Moldova and R ussia (n 72) para 331 .
74 ibid para 33 2.
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PERTILE and FaCCIO
towards the inhab itants of the region m ainly through the C anal.
From the perspe ctive of human rights, it i s therefore difficult t o jus-
tify the tota l interruption of the provi sion of water to a territory s till
under the nominal sovereignty of Ukraine. Loss of control over ter-
ritory does n ot constitute per se a physic al obstacle to the contin ua-
tion of the provisio n of water to the inhabita nts of Crimea.
Furthermore, as has been pointed out, the progressive implementa-
tion mandated by A rticle 2 of the ICESCR , precludes ‘any deliberat e
step backwa rd that cannot be justified wit h severe economic diffi-
culties, force majeure, distress or the like’ (principle of non-retro-
gression).75 I nterestingly, as has bee n seen, Russia claims t hat the
blockade of the C anal amounts to a vi olation of human right s by
Ukraine, mak ing explicit reference to the righ t to water and sanita-
tion and to Art icle 25 of the Universal Dec laration of Human Rights
and Article 11 of th e ICESCR. The only w ay to reconcile this affi rma-
tion with the Russ ian claim of sovereignt y, as well as with the Russian
exercise of jurisdi ction over Crimea, lies in ta king the view that, ac-
cording to Russia, Uk raine would be bound by some for m of extra-
territorial ob ligation towards the p opulation of the neigh bouring
region.
The crux of the mat ter is in our view the fol lowing question: is
there any specif ic rationale justifyin g a retrogression in the right to
water of the inhabi tants of Crimea as guara nteed by Ukraine before
the occupation?
In our view, the answe r is, at least in part , in the positive, but
such an answer mus t be looked for outsi de the realm of human
rights. Inde ed, from a general perspec tive, taking into account all
of the rules of inter national law, it does not se em reasonable to
require Ukraine to fully cooperate with the unlawful occupier of a
part of its ter ritory. Activitie s of economic cooper ation, such as
the provision of wate r, which are not mandated by the law of inte r-
national watercourses or by specific agreements, could be taken
to amount to a form of acq uiescence to the unlawful anne xation.
The fulfilme nt of the obligations deriv ing from human rights mus t,
at least to a cert ain extent, be interpr eted in the light of the prohi-
bition of conques t and the unlawfuln ess of the Russian prese nce in
Crimea. This is i n line with the criterion of t reaty interpretat ion set
by Article 31(3)c of th e Vienna Convention on the L aw of Treaties,
which requires that ‘[a]ny relevant rules of international law appli-
cable in the rel ations between th e parties’ be consid ered.76 It
seems therefo re that balancing the r ight of Ukraine not to acqu i-
esce to the unlaw ful territorial situation wit h its conventional ob-
ligations deriving from human rights would require limiting the
material scope of t he latter to their minimum core.77 A contex tual
reading of the hum an rights obligati ons of the ousted soverei gn
bring us to the conc lusion, in other words , that Ukraine is onl y
bound to continu e providing a minimum am ount of water to the
occupied terri tory, sufficient to f ulfil the essentia l needs of the
population.78 The provision of wate r to the territory for oth er pur-
poses, such as in dustrial uses or th e development of agric ultural
activities w ould not be covered by the interpr etation of the treaty
which is to be prefer red in the circumstances o f the case.
3.5 | The blockade of the C anal as a lawful
countermeasure?
