Should the Right to Water be International Law?

9336 words (37 pages) Essay in International Law

21/03/19 International Law Reference this

Last modified: 21/03/19 Author: Law student

Disclaimer: This work has been submitted by a student. This is not an example of the work produced by our Law Essay Writing Service. You can view samples of our professional work here.

Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.

‘The human right to water has been acknowledged so widely in international water meetings, state practice and in a General Comment of the United Nations Economic and Social Council, that it should be considered customary international law.’

Do you agree with this statement? What obligations does recognising a human right to water in international law impose on States?

INTRODUCTION

Over a billion people in the developing world lack safe drinking water.[1] Research has shown that nearly three billion people live without access to adequate sanitation systems, which are necessary for reducing exposure to water-related diseases such as typhoid fever, cholera, diarrhoea etc.[2] In 2012 over 700 million people lived in communities where they had no access to safe drinking water and sanitation facilities.[3] Also, many more people lack household-level access to safe access water and sanitation facilities including the vulnerable people living in rich countries, example the USA.[4]

The human right to water (RTW) has been a subject of controversy over the years. This is because several attempts have been made to decipher whether water being a natural resource, should be made a public good (giving everyone access to it) or it should be privatized (making it a commodity). Bearing in mind the several international water meetings seeking to address this issue coupled with attempts by nation-states to ascertain this concern, it can be stated that the mechanisms put in place have not been able to expressly recognize the human RTW.[5]

This essay seeks to identify the various attempts of establishing the RTW under International Law, regional regimes and state practice. It will address whether the RTW can be considered as customary international law and the obligations this recognition would impose on states. Access to water has been impliedly recognised as a human right by international mechanisms, regional agreements, state practice and declarations.[6]  However, the inability of these mechanisms to expressly establish the RTW makes it difficult to establish that it should be made customary international law.  This is because the RTW is yet to gain a general acceptance and applicability both internationally and locally. This essay establishes that although there is both explicit and implicit acknowledgement of the RTW under International documents, regional agreements and state practice, the RTW cannot be deemed to constitute International Customary Law.

In order to address the issues raised above, this paper will be considering the following aspects;

  1. Is there a right to water (RTW)?
  2. Regulatory frameworks on human RTW (International, regional and national legislations)
  3. Judicial decisions on the RTW
  4. The RTW as Customary International Law
  5. Obligations on States
  6. Conclusion

IS WATER A HUMAN RIGHT?

Professor McCarffrey laid the foundation for exploring the possible RTW in 1993[7]. He thought a human rights approach to water should be used considering the scarcity of water and its inequitable distribution.[8] Gleick, in his work “The Human Right to Water” further developed this issue in 1999.[9] Article 25 of the Universal Declaration of Human Rights (UDHR)[10] adopted by the United Nations General Assembly in 1948, states that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food…’

McCaffrey observes:

[…] Little attention has been given, however, to the question of whether there is a right to water, and if so, what the contours of such a right might be. Such a right could be envisaged as part and parcel of the right to food or sustenance, the right to health or, most fundamentally, the right to life.[11] 

According to him,[12] ‘the right would have to be defined carefully, so as to take into account all too-prevalent instances of region-wide shortages’.

McCaffrey further expressed his dismay at the absence of the provision for RTW in neither the United Nations Covenants on Human Rights, nor in the 1948 Universal Declaration of Human Rights. He posits that an express mention of this right under the basic instruments of international human rights law, rather than being inferred, would have settled the controversy. [13] He is of the view that in relation to the UDHR, Article 25 constitutes the most likely basis from which to infer human RTW. Many of the provisions contained in the Declaration have been considered to be binding on states, however, the legal status of these rights stated in Article 25 of the Declaration remains uncertain.[14] To reiterate his position, McCaffrey observes, even if it is assumed that these rights of Article were binding, it would still have to be established that a RTW is implicit in the right to adequate standard of living to which the Article explicitly refers.[15]

This therefore does not in anyway suggest the existence of a RTW. Article 6 of the International Covenant of Civil and Political Rights states that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’[16] While this provision could possibly form the basis for the existence of a RTW; the scope of the right to life is still subject to various interpretations[17]which according to McCaffrey, the interpretation does not mean that the right to life includes other rights but that the safeguarding of this fundamental right is a pre-condition of the enjoyment of social, economic, cultural, political and civil rights.[18] Thus, the provision of article 6 above does not suggest the existence of a RTW.

