Freshwater Access from a Human Rights Perspective : A Challenge to International Water and Human Rights Law [1 ed.] 9789047431466, 9789004169548

Citation preview

Freshwater Access from a Human Rights Perspective

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International Studies in Human Rights

Volume 97

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Freshwater Access from a Human Rights Perspective A Challenge to International Water and Human Rights Law

by

Knut Bourquain

LEIDEN • BOSTON 2008

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Gießen, Univ., FB 01, Diss., 2008. This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Bourquain, Knut. Freshwater access from a human rights perspective : a challenge to international water and human rights law / by Knut Bourquain. p. cm. — (International studies in human rights, ISSN 0924-4751 ; v. 97) Includes bibliographical references and index. ISBN 978-90-04-16954-8 (hardback : alk. paper) 1. Human rights. 2. Fresh water—Law and legislation. I. Title. K3240.B678 2008 346.04’6912—dc22 2008029595

ISSN 0924-4751 ISBN 978 90 04 16954 8 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

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Contents Acknowledgement .......................................................................

ix

Chapter 1. Introduction ............................................................. 1.1. The background situation – water scarcity as a global problem .......................................................................... 1.2. Causes of the current crisis ............................................ 1.3. Strategies of crisis management ...................................... 1.3.1. The national context of water management ........ 1.3.2. The transboundary context of water management ........................................................ 1.4. The role of law in problem-solving ................................ 1.5. The human rights-based approach to freshwater access in international law ........................................................ 1.6. Synopsis of the study .....................................................

1

Chapter 2. The law on international watercourses and its deficits in providing freshwater access .................................... 2.1. Introduction ................................................................... 2.2. Survey of the development of international water law in the 20th century .............................................................. 2.2.1. General overview ................................................. 2.2.2. Non-navigational water use as a legal issue ......... 2.2.3. The Water Basin Concept and the Common Management Approach ....................................... 2.2.4. Re-thinking the interrelationship between Equitable Utilisation and No-Harm ................... 2.3. Analysis of international water law in regard to fulfilling the basic human need for water ..................................... 2.3.1. The 1997 Convention on the Law of the Non-navigational Uses of International Watercourses ....................................................... 2.3.2. Customary water law ..........................................

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1 3 5 6 10 11 12 14

17 17 18 18 20 23 26 31

31 43

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Contents

2.4. Concluding observations on international water law’s deficits ............................................................................ Chapter 3. Elements of a human rights-based approach to freshwater access ................................................................. 3.1. Introduction .................................................................... 3.2. Characteristics of a human rights-based approach to freshwater access ............................................................. 3.3. Human rights-based approaches vs. policy concepts? ..... 3.4. Freshwater access in the context of the debate on rights to development and a clean environment ....................... 3.4.1. Background to the debate ................................... 3.4.2. The human right to a clean environment in international law ................................................. 3.4.3. The human right to development in international law ................................................. 3.5. Elaboration of the scope of obligations attached to a human rights-based approach to freshwater access ......... 3.5.1. Negative obligations ............................................ 3.5.2. Positive obligations .............................................. 3.5.3. Non-state actors as addressees of human rights? .... 3.6. Universalism, particularism and pluralistic legal systems ............................................................................ 3.6.1. Universalism vs. particularism of a human rights-based approach to freshwater access .......... 3.6.2. The human rights-based approach to freshwater access within systems of legal pluralism .............. 3.7. Concluding observations on the characteristics of a human rights-based approach to freshwater access ......... Chapter 4. The human rights-based approach to freshwater access within current international human rights law ............ 4.1. Introduction .................................................................... 4.2. International law explicitly including individual rights to freshwater access ............................................................. 4.3. Deriving individual rights to freshwater access from international human rights treaty law ............................. 4.3.1. Freshwater access as an element of the right to life according to Article 6 (1) ICCPR .................

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55 55 56 59 67 67 69 82 85 85 86 106 111 111 112 114

119 119 122 125 125

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Contents

4.4.

4.5. 4.6. 4.7.

4.3.2. Freshwater access as part of the right to be free from torture and from inhuman or degrading treatment according to Article 7 ICCPR ............. 4.3.3. Freshwater access as derived from the right to an adequate standard of living according to Article 11 ICESCR .............................................. 4.3.4. Freshwater access as part of the right to health according to Article 12 ICESCR ......................... 4.3.5. Equal treatment of water users according to Article 26 ICCPR ................................................ 4.3.6. Particular protection of freshwater access of minorities by international human rights treaties .................................................................. Freshwater access as part of customary international human rights law ............................................................ 4.4.1. International custom with regard to a generic human right to water ........................................... 4.4.2. International custom with regard to the specific interest of participation and access to information in water matters ................................................... Freshwater access as part of general principles of international law ............................................................. Extraterritorial obligations of states concerning the basic human need for water ..................................................... Concluding observations on the international human rights law’s contribution to freshwater access ..................

Chapter 5. Improving a human rights-based approach to freshwater access ..................................................................... 5.1. Introduction .................................................................... 5.2. The need to connect human rights law with international water law ................................................... 5.3. Establishing new international treaty law ....................... 5.3.1. Increasing the normative content of a human rights-based approach to freshwater access .......... 5.3.2. Establishing individual complaint mechanisms by an Optional Protocol to the ICESCR .................

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134

135 156 158

163 179 179

182 188 192 198

205 205 206 209 209 212

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Contents

5.4. Specifying and developing the human rights-based approach to freshwater access by the interpretation of existing law ..................................................................... 5.4.1. Specification by interpreting existing law ............ 5.4.2. General Comment No. 15 of the CESCR as an example for specifying the human rights-based approach to freshwater access .............................. 5.4.3. The implementation dialogue between supervisory body and state as a means of producing binding interpretations and evolving law ....................................................................... 5.4.4. Fostering the human rights-based approach to freshwater access by establishing transboundary water management institutions ............................ 5.5. Soft law and policy instruments strengthening a human rights-based approach to freshwater access ...................... 5.6. Concluding observations on prospects for the improvement of a human rights-based approach to freshwater access .............................................................

218 218

219

223

225 228

230

Chapter 6. Conclusions .............................................................

233

Bibliography ................................................................................

239

Index ...........................................................................................

255

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Acknowledgement This piece of research was presented as my doctoral thesis at the Faculty of Law at the University of Gießen. I would like to thank Prof. Dr. Thilo Marauhn, M.Phil. for his guidance and valuable comments and for raising various additional issues for discussion. I would also like to thank Prof. Dr. Brun-Otto Bryde for constructive remarks and his fast submission of the second assessment of the work. Agnes Wende and Dr. Holger Schier contributed to the completion of the book, which I gratefully acknowledge. For his helpful comments on various stages of research my gratitude is due to Dr. Andreas Vasilache. I am also sincerely thankful to Jessica Goltsche for her constant support throughout the preparation of this study. I particularly would like to thank my parents, who always have encouraged and supported me. Funding for the completion of the book was provided by the Association for the Advancement of Research in International Development and Environmental Research (ZEU-Association).

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Chapter 1 Introduction 1.1. The background situation – water scarcity as a global problem Conflicting interests on the use of freshwater resources are not a new phenomenon. History is the witness to numerous water-related disputes that have demanded relevant allocation measures.1 Thereby, the need for hydro political action always reflected the actual availability of freshwater.2 Today, water scarcity has reached an unprecedented level, challenging traditional forms of water management. According to WHO and UNICEF 1.1 billion people lack access to sufficient drinking water and 2.4 billion people do not have sanitation facilities.3 Water-related diseases cause the death of more than 2 million people every year.4 Thus, the problem of water scarcity is evident. Although detailed forecasts are difficult to make there is at least consensus that the current situation will worsen.5

1

2

3

4

5

Cf. M. Langford, The United Nations concept of water as a human right: a new paradigm for old problems?, Water resources development 21 (2005) 2, pp. 273–282, at p. 273. Cf. H. Elver, Peaceful uses of international rivers: the Euphrates and Tigris rivers dispute, Ardrsley, NY, Transnational Publishers, 2002, p. 19. Cf. WHO/UNICEF, The global water supply and sanitation assessment 2000 report, Geneva, World Health Organization, 2000, p. 7; the WHO estimates that about 7.5 litres per capita per day are the minimum amount to provide for “hydration and incorporation into food for most people under most conditions.” (WHO, Guidelines for drinking-water quality, Third edition, Volume 1, Recommendations, Geneva, World Health Organization, 2004, p. 90). Furthermore water is needed for food preparation, personal and household uses as well as for subsistence farming (cf. more detailed hereunto 4.3.3.2.). Cf. WHO/UNICEF, The global water supply and sanitation assessment 2000 report, p. 2. For an examination of various scenarios for the development of world’s waters cf. M.W. Rosegrant/C. Ximing/S.A. Cline, World water and food to 2025: dealing with scarcity, Washington D.C., International Food Policy Research Institute, 2002, pp. 33 et seqq.

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Chapter 1

Actual water scarcity does not affect all countries to the same extent. The consequences of water scarcity such as diseases, social conflicts and degradation of the environment may, however, also affect parts of humankind enjoying secure water living conditions. Some commentators are even convinced that future wars will be fought over the control of water resources.6 Research does not confirm this pessimistic forecast.7 Nevertheless, the control of access to freshwater resources in arid or semi-arid regions constitutes, or at least contributes to the organisation of political and economic power.8 That is why, continuing water shortage tends to aggravate the potential of conflicts on water allocation between various non-state actors, such as ethnic and social groups or economic stakeholders, on the local, national but also on the transboundary level and may thus destabilise societies and even regions as a whole.9 In view of these consequences, water scarcity is increasingly perceived as a regional problem of global significance.10 Eventually, water

6

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8

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10

For a review of the discourse on water conflicts cf. J. Selby, Water, power and politics in the Middle East: the other Israeli-Palestinian conflict, London, I.B. Tauris, 2003, pp. 21 et seqq. Homer-Dixon describes water wars as possible but unlikely (T. Homer-Dixon, Environment, scarcities and violence, New Jersey, Princeton University Press, 1999, p. 179); Wolf emphasises that disputes over water use have not provoked a war since antiquity (A.T. Wolf, Conflict and cooperation along international waterways, Water policy, 1 (1998) 2, pp. 251–265, at p. 257). Quite the contrary, he argues that the adoption of 300 international treaties related to the non-navigational use of international watercourses documents that states approach water related problems in a cooperative way (cf. p. 260; a compilation of international water treaties can be found in FAO, Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases, by Basin: Volume I, Legislative Study 15 (1978) and Volume II, Legislative Study 34 (1984)). Some even argue that water scarcity can also promote cooperation (cf. for example the case study on the Senegal river by M. Kipping: Wasserkonflikte und Wasserkooperation am Senegalfluss, in: M. Kipping/ S. Lindemann, Konflikte und Kooperation um Wasser: Wasserpolitik am Senegalfluss und internationales Flussmanagement im Südlichen Afrika, Spektrum, Berliner Reihe zu Gesellschaft, Wirtschaft und Politik in Entwicklungsländern Bd. 90, Münster, LitVerlag, 2005, pp. 22–107). For case studies concerning conflicts on the rivers Nile, Tigris-Euphrates, Indus see J. Kalpakian, Identity, conflict, and cooperation in international river systems, Burlington, VT, Ashgate, 2004, pp. 28 et seqq. Cf. K.R. Spillmann, Wasser als Thema der Weltpolitik, in: K. Kaiser/H.-P. Schwarz (eds.), Weltpolitik im neuen Jahrhundert, Bonn, Bundeszentrale für politische Bildung, 2000, pp. 150–172, at p. 151. See in this respect T. Homer-Dixon, Environmental scarcities and violent conflict, International Security, 19 (1994) I, pp. 5–40. Cf. J. Barandat, Sie graben uns das Wasser ab…: Grenzüberschreitende Gewässersysteme

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Introduction

3

scarcity is above all an individual disaster for the people concerned. The lack of water just for basic human needs conflicts with the understanding of the dignity of human life as reflected in the preamble of the Charter of the United Nations and the Universal Declaration of Human Rights. This strongly indicates a need for action.

1.2. Causes of the current crisis It is a commonplace that the total amount of global freshwater resources by far exceeds the quantity of water necessary to meet the basic needs of all human beings.11 The distribution of freshwater resources, however, differs greatly.12 Thus, some countries suffer from natural water scarcity due to their geographical location, which demands greater efforts to serve their people’s needs.13 Yet, this does not automatically indicate that those states possess insufficient water resources to fulfil the basic needs of their people. Usually, even the traditionally water-scarce countries have sufficient water resources to serve the basic needs of their populations.14 In addition, most causes leading to the current crisis are human-made. Basically, three overlapping problems can be observed in this respect. First, human activity reduces the supply of water. The overexploitation of water resources by pollution, as well as more general environmental

11

12 13

14

und internationales Recht, E+Z, Entwicklung und Zusammenarbeit/Development and Cooperation, 42 (2001) 6, pp. 181–184, at p. 181. Only 2.5% of world’s water consists of freshwater. About 70% thereof is frozen in the polar ice caps and glaciers in mountainous areas (cf. UNESCO, Water for people, water for life: the United Nations world water development report, New York, UNESCO/ Berghahn, 2003, table 4.1 at p. 68). Nevertheless, the remaining amount by far exceeds current demand. Cf. detailed UNESCO, Water for people, pp. 90 et seqq. In particular affected are states of the Middle-East, Northern Africa as well as some areas in Asia and Latin America (cf. H.L.F. Saeijs/M.J. Berkel, The global water crisis: the major issue of the twenty-first century: a growing and explosive problem, in: E.H.P. Brans (ed.), The scarcity of water, London [et al.], Kluwer Law International, 1997, pp. 3–20, at p. 7. Water use for household purposes constitutes only about six percent of global water consumption (cf. S. Tully, A human right to access water? A critique of General Comment No. 15, Netherlands quarterly of human rights, 23 (2005) 1, pp. 35–63, at p. 57). Only in the very dry countries this share is larger.

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4

Chapter 1

degradation, reduce the available amount of freshwater.15 For example excessive withdrawal of water diminishes the water-table. This causes short-term damage to the people dependent on wells and springs and also long-term effects to the watercourses as erosion of soil reduces its capacity to form and store future water resources. In addition, global warming by, for example, forest clearance and greenhouse gas emissions, brings about climate change that leads to an ever-growing imbalance of temporal and spatial allocation of rainfall, ground and surface water.16 Second, water scarcity can be caused by growing demand. In particular, the increasing agricultural and industrial demand for water and also the pressure from population growth contribute to shortages. The third constellation, which crosscuts the situations of changing supply and demand, concerns the conditions of water access that exclude certain groups although the total amount of water available in the particular area is sufficient to meet at least the basic needs of all water users. For example, decaying or non-existent infrastructure for water delivery due to a state’s lack of capacity or unwillingness to provide the necessary financial resources do not reduce the amount of available water but hamper water access for those people depending on this insufficient infrastructure. The pre-eminence of certain – in particular industrial and agricultural – uses over other water uses as well as the discriminatory allocation of utilisation rights produce the same effect of exclusion. Water has also been used as a means to oppress political opposition or minorities.17 In addition, domestic interest groups may collusively cooperate with their foreign counterparts with detrimental

15

16

17

Thus, Shelton for example refers to mismanagement causing about 80 percent of worldwide desertification (D. Shelton, Environmental protection and the right to food, in: Trindade, Antônio Augusto Cancado (ed.), Derechos humanos, desarrollo sustentable y medio ambiente, Instituto Interamericano de Derechos Humanos, San José, Brasília, IIDH [et al.], 1992, pp. 83–98, at p. 95). The Intergovernmental Panel on Climate Change (IPCC) estimates that water runoff will increase in higher latitudes and decrease in lower latitudes (cf. Intergovernmental Panel on Climate Change, Fourth Assessment Report, Climate Change 2007: Synthesis Report, p. 8, access via URL: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm .pdf, accessed 14 March 2008). For instance, in order to punish dissident minorities in Southern Iraq, the former Iraqi government initiated the drying up of marshland compelling its dwellers to relocate (cf. J. Bulloch/A. Darwish, Water wars: coming conflicts in the Middle East, London, Gollancz, 1993, pp. 137 et seqq.).

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Introduction

5

effects on the freshwater access of their national rivals.18 A major problem is the inability of poor people to acquire the necessary amount of drinking water. Especially the population of makeshift settlements or similar areas that usually lack the infrastructure for water supply are charged excessive prices for water by local water vendors.19 The problem of economic restraints to water access above all hits people living in developing countries. Nevertheless, since deficient economic access does not necessarily depend on the actual non-availability of freshwater resources but on individual inability to pay, the problem can also be observed in developed countries and countries where there is no water-scarcity.20 Deficient freshwater access of people for the fulfilment of their basic needs, therefore, does not seem to simply reflect a situation of there being a lack of water or exaggerated demand, but documents primarily a problem of allocation.21

1.3. Strategies of crisis management In order to deal with the crisis, the international community has recognised the need for global cooperation in water resources management. The UN World Summits in 1992, 2000 and 2002 set the problem of water scarcity on the agenda. In 2000, the General Assembly adopted the United Nations Millennium Declaration resolving “to halve the proportion of people who are unable to reach or to afford safe drinking water” by 2015.22 During the

18

19 20

21

22

Cf. E. Benvenisti, Sharing transboundary resources, Cambridge [et al.], Cambridge University Press, 2002, p. 20. Cf. UNESCO, Water for people, p. 8. Cf. the study by Smets on the implementation of the right to drinking water in OECD countries (H. Smets, Implementing the right to drinking water in OECD countries, TA 1251: 22/11/99–12/01/00, Working Party on Environmental Performance, OECDSeminar on the social and environment interface, 22–24 September 1999, access via URL: http://www.tradeobservatory.org/library.cfm?RefID=25084 (accessed 3 December 2005). Cf. P. Gleick, The human right to water, Water policy (1999) 1(5), pp. 487–503, at p. 499. Paragraph 19 United Nations Millennium Declaration, Resolution adopted by the General Assembly, 18 September 2000, (A/RES/55/2); In order to measure the progress the United Nations Secretariat and IMF, OECD and the World Bank adopted a framework of 8 goals, 18 targets and 48 indicators. The two indicators for measuring improvement of freshwater access and sanitation are (1) Proportion of population with sustainable access to

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6

Chapter 1

World Summit on Sustainable Development in Johannesburg in 2002, states resolved to achieve a similar goal as far as access to basic sanitation was concerned.23 However much consensus may exist on these goals, there is just as much disagreement over the measures to be taken to reach them. Strategies for coping with water scarcity may approach the problem from its supply side or its demand side and may consist of technical as well as political measures. On the supply side it seems essential to reduce or stop the process of environmental degradation, in particular global warming, in order to avoid a further shift in geographical water run-offs. Moreover, there are various technical opportunities either increasing the available amount of water (construction of dams, spilling of fossil groundwater resources, desalination of seawater) or reducing the demand by economised water utilisation (drip irrigation, recycling). Despite positive experiences in some traditionally water scarce countries, it is predicted that these technical opportunities will not keep up with the growing water demand.24 In addition, technical measures offer no solution for deficient freshwater access that results from inequitable allocation because the allocation of scarce resources is a political problem that must consequently be dealt with at the political level. Technical progress, therefore, must go hand in hand with political strategies that act on the demand side of the problem adjusting and prioritising competing utilisation interests and, finally, securing access to clean freshwater for all human beings. 1.3.1. The national context of water management Various policies have been developed that all claim the ability to establish an efficient and sustainable system of water management in response to the crisis. The dispute over the best strategy centres on the issues of private or

23

24

an improved water source, urban and rural and (2) Proportion of population with access to improved sanitation, urban and rural (cf. Road map towards the implementation of the United Nations Millennium Declaration: Report of the Secretary-General, A/56/326, Target 10, Indicators 30, 31). Cf. paragraph 7 Plan of Implementation, World Summit on Sustainable Development held 16 August–4 September 2002 in Johannesburg, South Africa, A/CONF.199/L.1 (access via URL: http://www.johannesburgsummit.org/html/documents/summit_docs/2309 _planfinal.htm accessed 25 June 2004). Cf. P. Gleick/A. Singh/H. Shi, Threats to the world’s freshwater resources: a report of the Pacific Institute for Studies in Development, Environment, and Security, Oakland, California, 2001, p. 17; UNESCO, Water for people, p. 10.

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Introduction

7

public provision of water services, and of pricing water or water services. Two different strategies can be observed, which are, however, not mutually exclusive: a public, and a commodity approach.25 According to the public approach the state itself manages its water resources and owns all water utilities. This does not – as sometimes argued – exclude the opportunity of pricing water because that decision belongs to the public. Nevertheless, the price formation does not necessarily follow just economic criteria but also political criteria. Though public water supply is still the predominant management system in most countries,26 it has lost credibility. This is due to the fact that public water management in practice often suffers from bureaucracy and under-financing causing the deterioration of water supply and recycling infrastructure and frustrating efforts to increase people with access to public water supply.27 In contrast, the commodity approach makes the provision of water subject to economic and market mechanisms.28 This means the price of water does not only mirror the costs of providing it but also the relationship between supply and demand. Proponents of the privatisation of the water sector refer to the opportunity to gain investments for costly water projects, which the state due to its often limited financial resources is unable to provide, such

25

26

27

28

In addition some hypothetical considerations entered the debate, which is in particular the concept of virtual water trade (see in this respect J.A. Allan, Virtual Water – Economically invisible and politically silent: a way to solve strategic water problems, International water and irrigation journal, (2001), pp. 4–11). Virtual water describes the amount of water necessary to produce a good. The approach as a consequence suggests adapting the flow of trade in terms that water scarce countries decrease the export of water intensive products and rather import such goods from water rich countries and in turn increase the export of water saving products. The problem with realising the approach seems, however, the current dependency of many water scarce countries, in particular developing countries, from water intensive agriculture. Cf. J. Delmon, Water projects: commercial and contractual guide, London [et al.], Kluwer Law International, 2001, at p. 2. In this respect Olmstead criticises a tendency of underpricing public water supply in developing countries as this would subsidise only those residents who already have access to piped water instead of directing subsidies to the poor (cf. S.M. Olmstead, Water Supply and Poor Communities: What’s price got to do with it?, Environment 45 (2003) 10, pp. 22–35, at p. 25). Currently, about 5 percent of the world’s population is served by private water suppliers but according to forecasts this share will rise up to 25 percent by 2015 (cf. J. Delmon, Water projects: commercial and contractual guide, p. 2).

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8

Chapter 1

as construction and maintenance of water supply and treatment facilities.29 In addition, environmentalists may point to the reduction in water wastage with the corresponding positive long-term effects for the availability of water.30 The biggest risk of fully commercialising water supply is that it excludes those people who cannot afford it.31 In addition, it bears the risk that investors may select those fields and areas that promise fast returns, like urban agglomerations, and neglect non-densely populated areas, where water installations have to cover long distances for only few water users and hence payers.32 Another problem is that water services are often natural monopolies,33 which raises the question of how to avoid market dominating of single water providers.34

29

30

31

32

33

34

Cf. J. Delmon, Water projects: commercial and contractual guide, pp. 7 et seqq.; S.M. Olmstead, Water supply and poor communities, pp. 24 et seqq. Guiding principle 4 of the Dublin Statement on Water and Sustainable Development states in its third sentence: “Managing water as an economic good is an important way of achieving efficient and equitable use, and of encouraging conservation and protection of water resources.” (International Conference on Water and the Environment: Development Issues for the 21st Century, Dublin, Ireland, 1992.). See further on this discussion E.B. Bluemel, The implications of formulating a human right to water, Ecology law quarterly, 31 (2004) 4, pp. 957–1006, at pp. 963 et seqq. As the most well-known case of recent failures in privatisation serves the dispute on the Cochabamba Concession in Bolivia (cf. hereunto E.J. Woodhouse, The «Guerra del Agua» and the Cochabamba Concession: social risk and foreign direct investment in public infrastructure, Stanford journal of international law, 39 (2003) 2, pp. 295–350). Cf. E. Riedel, The human right to water, in: K. Dicke [et al.] (eds.), Weltinnenrecht, Liber amicorum Jost Delbrück, Berlin, Duncker & Humblot, 2005, pp. 585–606, at p. 588; see also on this point C.A. Arnold, Privatization of public water services: the states’ role in ensuring public accountability, Pepperdine law review, 32 (2005) 3, pp. 561–604, at pp. 591 et seqq. Delmon defines it as follows: “A monopoly exists where consumers are limited to one supplier for a specific service. A natural monopoly occurs where it is feasible for one supplier to supply the service in question, perhaps because the service is dependent upon an existing infrastructure which would be prohibitively expensive to duplicate. A natural monopoly makes it impossible for a competing supplier to provide the services desired at a lesser or equal cost.” J. Delmon, Water projects: commercial and contractual guide, at p. 397. The role of the WTO in this respect discusses M. Cossy, Water services at the WTO, in: E.B. Weiss (ed.), Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005, pp. 117–141; see also on this point K. Nowrot/Y. Wardin, Liberalisierung der Wasserversorgung in der WTO-Rechtsordnung: die Verwirklichung des Menschenrechts auf Wasser als Aufgabe einer transnationalen Verantwortungsgemeinschaft, Beiträge zum transnationalen Wirtschaftsrecht, Heft 14, Halle, Institut für Wirtschaftsrecht, 2003,

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Introduction

9

As a consequence of the mentioned weaknesses, various models of publicprivate partnerships have been developed aiming at a combination of the positive characteristics of either water management strategy.35 In publicprivate partnerships the state usually subsidises or gives other incentives to private enterprises willing to invest but retains control over the supply and treatment infrastructure.36 Though they seem to offer an auspicious merger of public and private management models, they bear the risk of privatising gains and of making the losses social problems and thus indirectly shift the burden of financing the water sector back onto the state.37 Though the appropriateness of the various water management models cannot be evaluated within this study, the survey already shows that none of them adheres to a mechanism that assures everybody’s access to a basic amount and quality of freshwater. That means, irrespective of the water management strategy a society may choose, it will definitely be in need for a corrective in order to assure people’s basic need for freshwater.