Apart from the criteria of treaty interpretation employed in the previous
subsection, another tool capable of rationalizing the conflict between
the human rights obligations of the ousted sovereign and its right not to
acquiesce to the unlawful annexation is the qualification of the block-
ade of the Canal as a countermeasure. If one takes the view that human
rights obligations and, in particular, the principle of non-retrogression
are not flexible enough to tolerate a restrictive interpretation to their
minimum core, then the question should be asked if the blockade of the
Canal can be qualified as an unlawful act that becomes lawful by virtue
of the operation of a circumstance precluding wrongfulness. It should
be clarified from the beginning that, notwithstanding the existence of
an ongoing conflict between Ukraine and Russia, the conduct of Ukraine
does not fulfil the requirements of a belligerent reprisal. Reprisals iden-
tify any ‘action which would normally be contrary to the laws governing
the conduct of armed conflict (the ius in bello) but which is justified be-
cause it is taken by one party to an armed conflict against another party
in response to the latter’s violation of the ius in bello’.79 Countermeasures,
by contrast, cover ‘that part of the subject of reprisals not associated
with armed conflict’.80 The wording ‘not associated with armed conflict’
means that these measures are taken to respond to an internationally
wrongful act; not to a violation of IHL specifically.81
Against thi s background, in the opinio n of the authors, the con-
cept of countermea sure better suits the c ase involving the blockad e
of the Canal. Uk raine, in fact, r eacted to Russia’s unlaw ful annex-
ation of Cri mea, not to a vio lation of a norm of IHL, with a peaceful
and per se lawful measure (a dam i n its territory), w hich does not
involve the violat ion of the ius in bello.
Assessing, t herefore, Ukrain e’s decision to interrupt th e flow of the
Canal in light of th e rules on countermeasures , it is worth mentioning
75 E Riedel, ‘I nternational C ovenant on Econom ic, Social and C ultural Righ ts (1966)’ in
Wolfrum (n 23) 8.
76 Vienna Con vention on the La w of Treaties (adopted 2 2 May 1969, entered into force 27
January 1980 ) 1155 UNTS 331.
77 On the concept of m inimum core obl igations unde r the ICESCR, s ee Committee o n
Economic, S ocial and Cultu ral Rights, ‘G eneral Comme nt No 3: The Nature o f States
Parties’ O bligations (A rt 2, Para 1, of t he Covenant)’ UN D oc E/1991/23 (1990) annex III ,
86.
78 This concept ualization com es close to the pro vision of a minimu m amount of water
under the con cept of ‘vital hu man needs’; see Wate rcourses Conv ention (n 44) ar t 10(2).
As clarifi ed in Section 3. 2, however, the law of i nternational w atercourses i s not
applicabl e to the present c ase (see n 50).
79 Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(Cambridg e University Pr ess 2004) 220 ; M Ruffert, ‘ Reprisals’ in Wo lfrum (n 23) 7.
80 ILC, Draft A rticles on the R esponsibilit y of States for Int ernationall y Wrongful Act s, in
‘Yearbook of th e Internation al Law Commissi on, 2001, vol. II , Part Two’ (2001) 128 (3 )
(Draft Ar ticles on State R esponsibilit y).
81 D Alland, ‘T he Definition o f Countermeas ures’ in J Crawfo rd et al (eds), The Law o f
International Responsibility (Oxford Univers ity Press 2010) 1127, 1130; S Bo relli and S
Olleson, ‘O bligations Re lating to Human R ights and Human itarian Law ’ in Crawford et a l,
ibid 1177, 1189–1190 .
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PERTILE and FaCCIO
that the applic ation of countermeasures i s circumscribed by limit s and
conditions.82 First, there are substantive limits to their invocation: in
the langu age of the ILC Articles on State Responsibilit y, some obliga-
tions, becau se of their nature, mus t not be ‘affected by count ermea-
sures’. In particul ar, as clarified by Ar ticle 50(1)(b), ‘[c]ountermeasures
shall not affec t obligations for th e protection of fund amental human
rig hts ’.83 The violation of h uman rights there fore tends to be incompat-
ible with the ad option of countermeas ures. Suffice it to n ote, in this
respect, that human rights create legal relationships involving individu-
als and States and t hat their infringem ent as a result of a purely in -
ter-State situation is thus s carcely justifiable. It sh ould be highlighted,
however, that the ILC Ar ticles limit the sco pe of the exception to ‘fun-
damental human rights’.84 Therefore, a reduction of t he provision of
water to the occupi ed territory that doe s not touch upon the essent ial
needs of the popu lation (minimum core obligati on), but only limits the
economic develo pment of the territory could ar guably be justified as
lawful countermeasure.