Also, article 11 (1) of the International Covenant on Economic, Social and Cultural Rights which has been thought to provide the basis for human RTW reads as follows: ‘the state parties to the present covenant recognises the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of the living conditions’.[19] It is unclear as to whether the right to adequate standard of living also includes the RTW, which is adequate to meeting the basic needs of man.[20] In addition, article 2 (1) of the International Covenant on Economic, Social and Cultural Rights[21] require states to take steps to ensure its available resources, are maximised toward the progressive realisation of the rights recognised in the Covenant. This provision according to McCaffrey signifies that states are not under obligation to give an immediate effect to this right, as it is progressive in nature.[22] However, the interpretation of the provisions of the International Covenant on Economic, Social and Cultural Rights has taken a significant turn since the adoption of the General Comment No. 15 in 2002 by the Committee of the Economic, Social and Cultural Rights.[23] The committee believes that the RTW falls within the category of guarantees under article 11, which are essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions of survival.[24]

It must be stated that the General comment No. 15[25] has been criticised as ‘revisionist’ in nature. According to Stephen Tully[26] ‘the committee’s intention to render access to water an inherent right and not a mere tangential one is ill-served by a process of inference’. He asserts that since claims to scarce resources are properly questions of resource allocation, a more convincing textual interpretation to article 11(1) could support an implied right to access water which is necessary for food growth or satisfaction of housing needs.[27] To him water is a collective right as much as it is an individual right.[28] This argument will be further expatiated in the course of this work.

Apropos the above, this essay agrees with Gleick’s observation that international law, international agreements and state practice supports the human right to a basic water requirement.[29] However, acknowledging the existence of this right will demand that states translate these rights into specific national and international obligations thereby demanding more responsibilities.[30] Richard Jolly observes:

[…] To emphasize the human right of access to drinking water does more than emphasize its importance. It grounds the priority on the bedrock of economic and social rights, it emphasizes the obligations of state parties to ensure access, and it identifies the obligation of state parties to provide support internationally as well as nationally.[31]

REGULATORY FRAMEWORKS ON HUMAN RIGHT TO WATER

INTERNATIONAL AGREEMENTS

  • Article 24 (2c) of the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)[32] stipulates that state parties shall ensure to women the right to ‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply’. It is pertinent to note that this right applies to rural women.[33] Notwithstanding its restricted scope, it signifies a noteworthy development with regard to the advancement of the human right to water.[34]
  • Article 24, Paragraph 2, of the 1989 Convention on the Rights of the Child (CRC) stipulates that state parties take appropriate steps to combat disease and malnutrition ‘through the provision of adequate foods and clean drinking-water’.[35]
  • Article 10 of the United Nations Convention on the LAW of the Non-Navigational Uses of International Watercourses (1997) also addresses basic human needs. It stipulates that in the event of a conflict between uses of water in an international watercourse, special regard shall be given ‘to the requirements of vital human needs’.[36]
  • The Statement of Understanding which is ancillary to the United Nations Convention on the Law of Non-Navigational Uses of Watercourses (1997) stipulates that in determining vital human needs in the event of conflicts over the use of watercourses, ‘special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation’.[37]
  • The 1949 Geneva Convention relative to the treatment of Prisoners of War makes explicit reference to access to clean water by stating that state parties shall provide prisoners of war with sufficient access to water and sanitary facilities.[38]
  • Article 28 (2a) of the Convention on the Rights of Persons with Disabilities (CRPD) which came into force in 2008 stipulates that state parties shall take appropriate steps “to ensure equal access by persons with disabilities to clean water services….”[39]
  • The committee on Economic, Social and Cultural Rights ancillary to articles 11 and 12 of the International Covenant for Economic, Social and Cultural Rights 1996 (which formalizes the right to food) believes that the right to water falls within the category of rights under article 11 that are ‘essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’[40]

Looking at some of the instruments mentioned above, it can be seen that no particular agreement gives a generalised guarantee of the human right RTW but rather they apply to a certain class and category of people such as the CRPD, CEDAW etc. McCaffrey has stated that none of these agreements casts the corresponding entitlement in human right terms but rather they place a duty on governments to ensure that water as well as other things necessary to life and good health, is provided to members of groups that have been identified as requiring a special provision.[41] He[42] also believes that the premise upon which governments have this obligation is supported by case laws pertaining to certain regional treaties, which shall be stated below.

However, Razzaque believes that apart from the human right treaties, the 1997 United Nations Convention on Non-Navigational uses of watercourses contain the explicit RTW.[43] She observes the statement of understanding attached to the Convention which states that “special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation.[44] To further her view, Razzaque posits that by virtue of the ECOSOC Comment on ‘the RTW’, the right to safe drinking water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is the most fundamental condition for survival’.[45] The General Comment 15 imposes three levels of obligation on state parties, which are obligations to respect, to protect and to fulfil the right to safe drinking water.[46] I believe that the General Comment 15 gives a broader guarantee of the existence of the right to water. I shall set out below the regional agreements on the RTW.