35

36

37

in particular pp. 29 et seqq.; for a discussion on the influence of GATS cf. E. Tuerk/ A. Ostrovsky/R. Speed, GATS and its impact on private sector participation in water services, in: E.B. Weiss (ed.), Fresh water and international economic law, pp. 143–172, at pp. 149 et seqq.; J. Razzaque, Trading water: the human factor, Review of European Community & international environmental law, 13 (2004) 1, pp. 15–26. For a more detailed characterisation of public-private partnerships cf. B. Affeltranger/ A. Otte, Shared freshwater resources: management or governance?, in: A. Turton/P. Ashton/ E. Cloete (eds.), Transboundary rivers, sovereignty and development: hydropolitical drivers in the Okavango River basin, Pretoria, South Africa, African Water Issues Research Unit & Green Cross International, 2003, pp. 251–274, at pp. 251 et seqq.; Another response to deficiencies of public or private water management systems are communal and cooperative approaches. They try to increase the efficiency of water management by organising it on a lower level of state organisation. In doing so, they particularly involve local communities and governments and even non-governmental organisations in water supply (cf. M. Langford, The United Nations concept of water as a human right, p. 275). For a chart indicating the number of public-private partnership water projects undertaken in middle and low income countries from 1989 to 1999 cf. J. Delmon, Water projects: commercial and contractual guide, at pp. 2–3. Cf. E. Riedel, The human right to water, p. 588; see also on this point S.R. Laskowski, Wasserrecht – Völkerrechtliche, europarechtliche und nationalrechtliche Sicherungen des Menschen- und Grundrechts auf Wasser, Habilitationsschrift Universität Hamburg, 2005, pp. 48 et seqq.

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Chapter 1

1.3.2. The transboundary context of water management The debate on the appropriate water management strategy also has a transboundary dimension. That is to say, due to the decreasing availability of water, the increasing demand and domestic mismanagement the utilisation pressure on international watercourses is growing in many regions of the world, too.38 The over-exploitation of international watercourses often results from competing national concepts that do not sufficiently consider equally the interests of all riparian states and in particular the basic needs of the riparian states’ populations.39 Meanwhile, most commentators agree that a sustainable transnational water management system must be based on a cooperative strategy that can balance diverging interests of states and people depending on the particular watercourse. Indeed, the strategy of allotting clear-cut quotas increasingly loses ground for the benefit of a “community of interest” approach. According to this approach, international watercourses are no longer divided between riparian states, but are rather treated as a whole, in the interest of all riparian entities. As a result, national interests do not necessarily supersede communal or local interests. Nevertheless, the way to arrive at a “community of interest” in the practice of transboundary water management is still subject to debate.40 Furthermore, the implementation of a “community of interest” approach might be a precondition for a better consideration of the basic human need for water in the process of balancing competing transboundary uses, but it is not sufficient on its own because riparian states could still serve other water uses first. That is why we are once more confronted with the question on mechanisms able to assure the basic human need for water.

38

39

40

Some international watercourses suffer from excessive overexploitation. As grave examples serve Aral Lake having lost half of its surface and three quarters of its water volume from 1960 to 1995 as well as Lake Chad having even lost 85% of its original size. Cf. M.A. Giordano/A.T. Wolf, Sharing waters: post-Rio international water management, Natural resources forum, 27 (2003), pp. 163–171, at p. 166. On this matter see comprehensively E. Benvenisti, Sharing transboundary resources, pp. 22 et seqq.

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Introduction

11

1.4. The role of law in problem-solving Irrespective of the water management strategy a state or (on the transboundary level) riparian states resolve to adopt, it needs a stringent body of rules as well as capable institutions to implement the strategy and, hence, to execute efficient political and administrative control over the water sector. A legal regime can provide for a coherent framework of enforceable rights and obligations. It delivers the legal basis and procedure for indispensable utilisation restraints and re-allocations. Rule of law-based procedures contribute to legality and legitimacy and support transparency of water management. This yields positive effects towards organising and stabilising an allocation conflict. In this respect, the law therefore contributes to the settlement of the water crisis. The increased general efficiency of water management influences the relation between water supply and demand positively and hence decreases the utilisation pressure on this finite resource. Furthermore, a legal regime can transform the political intention of providing everybody with water access into concrete and binding water management principles. By awarding priority to the basic human need for water, the law can prevent the disregard of basic needs in cases where they come into conflict with other water utilisation interests. Having said that, the basic problem in this respect seems to be that the actual implementation of such utilisation regimes is subject to political will. The state cannot be forced to perform a “reasonable” water management and to use its resources in a way that guarantees everybody’s water access. The single water user is solely object rather than subject of water management. In view of this deficit, an approach increasingly gains influence that puts the individual into the centre of the development, which is the human rights-based approach to freshwater access.41 This approach shall be analysed in the present study.

41

Two early contributions promoted the debate, cf. S. McCaffrey, A human right to water: domestic and international implications, Georgetown international environmental law review, 5 (1992) 1, pp. 1–24; P. Gleick, The human right to water.

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Chapter 1

1.5. The human rights-based approach to freshwater access in international law Building water utilisation law upon human rights does not mean replacing or preventing any of the water management policies described above. Thus, the human rights-based approach to freshwater access cannot be employed to bring about a public water management system or to prevent the further reconstruction of the water management sector pursuant to the commodity approach.42 As will be elaborated in more detail later,43 the human rightsbased approach commits all water management systems towards the guarantee of the basic human need for water and provides the single water user with the instruments to enforce this interest. Hence, it has a twofold purpose: enforcement tool for individuals and political concept of allocation. Combating water scarcity is a multilevel exercise. Thus, any water management system, whether on the international, regional, national or local level has to take into account the basic human need for water. The present study discusses the human rights-based approach to freshwater access at the level of international law because it serves as the appropriate legal body to address issues of global concern. International law can promote international consent on the necessary measures by setting binding legal standards that states have to follow. International law, hence, offers the opportunity to encourage a human rights-based approach to freshwater access on a global scale. Various policy instruments dealing with deficient freshwater access refer to the human rights dimension of the problem.44 Thus, as early as 1977 the Mar del Plata conference adopted a declaration recognising that “all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.”45 Similarly, but starting from a commodity approach, the Dublin Statement on Water and Sustainable Development in

42

43 44

45

Cf. E. Riedel, The human right to water, p. 594; see also H. Smets, Economics of water services and the right to water, in: E.B. Weiss (ed.), Fresh water and international economic law, pp. 171–189. Cf. Chapter 3. For a genesis of the debate on a human right to water cf. S.M.A. Salman/S. McInerneyLankford, The human right to water: legal and policy dimensions, Washington D.C., World Bank, 2004, pp. 7 et seqq. Report of the United Nations Water Conference, Mar del Plata, 14–25 March 1977 (United Nations publication, Sales No. E.77.II.A.12), part 1, chapter I, section C, para. 35.

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Introduction

13

1992, resolved that “[w]ithin this principle [water has an economic value],46 it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price.”47 The Dublin Conference paved the way for the United Nations Conference on Environment and Development held in 1992 in Rio de Janeiro. Agenda 21, which was adopted at the Rio Summit, affirms the recognition of a right to drinking water by the very same wording used in the Mar del Plata statement, though again solely as a people’s right and not as an individual right.48 Nevertheless, while soft law and policy instruments contribute to the increasing attention paid to the human rights-based approach to freshwater access in public discourse, its adequacy as a binding legal concept is still debated and its actual basis in international law has not yet been sufficiently clarified, in particular the concrete scope of state obligations in this respect. The recent General Comment on the human right to water adopted by the Committee on Economic, Social and Cultural Rights49 stimulated the debate. Nevertheless, questions remain unanswered as to the appropriateness of the approach and its scope in international law. This study wants to contribute to the debate by elaborating the suitability of the approach and conceptualising it, by identifying its concrete scope in current international law but also by determining possible improvement opportunities for the human rights-based approach to freshwater access. Since the human rights-based approach to freshwater access shall be discussed on a global scale, this study focuses on international law at the level of the UN. Regional law will only be considered as far as it provides assistance in interpreting the international legal instruments.

46 47

48

49

Emphasis added by the author. Guiding Principle 4 of the Dublin Statement on Water and Sustainable Development, above note 30. Cf. Paragraph 18.47 of Agenda 21, adopted 14 June 1992, U.N. GAOR, 46th Sess., UN Doc A/Conf.151/26 (1992). CESCR General Comment No. 15 (2002), The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, U.N. Doc. E/C.12/2002/11 (2002).

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Chapter 1

1.6. Synopsis of the study The present study starts from the assumption that embodying a human rights-based approach in water management may foster the aim of assuring access to freshwater to all human beings. For this purpose, the study will begin in Chapter 2 with an analysis of international water law because it deals with principles for the management of water resources. The analysis shall ascertain whether or not international water law sufficiently addresses the basic human need for water. The current standard of protection shall be determined in terms of both, individual access rights but also its assurance by objective legal means. Against the background of international water law’s deficits, Chapter 3 will discuss the appropriateness of a human rights-based approach to freshwater access in problem-solving and its claim to universal applicability. Comparing human rights with policy concepts shall help to analyse the general characteristics of the approach. In addition, the human rights-based approach to freshwater access shall be discussed in light of similar human rights-based approaches, namely the rights to a clean environment and development. Furthermore, the chapter will elaborate the concrete scope of a human rights-based approach. Thereby, the discussion pays specific attention to the basis of positive obligations for the reason that they constrict a state’s margin to act and hence often encounter strong resistance. The chapter will not discuss the general implementation and compliance issues of a human rights-based approach to freshwater access because these are questions applicable to all human rights. As far as these are concerned, one can refer to various studies dealing with the effectiveness and deficiencies of the national and international legal order as well as the policy-based and soft law enforcement avenues.50 Nevertheless, the issue of improving the

50

Cf. for example D. Hanschel, Environment and human rights – cooperative means of regime implementation, Yearbook of human rights & environment, 3 (2003), pp. 189–261, pp. 210 et seqq.; for various perspectives concerning the implementation of ESC-Rights see Klein Goldewijk [et al.], Dignity and human rights; A.W. Chanda, The role of lower courts in the domestic implementation of human rights, Zambia law journal, 33 (2001), pp. 1–17, in particular pp. 97–145 and 209 et seqq.; C.M. Chinkin, The role of non-governmental organisations in standard setting, monitoring and implementation of human rights, in: J.J. Norton (ed.), The changing world of international law in the twenty-first century: a tribute to the late Kenneth R. Simmonds, The Hague [et al.], Kluwer Law International, 1998, pp. 45–66.; for compliance with international law in general cf.

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Introduction

15

enforcement of a human rights-based approach to freshwater access will be picked up again while discussing the adoption of an Optional Protocol to the ICESCR in Chapter 5. In addition, the specific aspects of implementing a human rights-based approach to freshwater access will be considered where appropriate throughout the study. Chapter 4 will examine the legal basis of a human rights-based approach to freshwater access in current international human rights law. The analysis shall identify those human rights that can be employed for individual freshwater access and discuss the concrete scope of protection they provide. In view of the transboundary or even international dimension of the current water crisis, the chapter will also refer to human rights obligations of states beyond their national jurisdiction. The analysis in Chapter 4 shall enable a realistic assessment of the actual need to improve the current international legal standard of protection. Subsequently, Chapter 5 will assess different opportunities deemed to strengthen the human rights-based approach to freshwater access in international law. The discussion does not aim to determine one specific or the most appropriate strategy because there is a variety of feasible approaches that can be employed. Instead, the discussion shall present the benefits and drawbacks of different approaches in view of both their formal legal appropriateness and their suitability in legal reality.

K. Raustiala/A.-M. Slaughter, International law, international relations and compliance, in: W. Carlsnaes/T. Riss/B.A. Simmons (eds.), Handbook of international relations, London [et al.], Sage, 2002, pp. 538–558, at pp. 538 et seqq.; for a theoretical account see R.B. Mitchell, Compliance theory: an overview, in: J. Cameron/J. Werksman/P. Roderick (eds.), Improving compliance with international environmental law, London, Earthscan Publications, 1996, pp. 3–28; for law-enforcement in international environmental law cf. U. Beyerlin/T. Marauhn, Law-making and law-enforcement in international environmental law after the 1992 Rio conference, Berlin, Erich Schmidt, 1992.

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Chapter 2 The law on international watercourses and its deficits in providing freshwater access 2.1. Introduction International water law is deemed to regulate and manage the use of water resources, to adjust competing uses and to deliver measures of mediation in case of conflict. The utilisation of water for the purpose of fulfilling basic needs is one of these competing uses. That is why the question whether international law sufficiently addresses this basic need is first of all to be discussed in the field of water law itself. This study does not attempt to comment on the international water law in general but focuses on a particular analysis with regard to fulfilling the basic human need for water. As the problem of freshwater access is looked at from an individual-based viewpoint, it will be examined whether international water law contains any rights of the individual as to the access of water at all or whether it at least considers the interests of the individual in this regard in an objective way. The use of water in order to cover basic human needs is, however, only one objective of international water law. Other uses with considerable importance for society compete, such as, for example, the agricultural and industrial use of water. In this context, adequate supply of water will normally be an indispensable condition for development and wealth and thus these water uses have a social dimension, too. Therefore, the discussion is not only one of favouring one use over the other but of finding an adequate and just balance of both the individual’s and the society’s interests. This chapter opens with a survey of the development of certain management principles in international water law in the 20th century as this will help assessing their characteristics. Subsequently an analysis of the relevant international water law with regard to providing everybody with the indispensable amount of freshwater will be undertaken.

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18

Chapter 2

2.2. Survey of the development of international water law in the 20th century 2.2.1. General overview When the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses was adopted by the General Assembly in 19971 it was deemed to constitute a “codification and progressive development of international law in this field.”2 This process already began at the beginning of the 20th century with the adoption of the Madrid Declaration on the International Regulations regarding the Use of International Watercourses for Purposes other than Navigation3 by the Institute of International Law in 1911.4 The declaration included basic principles of transboundary water management deemed to prevent unilateral modification of international watercourses and the serious interference with the use of a riparian state and to foster the formation of joint commissions.5 It was further developed by the Institute in its Salzburg Resolution of 19616 declaring the “maximum utilisation of available natural resources” and “the obligation not to cause unlawful harm to others” as “general principles governing neighbourly relations.”7 In addition, it took note of the concept of equitable utilisation of water resources which was advanced in its 1979 Athens Resolution.8 Another international non-governmental organisation dealing with international water law is the International Law Association.9 The association has, among others, the objective of the “study, elucidation and advancement

1

2 3

4 5 6

7 8

9

Text adopted on 21 May 1997, 36 ILM 700 (1997); G.A. Res. 51/229, U.N. GAOR, 51st Sess., 99th mtg., UN Doc A/RES/51/229 (1997). See preamble of the Convention. Adopted 20 April 1911 at Madrid by the Institute of International Law, text in: Annuaire de l’Institut de Droit International, Madrid Session 1911, (Paris 1911) Vol. 24, p. 365. The institute was founded in 1873 in Ghent, Belgium. Cf. M.A. Giordano/A.T. Wolf, Sharing waters, p. 166. Resolution on the Use of International Non-Maritime Waters, adopted at Salzburg 11 September 1961, text in: Annuaire de l’Institut de droit international, Salzburg Session, (Basle 1961), Vol. 49, II, pp. 381–384. Preamble of the Salzburg Declaration of 1961. Cf. S.C. McCaffrey, The law of international watercourses: non-navigational uses, Oxford [et al.], Oxford University Press, 2001, pp. 319–320. The ILA was founded in 1873 in Brussels.

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The law on international watercourses and its deficits

19

of international law”.10 The organisation developed the Helsinki Rules on the Uses of the Waters of International Rivers,11 a catalogue of principles aimed to clarify, restate and comprehensively codify the existing law on nonnavigational uses of international watercourses.12 They are based upon the principle of equitable utilisation and gained considerable influence in the development of international water law.13 Since the Helsinki Rules became widely accepted among states and lawyers, the attempt was made to have them adopted as a framework convention by the UN General Assembly. This approach in reforming the international water law, however, failed14 and thus, the International Law Commission in 1970 was instructed by the Legal Committee of the UN General Assembly to prepare a proposal for the development and codification of international water law.15 The ILC in 1991 submitted a draft convention and after further discussion it eventually prepared a final draft in 1997.16 The Convention restates many principles already set out in the Helsinki Rules.17 However, it is doubtful whether it will enter into force at all, because the Convention still lacks the necessary ratifications.18 No matter what the result may be, reforming international

10

11

12

13

14 15 16

17 18

Article 3.1 of the Association’s Constitution, adopted at the 68th Conference, 1998, URL: http://www.ila-hq.org/html/layout_about.htm (accessed 13 September 2007). Adopted on 20 August 1996 by the ILA at Helsinki, Report of the 52nd Conference, Helsinki, 1966 (London, 1967), pp. 484 et seqq. Cf. S. Akweenda, From Harmon to Helsinki: the evolution of key principles in international water law, in: A. Turton/R. Henwood (eds.), Hydropolitics in the developing world: a southern African perspective, Pretoria, African Water Issues Research Unit, 2002, pp. 97–104, at p. 100; S.C. McCaffrey, The law of international watercourses, p. 320. Cf. J.W. Dellapenna, The customary international law of transboundary fresh waters, International journal of global environmental issues, 1 (2001) 3/4, pp. 264–305, at p. 273; S.C. McCaffrey, The law of international watercourses, p. 321. The ILC’s proposal was rejected by a vote of 41 to 25, with 32 abstentions. Cf. UN GA Resolution 2669 (XXV) para. 1 (8 December 1970). For a detailed survey of the ILC’s efforts in reforming watercourse law until the delivery of its first draft of a convention in 1992 cf. J.L. Wescoat, Beyond the river basin: the changing geography of international water problems and international watercourse law, Colorado journal of international environmental law and policy, 3 (1992), pp. 301–330, at pp. 305 et seqq. Cf. S.C. McCaffrey, The law of international watercourses, p. 321. Till June 2006 only 14 of 35 required states have ratified or accepted the UN Watercourse Convention (cf. http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXVII/treaty42.asp#N1, accessed 18 July 2006).

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20

Chapter 2

water law is still top on the agenda.19 Several summits and conferences following the adoption of the Convention took place focussing on questions like the sustainable use of and access to freshwater resources.20 The last effort was again undertaken by the International Law Association. In 2004, it published the International Law Association Rules on Water Resources,21 a complete revision of its 1966 Helsinki Rules and of several supplementary rules developed subsequently. Herein the Association recommends a wide approach in terms of international water law’s application. The Association’s rules are no longer considered to solely apply to international drainage basins but to cover all freshwater resources no matter whether they are part of an international drainage basin or simply national. Furthermore the Association aims to give the international water law a progressive push towards a “law needed to cope with emerging problems of international or global water management for the twenty-first century.”22 2.2.2. Non-navigational water use as a legal issue The history of international water law has mainly been the history of the preference of navigational use over non-navigational use.23 Rivers have always been important transport routes, from the earliest settlements to the modern urban areas.24 Thus, navigational use of watercourses often had an international dimension whereas non-navigational use usually took

19

20

21

22 23

24

Cf. J.W. Dellapenna, The customary international law of transboundary fresh waters, pp. 287 et seqq.; G.E. Eckstein, Development of international water law and the UN Watercourse Convention, in: A. Turton/R. Henwood (eds.), Hydropolitics in the developing world, pp. 81–96, at pp. 88 et seq. Particularly important in this regard is the World Summit on Sustainable Development held 16 August–4 September 2002 in Johannesburg, South Africa; The issue of use of freshwater resources is addressed to in paras. 7, 23 to 28 of the plan of implementation which was adopted during the summit (cf. above Chapter 1 note 23). Resolution No. 2/2004, adopted at the 71st Conference of the International Law Association, held in Berlin, Germany, 16–21 August 2004, Report of the 71st Conference 3 (2004), 71 ILA 337, 385 (2004). Idem, preface of the International Law Association Rules on Water Resources. Cf. S.C. McCaffrey, The evolution of the law of international watercourses, Austrian journal of public and international law, 45 (1993) 2, pp. 87–111, at p. 100. Cf. L.A. Teclaff, Evolution of the river basin concept in national and international water law, Natural resources journal, 36 (1996) 2, pp. 359–391, at pp. 363 et seq.

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place without international connections or major international effects.25 Due to the superior importance of navigational use, it is not surprising that intergovernmental agreements up to the beginning of the 20th century predominantly focussed on questions of navigation.26 With industrialisation and growing populations accompanied by increasing water demand, the non-navigational use of water courses and its regulation gained ever-growing importance in the national and in the international context.27 The Madrid Declaration of 1911 set out basic principles of shared water management. However, like other early declarations, the Madrid Declaration still gave pre-eminence to the navigational use of international watercourses. Regulation II, paragraph 4, of the Madrid Declaration states that “[t]he right of navigation by virtue of a title recognised in international law may not be violated in any way whatever . . .”.28 Yet, some years later, in 1919, the Versailles Treaty acknowledged that other uses than navigational ones can prevail, given certain conditions.29 Subsequently, the view prevailed that no use – neither navigational nor non-navigational – enjoys inherent priority.30 According to Article VI of the Helsinki Rules “[a] use or category of uses is not entitled to any inherent preference over any other use or category of uses.”

25 26 27

28 29

30

Cf. S.C. McCaffrey, The law of international watercourses, p. 46. Idem pp. 46 et seq. Cf. P. Beaumont, The 1997 UN Convention on the Law of Non-navigational Uses of International Watercourses: its strengths and weaknesses from a water management perspective and the need for new workable guidelines, Water resources development, 16 (2000), pp. 475–495, at p. 476. Cf. Madrid Declaration (above Chapter 2 note 3). Cf. Article 337 of the Versailles Peace Treaty adopted 28 June 1919, entry into force 10 January 1920 (13 AJIL Supp. 151, 385 (1919); Another hint of changing priorities can also be found in the 1921 Convention and Statute on the Regime of Navigable Waterways of International Concern (Barcelona Convention), adopted at Barcelona 20 April 1921, entry into force 31 January 1922, (7 LNTS 35). Although it grants navigational use priority (Article 10 (1) of the Barcelona Convention) it admits an exception to this rule in paragraph 6 of the same Article: “As an exceptional case one of the riparian States of a navigable waterway of international concern not referred to in Article II may close the waterway to navigation, if the navigation on it is of very small importance, and if the State in question can justify its action on the ground of an economic interest clearly greater than that of navigation.” Cf. S.C. McCaffrey, The law of international watercourses, p. 48.

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Chapter 2

In its commentary to this rule the ILA expresses its conviction that: . . . the technological revolution and population explosion, which have led to the rapid growth of non-navigational uses, have resulted in the loss of the former pre-eminence accorded navigational uses. Today, neither navigation nor any other use enjoys such a preference.31

The United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, adopted in 1997 deals with this question, too. In Article 10 (1), it states that no use enjoys inherent priority over other uses, and thus affirms the customary water law in this regard. According to its Article 1 (2), the Convention also determines the relation between navigational and non-navigational uses, meaning that it can be concluded that navigational uses do not enjoy priority, either. Moreover, the Convention even gives a slight hint of a changing perception of this relation towards a pre-eminence of at least one kind of non-navigational water use, which is the one that is concerned with vital human needs. Article 10 (2) of the UN Watercourse Convention states that a conflict between different competing uses must be resolved according to the principle of equitable utilisation and the obligation not to cause significant harm to other states “with special regard being given to the requirements of vital human needs.”32 Although the Convention does not define the term “vital human needs” it presumably covers at least the basic human need for drinking water, as this is the most fundamental water use indeed. Thus, although Article 10 of the UN Watercourse Convention does not establish a preference among different uses, it documents the full departure of the former superior status of navigational uses within international water law. According to the uncertainty of the interpretation which these provisions deliver, McCaffrey, however, rightly concludes that the development of international water law in this regard, is a change from the pre-eminence of navigational use in past international water law to the lack of clear priorities in present international water law.33

31 32 33

ILA, Report of the Fifty-second Conference, Helsinki, 1966 (London, 1967), p. 491. Cf. Article 10 (2) of the UN Watercourse Convention (cf. above Chapter 2 note 1). Cf. S.C. McCaffrey, The evolution of the law of international watercourses, pp. 100 et. seqq.

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2.2.3. The Water Basin Concept and the Common Management Approach Two trends in international water law that relate to each other are the development of the water basin concept and the common management approach.34 Early water treaties focussed solely on surface water35 and often even on individual rivers or lakes36 and the water management only dealt with single issues, typically with navigation or fishing.37 This is not surprising because the effects of these activities were usually limited to a certain area and the strong competition of different uses that we find today hardly existed. Furthermore, the knowledge of hydrology was limited and the amount of surface water available for use was simply sufficient.38 This narrow approach to regulating watercourses no longer kept pace with the actual development in the use of freshwater resources. Growing populations, excessive water withdrawal and the possibilities of modern technology bear the risk of overexploitation and pollution of waters, which may affect the entire water basin. In the national context this problem might be manageable. But many water basins do not coincide with the borders of states39 and thus national water utilisation of one country may adversely affect neighbouring countries’ territories and may strain the relations between riparian states. As it became apparent that national water management could not cope with these problems, the call was made for a wider approach in managing international watercourses.40 A

34

35

36 37

38

39

40

For a comprehensive examination see C.B. Bourne, International water law, London [et al.], Kluwer Law International, 1997, pp. 3 et seqq. Cf. L.A. Teclaff, Evolution of the river basin concept in national and international water law, p. 373. Cf. S.C. McCaffrey, The evolution of the law of international watercourses, p. 91. Idem p. 97; Exceptional treaties that covered greater portions of a watercourse or even the whole watercourse usually dealt with fishing, as for this use the protection of the whole watercourse is indispensable. For some of these treaties see the evidence in S.C. McCaffrey, The evolution of the law of international watercourses, p. 91 (at note 20). Cf. P. Beaumont, The 1997 UN Convention on the Law of Non-navigational Uses of International Watercourse, p. 476. In 2002 a total of 263 international basins were recognised (cf. UNESCO, Water for people, p. 303 and table 12.1); see also the study by A.T. Wolf [et al.], International river basins of the world, International journal of water resources development, 15 (1999) 4, pp. 387–427 (an updated version of the study can be found on: http://www .transboundarywaters.orst.edu/publications/register/index.html#toc, accessed 2 July 2004). Cf. L.A. Teclaff, Evolution of the river basin concept in national and international water law, pp. 364 et seqq.

