Introduction
The diplomatic relationship between the Republic of Haiti and the Dominican Republic is further complicated by the Massacre River affair. Tensions between the two countries, which share the island of Hispaniola, have never been so high in recent decades. The subject of dispute is the construction of an irrigation canal fed by the Massacre River, which the two countries share. Plunged into a deepening humanitarian crisis and plagued by insecurity and armed gang violence, Haitians see the construction of the irrigation canal as a matter of survival, food sovereignty, or a kind of last gasp. However, the Dominican authorities argue that the canal would divert water from the Massacre River, violating the Treaty of Peace, Friendship and Arbitration of February 20, 1929, concluded by the two countries. This situation creates tensions between the two nations and highlights the issues and challenges relating to the management and use of water from the Massacre River. At a time when this dispute is causing major friction between the two peoples, it is more crucial than ever for the two states to strengthen their diplomatic relations if they are to avoid stirring up dark memories of the past.
I. The Facts
The Massacre River is a small coastal river that flows into the Atlantic Ocean and is a border waterway between the Republic of Haiti and the Dominican Republic. In August 2018, Haitian President Jovenel Moïse launched the construction of an irrigation canal on the Massacre River. Water from the Massacre River was to irrigate 3,000 hectares of highly fertile land in the Maribahoux plain in northeastern Haiti, to alleviate the misery of the inhabitants. The project drew protests from the Dominican Government. On April 26, 2021, several Dominican soldiers from the Cuerpo Especializado en Seguridad Fronteriza Terrestre (CESFRONT) intimidated the Haitian workers. On May 27, 2021, with a view to finding a diplomatic solution, the two States convened a meeting of the bilateral Joint Commission at the Ministry of External Relations of the Dominican Republic. The Commission’s technical secretaries signed a joint declaration recognizing that the proposed irrigation canal would not alter the natural course of the waters. Since the assassination of Haitian President Jovenel Moïse in July 2021, the project has slowed down, but Haitian farmers, supported by several civil society organizations, started digging again in August 2023, hoping that water would one day reach their cultivation fields. Today, this irrigation canal is the subject of heated controversy between the two countries. While the Haitian Government is open to dialogue to find a favorable outcome, on Friday, September 15, 2023, Dominican President Luis Abinader decided to close all borders. In a press release issued on the same day, the Haitian government declared that the Maribahoux plain irrigation project would continue. At a time when the Haitian people are facing an acute social, humanitarian, and political crisis, the management of this conflict is of crucial importance. To better understand the current dispute over the Massacre River between the Republic of Haiti and the Dominican Republic, it is essential to bear in mind the long-standing and still-latent conflict over this international waterway.
II. The History
The history of the border between Haiti and the Dominican Republic is essentially one of tensions and exactions. This border was to change with conquest, reunification, independence, and tyranny. The Massacre River was the scene of fierce rivalry between the French, who felt the river belonged to the western part of the island of Saint-Domingue, and the Spanish, who wanted the river to separate their lands from those of the French on the mountainous side. The river’s name reflected the tensions between the two parts of the island. It was called the Massacre River because the two peoples had often come to blows on its banks. The Treaty of Ryswick in 1697 already mentioned the Massacre River. Some historians claim that the river’s name evokes the incessant skirmishes between French buccaneers and Spanish soldiers on its banks, while others maintain that it is a reference to the memory of one of the many wars of extermination that wiped out the indigenous Arawak population. Whichever hypothesis is adopted, it should be noted that the island seemed destined for a tragic confrontation, an anticipatory sign of the violence that was to accompany the birth of Haiti and its relations with the neighboring Republic. It was the Treaty of Aranjuez (1777) that established this river as the boundary of sovereignty between France and Spain.
