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The Human Right to Water

Human Rights & Water Sector Governance

Univ. of Dundee

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Contents

1. Understanding the Human Rights Legal System

2. Definition of the Human Right to Water

3. Implementation Challenges

4. Opportunities

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1. Understanding the Human Rights Legal System

“There will be no development without security and no security without development. And both development and security also depend on respect for human rights and the rule of law.”

Kofi Annan, In Larger Freedom (2005)

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1.1. A new paradigm

• UN Charter (1945)– Art.55 – Art.56– Art.103

• The International Bill of Rights– UDHR (1948)– ICESCR (1966-1976)– ICCPR (1966-1976)

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1.2. Four Generations?

• Vienna Declaration (1993)“All human rights are universal, indivisible and

interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”, Vienna Declaration, para.5.

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2. Definition of the Human Right to Water

“The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.”, CESC – GC 15 (2002)

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2.1 The misconceptions

Misconception• Water for free• Public ownership• Tap water & Flush latrine• Immediate entitlement

• Only about a goal

International Law• Affordable• State’s regulation• Meeting the objectives• “Progressive realization” +

“maximum of available resources”

• Goals + Means (State’s margin of discretion)

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2.2 Is there a need for a definition?

• Interdependence of Human Rights• Indirect approach– Anti-American system– National Courts (e.g. India)

• Jurisprudence of other TB (CAT; CERD; ICCPR)• CESC - GC 15 (2002); Role of TB/Courts

Margin of discretion of the State• Justification (MBO)

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2.3 The Objectives & The Means

Objectives• Sustainability• Quantity (15 – 200l ppd)• Quality (WHO standards)• Cultural acceptable• Physically accessible (500m)• Financially affordable (3% of

income)

Means • Non-discrimination• Access to information

– Education (Hygiene)

• Participation– Definition of priorities / budget

allocations– Implementation?

• Remedy– NAT: Administrative/Const.

courts– INT: Reg. & Int’l HR mechanisms

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3. Implementation Challenges

“Water is rightfully considered part of the ‘commons’ and managed for the benefit of all people. This is based on the understanding that there are some areas that should not be left to the whims of the market, but rather should be managed as a social good and that water resource management is environmentally sustainable”

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3.1. The recent political steps…

• Mandate of IE/SR on Right to Water & Sanitation (2008- )

• UN GA – Resolution (2011)

• UN HRC – Resolution (2011)

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3.2. Case study – Sierra Leone• Clause 4.4 & 4.6:The Company is entitled to: …stop up or alter the

course of any watercourse;…shall be entitled to have exclusive possession over all that forms part of the Demised Premises including villages, rivers, forests and all other forms of environment…. shall be entitled to designate such areas as it wishes…”

• Clause 5.2(a):All Disputes shall be referred to and finally resolved by arbitration in [London] before[three] arbitrators under the [Rules of Arbitration of the International Chamber of Commerce]from time to time in force… (d) None of the parties may appeal to any court on a question of law arising out of an award made in the arbitration…(e) The award shall be final and binding on the parties or anyone claiming through or under them.

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3.3. Hierarchy of norms & Harmonization Challenges

• Constitutional Recognition– Min. Land, Mines & Energy ; Agriculture;

Environment; Education; Finances; …• BIT – Arbitration Courts– Suez/Aguas Argentinas vs. Argentina (ICSID, 2010)

• Market based & values based– California; Australia; …

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4. Opportunities

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4.1. Building bridges

• Water:– UNECE – Water

Convention – UNECE – Protocol on

Water & Health

• Water-Related:– Post 2015 – MDGs– WHO – May 24th

Resolution– UNISDR - GP-DRR– UNFCCC

• Environment:– Aarhus Convention

• Human Rights (TBs)– Shadow Reports: CEDAW ;

CRC– Complaints: IACHR

(Guatemala)– Research: ACHPR (Extractive

Industry)• HR (Political)

– SR– UN HRC

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4.2. The WaterLex Approach

Governance Functions1. Situation analysis2. Priority setting3. Budget allocation4. Project planning5. Human Resources

allocation 6. Monitoring & Evaluation

Our Human Rights Lens• Non-discrimination• Access to information• Participation• Remedy

Our goal• Sustainability, Quantity,

Quality, Acceptability, Physical Accessibility, Affordability

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5. Conclusion

1. Need to look at RTWS within dynamic of IHRL (itself within broader Int’l Law Framework)

2. Procedural Guarantees are the 1st step to ‘operationalize’ RTWS

3. Multi-level entry points

Thanks!