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Chapter 2

better understanding of hydrology, especially the awareness of the fact that most of the world’s freshwater resources are underground strengthened this demand. The discussion that is still in progress has consisted of two elements: first, the replacement of the method of treating problems in isolation by a comprehensive system of water management that takes into account all relevant factors and water uses and second, the establishment of a holistic hydrological approach in international water law instead of applying it solely to single rivers or lakes. Especially on the latter – the question which waters form and are part of a unit subject to international water law – states’ interests have been controversial. Basically, two concepts compete, namely the drainage basin approach and the watercourse approach. Due to the dependence of downstream states on the water-flow coming from upper riparian states they are interested in a comprehensive inclusion of waters that are subject to regulation. That is the reason why they usually favour the broad approach that is enclosed in the drainage basin concept. In contrast, upstream states usually want to limit their legal obligations towards riparian states and thus tend to advocate the narrow approach that is enclosed in the term “watercourse”.41 The Helsinki Rules follow a broad definition of waters that are subject to regulation. Article II of the Helsinki Rules establishes the drainage basin concept.42 Although the approach taken within the Helsinki Rules met some opposition,43 the UN Watercourse Convention of 1997 took a similarly broad definition. It escaped the controversial wording “drainage basin” by using the term “watercourse” but nevertheless defined its contents as broadly as the ILA did with the term “drainage basin” in the Helsinki Rules. According to its Article 2 (a) the term “ ‘[w]atercourse’ means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.” This article comprises all waters but confined groundwater. That is why – and despite disputes about the exact scope of it – it can certainly be said that a

41 42

43

Cf. E. Benvenisti, Sharing transboundary resources, pp. 171 et seq. Article II of the Helsinki Rules states as follows: “An international drainage basin is a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus.” (cf. above Chapter 2 note 11) Cf. L.A. Teclaff, Evolution of the river basin concept in national and international water law, pp. 369 et seqq.; S.C. McCaffrey, The evolution of the law of international watercourses, pp. 93 et seq.

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wide definition of watercourses that are subject to legal regulation is now established in international water law.44 In the same direction heads the approach that is taken in the question of how to manage the many competing water uses. The overexploitation of water resources that is accompanied by problems in health and economy, and which causes ecological problems for the watercourses themselves, is often rooted in different national management concepts which are not sufficiently coordinated.45 That is why there is increasing awareness among states that integrated international water management is necessary in order to establish sustainable utilisation concepts for international watercourses.46 This often takes place within bodies of institutional cooperation,47 which ensure the legal backup for the allocation of utilisation rights, the restriction of water withdrawal and a high level quality water management.48 Recent treaty practice affirms this development towards the conclusion of treaties

44 45 46

47

48

Cf. S.C. McCaffrey, The evolution of the law of international watercourses, p. 93. Cf. M.A. Giordano/A.T. Wolf, Sharing waters, p. 166. Cf. S.C. McCaffrey, The evolution of the law of international watercourses, pp. 95 et seq.; Giordano and Wolf state: “In the absence of institutions, however, changes within a basin can lead to conflict.” . . . “In fact, the presence or absence of institutions has proven to be one of the most important factors influencing co-riparian relations” (M.A. Giordano/A.T. Wolf, Sharing waters, Annotation 7 at p. 166.) An early form of cooperation can be seen in the foundation of river commissions. They are international organisations assigned to formulate and implement ends of utilisation for the international watercourse concerned (cf. C. Tietje, Internationalisiertes Verwaltungshandeln, Berlin, Duncker & Humblot, 2001, p. 385). Already in the 19th century river commissions were founded (Danube River Commission, Rhine River Commission). They are precursors of today’s international institutions and they usually served the purpose of shipping (C. Tietje, Internationalisiertes Verwaltungshandeln, p. 385). Subsequently, many river or watercourse commissions were founded (for an overview cf. M. Reimann, Die nicht-navigatorische Nutzung internationaler Süßwasserressourcen im Umweltvölkerrecht, Frankfurt am Main [et al.], Lang, 1999, pp. 39 et seqq.) and their areas of focus constantly extended. Typical competences today are water management in terms of quality and quantity, data collection, data exchange, sustainable development of the watercourse, protection of the ecosystem, improvement of the standard of living and the protection of cultural heritage. These functions differ, however, considerably between the different commissions. Cf. P.K. Wouters/A.S. Rieu-Clarke, The role of international water law in promoting sustainable development, 2003, URL: http://www.dundee.ac.uk/law/iwlri/Documents/ StudentsMaterial/AlistairRieuClarke/PDFs/Article.pdf (accessed 22 March 2004), n.p.

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for the integrated management of international watercourses and often these treaties provide for the formation of joint institutions.49 Thus, it can be concluded that the evolution of the water basin concept and the common management approach reveal the trend in international water law, emphasising interstate cooperation based upon certain legal standards. The provisions of the Agenda 21 may serve as a further catalyst of this development. Although not binding, the Agenda can provide important guidelines for states’ policy in managing international watercourses. The fundamental provision with regard to deepening water management is paragraph 18.3. It is stated that: The widespread scarcity, gradual destruction and aggravated pollution of freshwater resources in many world regions, along with the progressive encroachment of incompatible activities, demand integrated water resources planning and management. Such integration must cover all types of interrelated freshwater bodies, including both surface water and groundwater, and duly consider water quantity and quality aspects.50

Despite states’ comprehension that a holistic approach in the treatment and management of international watercourses is indispensable, they often get into conflict over different utilisation interests of shared watercourses. The following section deals with the history of the attempt to balance these complex utilisation interests of shared watercourses among different riparian states. 2.2.4. Re-thinking the interrelationship between Equitable Utilisation and No-Harm The positions taken by states in case of conflicts over the apportionment of utilisation rights often reflect their geographical location.51 Upstream states tend to claim the right to unlimited usage of water resources located within their territory no matter what the adverse effects for neighbouring

49 50 51

Cf. S.C. McCaffrey, The evolution of the law of international watercourses, p. 96. Cf. paragraph 18.3 Agenda 21 (above Chapter 1 note 48). Cf. W. Birnie/A.E. Boyle, International law and the environment, 2nd ed., Oxford, Oxford University Press, 2002, p. 307.

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states may be.52 This theory is known as “absolute territorial sovereignty”.53 In contrast, downstream states favour the theory of “absolute territorial integrity”.54 According to this principle a downstream state has the right to the full natural flow of a river in terms of quantity and quality. A state located further up on the river would therefore not be entitled to use its water resources if it by any means affected the quality or the quantity of the river’s water. This would considerably restrict the upstream state in using the river. These principles mark radical positions. It is therefore not surprising that neither of them gained much support in state practice and could therefore never be regarded as being part of international law.55 They can be understood as expressions of states’ intentions rather than being approved

52

53

54

55

Cf. J. Bruhács, The law of non-navigational uses of international watercourses, Dordrecht [et al.], Nijhoff, 1993, pp. 41 et seqq.; D.A. Caponera, Principles of water law and administration, Rotterdam [et al.], Balkema, 1992, pp. 212–213; An example is the statement of Turkey’s former president Suleyman Demirel who stated by reason of opening the Ataturk Dam on 25 July 1992 as follows: “Neither Syria nor Iraq can lay claim to Turkey’s rivers any more than Ankara could claim their oil. This is a matter of sovereignty. We have a right to do anything we like. The water resources are Turkey’s, the oil resources are theirs. We don’t say we share their oil resources, and they can’t say they share our water resources.” (quoted in E. Benvenisti, Sharing transboundary resources, p. 17). This theory finds its expression in the so called Harmon Doctrine. It was developed by the US Attorney General Judson Harmon during a conflict between the Mexican and the US Government about the apportionment of waters from Rio Grande River. US farmers in the 1880s and 1890s had diverted considerable amounts of waters out of the river reducing its natural flow leading to scarcity on the Mexican side. Upon the complaint by the Mexican Government Harmon prepared a legal opinion stating that according to international law a state has the unconfined right to use the waters flowing through its territory. The conflict, however, in fact was resolved without reference to Harmon’s legal opinion. Mexico and the US concluded an agreement that allocated half flow of the Rio Grande to each country (cf. the Convention Concerning the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, 21 May 1906). Cf. J. Bruhács, The law of non-navigational uses of international watercourses, pp. 41 et seqq.; D.A. Caponera, Principles of water law and administration, pp. 212 et seq.; see also A. Tanzi/M. Arcari, The United Nations Convention on the Law of International Watercourses: a framework for sharing, London [et al.], Kluwer Law International, 2001, p. 12. Cf. B.-O. Bryde, Wasser fließt bergab: Die Verschmutzung internationaler Binnengewässer und ihre Bekämpfung, in: P.C. Mayer-Tasch (ed.), Die Luft hat keine Grenzen, Frankfurt am Main, Fischer Taschenbuch Verl., 1986, pp. 43–55, at pp. 49 et seqq.

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legal principles.56 Nevertheless, they do have effects in legal practice, since the positions taken by states are often rooted in these theories and, thus, they influence the development of utilisation principles in international water law and the outweighing of different competing principles. Two principles that are widely recognised in international law support this view: the principle of equitable utilisation57 and the Latin expression “sic utere tuo ut alienum non laedas,”58 simplistically adapted, also known as the use of territory without causing damage to others.59 The no-harm principle expresses the view that a state may use a watercourse flowing through its territory, however, may not cause harm to other riparian states. The no-harm principle is derived from the sovereign equality of states. In contrast, the equitable utilisation principle asks for the apportionment of “a reasonable and equitable share in the beneficial use of shared water”60 and thus allows for the infliction of a certain amount of damage to other states, though in a manner that affects the states concerned with the least possible harm. Early water treaties favoured the no-harm rule approving a strict perception of the sovereign equality of states. Due to increasing water demand and due to efforts taken by upper riparian states to develop watercourses,61 the principle

56

57

58

59 60

61

Cf. S. Nicholson, Water scarcity, conflict, and international water law: an examination of the regime established by the UN Convention on International Watercourses, New Zealand journal of environmental law, 5 (2001), pp. 91–125, at p. 112; Although for example India during the conflict with Pakistan about the waters of the River Indus took the position that it had absolute supremacy of the river within its territory, it nevertheless concluded a treaty conceding utilisation rights to Pakistan. Thus, the Harmon Doctrine did not prevail in this conflict, either. See for example the judgment of the International Court of Justice in the GabčíkovoNagymaros case (Hungary v Slovakia), judgement of 25 September 1997, ICJ Reports 1997, 7; for a comment on the case cf. P.C. de Castro, The judgement in the case concerning the Gabčíkovo-Nagymaros Project: positive signs for the evolution of international water law, Yearbook of international environmental law, pp. 21–31. Authority for the principle can be found in the Trail Smelter Arbitration (US v Canada) (1931–41) 3 RIAA 1905 and the Corfu Channel Case (Merits) (UK v Albania) 1949 ICJ Reports 4. S.C. McCaffrey, The evolution of the law of international watercourses, p. 106. P. Gleick, Water and conflict: Fresh water resources and international security, International security, 18 (1993) 1, pp. 79–112, at p. 106. Historically, downstream states usually used and developed the watercourse much earlier and more intensively than upstream states (cf. S.C. McCaffrey, Water, human rights and sustainable development, in: A.A.C. Trindade (ed.), Derechos humanos, desarrollo sustentable y medio ambiente, pp. 99–115, at p. 112). That leaves the upper riparian

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has been challenged since, claiming a just apportionment of available water resources.62 Articles IV, V of the Helsinki Rules of 1966 advocate an equitable utilisation approach. Principle 21 of the Stockholm Declaration63 and many international treaties concluded subsequently64 have endorsed the Helsinki Rules in this regard. The adherents of the equitable utilisation principle do not fully negate the obligation not to cause harm. They instead follow the approach that in case of conflict the equitable utilisation principle prevails. Although there is no doubt that the equitable utilisation principle gained more support during the 20th century,65 the discussion of how to outweigh these competing rules is far from over. Especially due to the alarming level of pollution caused by non-navigational uses of watercourses, the precedence of the equitable utilisation principle has been rethought.66 The UN Watercourse Convention of 1997 reflects this long lasting controversy. It recognises both rules as valid principles of international law. The compromising language mirrors the attempt to strike a balance between conflicting state interests. Upstream states favoured the equitable utilisation approach set out in Article 5, downstream states supported the no significant harm rule included in

62

63

64

65 66

state with the problem that, contra to the principle of no-harm, it inflicts damage on the lower riparian one when it makes the effort to develop the watercourse in its territory afterwards. For example Utton states: “Adopting the…concept of ‘no significant harm’ originating from transboundary pollution concerns and superimposing it on the question of water quantity allocations as the base principle of international law would come close to again giving a veto power to downstream States over proposed uses of international streams by upstream States, in contrast to the concept of reasonable or equitable sharing of international water resources required by the doctrine of equitable utilisation.” (A.E. Utton, Which rule should prevail in international water disputes: that of reasonableness or that of no-harm?, Natural resources journal, 36 (1996) 3, pp. 635–641, at p. 637). Principle 21 of the Stockholm Declaration reads as follows: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” (Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, UN Doc. A/Conf. 48/14/Rev. 1). See the examination of M. Mühlhans, Internationales Wassernutzungsrecht und Spieltheorie, Frankfurt a.M. [et al.], Peter Lang, 1998, pp. 9 et seqq. Cf. S.C. McCaffrey, The evolution of the law of international watercourses, p. 110. Cf. W. Birnie/A.E. Boyle, International law and the environment, pp. 306 et seqq.

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Article 7 of the Convention.67 Not surprisingly, the Convention lacks a clear answer as to which of the principles takes precedence in case of conflict.68 Consequently, the discussion of how the two legal principles relate to each other continues. One auspicious proposal aims at a distinction between quantity and quality issues.69 In order to take into account the interest of upstream states to future uses, equitable utilisation shall rule questions of quantity. On the other hand, there is no reason to allow for pollution of watercourses by future water uses. For that reason, no-harm is deemed to rule quality concerns.70 The Revised Helsinki Rules of 2004 follow the approach taken in the UN Convention. Although clearer in language, they do not relieve tension between these competing principles, either.71 Beside these unresolved problems, the development of international water law in this regard certainly reflects states’ commitment to find ways of cooperation in order to outweigh riparian interests. To summarise, the development of international water law in the 20th century as discussed above documents the turn away from sovereign centrism. There is a clear trend towards cooperation and growing states’ demand for integrated management approaches. The precedence of navigational uses came to an end in the past century. Nowadays, non-navigational kinds of use find strong support in state and treaty practice. The method of treating problems in isolation has been replaced by holistic utilisation concepts. The measures taken while managing a watercourse have been increased, too. Environmental protection, data collection and exchange, quality and quantity water management, improvement of living standard and even the protection of cultural treasure are among them. The lingering conflict of the two antagonistic principles of equitable utilisation and no-harm could not yet be resolved by the adoption of the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses.

67 68

69 70 71

Cf. S.C. McCaffrey, The law of international watercourses, p. 307. Quite surprisingly the International Court of Justice in its judgement in the GabcíkovoNagymaros-Case shortly after the release of the UN Convention applied solely the principle of equitable utilisation but not the no-harm rule, too and it gave reference to the UN Convention, although the Convention refers to both principles likewise (cf. GabčíkovoNagymaros-Case, above Chapter 2 note 57, para. 85). Cf. S. Nicholson, Water scarcity, conflict, and international water law, pp. 118 et seqq. Ibid. Cf. Articles 12–14, 16 of the Revised Helsinki Rules (above Chapter 2 note 21).

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As suggested above, international water law suffers from a general lack of priorities. Although recent documents, such as the UN Convention and the Revised Helsinki Rules, refer to the satisfaction of vital human needs, their status within international water law is not sufficiently clear. That is why the following section will take a close look at the relevant international water law in regard to providing safe access to freshwater.

2.3. Analysis of international water law in regard to fulfilling the basic human need for water There are basically two levels on which international water law can operate in order to fulfil the aim of providing everybody with a sufficient amount and quality of freshwater. It can either provide for individual rights to gain access to freshwater or it can promote the access interests of people by objective legal approaches. In the following passage, I will discuss which direction – if any – international water law has taken, and will pointed out its deficits regarding the aim of guaranteeing freshwater access for everyone. According to Article 38 (1) (a) of the Statute of the International Court of Justice, one legal source of international law is treaty law. Most important in international water law is the Convention on the Law of the Non-navigational Uses of International Watercourses of 1997, which will be looked at first. Subsequently, the relevant customary law will be examined. 2.3.1. The 1997 Convention on the Law of the Non-navigational Uses of International Watercourses The United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, which was adopted by the General Assembly on 21 May 1997,72 is gaining growing importance in international water law. As stated in the preamble, it is deemed to be a framework convention to “. . . ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations”. 72

Cf. above Chapter 2 note 1; it was adopted by a vote of 103 in favour of the convention and 3 against, with 27 abstentions (for a detailed breakdown of the vote in the General Assembly cf. G.E. Eckstein, Development of international water law and the UN Watercourse Convention, figure 1, pp. 91 et seqq.).

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2.3.1.1. Legal significance According to its Article 36 (1) the Convention shall enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. Though this amount of ratifications has not yet been achieved,73 the Convention already has a considerable relevance as authoritative statement in international forums74 and was referred to by the International Court of Justice.75 This shows the legal relevance the Convention has already at present, prior to becoming effective. 2.3.1.2. Individual rights in the UN Watercourse Convention Contracting parties in international law are usually states.76 Nevertheless, treaties may provide for rights of individuals, too. The approach to establish water security by granting people individual access rights, however, found no access to the UN Convention.77 The provision that expressly takes into account the problems of freshwater access for basic needs is Article 10 (2) of the Convention which states: In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs.

The provision serves solely the function of a reference for solving conflicts between states but does not deliver any evidence that individuals themselves should be entitled to claim sufficient access to water resources in order to satisfy their vital human needs. A second provision that can be referred to in this regard is Article 32 of the UN Watercourse Convention. Here it reads as follows:

73 74 75 76

77

Cf. above Chapter 2 note 18. Cf. UNESCO, Water for people, p. 303. Cf. Gabčíkovo-Nagymaros-Case (above Chapter 2 note 57), para. 85. On the problem of non-state actors as a subject of international law see K. Hailbronner, Der Staat und der Einzelne als Völkerrechtssubjekte, in: W. Vitzthum (ed.), Völkerrecht, 2. Auflage, Berlin, New York, de Gruyter, 2001, pp. 161–265, at pp. 169 et seqq. Riedel suggests developed states feared that developing countries would be able to exploit the establishment of a human rights-based approach to freshwater access in the Convention to claim further development aid (cf. E. Riedel, The human right to water, pp. 589 et seq.).

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Article 32 Non-discrimination Unless the watercourse States concerned have agreed otherwise for the protection of the interests of persons, natural or juridical, who have suffered or are under a serious threat of suffering significant transboundary harm as a result of activities related to an international watercourse, a watercourse State shall not discriminate on the basis of nationality or residence or place where the injury occurred, in granting to such persons, in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief in respect of significant harm caused by such activities carried on in its territory.

The provision deals with access to judicial or other procedures in a foreign country by people who are not nationals of that country. Thus, an individual who has suffered harm or is seriously threatened by action taken from another watercourse state’s territory may not be prevented by this state from taking action within its legal system. The entitled subject of the said article is the single individual who shall be provided with the access right. However, the conclusion that Article 32 of the UN Watercourse Convention includes a procedural right to claim compensation in another country does not mean that it includes a substantial right, too. The harm subject to such juridical or other procedures is not further specified within Article 32. It has to be figured out according to other provisions prior to the application of Article 32. This shows that Article 32 is meant to provide only for the procedural enforcement of already existing rights and not for the establishment of new substantial rights at all. The provision is, thus, unable to provide people with an individual right to freshwater access.78 That is why the following analysis will determine whether the UN Convention, can by other means, adequately contribute to the establishment of water security among people. 2.3.1.3. Securing freshwater access by objective legal means in the UN Convention In order to evaluate the contribution of the UN Convention in securing freshwater access for basic human needs, first its scope of application has to be determined. The historical development of international water law

78

See in this respect E. Hey, Sustainable use of shared water resources: the need for a paradigmatic shift in international watercourses law, in: G.H. Blake [et al.] (eds.), The peaceful management of transboundary resources, London [et al.], Graham & Trotman/Nijhoff, 1995, pp. 127–152, at p. 134.

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suggests that it is tied to watercourses that cross borders of states. As the law was predominantly deemed to balance the coexistence of states79 conflicts could not occur in regard to exclusively domestic watercourses. The UN Watercourse Convention is still committed to this approach. In Article 1 (1) of the UN Watercourse Convention it reads as follows: The present Convention applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters.

The term “international watercourses” is explained in Article 2 (b) as “a watercourse, parts of which are situated in different states.” According to this provision, the Convention applies to international watercourses only. In addition to its historical implications, this concept also reflects states’ reluctance to make watercourses located entirely within their territories to a subject of international utilisation arrangements. This is not quite surprising. States have considerable economic interests in using watercourses and tend to refuse restrictions of their sovereignty. Nevertheless it should be noted that the function of modern international law in general has extended. Nowadays, it also serves as a comprehensive instrument to coordinate international cooperation in many fields.80 International law is, therefore, not necessarily bound to factual transboundary interaction. Although the essence of state sovereignty is not yet challenged by the extension of international law’s function,81 this growing density of regulation implements a stronger interstate linkage with a greater breadth of obligations. The concern of establishing global water security in particular depends on interstate cooperation. The problem of water scarcity is by no means limited to watercourses intersected by boundaries of states. Facing the growing demand on the limited freshwater resources, it seems even more appropriate to manage watercourses comprehensively and develop global management schemes. This is especially due to the fact that water scarcity, which may solely occur in a national context, can neverthe-

79

80

81

Cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, in: W. Vitzthum (ed.), Völkerrecht, pp. 1–85, at pp. 15 et seq. Growing importance gain for example business, finance and social relations, environmental and climate protection, conservation of national heritage, development assistance and human rights protection. See generally on this point W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 16.

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less have international causes. The needs of water users, especially those that suffer from water scarcity, demand the establishment of such an extended concept of international water law because only a holistic approach in water management can guarantee to reach every single user. As the UN Convention excludes a priori domestic watercourses from its jurisdiction it also excludes domestic watercourse-dependent water users from its jurisdiction and thus loses much of its efficiency. Although this is not ground-breaking news, it nevertheless proves that the Convention does not have the ability to serve the aim of safeguarding freshwater access for basic needs in a comprehensive sense but solely within its transboundary application. The term “international watercourse” as laid down in Article 1 of the UN Watercourse Convention does not only imply a geographical dimension but also a hydrological and hydrographic one. Historically, international water treaties were usually limited to surface water.82 However, most of the available freshwater resources are underground.83 Nowadays, the increasing demand cannot be met by surface water alone but will require the utilisation of groundwater resources, too. Thus, limiting water regulation solely to the surface part would mean rendering international water law inadequate to cope with the increasing demand. The UN Convention recognises this fact. Its Article 2 (a) defines a watercourse as “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.” The Convention follows a broad definition in as far as a particular aquifer does not necessarily need to cross borders of states but solely has to be related to surface waters that extend over two or more states’ territories.84 Thus, groundwater is within its jurisdiction except for water which is not flowing into a common terminus. This brings up two questions that will be dealt with in regard to coping with the basic need for freshwater: Firstly, is the exclusion of confined groundwater reasonable? Secondly, does the integration of transboundary groundwater resources by way of applying those rules, which were primarily

82

83 84

Cf. S.M.A. Salman, Evolution and context of international water resources law, in: L. Boisson de Chazournes /S.M.A. Salman (eds.), Les ressources en eau et le droit international – Water resources and international law, Académie de droit international de LA Haye, Leiden [et al.], Nijhoff, 2005, pp. 45–94, at p. 66. Cf. UNESCO, Water for people, p. 78. Cf. S.C. McCaffrey, The law of international watercourses, p. 429.

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developed for surface watercourses, sufficiently respond to the specific characteristics of groundwater? Despite the huge amount of groundwater, it was unlike surface water rarely subject to international regulation, until recently.85 This can be related to the fact that people were unaware of the interdependence between surface and groundwater and the surface water amount was sufficient to fulfil the usage interests of riparian states. McCaffrey suggests that states’ reluctance to subject groundwater to international control also is an expression of territorial sovereignty.86 As states enjoy sovereignty over their soil and since groundwater is per definition in the ground it might be difficult for states to give up control over groundwater, which is shared with other states.87 This could be even more difficult when groundwater is not connected to surface water. Although this might explain states’ position in negotiating the UN Convention, it is nevertheless not reason enough to justify the exclusion of confined groundwater from its scope of application. The conflicts that can occur over using surface water or its related groundwater can appear with regard to confined groundwater too. The people who obtain their drinking water from confined groundwater resources bear the same risks of pollution or overexploitation by a riparian state as people who obtain their drinking water from the surface or its related groundwater. This shows that the effects of utilising confined groundwater can be as international as on other parts of waters, too. Thus, if international water law is deemed to provide for an effective, system-wide management it should follow a definition that includes all those waters that are actually shared or are related to waters that are shared by two or more states and should not exclude parts of it from its scope of regulation.88 85

86 87 88

Cf. S.C. McCaffrey, The law of international watercourses, p. 418; for documents relating to groundwater see the compilation in L.A. Teclaff/E. Teclaff, Documents, in L.A. Teclaff/ A.E. Utton (eds.), International groundwater law, London [et al.], Oceana Publications, 1981, pp. 189–489. Cf. S.C. McCaffrey, The law of international watercourses, p. 417. Ibid. The International Law Commission finally responded to the problem in its Resolution on Confined Transboundary Groundwater. There it suggested “. . . that the principles contained in its draft articles on the law of the non-navigational uses of international watercourses may be applicable to transboundary confined groundwater . . .” (2 Y.B. ILC 135 [1994]). What follows is the commendation addressed to the states to put confined groundwater under the rule of the Convention. This suggestion, nevertheless, found at least no access to the Convention.