As to the proced ural conditions of counte rmeasures, accordin g
to Draft Ar ticle 52(1)(a), which is considered to reflec t customary
international law,85 before ta king countermeasure s, the State shall
‘call upon the resp onsible State … to fulfil l its obligations’.86 Ar ticle
52(1)(b) also establish es that the injured State shall ‘not ify the re-
sponsible State of a ny decision to take countermea sures and offer
to negotiate with tha t State’.87 Paragraph 2 of th e same article,
exempts the inj ured State from previo us notification in c ase of
‘such urgent counter measures as are nece ssary to preser ve its
rig hts ’.88
In the case unde r discussion, on the o ne hand, it emerges th at
Ukraine, befo re engaging in the blockade , called ‘on the Russian side
to deescalate t he situation, to enter into direct dialogue and to fully
comply with norms a nd principles of internat ional law and interstate rela-
tions’,89 thus co mplying with the con tent of Article 52(1)(a) and, in
part, with Ar ticle 52(1)(b) of the ILC Ar ticles. On the other hand, it
does not appea r that any notice of any decision to ado pt that specific
measure preced ed the blockade of the Canal. I n this regard, it might
be observed t hat the lack of notice of the measure co uld be justified
by the ‘necessit y’ to preserve Uk raine’s rights. At the t ime of the
blockade, in f act, Ukraine was (as i t still is today) under milit ary threat,
with part of it s territory unde r occupation by Russia. T herefore, its
reaction wit hout notice could per haps be read as neces sary to
preserve Uk raine’s ‘rights on the sub ject matter’ an d avoid the consol-
idation of the unlaw ful territorial situation on t he eastern portion of
its territory.
4 | CONCLUDING REMARKS
Conflicts currently taking place in Ukraine feature many similari-
ties, but one sig nificant differ ence: whereas the Cr imean case can
be clearly qua lified as internatio nal in nature, with the c onsequent
application of t he law of occupation, the qualif ication of the events
unfolding in the D onbass region is still di sputed as they involve some
non-State actors w hose relationship wi th the Russian Federat ion has
not been clearl y established. This probl ematic conflict qua lification
is not without cons equences for the protectio n of water infrastruc-
tures. Whe reas the applic ability of HRL p rovides for a uni form pro-
tection of the ri ght to water both in times of peace and in ti mes of
armed conflic t (and occupation), the protectio n of water infrastruc-
tures against arm ed attack s, both under IHL and ICL , seems to be
more rudiment ary in non-intern ational conflict s. In this respect , it
is however of some comfor t that Ukraine’s acce ptance of the ICC
jurisdictio n may bring u nder the scrutiny of I CL conduc ts of both
State and non-State actors.
The blockade of t he North Crime a Canal, by contras t, reveals
the tension bet ween a number of rule s of international law, which
are simultaneously applicable to the case, but are inspired by dif-
ferent rational es. Whereas human right s b ind the ousted sover-
eign to the progre ssive implementation of the eco nomic, social and
cultural right s of the inhabitant s of the occupied ter ritory, general
international l aw recognizes the right of St ates not to acquiesce to
the unlawful a nnexation of their territor y. The solution to this para-
doxical situat ion must be found by havin g recourse to the criterion
of contextual inte rpretation or to th e concept of countermea sure.
In our view, human righ ts norms cannot be i nterpreted as imply ing
the obligation of t he ousted sovereign to coop erate in the economic
development of th e unlawfully anne xed territory. The prov ision of
water to Crimea by Uk raine shall theref ore be limited to the mini-
mum core obligati on, that is, a contrib ution of water aimed at sat-
isfying the e ssential needs of the populat ion. At the same time, the
rules of IHL, as complement ed by hum an rights, make it clear that
Russia, as an occupy ing power, is bound to respect , protect and fulfil
the human right to w ater of the inhabitants of Cri mea. Interestingly
enough, shoul d one take the view that Russia lawfu lly exercises its
sovereignty over C rimea, its legal obliga tions with respect to acces s
to water would be ver y similar, if not coincident , under the applic able
human rights rules.