REGIONAL AGREEMENTS

In Africa, two human rights instruments explicitly refer to water and its access.[47] Similar to the CRC, Article 14(2c) of the African Charter on the Rights and Welfare of the Child (1990) stipulates that state parties shall ‘take measures to ensure the provision of safe drinking water in order to implement the right to health’.[48] Also, Article 15 (a) of the protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) requires state parties to “provide women with access to clean drinking water”.[49] It is pertinent to note also that while the Maputo Convention,[50] provides that state parties shall “endeavour to guarantee for their populations a sufficient and continuous supply of suitable water’ the Senegal’s River Charter authoritatively refers to the right to water as a fundamental human right.[51]

In America, Article 11 of the Additional Protocol to the American convention on Human Rights in the Area of Economic, Social and Cultural Rights (1998) provides that ‘everyone shall have the right to live in a healthy environment and to have access to basic public services’.[52] It can be stated that access to basic public services also includes access to water and sanitation.[53] This view is supported by a report from the Inter-American Commission on Human Rights, delivered in Brazil wherein it criticised the existence of inequality in the access to public access to public services, as about 2 per cent of the population had no access to potable water and about 26 per cent of the population lacked access to sanitary services.[54]

In Europe, there are a couple of regional agreements that address the link between water and human rights.[55] Regional documents such as the United Nations Economic Commission for Europe (UNECE) Convention on Environmental Impact Assessment in a Trans-boundary Context (1991),[56] UNECE Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes and its 1999 protocol on Water and Health,[57] and the UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (1998),[58] talk about water in relation to groundwater abstraction, impact assessment of water-related projects and access to information.[59]

Other documents which are noteworthy includes; The First International Conference on Water and the Environment (1992) in Dublin,[60] the Ministerial Declaration of the Second World Water Conference (2002)[61], the International Conference on Fresh Water (2001)[62] and the Implementation Plan of the World Summit on Sustainable Development (2002).[63] Still we see that none of these documents or forum mentions explicitly the human right to water.

NATIONAL LEGISLATIONS/JUDICIAL DECISIONS

Several national legal systems have developed legislations that recognize the right to water.[64] The Kenyan Constitution (2010)[65] and South African Constitution[66] explicitly provides for the right to water. In South America, both the new Bolivian[67] and the Uruguayan[68] Constitutions stipulate that access to water is a human right.[69]

Several judicial decisions have been taken which deals with the right to life and impliedly addressed the right to water. An example is the Gabcikovo-Nagymaros’ case[70] where Judge Weeramantry of the ICJ stated that “the protection of the environment is a vital part of contemporary human rights doctrine such as the right to life itself…damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments”. Also the High Court of Kerala in the case of Perumatty Grama Panchayat v. State of Kerala held that the “government had a duty to protect against excessive groundwater exploitation and the inaction of the state in this regards was tantamount to infringement of the right to life of the people guaranteed under Article 21 of the constitution of India”.[71] Also worthy of note is the case of Lindiwe Mazibuko & Others V. City of Johannesburg and Others[72] where the court rightfully upheld the right to water as enshrined in section 27 of the Constitution.

HUMAN RIGHT TO WATER AS CUSTOMARY INTERNATIONAL LAW

Article 38 (1)(b) of the ICJ statute defines Customary International Law as ‘evidence of a general practice accepted by law’.[73] Apart from the treaties (international and regional) discussed above, the question to be examined is whether the human right to water can be considered customary international law according to article 38 (1b) stated above.[74] This question is deemed to be of special interest because states that have not ratified the respective human rights treaties can still be bound by a customary human right to water.[75] The growing support of the Right to Water can be seen from the issuance of international legal documents, treaties and declarations as well as incorporation into national laws.[76] The RTW remains ill defined and this poses a problem of clarity regarding the obligations related to it and its utilization as well as implementation.[77]Even if the RTW were deemed to be customary international law, the existence of state practice would still be in question.[78]