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The second question has to be answered by assessing the specific characteristics of ground and surface water. There is no doubt that both types of watercourses are used similarly. Depletion and pollution can certainly hit both of them. There are, however, also specific differences which result from the hydrological status. Stream velocity of surface water is considerably higher than that of groundwater. Once groundwater is affected with contamination it will take much longer to purify itself than polluted surface water does. That is why, people who rely on groundwater for fulfilling their basic amount of drinking water are particularly threatened by water pollution. The different hydrological situation, thus, justifies the implementation of different rules in this respect. For example, a higher standard of diligence in avoiding pollution seems appropriate.89 Despite its deficits in regard to its scope of application and the neglect suffered by groundwater, I will now discuss whether the Convention sufficiently considers the particular problem of providing everybody with access to the basic amount of freshwater at least within its scope of application. The Convention is based on three main concepts: equitable and reasonable utilisation (Article 5); the obligation not to cause significant harm (Article 7); and the obligation to cooperate and exchange information (Articles 8 and 9). The obligation to cooperate and exchange information above all has a procedural function. It does not directly affect the utilisation of watercourses but takes effect via the utilisation principles. For that reason this analysis will focus on the two utilisation principles developed in Articles 5 and 7 and on the provisions that specify their interpretation. The UN Convention serves as a framework. This means that it must prove general applicability. According to this function, the basic message of the equitable utilisation principle can be stated as that “each basin state is entitled to a reasonable and equitable share in the beneficial use of shared water.”90 This, however, does not mean equal apportionment of the existing water. Instead, all relevant factors have to be taken into account in order to evaluate what in the given situation is the “equitable and reasonable use.”91

89

90 91

See detailed on this point S.C. McCaffrey, The law of international watercourses, p. 431. P. Gleick, Water and conflict, p. 106. J.W. Dellapenna, The customary international law of transboundary fresh waters, p. 286.

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Assistance is provided by Article 6 of the Convention which includes a nonexhaustive list of those factors: Article 6 Factors relevant to equitable and reasonable utilization 1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; (c) The population dependent on the watercourse in each watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (e) Existing and potential uses of the watercourse; (f ) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use. 2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation. 3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

The basic need for water finds a foothold in paragraphs (b) and (c) where social needs and the watercourse-dependent population are referred to. However, the use of water to fulfil basic needs is only one factor among many that are supported by Article 6. Paragraph 3 of the same Article does not determine how the single factors should be weighted and merely asks for an individual balancing of the relevant factors in a comprehensive survey. This is inasmuch understandable as the provision seeks to respond to different regional conditions of water utilisation. However, it assumes an equality of water uses which in fact does not exist. Article 6 has to be read together with the no-harm principle set out in Article 7 of the UN Watercourse Convention. This provision includes the obligation not to inflict significant harm on a riparian state’s territory while using the watercourse. Assuming that the equitable utilisation principle allows for the infliction of some harm, this principle cannot be understood to avoid all harm. It

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was described instead as an obligation of conduct (of due diligence), not as an obligation of result.92 Having said that, it also provides for a minimum standard of protection as an obligation of result, as far as the infliction of harm to human life and severe harm to health is concerned. Otherwise, the obligation not to cause significant harm would lose its meaning if it did not even prevent the severest harm possible to occur, in particular to life and health. Thus Article 7 of the UN Watercourse Convention provides at least a minimum standard in favour of the water use for fulfilling basic human needs. The obligation to fulfil a minimum standard has to be taken into account while weighing up the different relevant factors of Article 6. In addition, the word “equitable” in its very meaning can hardly be understood to allow for threats to human life or health, either and, thus, the minimum standard can also be established out of the equitable utilisation principle itself as set out in Article 5 of the Convention.93 The Convention’s concern of establishing globally applicable management principles that may ask for a certain margin of variation does not bar the Convention from recognising the superior importance of water use for vital human needs. The preference of this water use would only become effective in regions suffering from water scarcity. In areas with sufficient water access, this factor would obviously not have to be included in the process of balancing competing uses according to Article 6. Consequently, the establishment of globally applicable management principles by the Convention is by no means restricted by giving preference to the water use for basic human needs. In this regard it can be concluded that a utilisation that causes water scarcity among people setting their basic amount of water for survival at threat is rendered per se unlawful by the UN Watercourse Convention. As this still is a vague status of the human need for water, it now has to be determined whether other provisions further specify the general utilisation principles with regard to basic human needs. Two provisions can be referred to in this respect, Articles 10 and 21 (2). Article 10 states:

92

93

Report of the ILC on the work of its forty-sixth session, 2 May to 22 July 1994, Doc. A/49/10, paragraph 4 of the commentary to Article 5. The ILC stated in this respect that “[a] use which causes significant harm to human health and safety is understood to be inherently inequitable and unreasonable.” (Report of the International Law Commission on the Work of its Forty-sixth Session, U.N. G.A.O.R. 49th Sess. Suppl. No. 10. U.N. Doc. A/49/10 (1994), p. 242).

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Article 10 Relationship between different kinds of uses 1. In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses. 2. In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs.

Paragraph 1 limits the scope of application of paragraph 2 in terms of its preference of “agreement or custom” that give priority to certain uses. Therefore, at first I will determine how this provision affects the basic human need for water, before, second, paragraph 2 can be assessed. According to Article 10 (1) specific agreements take precedence over the rules established by the UN Watercourse Convention. The provision restates the general provision of Article 3 (3) which already includes states’ opportunity to depart from the Convention when concluding individual agreements. According to the ILC the adjustment of different uses can best be achieved by conclusion of specific watercourse agreements.94 Certainly, specific agreements allow for the adaptation of international rules to specific regional conditions. It is, nevertheless, hard to see how a sufficient consideration of the basic human need for water in all regional treaties can be achieved without overall guidelines. It has to be asked whether the frame that the Convention gives for the conclusion of these specific watercourse agreements is adequate. The wording of Articles 3 (3) and 10 (1) of the UN Convention on the one hand supports the view that states are fully free to decide which uses they want to give priority to. On the other, this would render void the whole purpose of the Convention to set certain standards in important areas as a framework. The definition of what is supposed to be an equitable use is one of the central questions in international water law and thus the UN Convention must at least roughly define it to meet

94

In the ILC’s commentary to Article 5 paragraph (9) it reads as follows: “. . . where the quantity or quality of water is such that all the reasonable and beneficial uses of all watercourse States cannot be fully realized, a ‘conflict of uses’ results. In such a case, international practice recognizes that some adjustments or accommodations are required in order to preserve each watercourse state’s equality of right. These adjustments or accommodations are to be arrived at on the basis of equity, and can best be achieved on the basis of specific watercourse agreements.” (Report of the ILC on the work of its forty-sixth session, 2 May to 22 July 1994, Doc. A/49/10).

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the objectives of its own provisions. Otherwise, there would not be much left for the Convention to direct. Therefore, the provision in question can only be understood as an opportunity for states to adjust the Convention’s principles to the specific regional conditions of a watercourse but not to depart completely from the concept of equitable utilisation. For this reason, the minimum standard in terms of human life and health must be observed while concluding a regional watercourse agreement. In the absence of such agreements or custom Article 10 (2) becomes effective if a conflict of uses occurs. Surprisingly, this provision refers back to Articles 5 to 7 of the UN Watercourse Convention and thus to the general principles without guidance which of them should prevail. The language in respect of the consideration of vital human needs (“with special regard”) is rather vague. The ILC understands the provision merely as the state’s obligation to “consider” a minimum standard rather than as an obligation to “provide.” In its commentary it states that “special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for the production of food in order to prevent starvation.”95 This interpretation is, however, too modest. It would give states the opportunity to depart in single cases even from the lowest level of providing people with water. Such interpretation would fall behind the standard provided by the general principles as elaborated above and thus would conflict with those principles. The provision can rather be understood as an enhancement of subparagraphs (b) and (c) of Article 6 of the UN Convention in that it proscribes governments to balance utilisation factors to the disadvantage of vital human needs. Since this perception of Article 10 (2) is already inherent in the principles of equitable utilisation and no significant harm as discussed above, this Article cannot specify the general utilisation principles as set out in Articles 5 to 7 of the UN Convention but merely emphasise the importance of vital human needs. A similar reading can be taken from Article 21 (2) of the UN Watercourse Convention.96 It refers to “harm to human health or safety” only as an 95 96

Idem at para. 4 of the commentary on Article 10. The provision reads as follows: Article 21 (Prevention, Reduction and Control of Pollution) 1. For the purpose of this article, “pollution of an international watercourse” means any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct. 2. Watercourse States shall, individually and, where appropriate, jointly, prevent, reduce

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example of damage that might be inflicted on states or their environment by other riparian states, which is to be prevented, reduced or controlled.97 The provision is an accentuation of the general principles outlined in Articles 5 and 7 in terms of the environment but it does not include an increased standard of protection of the people dependent on the relevant watercourse, either. Another deficit of the UN Convention relates to its implementation. It lacks specific guidance how the aim of water security can be achieved, it has no clear structure that serves the management of objectives and it includes no penalty for non-compliance with it. The provisions that are deemed to bring about general cooperation (Article 8), the exchange of data (Article 9) or the prevention and mitigation of harmful conditions (Article 27) surely do somehow further the aim of establishing water security, but merely as side effects without any predictability and certainty. To conclude, the UN Convention serves the traditional function of international law in the interstate context in the first place. Its contribution in securing freshwater access for individuals is only of minor importance. The Convention does not include any rights of individuals as to the safe access to the basic amount of freshwater and lacks specific provisions that support the interests of water users in an objective legal way. The safeguarding of freshwater access, therefore, has to be sought in appliance of the general principles of international water law. These are the principle of equitable utilisation and the obligation not to cause significant harm set out in Articles 5 to 7 of the UN Watercourse Convention. The application of these general principles, however, meets some difficulties. Although they prohibit gov-

97

and control the pollution of an international watercourse that may cause significant harm to other watercourse States or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse. Watercourse States shall take steps to harmonize their policies in this connection. 3. Watercourse States shall, at the request of any of them, consult with a view to arriving at mutually agreeable measures and methods to prevent, reduce and control pollution of an international watercourse, such as: (a) Setting joint water quality objectives and criteria; (b) Establishing techniques and practices to address pollution from point and non-point sources; (c) Establishing lists of substances the introduction of which into the waters of an international watercourse is to be prohibited, limited, investigated or monitored. Cf. Article 21 (2) of the UN Watercourse Convention (above Chapter 2 note 1).

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ernments from compromising the basic human need for water necessary to sustain human health or life while reconciling conflicting uses, they are far too vague to be capable of complying with this very specific task. There are difficulties in determining legal instructions for realising the minimum standard required. It is not even apparent what the minimum standard is. The reference to “vital human needs” in Article 10 (2) and to “human health or safety” in Article 21 (2) of the UN Watercourse Convention cannot provide additional guidance. Instead, they describe a minimum threshold that is already inherent in the general principles. Nevertheless, they are of some importance as they act as a clarification that makes it more difficult for states to depart from at least a very low standard of water provision for basic needs. In theory, the threshold can be described as follows: if vital human needs are not affected, they do not have to be engaged in the process of reconciling competing uses because they are simply fulfilled. If, however, vital human needs are at threat, they block any other use to the necessary extent. Apart from that very basic standard, however, the provisions do not obligate states to provide for freshwater access. That is why in practice the effectiveness of the Convention in fulfilling the aim in question is doubtful. Since the Convention cannot sufficiently contribute to the aim of water security this analysis will now turn to international customary water law and determine whether it delivers a more sophisticated protection of people’s basic need for water. 2.3.2. Customary water law Despite the adoption of the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses current international water law still is predominantly formed of customary law. In addition, the UN Watercourse Convention has not yet entered into force. The following examination will begin with an analysis of the Helsinki Rules on the Uses of the Waters of International Rivers of 1966. Subsequently, the analysis will turn to the Revised Helsinki Rules of 2004. Beyond the Helsinki Rules customary rules will be referred to during the analysis as far as they are relevant. 2.3.2.1. The Helsinki Rules on the Uses of the Waters of International Rivers of 1966 The compilation of the Helsinki Rules is the expression of expert opinion according to Article 38 (1) (d) ICJ Statute and sets forth the rules of

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customary international water law pursuant to subparagraph (b).98 Thus, it is not a source of law itself but a source from which to discern the law.99 At the time of their adoption, the Helsinki Rules were also deemed to progressively develop international water law. In the course of the following decades, the Helsinki Rules have been widely accepted by states and lawyers as a proper statement of the law in this field.100 Their scope of application does not considerably differ from that of the UN Watercourse Convention. According to Article 1 of the Helsinki Rules they apply to international drainage basins which – due to Article 2 of the Rules – include surface and underground waters, which flow into a common terminus. In the meantime this provision was adjusted by the ILA’s Seoul Rules on International Groundwaters of 1986101 of which Article II, paragraph 2, declares that an aquifer which is intersected by an international border but not connected to surface water, forms an international drainage basin subject to the Helsinki Rules. As well-intentioned as the inclusion of confined groundwater may be, in view of states’ position during the negotiations of the UN Watercourse Convention, it seems doubtful whether it actually reflects affirmed state practice or instead expresses the perception of legal experts what the international law on groundwater should be like.102 The main pillar of the Helsinki Rules is the equitable utilisation principle as outlined in chapter 2 of the document. According to Article IV of the Helsinki Rules, every basin state is entitled to a reasonable and equitable share in the use of the water. The factors to be taken into account in order to assess what is the reasonable and equitable share in a given situation are similar to those of Article 6 of the UN Watercourse Convention and there is no preferential use, either. Article V (II) (5) of the Helsinki Rules refers to “social needs of each basin state” and subparagraph (6) to the “population dependent on the waters.” The basic human need for water is addressed only

98

99 100

101

102

Cf. J.W. Dellapenna, The customary international law of transboundary fresh waters, p. 273. Cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 79. Cf. A. Tanzi/M. Arcari, The United Nations Convention on the Law of International Watercourses, pp. 34 et seq.; R. Higgins, Problems and process: international law and how we use it, Oxford, Clarendon Press, 1994, p. 134. Adopted by the International Law Association at its Sixty-Second Conference held at Seoul in 1986, ILA, Report of the Sixty-Second Conference held at Seoul, 24–30 August 1986, London, 1987, p. 251. Cf. W. Birnie/A.E. Boyle, International law and the environment, p. 301.

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within this context and thus, similar to the UN Convention, the contribution in safeguarding the basic human need for water has again to be determined according to the principle of equitable utilisation. This, however, merely includes the minimum standard avoiding threats to human life and severe harm to health as suggested above. Consequently, no increased standard of protection can be established for the basic human need for water on the basis of the principle of equitable utilisation. The Helsinki Rules are even less clear on that issue because they do not even accentuate the importance of vital human needs as stated in Article 10 (2) of the UN Watercourse Convention. Despite the Helsinki Rules’ importance in safeguarding shared water-use in the interstate context, it can be concluded that the threat that increasing water scarcity puts on people living in these regions of deficiency is not mirrored by the Helsinki Rules. In view of the time of publication of the Helsinki Rules this is not surprising. The ILA responded to the changed situation that has evolved during the last decades. Almost forty years after the adoption of its Helsinki Rules, it released a complete revision of them, which was called the International Law Association Rules on Water Resources of 2004.103 This is the subject of the next subchapter. 2.3.2.2. The International Law Association Rules on Water Resources of 2004 The International Law Association Rules on Water Resources of 2004 (Revised Helsinki Rules) are a comprehensive compilation, meant to respond in practical terms to the increasing water demand and to incorporate in legal terms the body of law that has developed during the last decades, especially environmental and human rights law.104 Similar to the Helsinki Rules of 1966 it is a subsidiary source of law according to Article 38 (1) (d) ICJ Statute. Having said that, the International Law Association with its recent rules aims to go beyond this. The Revised Helsinki Rules are also intended to progressively develop the law in this area in order to cope with emerging problems of water management.105 Thus, it certainly also is a politically ambitious document. Hence, as this analysis is intended to deliver a sound doctrinal analysis of international water law in regard to its contribution in safeguarding freshwater access, it will also be essential to scrutinise the

103 104 105

Cf. above Chapter 2 note 21. Idem, see preface of the Revised Helsinki Rules. Idem, see preface and comment on Article 1 of the Revised Helsinki Rules.

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single relevant provisions of the Revised Helsinki Rules in regard to whether they really reflect the present state of international customary water law or whether they are solely deemed to push for a progressive development in this area of law. The approach taken by the International Law Association in regard to the scope of application of its Revised Helsinki Rules is worth noting. In former documents, such as for example the Helsinki Rules of 1966, the term “international water law” has been understood as the law serving interstate relations with regard to an international watercourse. Accordingly, the watercourse subject to international regulation must be intersected by boundaries of states or must similarly connect two or more states.106 As already shown in respect of the UN Watercourse Convention the exclusion of domestic watercourses from the scope of application of international water law hampers a unitary solution for the water crisis, especially for the establishment of water security. With its recent compilation the International Law Association responds to these changed circumstances. In regard to the immense factual and legal changes in the field of freshwater resources, it suggests a new categorisation of international water law. According to this suggestion, international water law as stated in the Revised Helsinki Rules applies to all freshwater courses, whether national or international and the law of international watercourses is only a small body of special rules as part of international water law. However, the International Law Association does not call it international water law but “law applicable to world’s waters”107 because the applicable provisions are compiled from various fields of law. The incorporation of many different fields of law also denotes an extension of the Revised Helsinki Rules as to their objectives. The Association’s rules no longer serve only the classical interstate dispute related to utilisation rights but recognise the impact that water scarcity can have on subsistence of individuals as well as on communities and cultures.108 Water scarcity can affect people in many ways. As international water law only insufficiently provides rules for the resolution of these problems, they can often only be resolved with reference to other areas of law. The International Law Association refers especially to the growing importance of environmental

106 107 108

Cf. above 2.3.1.3. See preface of the Revised Helsinki Rules (above Chapter 2 note 21). Cf. E. Benvenisti, Sharing transboundary resources, p. 179.

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law, human rights law and law on war and armed conflict.109 The content of these norms is reformulated as deemed applicable to the case of water in the Association’s compendium. The fact that most rules are derived from other areas of law shows that it is too early for a redefinition of the term “international water law.” Human rights law for example might be applicable to waters in certain cases but it is not water law itself. In addition a broad understanding of the term “international water law” would conceal the backward character of present international water law and thus hamper necessary moves to revise and codify the law in this area. That is why the International Law Association with the term “law applicable to waters” has chosen the right way to provide assistance in this complex field of law without lifting international water law from its pressure to reform. In addition, the Association can push the development further towards a more comprehensive application of international water law. However, since this Chapter solely deals with international water law in its well established sense, the following analysis will focus on those rules within the Revised Helsinki Rules. The analysis will point at the strengths and deficits of the international water law in regard to providing freshwater access for basic needs. Afterwards Chapters 3 and 4 will deal with options to adjust and mitigate the assessed deficits by way of application of legal norms deriving from other branches of law, in particular the human rights law. In that context the Revised Helsinki Rules derived from other fields of law will be referred to again.110 Besides its wider scope as just examined, the application of the Revised Helsinki Rules also expands a hydrological as well as a hydrogeological view. According to Articles 36 (1) and 42 (1) of the Revised Helsinki Rules and opposing the UN Watercourse Convention, confined groundwater is regarded as subject of international water law. The provisions confirm the International Law Association’s view already taken in the Seoul Rules of 1986. However, this perception meets the same objections as the equivalent provision in the Seoul Rules. During the negotiations of the UN Watercourse Convention states were unwilling to subject confined water bodies to international water law and there is no indication for a considerably changed state practice subsequent to its adoption. Consequently, the state practice the ILA

109 110

See preface of the Revised Helsinki Rules (above Chapter 2 note 21). See particularly below 4.4.

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can refer to is rather limited111 which indicates that confined groundwater still is not within the scope of international water law. The general principles of international water law and its special characteristics, as outlined in the Revised Helsinki Rules, are again of interest for the aim of safeguarding freshwater access for basic needs. The equitable utilisation principle is referred to in Article 12 and the obligation not to cause significant harm to riparian states in Article 16 of the Revised Helsinki Rules. Turning away from the original Helsinki Rules, they give no preference to the equitable utilisation principle but ask for a balance to be drawn in every individual case on the basis of the factors outlined in Article 13. Thus the concept is geared to the rules of the UN Watercourse Convention. The important improvement in the recognition of the basic human need for water lies within Article 14 of the Revised Helsinki Rules which gives preference to vital human needs in case of conflict between competing uses. It states: Article 14 Preferences among Uses 1. In determining an equitable and reasonable use, States shall first allocate waters to satisfy vital human needs. 2. No other use or category of uses shall have an inherent preference over any other use or category of uses.

The provision leaves no doubt that the water use for vital human needs is of central importance, second to none. That is a consequence of the recognition that life (cf. Article 6 ICCPR) and human health (Article 12 ICESCR) are protected by international law.112 Although this notion is also the result of the interpretation made above113 of the general principles of international water law as set out in the UN Watercourse Convention and the Helsinki Rules of 1966, it can be regarded as an important clarification of states’ obligations. The explicit mention of this duty makes it harder for states to ignore the consideration of the basic human need for water in the process of balancing different and competing usage interests. Furthermore the Revised

111

112

113

Cf. the Sources of the Revised Helsinki Rules to Article 36 and Article 42, URL: http:// www.ila-hq.org/html/layout_committee.htm (accessed 12 May 2004). Cf. also A. Tanzi/M. Arcari, The United Nations Convention on the Law of International Watercourses, pp. 80 et seq. Cf. 2.3.1.3.

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Helsinki Rules give assistance in the definition of the content of “vital human needs.” Article 3 (20) suggests that “’vital human needs’ means waters used for immediate human survival, including drinking, cooking, and sanitary needs, as well as water needed for the immediate sustenance of a household.” Thus, the Revised Helsinki Rules are much more precise than the UN Watercourse Convention in regard to the standard set by international water law for the fulfilment of the basic human need for water. Just as important as the legal recognition of the basic human need for water in international law, is the factual implementation of this objective. The Revised Helsinki Rules deliver some assistance in this regard. Article 62 calls for the harmonisation of national “law and policies regarding the equitable use and sustainable development of waters and of the aquatic environment.” It is supplemented by Article 64 which obliges states, when necessary, to provide for joint bodies of management of international watercourses. These provisions, although not referring explicitly to the human need for water, might be somehow conducive to the aim of establishing water security. They are, nevertheless, not sufficient to make this process predictable and certain, and they lack clear objectives. Article 66 which sets out the obligation to review the implementation of states’ commitments under agreements and joint management mechanisms cannot bring about states’ compliance. The provision is rather weak because the actual attainment of water security is not even referred to and it does not include any enforcement mechanisms in the case of non-compliance. The International Law Association’s reluctance in this regard is quite understandable. There is not much state practice in this respect and the UN Watercourse Convention does not include cogent compliance mechanisms, either. This discloses that international customary water law, in view of its practical implementation, still has tremendous deficits because it lacks clear guidance and concrete obligations for states on how the establishment of water security is going to be implemented. The above discussion reveals that the basic human need for freshwater found some consideration in international customary water law. While the Helsinki Rules of 1966 did not expressly notice it, the Revised Helsinki Rules react to the growing importance of water use for satisfying vital human needs. Nevertheless, inasmuch as the Revised Helsinki Rules do not aim at progressively developing the law but state the presently existing customary rules on international watercourses, they do not go beyond the UN Watercourse Convention. Albeit, customary law as compiled in the Revised Helsinki Rules gains effort in terms of clarification which is not to be underestimated in the process of legal perception by the states. The analysis

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also revealed that the tremendous deficits also result from its self-limitation to international watercourses and to the historical conflict constellation in the interstate context.

2.4. Concluding observations on international water law’s deficits The analysis of international water law shows its deficiency in coping with the problems of increasing water demand and disparity of allocation. Although this body of law has evolved considerably during recent decades, it seems particularly unfit for coping with the challenge of satisfying the basic human need for water. It shows weaknesses in terms of its structure, of its contents and as far as implementation is concerned. One circumstance that prevents international water law a priori from offering comprehensive solutions to water scarcity is its limited scope of application, being confined to international watercourses. In view of the coherence of problems that affect national and international watercourses, this limitation is inappropriate. The threat to people’s life and health resulting from insufficient freshwater access by no means depends on whether a watercourse is international or solely national, and sustainable management of the world’s freshwater resources needs a comprehensive approach, too. In this regard, the International Law Association certainly follows a convincing approach to compile all those rules applicable to waters within one document and to integrate those which are solely applicable to international watercourses in a special chapter thereof. Surely, the Revised Helsinki Rules suffer from being a conglomeration of rules collected from various fields of law. None of those rules were specifically designed for watercourses. Thus, for a doctrinally sound re-categorisation of the term “international water law” it would certainly be necessary to codify and concretise those fragmented general provisions. However, the Rules are a first step towards a modern, systematic, detailed, appropriate and comprehensive international water law.114

114

Even beyond goes Benvenisti who criticises the UN Convention as “hydrocentric” (E. Benvenisti, Sharing transboundary resources, p. 175). In order to grasp the full complexity of the context a watercourse is situated in, he suggests a comprehensive ecosystem approach (p. 171). See on this matter also O. McIntyre, The emergence of an ‘Ecosystem Approach’ to the protection of international watercourses under international law, Review of European Community & international environmental law 13 (1) 2004, pp. 1–14.

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A second deficit rooted in history which has not yet been overcome is the insufficient regulation of groundwater. Although the case of groundwater has recently gained growing importance in practice, this importance is not mirrored by present international water law. In case of confined groundwater, it is not subject to international water law at all and in terms of the groundwater that is subject to international law its diverse hydrological characteristics is ignored, especially its slow and unpredictable movement. Instead of delivering adequate rules, the law applicable to surface water was simply expanded to groundwater leaving users with inappropriate provisions. Furthermore international law should extend its contents and supplement its regulatory framework with specific rules on the basic human need for water. Although efforts have been made to establish a wider approach, both the UN Watercourse Convention and customary water law still focus too much on allocation principles which derive from the historical conflicts between upstream and downstream states.115 The principle of equitable utilisation and the obligation not to cause significant harm build the main pillars of international water law and basically all other rules can be drawn back to these principles. The recognition of the basic human need for water is an integral part thereof, which means that it is only one water use among others to be weight up and measured. As there is, however, no doubt that human life and health are paramount within the legal system and thus may not succumb during the process of balancing, the general principles of international water law have to be interpreted towards giving those water uses preference that are essential for human health and life. However, beyond this implicit recognition, there is no rule that provides for a stronger protection of the basic human need for water. The provisions that refer to the importance of vital human needs, ambiguously in Article 10 of the UN Watercourse Convention, explicitly in Article 14 of the Revised Helsinki Rules, adjust the general allocation principles. Nevertheless, they do not constitute binding law themselves but an authoritative interpretation for the general utilisation principles. Consequently, international law still lacks a binding explicit recognition of the basic human need for water. International water law also is short of precise rules that define the content and exact scope of the aim of establishing water security. There is no hint of how the process of reallocation of utilisation rights is going to take

115

Cf. E. Benvenisti, Sharing transboundary resources, pp. 18, 180; cf. also W. Birnie/ A.E. Boyle, International law and the environment, pp. 298–330.