Overall, the c ases analysed in th is article show, once aga in,
that the depri vation of access to water ca n be effectivel y used
by the partie s of an armed conflict as a we apon or, perhaps, as
a bargaining chi p on the negotiating ta ble. On paper, the legal
framework prot ecting the popul ation affected by t he conflict is
quite well d eveloped, with a significant integr ation between HR L,
IHL and ICL . As a m atter of policy, there seems to be no mor al
82 Draft Art icles on State Re sponsibilit y (n 80) 129ff: A rticle 49 (‘Obj ect and limit s of
countermea sures’); Art icle 50 (‘Obli gations not aff ected by counter measures’); A rticle 51
(‘Propor tionality ’); Article 52 (‘ Conditions re lating to resor t to countermea sures’).
83 Draft Art icles on State Res ponsibilit y (n 80) art 50 (1)(b).
84 ibid (emphasis a dded).
85 Y Iwasawa and N Iw atsuki, ‘Pro cedural Condi tions’ in Craw ford et al (n 81) 1149, 1151;
Gabcíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Re p 7, 56 (para
84).
86 Draft Art icles on State Re sponsibilit y (n 80) art 52(1)(a).
87 ibid art 52(1)(b).
88 ibid.
89 Statement of th e Ministry of Fo reign Affair s of Ukraine (n 1); ‘S tatement on Russ ia’s
Ongoing Ag gression agai nst Ukraine an d Illegal Occup ation of Crimea’ (15 D ecember
2017) 14 8> (emphasis adde d).
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PERTILE and FaCCIO
justificat ion at all, however, for the exis tence of a less stringen t
protection of wat er infrastruc tures in non-internat ional armed
conflicts compared to international ones.
ORCID
Marco Pertile https://orcid.org/0000-0002-2535-0192
Sondra Faccio https://orcid.org/0000-0001-7512-0662
Marco Pertile is associat e professor of internat ional law at the
Faculty of Law an d the School of International Studies of the
University of Trento an d visiting professor at Sciences P o, Paris.
His fields of rese arch include international l aw, international hu-
manitarian law a nd the law of natural res ources. He has publis hed
a number of arti cles and chapters in t hese fields, inc luding: ‘On
the Fina ncing of Civil Wars through Natural Reso urces: Is the re
a Dut y of Vigilance fo r Third States on the A ctivities of Trans-
national Corporations?’ in F. Romanin Ja cur, A. Bonfanti and F.
Seatzu (eds), Natural Resources Grabbing (Brill 2016) 383; ‘The
Changing Environ ment and Emerging Re source Conflict s’ in M.
Weller (ed), The Oxford Handboo k on the Use of Force (Oxford
University Pr ess 2015) 1077.
Sondra Faccio is researc h fellow at the School of Int ernational
Studies of the Unive rsity of Trento, where she work s on the proj-
ect ‘The Commercial Policy of the EU in Civ il Wars and in Ot her
Cases of Dispute d Sovereignty: A Per spective of Intern ational
Law’. Her fields of expertise include international law, interna -
tional investm ent law and internation al investment arbit ration.
Her most recent wo rks include ‘ The Interpl ay between Inves tment
Law and the Duty of Non-recognition in Situations of Contested
Sove reignt y’ (2019) 28 Italian Yearbook of Intern ationa l Law 113.
Sondra Faccio is th e author of Sections 1, 2, 2.1 and 2. 2; Marco
Pertile is the a uthor of Sections 3, 3 .1, 3.2, 3.3, 3.4 and 4; S ection
3.5 has been joi ntly written.
How to cite this arti cle: Pertile M, Faccio S. Ac cess to water
in Donbass and Cr imea: Attacks agains t water infrastruct ures
and the blocka de of the North Crimea C anal. RECIEL.
2020;29:56–66. htt ps ://doi. org/10 .1111/ree l.12316
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