In the debate surrounding the canal or water transfer being built on the Masacre River on the Haitian side, both the Dominican Republic and Haitian authorities have invoked the Treaty of Peace, Friendship, and Arbitration between the Dominican Republic and the Republic of Haiti, signed in Santo Domingo on February 20, 1929, as the basis for their positions and claims. Shortly before, on January 21, 1929, the Dominican and Haitian governments had signed the Border Treaty, which established the border between the two countries.
The Treaty of Peace, Friendship, and Arbitration is a legal instrument that establishes the regulatory framework for settling disputes that may arise between the two nations, which explains why seven of the treaty’s twelve articles (Articles 3 to 9) refer to arbitration as the fundamental method, although it also recognizes that either party may make use of before resorting to arbitration, to investigation and conciliation procedures, as set out in Article 3 of the treaty.
The guiding principle of the treaty, set out in Article 1, is to avoid war and any act of violence by one nation against the other, which is why a large part of its content is devoted to defining the arbitration procedure, the method of selecting arbitrators, the channeling of conflicts, and the binding nature of arbitral decisions. However, Article 10 deals specifically with disputes that may arise in relation to rivers and other watercourses shared by both countries. This article provides as follows: “Since rivers and other watercourses originate in the territory of one State and flow through the territory of another or serve as boundaries between the two States, both High Contracting Parties undertake not to undertake or consent to any work likely to alter the course of those rivers or watercourses or to alter the yield of their sources.” It adds a paragraph that reads as follows: “This provision shall not be interpreted as depriving either State of the right to use, in a fair and equitable manner, within the limits of its respective territory, such rivers and other watercourses for irrigation and other agricultural and industrial purposes.”
From the positions expressed by official spokespeople from both countries, it can be deduced, at the risk of simplifying the legal issue, that the Dominican Republic invokes the first paragraph of the article by arguing, correctly, that the parties have committed not to undertake any work that would alter or divert the flow of the rivers and other watercourses referred to in Article 10. The argument of the Dominican authorities is that what is being built is not an irrigation canal per se, but a diversion that would take the river’s flow from its natural course, with negative repercussions downstream for both Dominicans and Haitians who are engaged in agriculture and depend on that source to irrigate their crops. It is an argument that, prima facie, seems clear and compelling.
For their part, Haitian official spokespeople and other private actors seem to invoke the second paragraph of Article 10, arguing that the Treaty of Peace, Friendship, and Arbitration grants them the “right to use, in a fair and equitable manner, within the limits of their respective territories” the rivers and waterways for agricultural and industrial purposes. In other words, Haiti’s argument is that the treaty gives it the power to use the waters when they are within its territory, while at the same time saying that the Dominican Republic has done the same with the waters of the Masacre River at points where it runs through Dominican territory.
As is often the case, the interpretation of any legal text, in this case a bilateral treaty, is not mechanical or literal, nor is it limited to a single, indisputable meaning. That is the essence of a legal dispute: how to interpret and apply a rule in a given situation. This means that, unless the parties reach an understanding through negotiation, this conflict will ultimately have to be resolved through the dispute resolution mechanisms provided for in the treaty.
The Dominican Republic faces the very serious problem that its interlocutor—if that term is appropriate here—is diffuse and changeable. One day, Haiti’s position is expressed by a senior government official, while another day it is a private spokesperson who speaks as if he were invested with legitimate state authority. This has to do with the fact that Haiti, as has been said so many times in this column, is experiencing a “Hobbesian situation,” that is, the absence of a common power (the state) that gives rise to what Hobbes dramatically called a “war of every man against every man,” in which there is no authority or legitimate order in the territory of a nation.
In this context, it is worth asking whether the Dominican government’s measure of closing the borders is effective in relation to the type of conflict that has arisen between the two states. This closure represents a kind of sanction aimed at getting the Haitian state to stop the work and accept that it has no right to build it. The problem is that, as is often the case in so many areas of life, the law of unintended consequences immediately comes into play, in this case the negative impact that the border closure has on Dominican producers and traders whose activities depend heavily on the Haitian market. The same can be said of Haitians who make their living from trade with the Dominican Republic, who, moreover, are not responsible for what is happening on the Masacre River.
Ideally, the Haitian authorities would suspend construction of the dam and allow for constructive dialogue between the two nations, not only on this particular issue, but also on other aspects concerning river management and the environment in general. However, there is no guarantee that this will happen. If this does not happen, the Dominican government will be forced to reconsider closing the border without having achieved its objective, as it does not seem feasible to maintain such a measure for a relatively long period of time. The same can be said about the military deployment in the border area, since if the project is not stopped, the same treaty that is invoked prohibits the use of force to settle disputes.
While these scenarios are being defined, the Dominican Republic must refine its technical and legal discourse in defense of its claim to demonstrate with objective arguments that it is right to oppose the construction of this water diversion project on the Masacre River by the Haitian side. Otherwise, our country runs the risk of losing the argument in international public opinion, as well as in potential arbitration, against a poor and devastated Haiti that will seek to generate sympathy by invoking its right to use water for agricultural production and its own survival.
Published in Diario Libre, Friday, September 22, 2023.