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place. International water law neither identifies which persons or groups are supposed to gain access to freshwater resources nor under which conditions this will take place. The same is true for the standard of freshwater supply. Is the access, for example, meant physically or also economically and are water quality concerns of importance? Although several times referred to in Chapter 18 of Agenda 21, public participation is not an issue in international water law and this even more as the access to information relevant for such a participation is not guaranteed, either. Another deficit is the omission of any reference to minority rights, especially those of indigenous peoples. International water law does not take into account the particular dependency and special needs which often exist among indigenous peoples and other vulnerable groups with regard to the watercourse they are living beside. The lack of precise guidance in international water law makes it difficult to balance the individual and state interests in using a watercourse. Is it legally permissible to displace persons from their homeland in order to implement a water project deemed more important and is the state obliged to provide compensation? How can it be ensured that there is no discrimination over access? International water law doesn’t determine the exact obligations of states. It is clear that the measures to be taken have to be comprehensive but is there an obligation to provide water? Is the state obliged to prevent third parties from interfering with the water access of people? What legal remedies are granted to people suffering from water scarcity? None of these questions is sufficiently addressed by international water law. The general utilisation principles as set out in current international water law and the vague reference to basic human needs leave much room for interpretation and therefore make it difficult to determine the exact standard of protection. Consequently, international water law cannot sufficiently solve the problems, which means that solutions to the problem have to be sought within other bodies of law, as for example human rights law, which deprives international water law of some of its importance and efficiency. International law is horizontal in its nature because it founds on the equal sovereignty of states that voluntary participate in its formulation. Unlike domestic law, which is hierarchically enforced, international law does not have a compelling enforcement system but needs the voluntary compliance of states. Thus it is even more important to state clearly the content of the law in order to make it easier for states to comply with it or in other words to make it harder for them to depart from the standard the law wants to be accomplished. In contrast, blanket clauses and an informal system hamper its enforcement.

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This also answers the questions of implementation of water security and of state’s compliance: international water law does not provide cogent mechanisms to deal with these issues. Furthermore, although the problem of water security directly affects the people themselves they are neither addressees nor legal beneficiaries of the water regulations. The obligations to use a watercourse equitably and not to inflict significant harm are only owed towards the other riparian state but not to the single individual. What is more, states have no obligation towards their own nationals in this regard. That bears the danger that a state does not deliver the necessary amount of water to its own people but uses it elsewhere, although the water was provided by a riparian state in order to perform its obligation to fulfil vital human needs first. Thus, in practice it is, due to this missing link to the individual, finally left to the states to decide what to do with their freshwater resources. This effect will increase if states collusively agree to discriminate water uses for basic human needs because in that case no state will want to take any legal remedies against unlawful allocation or utilisation of water, and the individuals concerned will not be allowed to. Thus it can be concluded that international water law, despite its underlying function in managing an international watercourse, is actually not adequate with regard to the legal instruments it provides for the solution of water problems, especially that of increasing water scarcity among people. The system is uncertain and too vague for the factual establishment of water security. The absence of specific rules supplementing the general utilisation principles cannot be justified with the purpose to make those principles globally applicable. It is true, the purpose of making the law globally applicable renders difficult the aim of setting certain standards of freshwater supply. However, this does not justify the disregard or underestimation of vital human needs. There is no correlation between setting a framework convention and the disregard of vital human needs. General clauses applicable to all water conflicts can be combined with specific rules on the human need for water. That means in practice: if people suffered from water scarcity this need would have to be fulfilled first. But if, on the other hand, its special provisions were complied with, there would be no reason to further consider them when managing a watercourse. That shows that the establishment of a certain standard of freshwater supply concerning basic human needs would

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not hamper the purpose of international water law to set globally applicable management principles as a framework.116 The analysis indicates that the exclusive operation with objective legal instruments as included in the international water law already is unsatisfactory in structural terms to achieve the goal of eliminating water scarcity among people. It must be supplemented by an individual approach that grants people with the right to gain access to freshwater resources and gives them at hand the necessary enforcement remedies. The following chapter will show in detail why a human rights-based approach is indispensable for securing the interests of individuals in general and the need to gain freshwater access in particular. Furthermore, it will define the exact content and scope of the approach.

116

Benvenisti also shows that both approaches are compatible. He favours a vague standard because he is of the opinion that, beside its flexibility in terms of current and future allocations and reallocations, it also “impels riparians to seek a negotiated agreement rather than litigate towards an unpredictable result.” (E. Benvenisti, Sharing transboundary resources, pp. 161 et seqq.). He nevertheless criticises the UN Watercourse Convention’s focus on the interstate conflict and he suggests the acknowledgment of the relevant international law that addresses to individual and group rights and to the representation thereof in the decision making and negotiating process (cf. E. Benvenisti, Sharing transboundary resources, p. 180).

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Chapter 3 Elements of a human rights-based approach to freshwater access 3.1. Introduction While international law in general, and international water law in particular, can provide the principles, the institutional frame, and the procedure of water management, a human rights-based approach empowers the individual to take part in these processes. Human rights are the key instrument for individuals to enforce their interests against the state and, indirectly, also against other individuals or groups. Correspondingly, human rights restrict the state authority in water management. The concrete interests of water users may differ considerably. People may simply demand that the state refrains from interfering with their existing access to freshwater or may claim equal access to management institutions. The interests may, however, also aim at positive obligations such as providing protective measures or public facilities. Having said that, not every interest of water users will be met by a human rights claim. The concept of human rights has certain characteristics that determine its content, addressee and procedure. The following chapter will elaborate on the appropriateness of a human rights-based approach as an instrument for individuals seeking basic water access. The analysis will also turn to a human rights-based approach as a political concept of allocation in general water management schemes. In addition, the chapter shall determine the specifics of a human rights-based approach to freshwater access. The discussion will begin with giving a survey of the basic functions of a human rights-based approach. Subsequently, the distinctiveness of the concept shall be developed by comparing it to policy concepts and by discussing the concepts of the right to environment and the right to development. Specific attention will be paid to the basis of positive obligations in human rights theory and their embodiment in international human rights law. This shall establish the basis for the interpretation of those human rights applicable

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to freshwater access in Chapter 4. Eventually, this chapter will briefly turn to the debate on the universal applicability of human rights.

3.2. Characteristics of a human rights-based approach to freshwater access A human rights-based approach operates in two different manners: resultorientated as well as procedure-orientated. The guarantee of a sphere of freedom, which the state may not interfere with, and positive state obligations granting protection, or certain benefits to individuals, describe the resultorientation of a human rights-based approach because they deal with the establishment of a certain legal interest. This purpose is deemed to oblige the state to achieve – or in certain cases at least to strive towards1 – this result and to entitle the single individual to claim the relevant state action. Thus, with regard to the issue of freshwater access the result-orientation of a human rights-based approach is the guarantee that people have sufficient, safe, acceptable and affordable water access for their basic needs. The state has to comply with this result on all levels of state organisation and during all of its actions, whether legislative, executive or judicial. Thus, the legislature is bound to the result when adopting water management strategies, and the administration and the judiciary when applying the respective rules. The procedure-orientation of a human rights-based approach determines a frame and certain conditions under which water management has to take place. Thus, human rights demand state action to be consistent with the principles of democracy and the rule of law.2 That makes state action accountable and contributes to transparency of water management. Compliance with the rule of law includes the existence of government’s monopoly on the use of force, the separation of powers, the principle of legality of the executive,

1 2

See on this point the discussion in 3.5.2. Individual rights to democracy and to the application of the rule of law do not exist in current international law. Nevertheless, today, it is well accepted that human rights contain a procedural dimension in this respect. Paragraph 55 Limburg Principles states in respect to Article 4 ICESCR: “While there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the United Nations Charter and the Universal Declaration of Human Rights may be viewed as meeting this definition.” (The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17, Annex).

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and an independent and efficient judiciary. The procedural function also obliges the state to undertake water management on a non-discriminatory basis. While all state organs are equally bound, the executive has specific responsibilities in realising human rights consistency. The direct contact between the public and the administrative authorities constitutes the forum for the application and enforcement of human rights.3 Thus, administration must give effect to human rights in “everyday life”. In this context, human rights promote the self-monitoring of the administration and it consequently does so irrespective whether the human rights holders claim or even notice a violation of their rights.4 The procedure-orientation of human rights can therefore be described as ongoing in its nature because it constantly ensures the binding of the state to human rights. Getting back to the single water user the procedural function of a human rights-based approach does not aim to provide certain water utilisation rights. It should instead guarantee the equal entitlement and participation of the individual in the management process.5 That will cover equal access to existent water resources or its managing institutions as well as participation in the political decision-making process of water-related issues. Of course, equal access does not mean that an individual may claim the establishment of a certain state facility or the setting up of water management institutions. However, once the state decides to establish institutions or to deliver facilities, human rights oblige the state to perform these services in a human rights consistent manner. This example also demonstrates the close link between the result and the procedural function of human rights. Once the state decides to facilitate a benefit by, for example, granting utilisation rights the procedural legal obligation may turn into a new result-orientated claim of individuals to a share in it. The procedural function of human rights is similar or even

3

4

5

Cf. T. Marauhn, Individualbeschwerde für völkerrechtlich gewährleistete wirtschaftliche, soziale und kulturelle Rechte?, in: M. Aschke/F. Hase/R. Schmidt-de Caluwe (eds.), Selbstbestimmung und Gemeinwohl, Baden-Baden, Nomos, 2005, pp. 243–262, at p. 261. In this context, it may, however, neither be ignored that illegal and inefficient administrative measures often originate from a lack of legal binding in politics, which, due to its higher rank in the political system, is able to influence the administration. It is therefore particularly important to realise the human rights obligations of the governmental part of the executive. Similarly H. Bielefeldt, Access to water, justice and human rights, in: E. Riedel/P. Rothen (eds.), The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 49–52, at p. 52.

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more important than absolute claims to water amounts because it realises the position of the individual as subject of the management process. This function has hence an explicit empowering effect. Human rights are often criticised as an instrument that solely enforces the individual’s rather than the society’s interests.6 This is true in as much as they provide an individual position in law against government. However, considering the role of a human rights-based approach as a political concept of allocation makes obvious that it goes far beyond securing solely the individual but serves the interests of the entire society, as well. The continuous binding and control of the elements of state, and the consequent organisation of state power according to the rule of law, are indispensable for a democratic society. Furthermore, without empowering people to participate in the decision-making process, any water management strategy suffers from insufficient democratic legitimation. In addition to these procedural considerations, the result-orientation of human rights may serve society’s interest, too because it identifies some results of water management. It sets national standards and priorities in terms of a minimum framework of national water policies that do not depend on government discretion. Thus, although a human rights-based approach to freshwater access is not deemed to promote a certain water management strategy,7 it can nevertheless foster good water policies. Reviewing these main characteristics of a human rights-based approach reveals that objective legal instruments, such as international water law, are insufficient means by which to promote freshwater access of people. A human rights-based approach is much more focussed, because it targets the most vulnerable and marginalized in society, which are those people who lack sufficient water access, who suffer from discrimination and who are not participating in the decision-making processes. For them, human rights remain the only legal avenue to enforce their water needs. As there, however, are not only legal concepts but also non-legal – in particular policy – concepts addressing water shortages among people, the following part will examine the appropriateness and sketch the details of a human rights-based approach to freshwater access by comparing it to policy concepts.

6 7

For this debate see below 3.6.1. Cf. above 1.5.

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3.3. Human rights-based approaches vs. policy concepts? There is a number of policy documents that deal with the elimination of poverty, underdevelopment or malnutrition. They have a strong link to water scarcity among people because the individuals affected by water scarcity usually find themselves within poor and underdeveloped living conditions. In addition, nowadays the issue of freshwater access receives increasing explicit attention in policy documents, too. Thus, for example UN Millennium Development Goal 7 formulates the aim to “[r]educe by half the proportion of people without sustainable access to safe drinking water.” Policy documents do also comprehensively refer to sustainable and efficient water management, to access to public information, to non-discrimination and participation issues.8 Thus, there are policy documents that seem to aim at the same results as pursued by a human rights-based approach to freshwater access. This raises fundamental questions about the perception of human rights in this context: have human rights-based approaches an independent function and usability despite the existence of policy concepts that aim at the fulfilment of basic human needs, too? Are human rights-based approaches only a means of achieving policy goals or do they have different objectives and ideals that go beyond? The following discussion will respond to these questions by comparing human rights-based approaches with policy concepts. Thus, the discussion shall also contribute to a further characterisation and specification of a human rights-based approach to freshwater access. Policy documents may occur in different forms, such as declarations, programs of actions, or statements of principles. They have in common that they define certain objectives of development cooperation, politics, work of international organisations, institutions or other decision-making bodies. Thus, they are the outcome of a political and organisational process. Policy documents often formulate concrete results and corresponding concrete actions to be achieved within a given period of time. Paragraph 8 of the Johannesburg Plan of Implementation may serve as an example in this regard. It reads as follows: 8. The provision of clean drinking water and adequate sanitation is necessary to protect human health and the environment. In this respect, we agree to halve, by the year 2015, the proportion of people who are unable to reach

8

Cf. for example paragraphs 8, 25, 26, 37, 40, 54, 66 UN Johannesburg Plan of Implementation (above Chapter 1 note 23).

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or to afford safe drinking water (as outlined in the Millennium Declaration) and the proportion of people who do not have access to basic sanitation, which would include actions at all levels to: (a) Develop and implement efficient household sanitation systems; (b) Improve sanitation in public institutions, especially schools; (c) Promote safe hygiene practices; (d) Promote education and outreach focused on children, as agents of behavioural change; (e) Promote affordable and socially and culturally acceptable technologies and practices; (f ) Develop innovative financing and partnership mechanisms; (g) Integrate sanitation into water resources management strategies.9

The language of this paragraph documents how different policy statements act in the process of establishing water security among people. They set up aims and procedures for their transformation into reality but they are not individual-orientated. That marks the basic difference to a human rightsbased approach. Within policy concepts, the single member of society solely has the position of a beneficiary and is therefore not more than an object of state action (e.g. as consumer of water).10 In contrast, a human rights-based approach puts the individual into the centre of development. It turns beneficiaries into claimants because human rights enable individuals to safeguard their own interests rather than being doomed to wait until somebody else – whether individuals, institutions or the state – attends to their interests. It is sufficiently proven by national and international examples that it is much more efficient to make the single individual an agent of his or her own interests rather than putting him or her into the hands of bureaucrats and politicians.11 Thus, a human rights-based approach adds the empowerment component to any other policy, or objective legal concept by making the individual a subject of state action. This does not negate the importance of policy documents, like the one just referred to, for the coordination and

9 10

11

Cf. above Chapter 1 note 23. Cf. K. Mechlem, Food security and the right to food in the discourse of the United Nations, European law journal, 10 (2004) 5, pp. 631–648, at p. 646. This concept has for example proven its appropriateness with regard to enforcing EU law within its member states. Without the countless litigations launched by single individuals in the national court systems the implementation of European law in the national context would not be as far as today. This is because the European Commission in its supervisory role securing the implementation of subsequent secondary legislation would never be able to attend to all of these single cases.

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implementation of the aims in question. But due to their nature as political concepts they are by no means able to provide people with an individual position in law. Consequently, they cannot replace human rights in this regard, either.12 Both, human rights and policy concepts aim at the realisation of a certain legal or political interest, which is in the present case the elimination of water scarcity among people. The promotion of a certain political goal by policy concepts hence finds its counterpart in the result-function of human rights. However, as just described, a human rights-based approach to freshwater access not only aims at promoting a result but must also accompany the process of achieving the result. This procedural aspect marks another fundamental difference to policy concepts because they do not include any procedural guarantee. A policy concept may, for example, include the non-discriminatory implementation of its objectives as a political goal but owing to a lack of a claim in this respect the individual cannot enforce non-discrimination in practice. Eventually it needs the human rights-based approach to realise a non-discriminatory execution of policy goals. This demonstrates that policy concepts cannot restrain state authority as much as human rights can. In addition, human rights-based approaches provide human dignity.13 This is not obvious because human dignity as a substantial right is not recognised by positive international law. It is not enclosed as a separate legal position in the two International Covenants on Human Rights, it is not part of customary international law, and it is not recognised by states as a general principle in the sense of Article 38 (1) (c) ICJ Statute, either.14 Nevertheless, both International Human Rights Covenants expressly recognise in their preambles that all human rights derive from human dignity.15 It therefore seems possible to identify a dignity foundation of a human rights-based

12

13

14

15

See also D.M. Chirwa, Privatisation of water in Southern Africa, African human rights law journal, 4 (2004) 2, pp. 218–241, at p. 232. Cf. L. Wildhaber, Soziale Grundrechte, in: L. Wildhaber, Wechselspiel zwischen Innen und Aussen, Schweizer Landesrecht, Rechtsvergleichung, Völkerrecht, Basel [et al.], Helbing und Lichtenhahn, 1996, pp. 482–503, at p. 492. Only a minority of states has enclosed human dignity as a justiciable concept into their constitutions; for example in Europe only Germany (cf. Art. 1 German Basic Law). Cf. more comprehensively on the legal function of human dignity below 3.5.2.3.

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approach.16 As will be shown later in more detail,17 the dignity foundation of a human rights-based approach enables the derivation of certain core (positive) state obligations18 and gives the interpretation of all human rights a “dignity-direction”.19 The aim of establishing human dignity also goes far beyond what policy concepts can promote. From their positions in hard and soft law – simply speaking with human rights representing a hard law approach and policy concepts representing a soft law approach20 – follow yet some more differences in terms of their objectives, systematics and methods of implementation. Policy concepts are open, they provide a huge margin of appreciation. It is true that this enables a flexible management of policy goals. Yet, in this context it was also referred to the vagueness of policy concepts with the corresponding uncertainty as to the achievement of their objectives.21 Since it has to be conceded that human rights provisions are formulated in a rather vague fashion, too, this needs some explanation. Both, policy concepts and human rights, work with wide formulations or general terms. A human rights norm has an abstract meaning that applies in a concrete social context. Although dominated by the “regulative idea of the right answer”22 a human rights interpretation will thereby often allow for different solutions. That means making a choice or

16

17 18

19 20

21

22

Cf. D. Feldman, Human dignity as a legal value – Part I, Public law, (1999), pp. 682–702, at pp. 688 et seqq.; K. Mechlem, Food security and the right to food in the discourse of the United Nations, p. 646. Cf. below 3.5.2.3. Cf. K. Dicke, The founding function of human dignity in the Universal Declaration of Human Rights, in: D. Kretzmer/E. Klein, The concept of human dignity in human rights discourse,The Hague [et al.], Kluwer, pp. 111–120, at p. 119. Similarly also D. Feldman, Human dignity as a legal value, pp. 689 et seq. and 697. This distinction shall not negate the role of law as frame and enforcement instrument for public policy. In comparison with the right to food Mechlem criticises the concept of food security as less precise (K. Mechlem, Food security and the right to food in the discourse of the United Nations, p. 643). In an isolated comparison of these two terms this is no doubt true. It nevertheless has to be considered that the concept of food security is amended and specified by a variety of documents. In addition, the right to food receives its precise content, which Mechlem refers to, primarily by way of interpretation. Thus, the content of the right to food is not predetermined and consequently not a priori more precise than the food security concept but gains indeed much clearer precision by interpretation. R. de Lange, Divergence, fragmentation, and pluralism: notes on polycentricity and unity in law, in: H. Petersen/H. Zahle (eds.), Legal policentricity: consequences of pluralism in law, Aldershot [et al.], Dartmouth, 1995, pp. 103–126, at p. 104.

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at least finding a balance between interests of different individuals or social groups. That is why it cannot a priori be said that human rights are conceptually more precise than policy programs because both need specification in order to increase their applicability.23 This is all the more the case, as policy documents often include detailed plans of action which also specify the goal itself. Despite the necessity of specification, however, a problem occurs, if – which is often the case – several documents, programs or concepts with different meanings compete because this will also promote doubts over the exact meaning of the policy goals, leading to the described vagueness, ambiguity, and uncertainty regarding the achievement of policy goals. This shows that the problem of policy concepts is also one of a lack of binding or at least authoritative specification or interpretation. Human rights may be vaguely formulated, too, but, once their content has been determined, they are more precisely applicable. This specification will be done by domestic courts if the international human rights law is applied in the national context. On the international level this can be done by corresponding courts, if there are any,24 or by other judicial or quasi-judicial bodies. Since an international human rights court does not exist, authoritative interpretations by treaty bodies gain particular relevance for the specification of human rights in the international context.25 The possibility of authoritative interpretations eventually brings about the determination of a precise and applicable content of human rights norms.26 Against this background, policy concepts are indeed far vaguer than human rights. Having said that, one could suggest making a virtue of necessity out of the vagueness of policy concepts by arguing that this “deficit” allows for a flexible management of political goals in intergovernmental discourse. Since policy programmes, in legal terms, do not bind states, they no doubt allow

23

24

25 26

With regard to social rights it is especially difficult to find a language that imparts identifiable claims that are predetermined to the individual because social rights constantly have to adapt to societal change (see also D. Murswiek, Freiheit durch Teilhabe oder Teilhabe gegen Freiheit?, in: J. Isensee/P. Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Band V, Allgemeine Grundrechtslehren, 2nd ed., Heidelberg, Müller Juristischer Verlag, 2000, pp. 243–289, at p. 264). Cf. for example the comprehensive human rights jurisprudence of the European Court of Human Rights. Since its establishment in 1959 the Court elaborated a detailed design of most of the European Convention’s rights. For a detailed elaboration of possible human rights specifications see Chapter 5 below. See on this point below 5.4.

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for open negotiations without determination towards the result. They can be adapted to any new political development. Human rights, in contrast, restrict the scope of opportunities in international relations because negotiating or concluding states have to follow the human rights requirements on all levels of state action, whether in the national or the international sphere. This represents the very meaning of human rights in restricting the right of states to sovereignty. Thus, a state may not overtake obligations that will violate the human rights of its people on the national level.27 This, however, does not endanger the achievement of the goals promoted by policy concepts and human rights but actually fosters their enforcement because it prevents the arbitrary departure from these basic values. In addition, human rights usually set an “outer framework” for state action which leaves sufficient space for flexible negotiations. As long as this “outer framework” of appreciation is not affected, the state remains fully flexible in negotiating its political objectives. Thereby it is, however, just the desired effect to restrict the state if it questions the legal interests supported by human rights. The question regarding state responsibility for non-achievement marks another fundamental difference of policy concepts to human rights. There is simply no legal responsibility with regard to policy concepts, which relates to their character as non-binding instruments. They can easily be redefined or replaced by another policy goal that better fits into the current political agenda and therefore lack any accountability.28 Alston even identifies a “use-by” date attached to policy concepts.29 That is why, they are, eventually, commendable aims that no government is by law obliged to fulfil. A rights-based approach in contrast imposes legal obligations upon the state. There is no way to dispose of human obligations by redefining their objective or content. Non-compliance with human rights obligations can be made subject of a legal complaint or a similar form of redress whereas the non-achievement of policy goals remains without consequences. On top of the legal consequences, the violation of human rights also stigmatises the perpetrating state and produces political pressure by other national or

27 28

29

Cf. more extensively below 4.3.3.3. Cf. P. Alston, What’s in a name: does it really mater if development policies refer to goals, ideals or human rights? in: H. Helmich (ed.), Human rights in development co-operation, SIM Special No. 22, Utrecht, 1998, pp. 95–106, at p. 97. Ibid.

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international actors.30 This is owed to the high rank that is acknowledged to them in public discourse31 and the better possibilities of review. Due to the openness of policy concepts and due to their unclear designation of responsibility it is much harder to determine and blame the concrete failure of states for non-achievement of the set goals. With regard to policy concepts it can even be the other way around. They are often launched by politicians who are elected and who have to account for their action to the voters. Since political programs are usually intended to be carried out over a longer time span than the election period, the problem arises of compliance consistency in case the political opponent comes into power. According to the nature of a democratic political system, a politician will show little if any interest in fostering the particular program as this could help the political opponent. Politicians are more likely to be interested in presenting a new program or concept with the corresponding media attention, all the more since launching a new program gathers more credit than the hard work of fulfilling an old program, anyway. That means that human rights are less susceptible of becoming subject to political instrumentalisation because they are not the outcome of a political process but are defined as being preliminary to state power. The preceding comparison proved that human rights are more than merely a means of achieving goals set by policy concepts. The history of ideas of human rights, their purposes, structures and the way of implementing their objectives do not allow for a reductionist classification of human rights. While policy concepts aim unidirectionally towards the realisation of a political aim, human rights bring about multidirectional guarantees with regard to both, the aim itself and the procedure. They contain an individual empowerment component, objective legal guarantees and a stronger commitment of states towards the result. They ask for legitimacy, deliver state accountability, transparency and predictability of the law and consequently establish legal certainty. A human rights-based approach provides people with an instrument to enforce their interests against the state and makes them therefore an agent of their own. The latter function is sometimes

30

31

Cf. D. Padilla, An African human rights court: reflections from the perspective of the Inter-American system, African human rights law journal, 2 (2002) 2, pp. 185–194, at p. 192. Cf. J.K. Mapulanga-Hulston, Examining the justiciability of economic, social and cultural rights, International journal of human rights, 6 (2002) 4, pp. 29–48, at p. 29.