With regard to RTW, state practice would need to show itself in a uniform manner to establish the general application of the rule of law[79]Another problem would be the consistency in applying the legal framework because of reasons such as unavailability of resources and lack of political will. Its enforceability would be a major concern because while some developed states have the structure to enforce these laws, other states which are underdeveloped are still facing rudimentary issues such as social welfare. The UDHR for instance has been argued by some authors to be customary international law, while other writers are of the view that because of its non-binding nature, it cannot gain a legally binding status.[80] Inga argues that the incorporation of the right to water into national laws does not make it customary international law because the numbers of the states that have enshrined the right to water in their constitutions are lesser than the total number of states.[81]The recognition of the right to water in treaties according to Inga, does not give rise to Customary International Law because they become binding on both state and non-state parties.[82]  In contrast to Inga’s view, Rebecca Bates[83] believes that the explicit statements on the right to water and the evidence of state practice in the form of national and constitutional instruments contributes to the existence of a customary right to water. Although the recognition of the RTW by the General Assembly and Human Rights Council implies the evolution of Customary International Law, because states failing to meet their human rights obligations would be violating these human rights. For the right to water to be considered a general principle, a convincing evidence of general acceptance and recognition is required.[84] In essence, the human right to water though recognised in International, regional forums and documents cannot be considered as Customary International Law because it lacks a generalised recognition as a human right and not a derivative right.[85]

OBLIGATIONS

States have specific, core and general obligations to respect the RTW both internationally and nationally. They have a general obligation to realize the RTW progressively.[86]

If the RTW were considered Customary International Law, states would be obliged to fulfil the three principles set out in the General comment 15 which are “Respect, Protect and Fulfil”.[87] Also, states would be obliged to incorporate the Right to water into their national legislations as exemplified in Kenya and South Africa above, review their national and subnational legal policies. Another classification of obligation on states is stated in article 2(1) of the ICESCR where states are obliged to ensure all rights in the covenant are exercised without discrimination of any kind.[88] States are also obliged to ensure progressive realizations of the RTW, this is however dependent on the availability of resources.[89]

CONCLUSION

The RTW is acknowledged clearly under International Human Rights Law.[90] Notwithstanding how water is important to humanity, the international community has shown little political concern to enshrining it as a human right.[91] This paper has reviewed the various attempts by international law, regional agreements and state practice to establish expressly the RTW as well as the obligations this recognition would impose on states. It is pertinent to note that the lack of a unified recognition of the right of water has raised a myriad of issues, which has been addressed above. It therefore leads to the question of whether the right to water can be deemed to be a customary international law. Whilst I agree that the recognition of the RWT as a Customary International Law would be a welcomed development, which would help improve conditions worldwide, there is still a need for convincing evidence of general acceptability and recognition of the RTW.[92] Therefore, as far as customary international law is concerned, the right to water has not become a part of it.[93] It is recommended that governments, water providers and international organisations put mechanisms in place to work out the necessary institutional, economic and management strategies for meeting these basic human water needs. Also there is the need for the international community to re-examine its fundamental development goals.[94]

BIBLOGRAPHY

PRIMARY SOURCES

Case Laws

  • Charan Lal Sahu v. Union of India, AIR (1990) 1480
  • F.K.Hussain v. Union of India (1990) Kerala 321
  • Hungary v. Slovakia (Gabcikovo-Nagymaros Case) (1997) ICJ Rep 6
  • Lindiwe Mazibuko & Others V. City of Johannesburg and Others CCT 39/09 (2009) ZACC
  • M.C. Mehta v. Union of India (1998) 9 SCC. 598
  • North Sea Continental Shelf Case, ICJ Reports 1969, 3 (Para 74)
  • Perumatty Grama Panchayat v. State of Kerala (2004) 1 KLT 731
  • Subshash Kumar v. State of Bihar (1991) 1SCS 598
  • Zander v. Sweden (1993) Series A, No. 279B

Statutes

  • Statute of the International Court of Justice (26 June 1945)
  • The Bolivian Constitution, (2009)
  • The Constitution of Kenya, 2010
  • The Constitution of the Oriental Republic of Uruguay, 31 October 2004 (as amended)
  • The Constitution of the Republic of South Africa, 1999
  • Water Services Act of 1997
  • Water Services Regulation of 2001

SECONDARY SOURCES

Books

  • Centre on Human Rights and Sanitation Programme (COHRE), Legal Resources for the Right to Water and Sanitation, International and National Standards (first published in 2004, 2nd Edition 2008)
  • Jolly R, Human Development Report United Nations Development Programme (UNDP) (Oxford University Press 1998)
  • Meron T, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press, Oxford 1989, published oxford online 2012)
  • Winkler I T, The Human Right to Water; Significance, Legal Status and Implications for Water Allocation (Hart Publishing Limited, United Kingdom 2012)