III. Corpus Juris
In the context of bilateral relations between the Republic of Haiti and the Dominican Republic, the law applicable to international waters is corpus juris dating from the mid-twentieth century. The law governing international watercourses has been codified in legal instruments such as the Treaty on the Delimitation of the Frontier between the Dominican Republic and the Republic of Haiti of January 21, 1929, the Treaty of Peace, Friendship and Arbitration of February 20, 1929, the Boundary Agreement between the Dominican Republic and the Republic of Haiti of February 27, 1935, and the Additional Protocol to the Treaty of January 21, 1929, Regarding the Delimitation of the Frontier Between the Dominican Republic and the Republic of Haiti of March 9, 1936 (“Additional Protocol”).
The most important legal instrument remains the Treaty of Peace, Friendship and Arbitration of February 20, 1929, which views international waters as shared natural resources and contains some of the principles and rules that would later be elaborated in broader forums such as the United Nations. The Convention on the Law of the Non-Navigational Uses of International Watercourses of May 21, 1997 (“United Nations Convention”) essentially regulates international watercourses, which are defined as “watercourse[s], parts of which are situated in different States.”
The Treaty of Peace, Friendship and Arbitration of February 20, 1929 codifies the use of the waters of the rivers Libón and Artibonite, as recalled in Article 6 of the Additional Protocol: “The waters of the rivers Libón and Artibonite belong equally to the two riparian States, and use thereof shall be subject to the provisions of Article 10 of the Treaty of Peace, Friendship and Arbitration signed in the city of Santo Domingo . . . on February 20th, 1929.”
Article 10 of the Treaty of Peace, Friendship and Arbitration of February 20, 1929 enshrines the right of either state “to make just and equitable use, within the limits of their respective territories, of the said rivers and streams for the irrigation of the land or for other agricultural and industrial purposes.”
In other words, this Treaty prefigures the principle of equitable and reasonable sharing found in Article 5 of the United Nations Convention, which emphasizes that “Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner . . . [and] participate in the use, development and protection of an international watercourse in an equitable and reasonable manner.”
Moreover, Article 10 of the Treaty also lays down the obligation not to cause significant damage: “[T]he two High Contracting Parties undertake not to carry out or be a party to any constructional work calculated to change their natural course or to affect the water derived from their sources.” A similar formulation of this principle can be found in Article 7 of the United Nations Convention, which establishes the obligation not to cause significant damage to other watercourse States.
The question of equitable and reasonable use can be assessed in light of the criteria set out in Article 6 of the United Nations Convention. Although the Republic of Haiti and the Dominican Republic are not parties to this Convention, it would be logically and legally possible to interpret the provisions of the Treaty in accordance with the principles of international law, considering, for example: “Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; The social and economic needs of the watercourse States concerned; The population dependent on the watercourse in each watercourse State; The effects of the use or uses of the watercourses in one watercourse State on other watercourse States . . . .”
In the case relating to the territorial jurisdiction of the International Commission of the River Oder (1929), the Permanent Court of International Justice interpreted the principles of equitable, reasonable, and non-damaging use of the watercourse through the notion of community of interests uniting riparian States around an international watercourse:
“But when consideration is given to the manner in which States have regarded the concrete situations arising out of the fact that a single waterway traverses or separates the territory of more than one State, and the possibility of fulfilling the requirements of justice and the considerations of utility which this fact places in relief, it is at once seen that a solution of the problem has been sought not in the idea of a right of passage in favour of upstream States, but in that of a community of interest of riparian States. This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others”.
Equitable and reasonable use also presupposes consultation in a spirit of cooperation. For example, a state cannot decide unilaterally on the allocation of a watercourse if other riparian states want to see their own interests considered. The obligation to notify and consult helps to resolve tensions and controversies, as recalled by the International Court of Justice in the Pulp Mills case (2010). Thus, the obligation to notify is essential in the process, and it should lead the parties to work together to assess the risks of the project and negotiate any modifications likely to eliminate them or minimize their effects. The principle of fair and reasonable use can therefore also be applied by prior notification of the project.