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misinterpreted as an expression of an egoistic approach to society.32 This, however, misconceives the general organising function of human rights in determining state action towards the rule of law and democracy as well as its function in balancing different individuals’ and society’s interests. These functions also provide the frame for the peaceful solution of (water utilisation) conflicts, which is no doubt in the interest of the entire society. With regard to efficient utilisation and management of water resources a human rights-based approach can also operate as a political concept of water allocation and therefore adds decisive value to other legal or non-legal allocation or utilisation concepts. Its societal contribution, thus, renders any critics to its individual focus obsolete. The confrontation of a human rights-based approach with policy concepts shall by no means negate the importance of launching policy concepts. They are able to promote cooperation between states and to set goals for international and national politics. They may address a wide scope of measures on various levels, the individual, group, local, national, regional or global one. A human rights-based approach is first of all an instrument of the individual or, if appropriate, of the group. It cannot claim to achieve the aim of securing freshwater access any faster than other concepts. However, since this chapter deals with the appropriateness and details of human rights-based approaches for the aim of establishing water security among people, it is sufficient to demonstrate that a human rights-based approach is an indispensable element among a range of measures that must be employed. In this respect, it can be concluded that without a human rights-based approach any other concept, whether legal or non-legal, will remain incomplete. Human rights and policy concepts as means of eliminating water scarcity are therefore not competing but rather mutually supplementary approaches. The debate about a human rights-based approach to freshwater access reminds one of similar discussion relating to other human rights-based approaches, namely the rights to development and to a clean environment. In the following, those approaches will be analysed in view of their contribution to securing freshwater access for people and their relation to a human rights-based approach to freshwater access.

32

See on this debate below 3.6.

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3.4. Freshwater access in the context of the debate on rights to development and a clean environment 3.4.1. Background to the debate While human rights have long been established in international law, debating human rights to development and a clean environment is a relatively recent trend.33 The background of the discussion is the awareness that most human rights, whether civil and political or economic, social and cultural, are difficult to exercise if some basic conditions do not exist, whether the economic and social conditions of a society or a sound environment. The discussion regarding the rights to development and a clean environment takes place in two directions: the first is the one of the individual suffering from serious poverty or from degraded environment. In this context human rights aim at the improvement of individual living conditions. The second is the society’s perspective. Human rights are then a means of encouraging development or environmental protection as a wider public interest34 or even as one of the ecosystem itself. In this context the single individual would merely act as an agent for the enforcement of general goals of society. The present study discusses the rights to development and to a clean environment because environmental destruction and poverty mark the wider context of water scarcity among people. The link between the human need for freshwater and the protection of the environment is obvious because water resources are part of the ecosystem. Thus, the deterioration of the

33

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The academic debate on a human right to environment set off in the 1970s (cf. e.g. W.P. Gormley, Human rights and environment: the need for international co-operation, Leyden, Sijthoff, 1976; H. Steiger, Le droit à un environnement humain: proposition pour un protocole additionel à la Convention européenne des Droits de l’Homme, Berlin, Schmidt, 1973; P.-M. Dupuy, Le droit à la santé et la protection de l’environnement, in: R.-J. Dupuy (ed.), Le droit à la santé en tant que droit de l’homme, Alphen aan den Rijn, Sijthoff & Noordhoff, 1979, pp. 340–427). Initially, the protection of the environment was first of all discussed as a public good rather than an individual good. It was therefore often regarded a solidarity right or a third generation right (cf. U. Beyerlin, Umweltvölkerrecht, München, Beck, 2000, p. 298). The same focus was attached to the right to development (cf. S. Davidson, Human rights, Buckingham [et al.], Open University Press, 1993, pp. 43 et seqq.). See for an examination of the concept of third generation rights P. Alston, A third generation of solidarity rights: progressive development or obfuscation of international human rights law?, Netherlands international law review, 29 (1982), pp. 307–322.

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environment will usually give rise to concerns over water quality and often affect the availability of water, too.35 Such connection can also be established between environment and development. This is because one may observe that poverty often forces people to serve their short-term needs at the expense of the environment causing long-term damage to it.36 Eliminating poverty, therefore, is regarded as one key approach in preserving or restoring a sound environment.37 Lastly, there is also a link between freshwater access and development because – as already stated in the introductory chapter – poverty excludes people from equal access to natural (water) resources. There is much agreement in public discourse regarding these connections. However, the question of the appropriateness of human rights to development and environment and the actual existence of these rights in international law is subject to intense debate. This is not that surprising. Both approaches leave the common ground of the traditional human rights sphere as they seem to act for the public interest of environmental protection and for the development of society in the first place. Moreover, the rights to development and a clean environment are not only discussed regarding the individual as entitled entity but also as peoples or state rights.38 This shall not deny the strong link between environment, development and human rights of individuals in general. Underdevelopment and degraded environment indeed have a deep impact on people’s lives, health and living conditions. However, for those interests international human rights law provides some protective instruments as for example the right to life according to Article 6

35 36

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Cf. above 1.2. Shelton describes the problem of overexploitation of natural resources for satisfying urgent needs as one of “now vs. then.” Because the benefits of changing current agricultural practices towards a greater sustainability usually do not bring about immediate economic benefits (cf. D. Shelton, Environmental protection and the right to food, p. 96); see also A. Epiney, Sustainable use of freshwater resources, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 63 (2003) 2, pp. 377–396, at p. 384. See for example Johannesburg Declaration on Sustainable Development, para. 11, and Johannesburg Plan of Implementation, paras. 2 and 7 (above Chapter 1 note 23); see also U. Beyerlin, Sustainable use of natural resources – a key to combating poverty, Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht, 63 (2003), pp. 417–437, at p. 417. For example the African Charter on Human and Peoples’ Rights awards “the right to a general satisfactory environment” according to Article 24 and “the right to their economic, social and cultural development” according to Article 22(1) solely to peoples and not to individuals (Charter adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entry into force 21 October 1986).

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ICCPR, or the rights to an adequate standard of living and health according to Articles 11 and 12 ICESCR. Thus, in order to increase the standard of protection for the single individual, rights to development and a clean environment would have to go beyond the scope of protection delivered by these human rights. The following part will scrutinise the different concepts and the usefulness of rights to development and environment. Thus, it shall be evaluated whether the concepts can contribute to the improvement of freshwater access or even replace a right to freshwater access and if they find support in international law. 3.4.2. The human right to a clean environment in international law 3.4.2.1. The diverging concepts of a right of the environment, environmental rights and a right to environment Human rights and the environment are being discussed in three different categories: as a right of the environment itself, as environmental rights and as an individual or people’s right to live in a clean or healthy environment. The following part will briefly discuss the concepts of a right of the environment and environmental rights followed by a more extensive analysis of the right to a clean environment in current international law. Right of the environment A right of the environment equips the environment itself with an individual legal position.39 The ecosystem-based character of the concept is challenging because it is not linked to questions of usability for humankind but nature is protected because of its intrinsic value. Proponents of a right of the environment argue that traditional – which means anthropocentric – approaches to its protection make the enduring existence of nature exclusively a subject of the identification of human needs and wants and are therefore not suitable for promoting the protection of the environment.40 Thus, they suggest that

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See for discussions of the approach C.D. Stone, Should trees have standing? and other essays on law, morals and the environment, Dobbs Ferry, NY [et al.], Oceana Publications, 1996; C. Redgwell, Life, the universe and everything: a critique of anthropocentric rights, in: A.E. Boyle/M.R. Anderson (eds.), Human rights approaches to environmental protection, Oxford, Clarendon Press, 1996 (reprinted 2003), pp. 71–87. Cf. L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, Colorado journal of international environmental law and policy, 12 (2001) 1, pp. 1–45, at p. 15.

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in the absence of a human interest to its protection the environment will always be sacrificed when there is a conflict with other human interests.41 Providing the environment with an individual legal position, in contrast, shall ensure that it is not necessarily in such an inferior position.42 The incompatibility of anthropocentric and ecocentric approaches to the relationship between nature and humans has been challenged by other authors.43 They argue that it is possible to integrate the intrinsic value of nature into an anthropocentric concept of nature based on “an understanding that humans make up part of the universe and cannot exist without conservation of the biosphere and the ecosystem comprising it.”44 As a consequence all parts of the ecosystem have to be preserved and protected in order to maintain the order of the whole natural universe.45 This of course would actually mean rejecting the existence of an independent right of the environment because it traces the protection of environment back to the single individual as part of the natural universe and hence not to the intrinsic value of nature. Irrespective of the debate on the appropriateness of a right of the environment, international law is quite clear with regard to its existence. International law does not presently support an independent right of the environment but recognises the preservation of the environment solely as part of a human interest to its protection. This concept can therefore not be consulted for a solution of today’s environmental and in particular water problems. Environmental rights Whereas a right of the environment finds no legal basis in international law, so called environmental rights46 are well established in international law 41 42

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Cf. in this respect C.D. Stone, Should trees have standing?, pp. 103 et seqq. Stone suggests establishing Global Commons Guardians acting as legal representatives for the natural environment (cf. C.D. Stone, Should trees have standing?, pp. 87 et seqq.). Cf. A. Kiss/D. Shelton, International environmental law, Ardsley, N.Y., Transnational Publishers, 2004, pp. 19–20; A.E. Boyle, The role of international human rights law in the protection of the environment, in: A.E. Boyle/M.R. Anderson (eds.), Human rights approaches to environmental protection, pp. 43–69, at pp. 51 et seqq. A. Kiss/D. Shelton, International environmental law, p. 20. Ibid. There is no uniform understanding as to the term “environmental rights”. Often, it is only used to describe applicable procedural rights, such as the rights to information or participation (cf. on this point S. Atapattu, The right to a healthy life or the right to die polluted? The emergence of a human right to a healthy environment under international

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as a means of protecting the environment.47 They do not form a distinct approach to the conservation of the ecosystem in terms of a right to a clean or a healthy environment but rather work as an accumulation of various human rights applicable to environmental issues.48 In the strict sense, they do not even aim to preserve the environment, but exclusively express human interests, as for example preservation of life, health or standard of living.49 Protecting the environment can become a condition of the protection of human rights50 but can never be claimed independently.51 As environmental degradation can seriously affect human rights this approach will, nevertheless, often be a useful tool in protecting the environment.52 For example,

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48 49

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law, Tulane environmental law journal, 16 (2002) 1, pp. 65–126, at p. 72). This work underlies a wider understanding of environmental rights that includes all applicable substantive human rights, too. Cf. comprehensively J. Hancock, Environmental human rights: power, ethics and law, Aldershot [et al.], Ashgate, 2003, pp. 1 et seqq.; for a discussion on the phrase “environmental rights” see D. Shelton, Human rights, environmental rights, and the right to environment, Stanford journal of international law, 28 (1991), pp. 103–138, at pp. 117 et seqq. Cf. J. Hancock, Environmental human rights, p. 1. See for analyses of these rights in this respect S. Atapattu, The right to a healthy life or the right to die polluted?, pp. 99 et seqq.; R.R. Churchill: Environmental rights in existing human rights treaties, in: A.E. Boyle/M.R. Anderson (eds.), Human rights approaches to environmental protection, pp. 89–108. This opportunity is discussed in D. Shelton, The environmental jurisprudence of international human rights tribunals, in: R. Picolotti/J.D. Taillant (eds), Linking human rights and the environment, Tucson, Arizona, University of Arizona Press, 2003, pp. 1–29, at pp. 1 et seqq. For this reason Bothe calls it the “greening” of older or traditional guarantees (cf. M. Bothe, The right to a healthy environment in the European Union and comparative constitutional law, in: M. Pâques (ed.), Recente ontwikkelingen in het Europees milieurecht, Antwerpen, Story-Scientia, 1998, pp. 1–8, pp. 5, 7). Environmental situations where human rights to life or health could provide a remedy for affected people already according to the current state of law are for example the desiccation of the Aral Sea through water diversion and its pollution (cf. P. Micklin, Managing water in Central Asia, London, Royal Institute of International Affairs, 2000), the pollution of air, water and land by noxious substances of Shell oil production in the Ogoniland, a district in south-eastern Nigeria (cf. J.P. Eaton, The Nigerian tragedy, environmental regulation of transnational corporations, and the human right to a healthy environment, Boston university international law journal, 15 (1997) 1, pp. 261–307; see in this respect also below Chapter 3 note 61), or by the operation of Texaco and Petroecuador in eastern Ecuador (cf. J. Kimerling, Rights, responsibilities, and realities: environmental protection

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the right to health according to Article 12 ICESCR can be applied when acts harmful to the environment threaten somebody’s state of health, too.53 Environmental rights may also include issues of participation, access to environmental information and remedies to seek redress for harm that was caused by the degradation of the environment.54 As the term “environmental rights”, however, solely reflects single already existing norms in current human rights law, the concept cannot enhance the scope of human rights protection with regard to the problem in question. Right to environment The fragmentation55 of environmental rights and their inherent imperfect ability to cope with the general (which means not necessarily human rights connected) problem of environmental degradation has promoted the debate on a human right to environment in international law. There are various views on the design of such right. Thus, it was for example suggested that the right should protect against all those environmentally harmful acts that have serious impacts on the individuals in question.56 However, this would merely reduce the fragmentation of human rights applicable to environmental degradation and not add much substantial value to existent human rights law. A widespread view therefore suggests the right to environment as a right “to have the present environment conserved, protected from any

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law in Ecuador’s Amazon oil fields, Southwestern university journal of law and trade in the Americas, 2 (1995) 2, pp. 293–384). Cf. M. Pallemaerts, The human right to a healthy environment as a substantive right, in: M. Dejeant-Pons/M. Pallemaerts, Human rights and the environment: compendium of instruments and other international texts on individual and collective rights relating to the environment in the international and European framework, Strasbourg, Council of Europe Publ., 2002, pp. 11–21, at p. 20. Cf. D. McGoldrick, Sustainable development and human rights: an integrated conception, The international and comparative law quarterly, 45 (1996) 4, pp. 796–818, at pp. 812 et seqq. See for the discussion on fragmentation M. Craven, Unity, diversity and the fragmentation of international law, The Finnish yearbook of international law, 14 (2003), pp. 3–34; M. Koskenniemi/P. Leino, Fragmentation of international law? Postmodern anxieties, Leiden journal of international law, 15 (2002) 3, pp. 553–579. Lee suggests serious health consequences (cf. J. Lee, The underlying legal theory to support a well-defined human right to a healthy environment as a principle of customary international law, Columbia journal of environmental law, 25 (2000) 2, pp. 283–346, at p. 336).

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significant deterioration, and improved in some cases.”57 Thus understood, the right would also cover those harmful interferences with the environment that do not reach the level of a human rights violation in current law. At first sight, this approach would bring about two advantages: firstly, any deterioration of the environment could be made subject to a human rights claim even if it does not violate one of the human rights referred to above. Secondly, the right would assist human rights holders in situations where they fail to establish the causal chain between the environmental degradation and the violation of their rights. The reasons for damage to a certain interest protected by a human right, as for example health, can be multi-causal. The establishment of the causal link between the pollution of the environment and the damage to the individual or the threat of it means analysing complex environmental and human interrelationships including economic expenditure which a single affected person may have difficulties to bear. Failing to prove the causal chain means, however, leaving the affected individual without legal redress. In contrast, a right to a clean environment provides the individual with a right solely by proving a significant deterioration of the environment irrespective of any personal damage. Since water as part of the ecosystem is covered by this approach to a human right to environment it would consequently provide water users with easier opportunities to act against incidents of water contamination. Whereas the design of a human right to a clean environment hence seems to foster a human rights-based approach to freshwater access, it also raises tremendous doubts as to its appropriateness. The efficiency of a right to environment is challenged by the very same elements that carry its success, which is the disposal of individual concern. Without a somewhat increased individual interest, everybody could claim a violation of the right to environment in every single case of significant environmental degradation. In view of the innumerable potential claimants this would prevent the right from actually being implemented into the legal system because the amount of proceedings would be practically non-manageable. This would finally compromise the success of a right to environment and also degrade the instrument of human rights as a means of interest enforcement of individuals

57

L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, p. 12; cf. also A. Kiss/D. Shelton, International environmental law, pp. 709 et seqq.

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rather than society because society can enforce its interest via the legislative avenue, in particular by adopting appropriate environmental regulations. A narrow approach to a human right to environment hence lacks substance beyond the general human rights norms, a wide approach does not focus on interests of single individuals but society and, hence, does not deliver appropriate restrictions on the potential claimants.58 Against this background, the design of a human right to environment would have to follow a connecting approach that limits the potential claimants but still ensures an effective enforcement of the interest to a clean or healthy environment. In this regard, it seems reasonable to ask the single human rights holder to establish a specific interest in the concrete case of environmental degradation as a condition on which to claim a violation of the right. As just explained health, life or other human rights would dispel the desired additional affect of a human right to environment. But for example the criteria of residence in the area where the environmental pollution occurred or other actual individual concern could preclude claimants with a general – which means in fact public – interest to environmental protection. This could at least in terms of local environmental harm deliver a more practicable design of the right.59

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Of course any international human rights system has limited judicial capacities. For example the European Court of Human Rights, lacking the opportunity to reject cases deemed less relevant, hardly manages to cope with the flood of cases from some Eastern European states; a lot more still could be reviewed, according to the Court’s jurisdiction. This problem is also reflected in Article 5 (3) in connection with Article 34 (6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, which makes filing complaints by individuals a subject of its consent. Nevertheless, a right to environment understood as broadly as giving all members of society the same claim would not even contain a basic limiting criteria, which is, according to traditional human rights doctrine the one of the litigating individual being personally affected. For global environmental problems, such as, for example, ozone depletion, global warming or threats to biodiversity, the reduction of potential claimants remains an unanswered question, because almost every single human being could claim individual concernment. The problem of billions of potential claimants that render individual litigation unsuitable could probably only be achieved by an – although somehow arbitrary – constricted definition of the term “environment” towards a local or regional concept. In this regard, it is doubtful that global environmental problems can be covered by the concept of human rights, anyway (cf. also J. Lee, The underlying legal theory to support a well-defined human right to a healthy environment, pp. 296 et seq.).

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3.4.2.2. The legal basis of a human right to environment Whereas a reasonable, or value-adding, concept of the right to environment seems at least conceivable, a proponent of the right, nevertheless, has to admit that it does not yet find support in current international law. As the scope of this study does not allow for a comprehensive examination of the existence of a right to environment, the following discussion will focus on the main arguments involved.60 Considering international conventions as referred to in Article 38 (1) (a) ICJ Statute reveals that there are no global and only two regional instruments that expressly contain a human right to environment, Article 24 of the African Charter on Human and Peoples’ Rights61 and Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.62 The African Charter provides the right, however, not as an individual but a peoples’ right. In addition, it uses vague language that makes it almost impossible to identify any specific content. Until the African Court on Human and Peoples’ Rights will have delivered a specification of the article it is therefore not even suitable as a point of reference for the development of a generally accepted right to environment. The specification of the right to environment in the

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Cf. more comprehensively G. Handl, Human rights and protection of the environment, in: A. Eide/C. Krause/A. Rosas (eds.), Economic, social and cultural rights: a textbook, 2nd rev. ed., Dordrecht [et al.], Nijhoff, 2001, pp. 303–328, at pp. 306 et seqq.; U. Beyerlin, Sustainable use of natural resources, pp. 298 et seqq.; S. Atapattu, The right to a healthy life or the right to die polluted?, pp. 65 et seqq. Cf. above Chapter 3 note 38; note in this context the decision of the African Human Rights Commission in the Ogoni Case of 2002 (The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria), Decision Regarding Communication 155/96, URL: http://www1.umn.edu/humanrts/africa/comcases/155–96.html (accessed 18 April 2006). Underlying this communication is the allegation that the military government of Nigeria has been directly involved in oil production that caused contamination of the environment leading to environmental degradation and health problems among the Ogoni People. The African Commission decided that the Nigerian Government violated Article 16 (right to health) and Article 24 (right to environment) of the ACHPR. The Commission argued: “The right to a healthy environment . . . imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources” (cf. para. 52). One, nevertheless, has to notice that given such constellation the communication could also exclusively be subsumed under the right to health. Adopted 17 November 1988, OAS Treaty Series No. 69; 28 ILM 156 (1989), entry into force 16 November 1999.

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African Charter by the African Court would also have to answer the question whether the embodiment of the right as a peoples’ right allows for claims of individuals, too.63 Thus, there remains only the Additional Protocol to the American Convention on Human Rights that expressly awards “the right to live in a healthy environment”64 to the individual. Although the Protocol as a regional instrument is not suitable for establishing a generally accepted right to environment, it nevertheless may serve as a first step towards the recognition of such a right in political terms. In absence of an expressly declared generic human right to environment, one may try to deduce it from existing human rights outlined in the international human rights instruments. There are various human rights that are applicable to environmental issues, such as the right to health or life.65 However, as just stated, the application of human rights as environmental rights does not increase the standard of protection. The fact that many states acknowledge the strong link between human rights and a healthy environment in non-binding documents66 has been the

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On this point see J. Lee, The underlying legal theory to support a well-defined human right to a healthy environment, p. 307. Cf. Article 11 (1) of the Additional Protocol to the ACHR (above Chapter 3 note 62). There are various examples where courts subsumed environmental issues under existent human rights norms. The Inter-American-Commission on Human Rights in Yanomami Indians vs. Brazil hold Brazil responsible for violations of the Yanomami’s rights to life, liberty, personal security (Article I), the right to residence and movement (Article VIII), and the right to the preservation of health and to well-being (Article XI) set out in the American Declaration of the Rights and Duties of Man for failures to – among others – prevent environmental damage in the area the Yanomami were living in (Inter-Am. C.H: R. 7615, OEA/Ser.L.V/II/66 doc. 10 rev. 1, [1985]). For the European regional human rights system see for example the judgement of the European Court of Human Rights in Hatton and Others v. the United Kingdom (36022/97 [2003], ECHR 338, 8 July 2003). It confirmed “that Article 8 ECHR guarantees the right to a healthy environment” (para. 4 of the judgement). It also found violations of Article 8 ECHR in López Ostra v. Spain (16798/90 [1994] ECHR 46, 9 December 1994) with regard to nuisances (smells, noise and fumes) and in Guerra and Others v. Italy (14967/89 [1998] ECHR 7, 19 February 1998) with regard to chemical emissions. The process was initialised by the Stockholm Declaration on the Human Environment, which adopted a human rights-based approach to environmental protection (Declaration of the UN Conference on the Human Environment, 16 June 1972, UN Doc. A/Conf. 48/14/Rev. 1). Principle 1 of the Declaration states that everyone “has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” In addition, Principle 1 of the Rio Declaration

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reason for some legal scholars to assume the emergence of a human right to environment as part of international customary law according to Article 38 (1) (b) ICJ Statute.67 Although the existing soft-law documents may indicate a slight trend of a political development towards the acceptance of a right to environment, they constitute insufficient evidence for the existence of such a right in current international customary law. According to Article 38 (1) (b) ICJ Statute, international custom can be proven by state practice and opinio iuris. Yet there is no common state practice concerning the exercise of such a right. In addition, the acknowledgement that people should have the right to live in a clean or healthy environment does not necessarily mean that states want to be bound by such a right in legal terms, too. This is all the more true in light of the above survey, which showed that there is not yet even a basic common understanding in the international debate as to the concept of the right, neither in terms of its scope nor the entitled entity. However, without a state practice concerning a certain concept of a right to environment opinio iuris lacks the reference point to tie with. Till now, common state practice and opinio iuris do not go beyond those “environmental rights” written in international human rights treaty law. Thus, customary international law cannot add value for identifying a distinct human right to environment. General principles of law according to Article 38 (1) (c) ICJ Statute also express states’ common legal opinion. Points of reference are the national

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on Environment and Development of 1992 states that “[h]uman beings . . . are entitled to a healthy and productive life in harmony with nature.” It was similarly reproduced at the UN Conference on Population and Development 1994, the World Summit for Social Development 1995, the Hemispheric Summit on Sustainable Development 1997, and in para. 8 of the Johannesburg Declaration on Sustainable Development 2002 (UN A/CONF.199/20). For access to information and participation in the decision-making process Principle 10 of the Rio Declaration is quite explicit and states that “[a]t the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities . . . and the opportunity to participate in decision-making processes.” Cf. J. Lee, The underlying legal theory to support a well-defined human right to a healthy environment, pp. 305 et seqq.; the Ksenti Report also argues that a human right to environment exists already according to current international law (cf. Commission on human rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-sixth session, Human rights and the environment, Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, E/CN.4/Sub.2/1994/9, 6 July 1994, para. 20 et seqq.).

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legal systems and their substantial, procedural and structural principles.68 There are some – though few – states that have installed a human right to environment in their national legal system.69 In addition, it is no doubt true that many countries possess well-developed environmental laws that deliver a high standard of protection as Lee suggests.70 This circumstance does not, however, support the existence of a human right to environment as a general principle, but just the opposite, because these states obviously decided to protect the environment solely by objective measures and not by subjective measures, too. That shows that presently a human right to environment cannot be seen as a general principle of law, either. 3.4.2.3. Establishment of a right to environment by redefining sources of international law? As hence a human right to environment cannot yet be identified in international law, it is not surprising that some proponents of an existing right to environment enter the discussion with a view of disapproving the traditional concept of legal sources of positive international law.71 They criticise the current state-centrism of international law and aim at breaking up the categorisation into hard and soft law.72 The emerging international system is described as evolving towards a political and diplomatic rather than a legal order based on networks that consist not only of states as relevant actors but also of international organisations, non-state actors and individuals.73 Due to the increased importance of non-state actors in international relations and especially in the formulation of international norms they identify the need

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Cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 77. Cf. the compilation in J. Lee, The underlying legal theory to support a well-defined human right to a healthy environment, appendix A; a survey on European countries can be found in M. Bothe, The right to a healthy environment in the European Union and comparative constitutional law, pp. 3 et seq. Cf. the arguments in J. Lee, The underlying legal theory to support a well-defined human right to a healthy environment, p. 339. Cf. L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, pp. 39 et seqq.; E.B. Weiss, Introduction, in: E.B. Weiss (ed.), International compliance with nonbinding accords, Studies in transnational legal policy No. 29, Washington DC, American Society of International Law, 1997, pp. 1–20, at pp. 2 et seqq. Cf. L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, pp. 39 et seqq.; E.B. Weiss, Introduction, p. 2. Cf. L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, pp. 41 et seqq.