Contributed Books

Journal Articles

  • Arden, ‘Water for All? Developing a Human Right to Water in National and international Law (2016) 65 (4) The Int. and Comp. Law Quarterly 771
  • Baer M, ‘Implementing the Human Right to Water and Sanitation: A Study of Global and Local Discourses (2015) 36 (8) Third World Quarterly 1527
  • Bakker K, ‘The “Commons” Versus the “Commodity”: Alter-globalization, Anti-privatization and the Human Right to Water in the Global South’ (2007) 39 (3) RJG 430
  • Bates B, ‘The Road to The Well: An Evaluation of the Customary Right to Water’ (2005) 19(3) Review of European, Comparative & International Environmental Law 282
  • Brunner N, Mishra V, Sakthivel P and Tschol C, ‘The Human Right to Water in Law and Implementation’ (2015) 4, 413 – 471; doi: 10.3390/laws4030413
  • Gleick P H, ‘The Human Right to Water’ (1999) 1 (5) Water Policy 487
  • McCaffrey S C, ‘A Human Right to Water: Domestic and International Implications’ (1993) (5) 3 Georgetown International Environmental Law Review 1
  • Mirosa O and H L M, ‘Human Right to Water: Contemporary Challenges and Contours of a Global Debate’ (2012) 44 (3) Antipode 932
  • Pejan R, ‘The Right To Water: The Road to Justiciability’ (2004) 36 (5) George Washington International Law Review 1181
  • Razzaque J, Trading Water: The Human Factor’ (2004) (13) 1 Review of European Community & International Environmental Law 15
  • Risse M, ‘The Human Right to Water and Common Ownership of the Earth’ (2014) 22 (2) The Journal of Political Philosophy 178
  • Rodina L, ‘Human Right to Water in Khayelitsha, South Africa – Lessons from a ‘Lived Experiences’ Perspective’ (2016) 72 Geoforum 58
  • Scanlon B R, Faunt C C, Longuevergne L, Reedy R C, Alley W M, Mcguire V L and McMahon P B, ‘Groundwater Depletion and Sustainability of Irrigation in the US High Plains and Central Valley (2012) 109 (24) PNAS. Doi: 10.1073/pnas.1200311109 < http://www.pnas.org/content/109/24/9320.full> (Accessed 25 March 2017)
  • Takacs D, ‘South Africa and the Human Right to Water: Equity, Ecology and the Public Trust Doctrine’ (2016) 34 (2) Berkeley journal of international law 55
  • Tully S,  “A Human Right to Access Water? A Critique of General Comment No. 15” (2005) 23 Netherlands Quarterly of Human Rights 35

International Meetings/Reports

Treaties And Instruments

United Nations Resolutions

  • 1992 Rio Declaration on Environment and Development (Rio de Janeiro Brazil, 14 June 1992) UN Doc. A/CONF.151/26 (Vol.1)
  • Declaration of Human Rights, GA. Resolution. 217, UN Doc. A/64 (1948)
  • Fitzmaurice M, ‘The Human Right To Water’ 18 Fordham Environmental Law Review (2006-2007) 537 < http://heinonline.org/HOL/Page?handle=hein.journals/frdmev18&collection=journals&id=543&startid=543&endid=592> ‘accessed 22 March 2017’
  • International Covenant on Civil and Political Rights- adopted and opened for signature, ratification and accession by General Assembly resolution 2200AA (XXI) of 16 December 1966 came into force 23 March 1976. < http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx>
  • International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976

[1] Peter H. Gleick, ‘The Human Right to Water’ (1999) 1 (5) Water Policy 487 – 503.

[2] Ibid.

[3] Norbert Brunner, Vijay Mishra, Ponnusamy Sakthivel, Christof Tschol ‘The Human Right to Water in Law and Implementation’ (2015) 4, 413 – 471; doi: 10.3390/laws4030413.

[4] Ibid.

[5] Jona Razzaque, Trading Water: The Human Factor’ (2004) 13 (1) Review of European Community & International Environmental Law 15 – 26.

[6] Ibid. (n.1)

[7] Stephen C. McCaffrey, ‘A Human Right to Water: Domestic and International Implications’ (1993) 5 (3) Georgetown International Environmental Law Review 1-24.

[8] P. Gleick (n.1).

[9] Ibid.

[10] Declaration of Human Rights, GA. Resolution. 217, UN Doc. A/64 (1948).

[11] S, McCaffrey (n.7).

[12] Ibid.

[13] Ibid.

[14] Malgosia Fitzmaurice, ‘The Human Right To Water’ 18 Fordham Environmental Law Review (2006-2007) 537 < http://heinonline.org/HOL/Page?handle=hein.journals/frdmev18&collection=journals&id=543&startid=543&endid=592> ‘accessed 22 March 2017’.