IV. Discussion
In the Massacre River affair, the Haitian Government undertook the construction of an irrigation canal in 2018 to water the Maribahoux plain. This is the first project launched by the Haitian Government on the Massacre River, while the Dominican Government has already built several aqueducts and irrigation canals. Opposing the canal construction project, the Dominican government argued that the project constituted a detour of the river and a threat to the environment. The two States consulted each other to assess the project’s risks. In May 2021, they adopted a Joint Declaration stating that, on the basis of the information provided by the representatives of the Republic of Haiti and in the spirit of understanding and exchange of information in accordance with what is stipulated in the Treaty, the project being carried out on the Massacre River for the abstraction of water does not constitute a detour of the watercourse. It was therefore clear from the facts that the project undertaken by the Haitian government was not likely to divert the watercourse and reduce the flow of water and did not undermine the protection of the environment and the promotion of sustainable development.
The Joint Declaration was based on a study conducted by the Dominican National Institute of Hydraulic Resources (INDRHI) in 2021. This study recognized that the project would require a flow between 1.5 and 3 cubic meters per second, which represents 20.33% of the average annual flow of the Massacre River. Thus, the flow would still be below the extractions made on the Dominican side. Finally, the researchers added that two-thirds of the Dominican agricultural land irrigated with the Massacre River’s water is located upstream of the canal under construction.
Nevertheless, we must acknowledge that Haitian farmers continued in August 2023 in the absence of Haitian government control. If the spontaneous initiative of the farmers to pursue the irrigation project is to be understood from the point of view of their urgent economic and social needs, the Treaty of Peace, Friendship and Arbitration of February 20, 1929, confers only on states, and not on the citizens themselves, the right to undertake construction work on watercourses. It is therefore incumbent upon the current government to regain control of the project in accordance with the standards established by bilateral treaties and international legal instruments. In a press release dated September 15, 2023, the Haitian Government declared its intention to take all measures to ensure that irrigation of the Maribahoux plain is carried out in accordance with scientific standards, under the supervision of the Ministry of Agriculture, Natural Resources and Rural Development and of the Environment. For the time being, however, the irrigation project is being carried out according to the sovereignty of a people completely neglected by their government.
Dominican President Luis Abinader’s decision to close his borders with the Republic of Haiti would contravene the Joint Declaration of May 27, 2021, which paved the way for coordinated institutional management, and the Treaty of Peace, Friendship and Arbitration. In the context of this dispute, it would perhaps be more interesting to envisage a peaceful and amicable outcome, by considering “all relevant information on the water table, hydrological studies, environmental impacts and other information outlined in the May 2021 Joint Statement.” Furthermore, in the spirit of joint management of shared water resources, the two parties could draw up a technical protocol for the coordinated management of transboundary watersheds. Finally, the Organization of American States could play an important role in facilitating an amicable settlement through mediation. Failing agreement, recourse to international arbitration remains the most appropriate method for resolving this dispute.
The Dominican Republic’s decision also appears to disregard the first paragraph of Article 3 of the Treaty of Peace, Friendship and Arbitration of February 20, 1929, which underlines the obligation to resort to investigation and conciliation procedures:
“The High Contracting Parties undertake to submit to arbitration all disputes of an international character which may arise between them as a result of one of the Parties claiming a right as against the other, under the terms of a treaty or otherwise, when it has not been possible to settle this claim by diplomacy and when the claim is of a legal nature inasmuch as it is capable of decision according to the principles of law.”
This clause of consent to international arbitration obliges each party to initiate prior amicable and diplomatic attempts to settle a dispute. If the attempt at diplomatic resolution fails, the disputing party may bring the dispute before an arbitrator or an arbitration tribunal, depending on the agreement of the parties. By failing to attempt a diplomatic or arbitral resolution, President Luis Abinader has thus strayed from the path of peaceful resolution mapped out by the Treaty.