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to recognise a wider approach to sources of international law that involves those actors.74 This means first of all soft law documents, such as resolutions, declarations, or other global or regional instruments expressing political will. In this context practical experiences are referred to, which indicate that state compliance with hard law is not necessarily better than with soft law.75 Should states be reluctant to adopt soft law instruments, they “are perceived to have political consequences of a serious sort.”76 As a consequence of this observation, the approach makes the degree to which international actors comply with soft law instruments the decisive factor for the determination of law and concludes that some soft law instruments gain legally binding status without having evinced state consent.77 In view of the existence of various environmental soft law documents, this approach might be challenging with regard to the political aim of constituting a human right to environment. It nevertheless does not mirror the current state of the law. In addition, the approach produces various political problems that suggest rejecting it, too. The emergence of a binding rule in international law is the outcome of a process of negotiation or recognition as foreseen in Article 38 (1) ICJ Statute and according to the relevant legal procedure. Thus, with regard to treaty law the Vienna Convention on the Law of Treaties78 or its corresponding provisions in customary international law ask for observance. The emergence of customary law asks for pertinent state practice and the corresponding opinio iuris. Awarding policy documents binding legal effect by proving state compliance, however, without proving the respective state consent would circumvent those existing law-making procedures. In addition, the already existing deficient legal certainty and predictability in international law would further decrease because categorising 74

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Cf. L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, p. 43; E.B. Weiss, Introduction, pp. 2 et seqq. Cf. E.B. Weiss, Introduction, p. 1; P.M. Haas, Why comply, or some hypotheses in search of an analyst, in: E. Weiss (ed.), International compliance with nonbinding accords, pp. 21–48, at p. 23. G. Palmer, New ways to make international environmental law, American journal of international law, 86 (1992), pp. 259–283, at p. 270. For further details of this approach see J. Gold, Strengthening the soft international law of exchange arrangements, American journal of international law, 77 (1983), pp. 443–489, at p. 443; L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, pp. 43 et seqq. Text dopted 23 May 1969, UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), entry into force 27 January 1980.

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binding and non-binding rules was getting more difficult in advance. In this respect, one has to admit that – just like the discussed approach of Rodriguez-Rivera – the emergence of customary international law operates on the compliance side, too producing some uncertainty regarding the exact scope of law. However, although customary law hence leaves the systematic of input-orientated law generating, it finds an expressive foothold in international law that cannot be ignored. In contrast, policy documents cannot be subsumed under one of the rules regarding the sources in international law. The circumstance that states comply with soft law instruments due to political pressure or any other reason is not sufficient to deduce their will to be bound in legal terms, too. There are many reasons why states may do or omit something, not necessarily legal ones. Even more, the circumstance that states adopt hard law instruments with regard to some matters but do not do so with regard to others79 proves that they are well aware of the distinction between soft and hard law and that they act according to this recognition, too. Turning soft law rules into hard law without proving state consent, in either terms of emerging customary law or as a general principle, means ignoring the will of states. This conflicts with state sovereignty and also with the principle of democracy in the national context because the state would be bound to something without authorisation of its people. For these reasons, any extension of law sources needs the approval by states. In this regard, Rodriguez-Rivera argues with the concept of natural human rights in order to replace the necessity of state consent.80 Thus, he states that defining “the sources of new or emerging human rights within the consensual doctrine undermines the very essence of human rights – that is rights possessed by individuals by virtue of being a human being.”81 This argument is, however, not persuasive, either. The concept of natural human rights applies to some very fundamental human interests, as for example life or freedom of a person, but cannot simply be transferred to any other human interest that might emerge during the development of society. Natural human rights are conceptualised as being preliminary to state existence and therefore bind states even if they refuse to deliver their consent.82 Any other

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State conduct with regard to a right to environment serves as a good example. Cf. L.E. Rodriguez-Rivera, Is the human right to environment recognized under international law?, p. 3. Ibid. Cf. L. Wildhaber, Wechselspiel zwischen Innen und Aussen, p. 492.

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human interest needs the recognition of states to gain the status of a human right in international law. If environmental destruction amounts to a threat to life, redress can consequently be based easily on the inherent right to life. But the interest in preserving the environment for minor personal or even altruistic reasons would still need state consent in order to gain individual rights status.83 Softening the established categories of hard and soft law can also devaluate existing hard law instruments because the compliance-based reasoning of the approach can almost inevitably be applied the other way around, as well. The non-compliance of states could then be taken as evidence for a rule to lose its character as hard law, which will render illegal state practice without a consequence and lead to the just mentioned effects of legal uncertainty and unpredictability. However, neither the non-fulfilment of binding legal standards can be taken to prove the non-existence of the underlying norm, nor the fulfilment of non-binding documents as evidence for the existence of a legal binding norm without the state intent to be legally bound. In addition, constituting a human right to environment by disrespecting existing sources of law can in particular devaluate well established human rights in national and international law. Those rights reflect a long and difficult process of public discussion and recognition by states. The historical implications provide existing human rights with a strong standing in the national and international legal context but also in regard to the public debate. Thus, nowadays it is very difficult for states to gain reputation contravening human rights. This well-established human rights standard will be put at risk, if a right which is not sufficiently conceptualised and therefore not yet sufficiently operational is recognised without consent by those it is addressed to, the states. This is because doubts in regard to concept and binding character of a human right will also promote doubts to the character of the human

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Shelton exemplifies the need of a right to environment at a situation where “a fully informed society decides to sacrifice environmental quality in order to advance economic or cultural considerations” (D. Shelton, Human rights, environmental rights, and the right to environment, p. 120). In view of this aspect it is, however, even more important to ensure state consent for establishing a new human right because the overruling of the will of people can only be justified by impacts on human rights. While this could easily be proved if the rights to health or life are affected, this would hardly be the case with regard to a right to environment with its eased link to traditional human rights and its connotation towards the intrinsic value of nature.

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rights system in imposing concrete binding obligations in general.84 As a human right to a clean or healthy environment is indeed still far from being basically conceptualised this threat cannot be negated while discussing legal sources of international law. The experience that current state compliance with hard and soft law instruments does not considerably differ should not be taken as basis for breaking up hard and soft law categories by disposing of state consent. It should instead be the reason for improving the existing measures that ensure implementation of and compliance with international law. Documents or resolutions of international organisations can gain legal relevance as a basis for the emergence of customary law or as assistance in determining opinio iuris.85 It therefore seems possible to give consideration to the increased role of international organisations and the interest of nonstate actors in influencing the international law-making process without giving up well established categorisations of hard and soft law. The preceding discussion reveals that, according to the current sources of international law, a right to environment does not yet exist. Thus, although a right to environment could also promote some aspects of the current problem of water scarcity, in particular the contamination of natural water resources, it cannot currently substantiate or complement a human rightsbased approach to freshwater access. 3.4.3. The human right to development in international law The human rights-based approach to freshwater access must also be discussed in the context of the debate about a right to development86 because economic or social deficiencies of water access may have their roots in the underdevelopment of society. The initial debate on a human right to development was weighted heavily towards a collective approach of the right.87 Thus, for

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Whereas it is true that all human rights need interpretation in order to determine their exact content, they cater for very specific and identifiable interests of the individual and are therefore much easier subject to conceptualisation and operation than a broad human right to environment. Cf. R.M.M. Wallace, International law, 5th ed., London, Sweet & Maxwell, 2005, p. 30. Notice here, however, that the right to development must be distinguished from a human rights-based approach to development (cf. below Chapter 3 note 95). For a survey of the history of the concept see A. Rosas, The right to development, in: A. Eide/C. Krause/A. Rosas (eds.), Economic, social and cultural rights: a textbook, 2. rev. ed., Dordrecht [et al.], Nijhoff, 2001, pp. 119–130, at pp. 121 et seqq.; see also B.-O.

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example Article 22 (1) of the African Charter on Human and Peoples’ Rights states that “[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.”88 The desire to give rights to a collective entity is born out of the view that the development of individuals is not possible without society’s development ensuring the existence of an inherent legal, institutional and economic framework. However, using human rights language in this context seems odd because society has well-established mechanisms of decision-making and interest enforcement and does not, therefore, need the instrument of human rights. Human rights serve the individual and in certain cases also the group against state interests.89 Furthermore, human rights cannot be meaningfully conceptualised if the beneficiary and the addressee are identical. This recognition is also expressed by the UN Declaration on the Right to Development,90 a non-binding document, which attempts to set out the concept of the right in international law. Article 1 (1) of the UN Declaration on the Right to Development still refers to both, “every human person and all peoples” that “are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development”. Its Article 2 (1) points out, however, that the “human person is the central subject of development and should be the active participant and beneficiary of the right to development.” The latter provision also better reflects the current state of international law which does not yet acknowledge human rights of peoples.91 Thus, society may benefit from the effects of the right, but in order to make the right to development operational at all, it would have to be conceptualised as an individual right. Whereas the potential beneficiary of the right can therefore rationally be identified, the substance of the right is still far from being determined.

88 89

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Bryde, Menschenrechte und Entwicklung, in: H. Faber/E. Stein (eds.), Auf einem Dritten Weg: Festschrift für Helmut Ridder zum 70. Geburtstag, Neuwied, Frankfurt am Main, Luchterhand, 1989, pp. 73–83, at p. 80. Cf. above Chapter 3 note 38. For the opportunity to conceptualise the right to development also as a right of poor states against rich states to receive development aid see B.-O. Bryde, Menschenrechte und Entwicklung, pp. 74 et seqq. Adopted on 4 December 1986, GA res. 41/128, annex, 41 UN GAOR Supp., No. 53, at 186, UN Doc. A/41/53, 1986. Cf. U. Beyerlin, Umweltvölkerrecht, p. 298.

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Development has many facets such as social, cultural, educational, and participatory aspects and hence seems to mirror issues that are already the subject of existing economic, social and cultural rights as well as civil and political rights.92 Thus, for example the rights to an adequate standard of living, education or the non-discrimination clauses can promote individual and societal development. The term “development”, however, is vague and all-embracing making the objective of giving it a concrete shape difficult. In order to identify an applicable substance, it would certainly not be sufficient to refer to these existing human rights because they could only confirm the status quo of human rights protection. Thus, as long as the content of a right to development is not considerably specified, it may act as a political instrument to signal that “poverty and underdevelopment amount to a denial of the totality of human rights”93 but will not be an operational legal concept to enforce interests of the individual. Not surprisingly, a right to development has not yet found support in global international law, but only in one regional human rights instrument, the African Charter on Human and Peoples’ Rights referred to above.94 Since the right to development hence cannot deliver actual assistance in improving freshwater access of people, it does not receive further consideration within the scope of this work.95

92 93

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See hereunto B.-O. Bryde, Menschenrechte und Entwicklung, p. 80. A.A.C. Trindade, Environment and development: formulation and implementation of the right to development as a human right, in: A.A.C. Trindade (ed.), Derechos humanos, desarrollo sustentable y medio ambiente, pp. 39–70, at p. 54. The right to development in the African Charter has not yet produced any actual effect. Similar to the right to environment it remains to be seen whether the African Court on Human Rights will specify the content of the right to development. Despite of the fact that a human right to development has not yet been recognised, it is a promising opportunity to employ a set of existent human rights for the aim of development. That way it is possible to implement a human rights-based approach to development without the difficulty of conceptualising and adopting a generic human right to development (see for this approach in general OHCHR: Human rights and poverty reduction: a conceptual framework, United Nations, New York and Geneva, 2004). See also a contribution by Filmer-Wilson who shows how the human right to water can promote a rights-based approach to development (E. Filmer-Wilson, The human rights-based approach to development: the right to water, Netherlands quarterly of human rights, 23 (2005) 2, pp. 213–241).

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3.5. Elaboration of the scope of obligations attached to a human rights-based approach to freshwater access The previous parts of this chapter already examined the basic functions and characteristics of a human rights-based approach to freshwater access. The expectations and interests that water users attach to a human rights-based approach can be diverse. They may range from merely imposing limits to state intervention over claiming equal access to water resources and management institutions, to the point of requiring positive state action in order to ensure freshwater access. With regard to the concrete standard of protection, an analysis of human rights applicable to freshwater access will be undertaken in Chapter 4. As a basis thereto, the following part will address some preliminary questions regarding the existence and scope of state obligations ascribed to a human rights-based approach in international law. The existence of negative state obligations with regard to civil and political rights is well accepted. That is why their nature will only be discussed briefly. However, the question whether state action can also be made subject to an individual claim as well as the question to the nature and existence of obligations attached to economic, social and cultural rights are vehemently debated. The analysis will proceed in two steps: firstly, it shall investigate a possible basis of positive obligations in human rights theory. As will be seen, there are good reasons for acknowledging positive human rights obligations of states. A second step will discuss the reception of positive obligations by current international law and thereby also elaborate the relation of civil and political rights on the one hand and economic, social and cultural rights on the other. Eventually, the analysis will also address the discussion regarding non-state actors as addressees of human rights. 3.5.1. Negative obligations Negative obligations set limits to state authorities by guaranteeing a sphere of freedom in which the state may not intervene. The purpose of human rights in setting limits to state intervention is well established and supported by human rights theory and national and international judicial practice. The social conflict underlying the obligation to respect a sphere of freedom is marked by antipodal interests of the individual and the state which have to be balanced. Thus, a human rights-based approach to freshwater access shall for example prohibit the state to pollute water that people are using or to interrupt freshwater supply. In case the state wants to limit the human rights

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exercise for society’s interest, a human rights-based approach also asks for a sound procedure according to the rule of law, which includes a reasonable appreciation of interests. Thus, it can be said the state may only intervene with the exercise of a human right if it has good (i.e. rational) reasons to do so and if it observes the proportional consideration of interests. The existence of an obligation to respect is usually the self-evident outcome of the linguistic editing of human rights.96 In addition, the negative demarcation of individual freedom makes it comparatively easy to determine the exact state obligation on a case to case basis. 3.5.2. Positive obligations Whereas negative obligations are relatively easy to conceptualise, the determination of positive state obligations remains a difficult exercise because the social conflict that asks for state action is harder to identify. Defining them roughly, positive state obligations comprise the duty of the state to take action to ensure the efficient enjoyment of human rights.97 Thus, a human rights-based approach to freshwater access may for example impose a duty upon the state to prevent or relieve acts of third parties, to provide the individual with an equal share in state resources and the decision-making bodies, or even the actual delivery of services. It goes without saying that the expressive recognition of positive obligations in international law forms a basis for their existence. However, the current international human rights system includes them in a vague manner. The human rights treaties were either conceptualised with a strong focus on the obligation to respect, as for example with regard to the ICCPR, or despite their adoption doubts remain as to the nature of state obligations, as for example with regard to the ICESCR.98 The first constellation raises the question whether or not

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That does not mean to negate the necessity of interpretation in order to detect the scope but it makes the justification of the existence itself obsolete. Cf. C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, Berlin [et al.], Springer, 2003, p. 1. Alston describes vagueness of many of the rights as outlined in the ICESCR and the corresponding lack of clarity as to their normative contents as the major shortcoming of the Covenant (cf. P. Alston, No right to complain about being poor: the need for an optional protocol to the economic rights covenant, in: A. Eide/T. Swinehart (eds.), The future of human rights protection in a changing world, Fifty years since the Four Freedom Address, Essays in honour of Torkel Opsahl, Oslo, Norwegian University Press, 1991, pp. 79–100, at p. 86).

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rights that first of all guarantee freedom from state intervention, may also impose obligations to ensure the right. If a human rights treaty, as in the second constellation, already includes rights with a stronger connotation towards the state as guarantor of human rights but promotes doubts as to its concrete binding effect, the discussion shifts to the question which of the obligations can directly be applied and to what extent they impose obligations upon the state. In either ways it is necessary to determine the specific state obligations by legal interpretation. This process is not only governed by “technical” interpretation methods (such as wording, context, purpose, history, effet utile or evolutionary interpretation) but always also expression of a certain human rights understanding. Therefore, the following discussion will first turn to the legitimacy of positive obligations in human rights theory and subsequently discuss their integration into the two International Human Rights Covenants. To begin with, however, some current problems of freshwater access shall be used to exemplify the need for positive obligations in international human rights law. 3.5.2.1. The need for positive state obligations with regard to freshwater access The current problem of deficient freshwater access has not only state but also non-state determinants that may lead to the necessity of state intervention. Nowadays, many threats to human rights and especially to the interest of freshwater access are rooted in the behaviour of third parties such as, for example, corporations. There are several reasons for this. The first reason is the growing utilisation of natural resources in terms of quantity as well as quality, which holds the risk of damage to people and their environment.99 In particular, new technologies can cause new types of pollution. Hazardous chemicals that are discharged by the industry or agriculture may destroy the environment or enter the nutrition chain.100 Uncontrolled forest clearance caused by the expansion of agriculture may decrease the level of the groundwater and damage the regional climate or may also cause floods in lower areas within and across borders. A second reason is indicated by growing privatisation in the course of open markets.101 If the state pulls

99 100 101

Cf. D. Shelton, Environmental protection and the right to food, pp. 90 et seq. Cf. the Nigerian and Ecuadorian examples above Chapter 3 in note 52. For a description of the global trend to privatise water management see V. Petrova, At

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back from economic activities, its human rights responsibility in these areas with regard to the respect dimension may cease to exist as well, and the threats to human rights will then be executed solely by private persons that have overtaken former state activity. Another reason for growing threats to human rights by third parties is the strong economic power of corporations, which disturbs the ideal of a balance of power between private individuals. Corporations might then be able to take advantage of their dominant position, as for example in the pricing of drinking water. This bears the risk that people who can afford water access will have it and people who cannot afford it will not have water access. In these cases, acts of corporations may even appear “state-like” rather than simple acts of private persons, if for example the individual has no opportunity to change the supplier,102 which eventually means being at the mercy of a private person. This effect will be even stronger in economically weak countries. In this respect, it has to be taken into account that many countries which suffer from water scarcity are underdeveloped. In view of the decreasing direct impact on human rights by state action and the corresponding increase of direct threats by private action, it is only logical to impose upon the state an obligation to protect human rights holders. Considering serious human rights threats as just referred to, there is no reason why private action should be privileged although it may have the same impact on human rights as acts of state origin. The emerging gap in guaranteeing human rights may, therefore, be closed by a state obligation to protect the human right against those interferences. Deficient individual freshwater access may also be traced back to reasons that neither direct state intervention nor third parties can be held immediately responsible for but several factors. This includes, for example, economic or social inabilities of a society or the outcome of water mismanagement, such as overexploitation or the disregard of water quality concerns. With regard to such complex causes, it is not possible to identify a single human rights interference of states or third parties although these causes can still be qualified as society-made. Deficient freshwater access may, furthermore, also be the outcome of personal inabilities, such as diseases, or natural factors as for example droughts.103 The affected single human being in all of these

102 103

the frontiers of the rush for blue gold, Brooklyn journal of international law, 31 (2006) 2, pp. 577–613, at pp. 583 et seqq. See for natural monopolies above Chapter 1 note 33. Natural causes such as droughts or the residence of people in naturally dry areas may

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situations is not accountable for the human rights threats. In this context, therefore, positive state obligations seem to be an adequate instrument to assist those people because the concept does not ask for the origin of the human rights threat but focuses on human needs as decisive factor for a state duty to act. Human rights claims that seek redress in this respect aim to force the state into achieving such things as the allocation of utilisation rights or the access to management and decision-making bodies. With the current internationalisation of environmental problems, the ability of national governments to find unilateral solutions is certainly limited. Nevertheless, there is no alternative actor that can deliver similar human rights protection. This also reveals the necessity to discuss the concept of positive obligations on the international level as this naturally proves the only level that corresponds with internationalised human rights threats. 3.5.2.2. Positive obligations within human rights theory Various human rights approaches explain the character and purpose of human rights.104 Liberal human rights theories build the essence of most of the national and regional human rights systems.105 They have their seeds in the enlightenment and especially represent the idea of a personal sphere of freedom that is exempt from state interference.106 Human rights are thus

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aggravate current allocation and mismanagement problems, but they are not a sufficient explanation for the lack of sufficient drinking water among people because there is hardly any doubt that even particularly dry countries possess sufficient resources to fulfil the basic human needs of their people (cf. above Introduction 1.2). Böckenförde for example distinguishes the liberal, the institutional, the value committed (Wertetheorie), the democratic-functional, and the welfare-state (sozialstaatliche) theory (E.-W. Böckenförde, Grundrechtstheorie und Grundrechtsinterpretation, Neue Juristische Wochenschrift 27 (1974), pp. 1529–1538, at pp. 1529 et seqq.). In the international context the welfare-state theory is better referred to as a social theory because this term does not include the state as constitutive attribute. The system of the European Convention of Human Rights has a particularly strong focus on liberty rights but the European Court of Justice, nevertheless, developed plenty of positive state obligations (see comprehensively C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention). The wording of the African Charter on Human and Peoples’ Rights gives an even stronger focus on social rights, but the text has not yet gained much reception among African legal praxis. Due to the formation of the African Court supervising the charter, positive obligations may obtain increasing relevance. Cf. B.H. Weston, Human rights, Human rights quarterly, Vol. 6 (1984) 3, pp. 257–283, at pp. 258 et seqq.

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deemed to guarantee the freedom to do what the individual wants to do, or in negative terms the freedom to avoid doing anything the individual does not want to do. They also require a state organisation and a procedure that prevents the state from arbitrary interference with this sphere of freedom. The concept is therefore one of respect that guarantees freedom of decision against state compulsion.107 Due to the opportunity to precisely identify the individual legal interests against state interferences they can be made legal reality quite simply. Although some liberal theories consider also social aspects of human rights protection,108 they are all characterised by the desire to establish the freedom of decision in legal terms. Social inabilities are of minor relevance because, from the formal point of view of liberal theories, the social conditions of human rights exercise do not affect the freedom of decision directly. Yet, freedom of decision does not say anything about the real opportunities that follow. In fact, legal opportunities can differ from the actual individual opportunities within society. Confronted with social reality, the exercise of liberty meets basically two problems: firstly, the focus on the state as potential violator disregards the fact that the interests protected by human rights may also be threatened by private persons. Thus, as just exemplified, it is possible that private actors interfere with the freedom of decision of the human rights holder like states in a direct manner. The overpricing of drinking water in a monopolised supply system may again serve as an example. Secondly, a purely liberal human rights understanding ignores that the single individual does not live as an autonomous entity but within a network of various private and societal dependencies that predetermine the actual exercise of human rights.109 Eventually, dependencies may amount to an extent that makes it virtually impossible for an individual to transform any of his or her legal guaranteed freedom into social reality. Thus, for example a lack of at least basic means of subsistence renders the legal guarantee of human rights futile.110

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Cf. D. Murswiek, Freiheit durch Teilhabe oder Teilhabe gegen Freiheit?, pp. 255–256. Nowadays for example Rawls represents a social-orientated concept of liberal human rights theory (cf. J. Rawls, The law of peoples, With “The idea of public reason revisited”, Cambridge [et al.], Cambridge University Press, 1999, pp. 48 et seqq and 140 et seqq.) Cf. L. Wildhaber, Wechselspiel zwischen Innen und Aussen, p. 484. Cf. D. Beetham, Democracy and human rights, Cambridge, Polity Press, Oxford [et al.], 1999, pp. 96 et seq.

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Liberal human rights theories do not fully ignore threats of non-state origin but the protection they provide is only rudimentary. Usually, in the foundations of liberal human rights theory direct threats to life, freedom, bodily integrity and property by another member of society trigger a state obligation to protect.111 In order to establish such a state obligation in the national context state theory can be consulted.112 Thus, for example in social contract theory a state obligation to protect the individual from the arbitrary will of others is the prime motivation and reason for concluding the social contract.113 State authority obtains its legitimacy from the establishment of security.114 In the international context this explanation cannot be applied directly because the law is intergovernmental, concluded between states, and hence understood as subsequent to state formation. Nevertheless, these “state-based” theories can be referred to with regard to their argument that conflicts do not only occur between the individual and the state but also between individuals themselves and that security is a precondition for the maintenance of society. Human rights seem a useful tool in finding a balance in this respect because they are able to conceptualise the different individual spheres of freedom. Not surprisingly, regarding the particularly serious threats by third parties just described, there is no dispute that the state has corresponding obligations to protect members of society in both national and international terms. However, beyond that, pure liberal human rights theories cannot cope with the described problems. Therefore, liberal human rights approaches need to be complemented by a social component.

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Cf. C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, p. 184. See in this respect G. Ress, The duty to protect and to ensure human rights under the European Convention on Human Rights, in: E. Klein (ed.), The duty to protect and to ensure human rights, Menschenrechtszentrum der Universität Potsdam, Bd. 8, Berlin, Berlin-Verlag Spitz, 2000, pp. 165–205, at pp. 167 et seq. For example according to the social contract theories of Hobbes and Locke the state overtakes an all-embracing obligation to deliver security to its people (cf. G. Krings, Grund und Grenzen grundrechtlicher Schutzansprüche, Duncker & Humblot, Berlin, 2003, p. 30). Therefore, Isensee speaks of a state obligation to protect as an older tradition than the obligation to respect within the history of the constitutional state (J. Isensee, Das Grundrecht als Abwehrrecht und Schutzpflicht, in: J. Isensee/P. Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Band V, pp. 143–241, at p. 162).

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With regard to private relations, critics focus on the strict separation of state and society spheres inherent to a liberal human rights concept.115 The separation is perceived as artificial because it excludes wide parts of human existence from human rights protection. Thus, it was argued that the state can only pretend neutrality but would in fact sanction existing power structures within society through inaction.116 As a consequence thereof one approach holds the state directly responsible by attributing the private action to the state (consequently as – negative – obligation to respect), and a second approach indirectly by imposing a duty to protect the human rights holder (positive obligation). Completely removing the distinction between state and society spheres as suggested by the first approach, however, does not seem appropriate because it ignores the different degree of state responsibility. Whereas the state has full control over its own activity, it does not exercise this control over private action. On the contrary, the demand of the single individual to a sphere of freedom that is not determined by the state just precludes state control. Attributing private action to the state, therefore, would mean imposing obligations which the state cannot fulfil. The second approach is more promising. It maintains the basic distinction between state and societal spheres but recognises the interrelationship and dependencies of these spheres and connects them by imposing positive obligations upon the state. The concept of positive obligations allows for a more differentiated appreciation of state responsibility because it can reflect both individual freedom and public accountability. Positive obligations are even more contested when it comes to social implications of human rights. No doubt, the actual exercise of human rights depends on social and personal living conditions. But is this correlation sufficient to indicate the obligation to provide the substantial conditions for a human rights exercise? There are various approaches that take the view that the state must take into account the social and economic posi-

115

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The discussion started off with challenging the public-private dichotomy and the resulting state action doctrine in the USA (cf. the surveys in M.J. Horwitz, The history of the public/private distinction, University of Pennsylvania law review, 130 (1982), pp. 1423–1429; G.S. Buchanan, A conceptual history of the state action doctrine: the search for governmental responsibility, Houston law review, 34 (1997), first part pp. 334–424, second part pp. 665–775). Cf. C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, pp. 199 et seqq.; L. Wildhaber, Wechselspiel zwischen Innen und Aussen, p. 493.