[15] Ibid. (n.7).

[16] International Covenant on Civil and Political Rights (ICCPR)  (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 Art 2(1).

[17] S. McCaffrey (n.7).

[18] Ibid.

[19] International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.

[20] S McCaffrey (n7).

[21] Ibid.

[22] Ibid.

[23] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 15, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. E/C. 12/2002/11 (Nov. 26, 2002), (hereinafter General Comment No. 15) <http://www2.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf>(Accessed 23 March 2017).

[24] Ibid.

[25] Ibid.

[26] Stephen Tully,  ‘A Human Right to Access Water? A Critique of General Comment No. 15’ (2005) 23 Netherlands Quarterly of Human Rights 35.

[27] Ibid.

[28] Ibid.

[29] P, Gleick (n.1).

[30] Ibid.

[31] Richard Jolly, Human Development Report “United Nations Development Programme (UNDP)” (Oxford University Press 1998). <http://hdr.undp.org/sites/default/files/reports/259/hdr_1998_en_complete_nostats.pdf> ‘accessed 24 March 2017’.

[32] United Nations Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp. No. 46, U.N. Doc. A/34/46 (Dec. 18, 1979) < http://www.un.org/womenwatch/daw/cedaw/> ‘accessed 24 March 2017’.

[33] Ibid.

[34] Adele J. Kirschner, ‘The Human Right to Water’ in A. Von Bogdandy and R. Wolfrum (eds), Max Planck Yearbook of United Nations Law (2011) Vol. 15, 445-487 < http://www.mpil.de/files/pdf3/mpunyb_10_Kirschner_151.pdf> ‘accessed 24 March 2017’.

[35] United Nations Convention on the Right of the Child (1989). <http://www.unhchr.ch/html/menu3/b/k2crc.htm> ‘accessed March 24 2017’.

[36]Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, 21 May 1997)< http://legal.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf> ‘accessed 24 March 2017’.

[37] Statements of Understanding Pertaining to Certain Articles of the Convention, Report of the Sixth Committee convening as the Working Group of the Whole, Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Doc. A/51/869) 1997 < http://legal.un.org/ilc/documentation/english/reports/a_63_10.pdf > ‘accessed 24 March 2017’.

[38] Geneva Convention Relative to the Treatment of Prisoners of War (adopted on 12 August 1949 by the diplomatic conference for the establishment of International Conventions for the Protection of victims of war, held in Geneva from 21 April to 12 August 1949, came into force: 21 October 1950) < http://www.ohchr.org/EN/ProfessionalInterest/Pages/TreatmentOfPrisonersOfWar.aspx> ‘accessed 24 March 2017’.

[39] Convention on the Rights of Persons with Disability (CPRD), GAOR 61st Session < http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf> ‘accessed 24 March 2017’.

[40] Ibdi (n.23).

[41] S. McCaffrey (n.7).

[42] Ibid.

[43] J, Razzaque (n.5).

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] A, Kirschner, (n.34)

[48] African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990) < http://www.achpr.org/instruments/child/#a1> (Accessed 24 March 2017).

[49] Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol), OAU Doc. CAB/LEG/66.6 (2003) < http://www.achpr.org/instruments/women-protocol/#15> (Accessed on March 24 2017).

[50] Revised African Convention on the Conservation of Nature and Natural Resources (2003) < http://kenyalaw.org/treaties/treaties/4/AFRICAN-CONVENTION-ON-THE-CONSERVATION-OF-NATURE-AND> (Accessed on 24 March 2017).

[51]Charte des Eaux du Fleuve Senegal (2002) < http://www.ecolex.org/details/treaty/charter-of-waters-of-the-senegal-river-tre-153511/> (Accessed on 24 March 2017).

[52] Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador, 17 November 1988). <http://www.oas.org/juridico/english/treaties/a-52.html> (Accessed 24 March 2017).

[53] A, Kirschner (N.34).

[54] Inter-American Commission on Human Rights, Report on the Human Rights Situation in Brazil, Doc. OEA/Ser.L/V/II.97, Doc.29 Rev.1 of 29 September 1997.

[55] Bridget R. Scanlon, Claudia C. Faunt, Laurent Longuevergne, Robert C. Reedy, William M. Alley, Virginia L. Mcguire and Peter B. McMahon ‘Groundwater Depletion and Sustainability of Irrigation in the US High Plains and Central Valley (2012) (109) 24. Doi: 10.1073/pnas.1200311109 < http://www.pnas.org/content/109/24/9320.full> (Accessed 25 March 2017).