Article 5 of the same Treaty sets out the way the arbitral tribunal is to be constituted:
“The arbitrator or tribunal to decide the controversy shall be appointed by agreement between the Parties. Failing agreement, the following procedure shall be observed: each Party shall appoint two arbitrators, only one of whom may be a national of the said Party or chosen from among the persons nominated by the said Party as members of the Permanent Court of Arbitration at The Hague; the other member may be of any other American nationality. These arbitrators will, in their turn, choose a fifth arbitrator, who shall be the President of the tribunal.”
While the Dominican Government is choosing the worst option, preferring a justice of force based on reprisals instead of relying on the strength of justice, it could simply have chosen the amicable option, and in the event of its failure, the arbitration procedure. It is high time we remembered that gunboat diplomacy is no longer fashionable.
The Dominican Government has already acknowledged that the Haitian project is an irrigation project that in no way endangers downstream ecosystems. The onus is now on the Dominican Government to demonstrate that the current intake on the Massacre River constitutes a damaging and inequitable use of water resources and is detrimental to the environment.
No state can guarantee itself exclusive use of shared water resources. The Republic of Haiti is therefore entitled to pursue the Maribahoux plain irrigation project. However, it must be stressed that this must be done in accordance with technical and scientific requirements, and in compliance with environmental standards.
In the midst of this major controversy, and especially in the midst of the climate crisis, the Haitian government should take the opportunity to take a step to the side by demanding that the Dominican Republic provide precise information on the various works it has undertaken on the Massacre River, with a view to determining whether the Dominican authorities are not significantly reducing the flow of water that Haitians could use downstream.
V. Perspectives
To re-establish a healthy and lasting diplomatic relationship between Haiti and the Dominican Republic, the poetics of dialogue are more than necessary. For the future of these two neighboring brothers, the methods of peaceful settlement of disputes must remain essential tools. Diplomacy is the key to peaceful coexistence on the island. It is important to emphasize this in the context of intense tension between the two nations, where Haitians living in the Dominican Republic are sometimes subjected to inhumane, undignified, and degrading treatment.
The Massacre River case teaches both neighboring countries that it is time to take the initiative for a specific river treaty project, particularly in a context where access to and management of water resources pose crucial environmental and social challenges. This would be even more interesting given that the Treaty of Peace, Friendship and Arbitration still in force today is over a hundred years old. But things have changed since then. In addition to the issues of irrigation production for agricultural purposes and use for industrial purposes set out in Article 10 of the Treaty of Peace, Friendship and Arbitration, other issues such as energy production, access to fresh water for human consumption, environmental protection, and preservation of cultural heritage are gaining in importance. Beyond the Treaty’s principles of equitable and reasonable use, the obligation not to cause significant harm, and the principle of equality of use, new approaches are emerging in international law to meet essential human needs and new environmental challenges. This calls for a watercourse treaty adapted to recent social, environmental, and climatic developments, which will be an important step forward in the management of watercourses, based on a global vision. This issue is even more relevant given that the Libón River – an international waterway originating in Haiti – could also in the future be the subject of intense tensions between the two countries in the context of mining operations in the border zone by two Canadian companies, Unigold and Barrick Gold.
As soon as it affects their diplomatic and trade relations, the Massacre River dispute benefits neither Haiti nor the Dominican Republic. To reach a peaceful settlement of this dispute, it is more than necessary to return to the negotiating table in accordance with their treaty obligations. Both parties can count on the Organization of American States (OAS), which has a proven track record in mediation in the Central American region. To facilitate the peaceful resolution of the dispute, the two governments must communicate all relevant information and research data available concerning the water table, the hydrological regime and potential environmental impacts. If the attempt at diplomatic resolution fails, the parties may then submit their dispute to international arbitration. Moreover, to prevent or manage their potential conflicts in the future, the two states need to rethink the Treaty of Peace, Friendship and Arbitration, which is already almost a century old. The Republic of Haiti and the Dominican Republic may consider negotiating a forward-looking treaty accounting for new social, humanitarian, climatic, and environmental challenges. This initiative may prove important for a better coexistence of the two neighboring brothers.