[56]Nations Economic Commission for Europe (UNECE) Convention on Environmental Impact Assessment in a Trans-boundary Context (1991) < https://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf> (Accessed 25 March 2017).

[57] UNECE Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes ( Helsinki, 17 March 1992), entered into force 6 October 1996 < http://www.unece.org/env/water/text/text.html> (Accessed on 25 March 2017).

; UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes (London, 1999) not yet entered into force <http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=194640  > (Accessed on 25 March 2017).

[58] UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (Aarhus 25 June 1998) < https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf> (Accessed 25 March).

[59] J, Razzaque (n.5).

[60] This forum provided input on freshwater water issues for the 1992 Rio Declaration. It stressed the need for stakeholders to be involved in the decision-making process and asked for the economic value of water to be recognized in all its competing uses. Ibid. (n.5). The Dublin Conference Report is based on four principles that cover environmental, social and economic issues: a) freshwater is finite and vulnerable resource, essential to sustain life, development and the environment; b) water management and development should be based on a participatory approach, which involves users, planners and policy markers at all levels; c) women play part in the provision, safeguarding and managing of water; and d) water has an economic value in all its competing uses and should be recognized as an economic good. See International Conference on Water and the Environment (Dublin, 26 – 31 January 1992) <  http://www.ircwash.org/sites/default/files/71-ICWE92-9739.pdf> (Accessed 25 March 2017).

[61] Ministerial Declaration of the Hague on Water Security in the Twenty-First Century (the Hague, 22 March 2000) < http://www.worldwatercouncil.org/fileadmin/world_water_council/documents/world_water_forum_2/The_Hague_Declaration.pdf> (Accessed on 25 March 2017). It was deliberated that Water which is vital for the life and health of people and ecosystems and a basic requirement for the development of countries, is being threatened by pollution, unsustainable usage, land-use changes, climate change and other sources. They recommended that fresh water be ensured, sustainable development and political stability are promoted, everybody has access to affordable water leading to a safe and productive life and the vulnerable be protected from the risk of water-related hazards. Ibid. (n.5).

[62] International Conference on Fresh Water- A Key to Sustainable Development (Bonn, Germany, 3-7 December 2001) < http://www.unep.or.jp/ietc/Focus/pdf/Bonn_Recommendations.pdf> (Accessed 25 March 2017). The Conference recommended three actions under the following heading; Governance, mobilising financial resources and capacity building and knowledge sharing which are essential for improved management of water resources.

[63]Report on the World Submit on Sustainable Development (Johannesburg, South Africa 26 August – 4 September 2003) < http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD_PlanImpl.pdf> (Accessed on 25 March 2017).  In this submit certain future action plans were specified: In Part II on poverty eradication, paragraph 6 and 7, a plan to halve the proportion of people without access to safe drinking water by 2015. Part IV, paragraph 25, plants for protecting and managing natural resource base of social and economic development, national strategies and local capacity building, empower local community with increased access to public information and participation in the decision making and Intensify water pollution prevention to reduce health hazards and protect ecosystems by introducing technologies for affordable sanitation and industrial and domestic wastewater treatment, by mitigating the effects of groundwater contamination and by establishing, at the national level, monitoring systems and effective legal frameworks.

[64] Centre on Human Rights and Sanitation Programme (COHRE), “Legal Resources for the Right to Water and Sanitation, International and National Standards” (first published in 2004,  2nd Edition 2008) 58-74

[65] The Constitution of Kenya, 2010 http://www.kenyalaw.org/lex/actview.xql?actid=Const2010 (Accessed 25 March 2017). The Kenyan Constitution by virtue of Article 43 (1) (d) of in its bill of rights expressly stipulates the right to “clean and safe water in adequate quantities” and a right to a “reasonable standard of sanitation”.

[66] The Constitution of the Republic of South Africa, 1999 http://www.gov.za/documents/constitution-republic-south-africa-1996> (Accessed 25 March 2017). Article 27 (1)(b) states that “everyone has the right to have access to…sufficient…water.” It has also been stated that when it comes to implementing the right to water, South Africa is one of the pioneers. Ibid. (A. Kirschner,) South Africa also implements human rights to water by a free basic water policy based on the provisions of the Water Services Act of 1997 and the Water Services Regulation of 2001(ibid. n.35).

[67] Article 20, 373 and 374 of the Bolivian Constitution, 2009 explicitly provides for the human right to water and considers it a priority. https://www.constituteproject.org/constitution/Bolivia_2009.pdf (Accessed 25 March 2017).

[68] Article 47 of the Constitution of the Oriental Republic of Uruguay, 31 October 2004 (as amended) http://www.parliament.am/library/sahmanadrutyunner/Uruguay.pdf (Accessed on 25 March 2017). Article 47 states that ‘Access to clean water and access to sanitation constitute fundamental human rights”.

[69] Ibid. (N.34).

[70] Hungary v. Slovakia (Gabcikovo-Nagymaros Case) (1997) ICJ Rep 6 <http://www.icj-cij.org/docket/index.php?sum=483&p1=3&p2=3&case=92&p3=5> (Accessed 26 March 2017).

[71] Perumatty Grama Panchayat v. State of Kerala (2004) 1 KLT 731.

[72] Lindiwe Mazibuko & Others V. City of Johannesburg and Others CCT 39/09 (2009) ZACC 28 < http://www.saflii.org/za/cases/ZACC/2009/28media.pdf> (Accessed on 26 March 2017). In this case, the constitutional court upheld the provisions of section 27 of the Constitution which states that  everyone has the right to “sufficient water”. The Court further held that the obligation placed on the government by section 27 is an obligation to take measures to seek the progressive realisation of the right.

The European also in the case of Zander v. Sweden (1993) Series A, No. 279B held that there had been a violation of Article 6 (1) of the European Convention on Human Rights (1950) where there was pollution of drinking water. (Ibid. n.5) < http://www2.ecolex.org/server2.php/libcat/docs/COU/Full/En/COU-157042.pdf> (Accessed 26 March 2017). See also the cases of Charan Lal Sahu v. Union of India, AIR (1990) 1480; Subshash Kumar v. State of Bihar (1991) 1SCS 598; M.C. Mehta v. Union of India (1998) 9 SCC. 598, particularly at page 607; F.K.Hussain v. Union of India (1990) Kerala 321 at page 340.

[73] Statute of the International Court of Justice (26 June 1945) < http://www.icj-cij.org/documents/?p1=4&p2=2> (Accessed 26 March 2017).

[74] Inga T. Winkler, “The Human Right to Water; Significance, Legal Status and Implications for Water Allocation” (Hart Publishing Limited, United Kingdom 2012) 65.

[75] Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press, Oxford 1989, published oxford online 2012). See also Article 43 of the Vienna Convention on the law of Treaties, which provides that the denunciation of a treaty “shall not in any way impair the duty of any state to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty”. (Vienna Convention on the Law of Treaties, Vienna 23 May 1969).

[76] A, Kirschner (n.35). Example Article 43 (1) (b) the Kenyan 2010 and South African Constitution.

[77] Ibid.

[78] Ibid.

[79] North Sea Continental Shelf Case, ICJ Reports 1969, 3 (Para 74).

[80] T, Meron (n.75).

[81] Ibid.

[82] Ibid.

[83] Rebecca Bates, ‘The Road to The Well: An Evaluation of the Customary Right to Water’ (2005) (19) 3 Review of European, Comparative & International Environmental Law 282-293.

[84] T, Meron (n.75).

[85] The right to water has been argued to be a derivative right from the right to food, health, life… until the human right to water is given a generalized recognition, it will be difficult to refer to it as Customary International Law. Also, in order to determine whether a right has gained the threshold of being called a custom, the elements of duration, uniformity, generality of practice and opinion jusis et necessaitas must be satisfied. (Ibid. n.83).

[86]Ramin Pejan, ‘The Right To Water: The Road to Justiciability’ (2004) 36(5) George Washington International Law Review 1181-1210, 1186.

[87] The obligation to respect requires states to refrain from any action direct or indirect, which will interfere with the enjoyment of right to water. The obligation to protect requires states to ensure that corporations, groups or individuals do not interfere with the right to water (this requires effective legislative mechanisms to avert the problem of non-state actors depriving people of their access to water. Regarding the obligation to fulfill, states are required to take measures that provide individuals with the opportunity to obtain satisfaction of those needs which they cannot secure by their personal efforts (obligation to facilitate, promote and provide). ibid. (nos. 24 and 35).

[88] Article 2 (2) of ICESCR stipulates that state parties shall undertake to guarantee that the rights enunciated in the covenant will be exercised without discriminations of any kind as to race, colour, sex language, and religion…  See also Article 2(1) and 26 ICCPR and Article 2(1) of CRC.

[89] Article 2(1) of the CRC, ibid. (n.75).

[90] A, Kirschner, (n.34).

[91] R, Pejan (n.86).

[92] T, Meron (n.74).

[93] Ibid.

[94] P, Gleick (ibid. n.1).

Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.

Related Services

View all

DMCA / Removal Request

If you are the original writer of this essay and no longer wish to have the essay published on the UK Essays website then please:

Current Offers