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tions of human rights holders.117 They have in common that they connect horizontal and social aspects of human rights protection and impose an obligation upon the state to deliver the frame for an efficient human rights exercise.118 As a consequence they justify the establishment of social human rights119 of the individual. As social rights entitle the individual to certain state benefits, they face much criticism.120 Thus, Murswiek argues that social rights challenge the absolute protection of human rights because states have only limited financial and natural resources which means that the human rights claim depends on this ability.121 He identifies a discrepancy of social human rights with the universal and absolute character of human rights.122 Others argue that human rights interpretation would have to shift from a negative demarcation of state authority to defining the content of politics, missing though the legal criteria for this determination.123 This argument hence doubts the justiciability of social rights in legal practice because social rights are considered unsuitable for a legal determination.124 One may also 117

118 119

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Cf. comprehensively C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, pp. 196 et seqq.; T. Marauhn, Das Grundrecht auf Zugang zu den Leistungen der sozialen Sicherheit: Anmerkungen zur Normkategorie der sozialen Grundrechte, in: F. Matscher (ed.), Erweitertes Grundrechtsverständnis: internationale Rechtsprechung und nationale Entwicklungen, Kehl am Rhein [et al.], Engel, 2003, pp. 247–288, at pp. 262 et seqq. Cf. L. Wildhaber, Wechselspiel zwischen Innen und Aussen, p. 492. For a survey on the manifold understandings of the term “social rights” cf. T. Marauhn, Das Grundrecht auf Zugang zu den Leistungen der sozialen Sicherheit, pp. 253 et seqq. For a comprehensive account of the criticism and a refutation thereof cf. K. Arambulo, Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights: theoretical and procedural aspects, Antwerpen [et al.], Intersentia – Hart, 1999, at pp. 53–97. Cf. D. Murswiek, Freiheit durch Teilhabe oder Teilhabe gegen Freiheit?, p. 265, cf. also M. Bossuyt, International human rights systems: strengths and weaknesses, in: K.E. Mahoney/P. Mahoney (eds.), Human rights in the twenty-first century, A global challenge, Dordrecht [et al.] Nijhoff, 1993, pp. 47–55, at p. 53. Cf. D. Murswiek, Freiheit durch Teilhabe oder Teilhabe gegen Freiheit?, p. 265. Cf. E.-W. Böckenförde, Grundrechtstheorie und Grundrechtsinterpretation, p. 1635, D. Murswiek, Freiheit durch Teilhabe oder Teilhabe gegen Freiheit?, p. 265; Vierdag states “that social rights are not directed at government action that can be described or defined in terms of law” (E.W. Vierdag, The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, Netherlands yearbook of international law, 9 (1978), pp. 69–105, at p. 93). Cf. E.W. Vierdag, The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, p. 93, similarly C. Orwin/T. Pangle, The

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observe the argument that the establishment of social rights conflicts with the principle of democracy because it is assumed that the decision over the use of resources will be performed by the judiciary rather than legislature if it is made the subject of a human rights claim.125 These arguments postulate a strict dogmatic difference between civil and political rights and social human rights, which in fact does not exist. The arguments could only carry weight, if there were a social human rights concept that aimed at a complete transformation of legal opportunities into social reality, because that would employ all state resources and, hence, remove the decision-making prerogative of the legislature. However, that is not the content of social human rights. The state already in practical terms is unable to anticipate in which way a human rights holder is going to exercise a human right. Furthermore, the state is excluded from this decision for good legal reasons, too because the individual has the right to enjoy a sphere of freedom not determined by the state. For this reason, social rights cannot aim at the establishment of the social conditions of every possible human rights exercise. They should instead empower individuals in order to restore the autonomy they have according to the ideal inherent to liberal human rights theories. Thus, social human rights address informal power in society126 that prevents individuals from exercising their freedom but do not address the substantial conditions of human rights exercise in general.127 Social human rights, like civil and political rights, impose obligations of conduct and obligations of result.128 Thus, it can be distinguished between derivative and independent social rights. Derivative social rights follow the state obligation to equal – which means non-arbitrary – treatment of its

125

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philosophical foundation of human rights, in: M.F. Plattnerarc (ed.), Human rights in our time: essays in memory of Victor Baras, Boulder [et al.], Westview Press, 1984, pp. 1–22, at p. 15. Cf. M.J. Dennis/D. Stewart, Justiciability of economic, social, and cultural rights: should there be an international complaints mechanism to adjudicate the rights to food, water, housing, and health?,The American journal of international law, 98 (2004) 3, pp. 462–515, at p. 498; E.-W. Böckenförde, Grundrechtstheorie und Grundrechtsinterpretation, p. 1635. Bielefeldt speaks of unequal power relations in the societal organisation of the fulfilment of basic needs (cf. H. Bielefeldt, Access to water, justice and human rights, p. 49). Cf. C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, p. 388. Cf. CESCR, General Comment No. 3, The nature of States parties obligations (Art. 2, para. 1 of the Covenant), 14 December 1990, UN Doc. E/1991/23, para. 1.

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people. They solely affect the way of allocation because the state can still decide whether it wants to continue the delivery of services or abandon them. Thus, derivative rights support for instance an individual’s claim to an equal share in facilities or resources provided by the state. They do not considerably restrict the decision prerogative of the legislature because, given the state can assert rational reasons, a differentiation between beneficiaries of state services is still possible. Thus, with regard to derivative social rights the above criticism lacks any basis. Independent social rights do indeed employ state resources and hence to some extent limit the prerogative of the state. Therefore, it was already stated that the establishment of a complete equalisation between the legal freedom and the freedom in social reality as subject of a human rights claim is not appropriate. However, social human rights can substantiate a state obligation to a minimum transformation of legal freedom into social reality. Thus understood, the above suggested shift of competences from the legislature to the judiciary will not be stronger than with regard to civil and political rights,129 the content can well be established and enforced, and the rights will be universally applicable. This is because the understanding of human rights solely as spheres of a state’s absence is a simplified view.130 It misconceives that many rights guaranteeing a sphere of freedom also require active concretisation by the state. Thus, for example the scope and content of the right to family life or property is not to be taken for granted but must be formed by state regulation. In addition, civil and political rights are subject to restriction. That means the sphere of freedom they describe is no absolute term but depends on the changing needs of society. Thus, the obligation to respect human rights is subject to interpretation and limitation, as well as positive state obligations that address the social conditions of human rights protection being subject to interpretation and restriction, too. That means at least a core sphere of social rights can be determined by interpretation and would therefore, in terms of its applicability, not show irreconcilable

129

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The CESCR states on the prerogative of the legislature concerning the use of resources: “While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications.” (CESCR General Comment 9, The domestic application of the Covenant, 3 December 1998, UN Doc. E/C.12/1998/24, para. 10). Similarly also C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, p. 149.

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differences from the respect component of human rights.131 That challenges the above-stated argument that social rights might raise hopes that the state may not be able to keep devaluating the universal character of human rights. Because understood as delivering a minimum standard, social rights can be enforced well.132 In ensuring the real freedom and autonomy of the individual, social human rights even serve as a foundation of democracy because they empower the individual to participate in public affairs.133 The preceding considerations according to human rights theory134 suggest the necessity of positive obligations in terms of both protection against third party interferences but also as obligations to guarantee equal access to state facilities and to set a minimum social frame that empowers individuals to use their human rights at all and to take part in public affairs. 3.5.2.3. The conceptual basis of positive obligations as expressed in international human rights law In light of the foregoing findings, the following part will assess the rationale of human rights underlying international human rights law. The examination will be based on the two International Human Rights Covenants as they represent the most comprehensive and important international human rights instruments. As will be shown, international human rights law does not follow a purely liberal human rights theory. It is open for social and pro-

131

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The European Court of Justice refers to the problem of distinguishing negative and positive state obligations. It, therefore, favours an approach that avoids categorising negative and positive obligations but rather implies efficiency concerns of human rights exercise (See judgment in Plattform “Ärzte für das Leben” v. Austria, 10126/82, [1988] ECHR 15, 21 June 1988, para. 49); Eide suggests country-dependent minimum thresholds (see A. Eide, Realization of social and economic rights and the minimum threshold approach, Human rights law journal, 10 (1989) Nos. 1–2, pp. 35–51, at p. 45), for an extensive analytical account of the concepts of minimum threshold and minimum core content cf. K. Arambulo, Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights, pp. 130–145. Cf. A. Eide, Realization of social and economic rights and the minimum threshold approach, p. 45; L. Wildhaber, Wechselspiel zwischen Innen und Aussen, p. 492; see also CESCR General Comment 3 (above Chapter 3 note 128) paras. 1, 10. Cf. T. Marauhn, Das Grundrecht auf Zugang zu den Leistungen der sozialen Sicherheit, pp. 260 et seq. See comprehensively for the discussion on positive obligations C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, pp. 199 et seqq.

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tective considerations, but does not impose a general obligation to establish the social conditions for all human rights exercises. International human rights law is peculiar insofar as it establishes different categories of human rights in different treaties, the so-called civil and political rights on the one hand and economic, social and cultural rights on the other. This seems odd because, as will be seen, the dogmatic structure of these rights does not suggest a categorical difference.135 The following

135

The Universal Declaration of Human Rights made no distinction between civil and political and economic, social and cultural rights. Despite the division of human rights in the two Covenants, the concept of indivisibility has been affirmed in various instruments. Section 13 of the Proclamation of Teheran states: “Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible . . .” (Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc. A/CONF.32/41 at 3, [1968]); Article 6 (2) of the UN Declaration on the Right to Development (above Chapter 3 note 90) states: “All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights”. More recently, the Vienna Declaration and Programme of Action affirmed the indivisibility of human rights. Article 5 of the Declaration reads: “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. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” (UN Doc. A/CONF.157/23; 32 ILM 1661 [1993]). The most recent document affirming indivisibility of human rights is the Draft Human Rights Council Resolution, which states in its Preamble “that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis” (date of conclusion 24 February 2006, UN Doc. A/60/L.48 [2006]); The CESCR states with this regard that “[t]he adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.” (General Comment No. 9, para. 10, cf. above note 295). Rather pragmatically argues Chandler who states that all rights are “equally important because they all contribute to the satisfaction of basic human needs.” (cf. D. Chandler, Universal ethics and elite politics: the limits of normative human rights theory, International journal of human rights, 5 (2001) 4, pp. 72–89, at p. 76; for a discussion on the indivisibility of human rights see J. Benvenuto Lima Jr., The expanding nature of human rights and the affirmation of their indivisibility and enforceability, in:

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analysis will affirm that neither civil and political human rights exclusively comprise of negative nor economic, social and cultural rights exclusively of positive obligations. Both types of rights impose a spectrum of negative and positive obligations and merely the extent and weight of them differ. The human rights outlined in the ICCPR have a stronger connotation with liberal human rights theories. Civil and political rights historically and systematically represent first of all the idea of defending a personal sphere of freedom against state interference which also was the predominant perception of the contracting states.136 This, of course, does not mean understanding the Covenant as a purely defensive instrument. Already the treaty itself expressly imposes a general obligation upon states to ensure the rights of the Covenant.137 Thus, human rights protection is not restricted to an obligation to respect. The scope of positive obligations has then to be determined for every single human right separately. Another piece of evidence for a rejection of a purely liberal understanding of human rights in international law can be seen in the adoption of the ICESCR. The economic, social and cultural rights in the Covenant focus on the state as guarantor of human rights. Thus, they communicate a human rights understanding as expressed by approaches that take into account the societal context of human rights exercise, as just discussed. In order to determine the extent that a social human rights understanding gained in international law, it is important to consider the legal nature of the obligations comprised in the ICESCR. A rejection of the legal character of social, economic and cultural rights in general is argued by Cranston.138 Similarly Vierdag suggests the rights of the ICESCR “of such a nature as to be legally negligible”139 and that “the

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B. Klein Goldewijk/A.C. Baspineiro/P.C. Carbonari (eds.), Dignity and human rights: the implementation of economic, social and cultural rights, Ardsley, N.Y., Transnational Publishers, 2002, pp. 45–61. Cf. T. Schilling, Internationaler Menschenrechtsschutz, Tübingen, Mohr Siebeck, 2004, p. 10. Article 2 (1) ICCPR states as follows: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Cf. M. Cranston, What are human rights?, London [et al.], Bodley Head, 1973, pp. 65 et seqq. Cf. E.W. Vierdag, The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, p. 105.

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implementation of these provisions is a political matter, not a matter of law, and hence not a matter of rights.”140 This seems odd because the Covenant passed the well accepted law-making mechanisms in international law and was transformed into the national legal systems of most of the contracting states. In addition, international conventions can be considered the most substantial and reliable legal source in international law.141 The character of the provisions contained in the Covenant as binding law is therefore incontestable.142 Thus, it follows from the character of the Covenant as binding international law that it imposes obligations upon states parties which means that they are committed to comply with any of the provisions irrespective of whether those duties can be made subject to an individual’s claim or not. The obligation is owed to the other contracting state parties. The fact that the single provisions of the Covenant might be vague does not negate their binding character. Instead they ask for appropriate specification. That means, the exact content of the provisions has to be determined by way of interpretation as in all international treaties. In this respect there is nothing peculiar about the ICESCR. The issue that is actually crucial for the determination of the human rights understanding underlying international law is whether the ICESCR also grants an enforceable right to the individual. The initial point of departure is Article 2 (1) ICESCR. It reads as follows: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

140 141

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Idem at p. 103; similarly also M. Bossuyt, International human rights systems, p. 54. Cf. G.J.H. van Hoof, The legal nature of economic, social and cultural rights: a rebuttal of some traditional views, in: P. Alston (ed.), The right to food, ’s-Gravenhage, Nijhoff, 1984, pp. 97–110, at p. 99. Therefore, Hoof rightly blames the opponents of the legal nature of economic, social and cultural rights to confuse the “direct effect of treaty provisions . . ., for which the degree of concreteness of a rule is decisive, and the legally binding nature of a rule, for which it is not” (G.J.H. van Hoof, The legal nature of economic, social and cultural rights, p. 101); see also M. Scheinin, Economic and social rights as legal rights, in: A. Eide/C. Krause/ A. Rosas (eds.), Economic, social and cultural rights: a textbook, 2nd rev. ed., Dordrecht [et al.], Nijhoff, 2001, pp. 29–54, at p. 29.

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Comparing the wording of Article 2 (1) ICESCR with the parallel provision in the ICCPR reveals that the ICESCR does not impose the same scope of obligations but merely a weaker standard of them. While Article 2 (1) ICCPR imposes a directly effective obligation to respect and ensure the rights, Article 2 (1) ICESCR refers only to an obligation “to take steps . . . with a view to achieving progressively the full realization of the rights.” Some scholars argue that the Covenant shall not entitle the individual at all.143 Tomuschat states in this respect the ICESCR “confines itself to stating promotional obligations which are not intended to confer subjective rights.”144 Consequently, providing individuals with an enforceable legal claim is considered to depend exclusively on the state’s will to generate the pertinent law in the national context.145 However, a closer look at the provision, especially at its purpose, produces a more differentiated state of the law. The wording of Article 2 (1) ICESCR is borne by the purpose to impose obligations that employ resources only according to the ability of states to actually provide them and in respect of the authority of the legislature to decide on the concrete use of state resources. The fact that states took on directly effective obligations in the ICCPR, but only alleviated obligations with regard to the ICESCR may already serve as an example itself because it shows that states are not so reluctant granting rights in general but that they fear first of all overtaking obligations that bind their resources.146 That is to say, positive obligations may cause expenditure which limits the state’s freedom of action for the benefit of a single individual rather than of society as a whole. This, however, makes guaranteeing economic, social and cultural rights not subject to state discretion. Rather, according to the clear wording of Article 2 (1) ICESCR the state is obliged to employ “the maximum of its available resources.” Thus, Article 2 (1) ICESCR makes the state’s ability, not willingness, the decisive criterion for the realisation of the rights. This also means that if human rights do not cause economic or other expenditure, there is no reason why

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145 146

Cf. C. Tomuschat, National implementation of international standards on human rights, Canadian human rights yearbook (1984/85), pp. 31–61, at p. 40; C. Orwin/T. Pangle, The philosophical foundation of human rights, pp. 14 et seqq. C. Tomuschat, National implementation of international standards on human rights, p. 40. Cf. M. Bossuyt, International human rights systems, p. 52. Cf. A. Eide, Economic, social and cultural rights as human rights, in: A. Eide/C. Krause/ A. Rosas (eds.), Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 9–28, at pp. 22 et seqq.

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they should not impose binding obligations upon the state because in such situation the purpose of the constraint has no relevance. The obligation to respect economic, social and cultural rights therefore always binds the state directly because it does not demand any state resources but merely asks state authority not to interfere with existing freedom. Like all human rights, economic and social rights do not only aim at positive state obligations but aim at state respect, too.147 In this regard, there is no doctrinal difference to rights of the ICCPR. For example, the right to health according to Article 12 ICESCR is intended not only to commit the state to the improvement of people’s health but also to prevent the state from degrading somebody’s existing standard of health. This result cannot be challenged by restating the unexplicit wording of Article 2 (1) ICESCR. By adopting the ICESCR, states showed their general willingness to recognise economic, social and cultural rights. Allowing states to reduce the human rights standard by interfering with the existing social conditions would therefore question the purpose of Article 2 (1) ICESCR to progressively achieve the full realisation of the Covenant’s rights. The system of the Covenant suggests the same understanding. Article 2 (1) ICESCR has to be read in conjunction with the content of the single human rights in the Covenant.148 Most of the rights are phrased as individual rights. Coming back to the example of the right to health, Article 12 ICESCR obliges states to “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”149 Thus, from the perspective of the system and the purpose of the Covenant, the single individual shall indeed be entitled to claim state action. The editing of Article 12 (1) ICESCR exemplifies that these rights contain

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Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 20; so also G.J.H. van Hoof, The legal nature of economic, social and cultural rights, p. 107; U. Beyerlin, Nachhaltige Nutzung natürlicher Ressourcen und Menschenrechtsschutz, in: K. Dicke [et al.] (eds.), Weltinnenrecht, pp. 47–65, at p. 57; M. Craven, The International Covenant on Economic, Social and Cultural Rights: a perspective on its development, Oxford, Clarendon Press, 1995, p. 110; A. Eide, Economic, social and cultural rights as human rights, p. 18; in respect to the right to adequate housing pursuant to Article 11 (1) ICESCR the CESCR stated that the provision also includes an obligation to refrain from forced evictions, cf. CESCR General Comment 4, The right to adequate housing (Art. 11 (1) of the International Covenant on Economic, Social and Cultural Rights), 13 December 1991, contained in document E/1992/23, para. 18. The CESCR speaks of Article 2 as “having a dynamic relationship with all of the other provisions of the Covenant” (General Comment No. 3, above Chapter 3 note 128, para. 1). Article 12 (1) ICESCR (italics added by the author).

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a respect element, too. Article 2 (1) ICESCR does not want to overrule this general recognition inherent in human rights.150 While the obligation to respect economic, social and cultural rights hence always directly entitles the individual, this is not in equal terms the case for positive obligations. Again, it is possible to distinguish between obligations of conduct and result as suggested by the Committee on Economic, Social and Cultural Rights.151 The Covenant’s non-discrimination provisions (obligation of conduct), in particular Article 2 (2) ICESCR, directly entitle the individual to derivative participating rights. That is suggested by both the context and the purpose of Article 2 ICESCR. Article 2 (2) ICESCR obliges states to “guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Paragraph (2) of Article 2 ICESCR is according to its context not subject to the restraint imposed by paragraph (1) of the provision because it imposes the non-discrimination obligations separately. It neither meets the purpose of the constraint of Article 2 (1) ICESCR because the argument of state authority to the use of resources can only demand consideration as far as this decision is actually affected. In a situation where the individual merely seeks an equal share in state-provided resources or equal access to state facilities, the state already decided to employ these resources and is merely committed to non-arbitrary allocation. The non-discriminatory application of state power is inherent to both Covenants and thus no peculiarity of economic, social and cultural rights. As for the obligation to fully realise the Covenant’s rights (obligation of result), states have, pursuant to Article 2 (1) ICESCR, a duty to take some positive action. According to the wording of the provision, the term “to take steps” is not part of the progressive realisation.152 This, however, does not entitle the individual to a corresponding claim to certain protective measures, the delivery of services or similar state action because in that situation the purpose of Article 2 (1) ICESCR gains effect. That is the reason why states are equipped with a margin of appreciation towards the achievement of the result. Therefore, the state may still decide what concrete steps it wishes to

150 151 152

Similarly also A. Eide, Economic, social and cultural rights as human rights, p. 23. Cf. above Chapter 3 note 128. Idem, para. 2.

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take. In order to entitle the single individual to a specific state conduct, the state would first have to generate relevant claims in the national legal order. In this respect, Article 2 (1) prevents the direct effect of economic, social and cultural rights. Nevertheless, under certain conditions, the vague positive state obligation to take steps according to Article 2 (1) ICESCR may – in conjunction with the particular human right – turn into a directly effective individual claim to concrete state action. This will be the case if there is only one effective measure that can be taken, if the minimum essential level of human rights is concerned, or if the dignity foundation of human rights is affected. A directly effective state obligation in the first situation is the compelling outcome of a state’s duty to employ “the maximum of its available resources” because if a state did not take the only effective means it would not exhaust all available resources in the sense of Article 2 (1) ICESCR and therefore violate its human rights obligations.153 As a state’s margin of appreciation therefore does not require protection, there is no reason why the affected individual should not be granted a respective claim based on the relevant human right in the Covenant. The second situation draws upon the notion that refusing state assistance to people in dire need will render the whole concern of efficient human rights protection futile.154 Entitling the individual in such exceptional cases reflects the purpose of Article 2 (1) ICESCR. The article wants to push human rights development with due regard to the limited and diverse ability of states to bring about the realisation of rights immediately. Consequently, it merely imposes progressive obligations. However, as the term “to the maximum of its available resources” indicates, progressive realisation cannot be drawn on to avoid even a minimum standard of human rights protection in terms of the bare essentials of people. This is all the more the case as providing the bare essentials, usually, will only affect a minor part of state resources. Furthermore, the adoption of international human rights treaties proves the general will of states to establish efficient human rights protection in international law. If people are not even protected against serious threats to

153

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Cf. T. Marauhn, Social rights beyond the traditional welfare state: international instruments and the concept of individual entitlements, in: E. Benvenisti/G. Nolte (eds.), The welfare state, globalization, and international law, Berlin [et al.], Springer, 2004, pp. 275–319, at p. 290. Cf. CESCR General Comment 3 (above Chapter 3 note 128) para. 10.

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their most basic human needs – whether caused by third parties or other factors – the efficiency of human rights will be affected at its core rendering them a futile tool for people to enforce their interests.155 This would also question the idea of efficient human rights protection underlying the adoption of the international treaties and hence the corresponding will of states, too. The Committee on Economic, Social and Cultural Rights also considers the progressive development that economic, social and cultural rights have already taken. Thus, the Committee argues: On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.156

Nonetheless, the Committee still recognises resource-based constraints that seem to be conceivable at least in theory. It states: In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.157

Nevertheless, avoiding responsibility for failing to provide the bare essentials will hardly be possible in legal practice because – as already stated – it affects only a minor part of state resources. Finally, economic, social and cultural rights do also directly entitle the individual to certain state action if the dignity foundation of human rights is affected. Dignity itself is not guaranteed as a separate legal position in 155

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Cf. similarly also A. Epiney, Sustainable use of freshwater resources, p. 301; See for the concept of a “core content” P. Alston, Out of the Abyss: the challenges confronting the new U.N. Committee on Economic, Social and Cultural Rights, Human rights quarterly, 9 (1987), pp. 333–381. General Comment 3 (above Chapter 3 note 128) para. 10. Ibid.

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positive international law.158 Yet, human rights include a dignity foundation159 that directs their meaning because the international human rights treaties explicitly refer to human dignity as an underlying rationale.160 The preamble of the ICESCR and the ICCPR, which uses the same wording, recognise “that these rights derive from the inherent dignity of the human person.” Thus, human dignity builds the basis and the essence of all human rights. That means if a human rights threat affects human dignity it will always challenge the particular human right as a whole, too. Against this background, human dignity guarantees a most basic level of human rights protection that cannot be put at a state’s disposal.161 Thus, a human right may never be applied in a manner that negates its dignity foundation.162 For these reasons, states have a directly effective obligation to interfere if people are affected in the dignity foundation of their human rights. While a violation of the dignity foundation of human rights will often coincide with a violation of the core standard of human rights as just described the dignity foundation can also go further. This will usually be the case if not the amount but the way of satisfying basic needs is concerned.163 The preceding discussion therefore suggests that Article 2 (1) ICESCR indeed cannot be understood as depriving economic, social and cultural rights of any direct effect. The obligation to respect economic, social and

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Cf. above 3.3. See K. Dicke, The founding function of human dignity in the Universal Declaration of Human Rights, p. 114. Besides the two International Human Rights Covenants, human dignity is for instance referred to in the Universal Declaration of Human Rights (cf. preamble and Articles 1, 22, 23) and in the UN Charter (cf. its preamble). Furthermore it is enclosed in two regional human rights systems, the African and the American. Article 5 of the ACHPR even grants a “right to the respect of the dignity inherent in a human being.” Cf. K. Dicke, The founding function of human dignity in the Universal Declaration of Human Rights, p. 119; L. Wildhaber, Wechselspiel zwischen Innen und Aussen, p. 492. Cf. similarly B. Schlütter, Water rights in the West Bank and in Gaza, Leiden journal of international law, 18 (2005) 3, pp. 621–644, at p. 629. Mechlem gives the example that people living from food they find in garbage dumps might be able to fulfil their daily needs but will, due to the dignity foundation of human rights, nevertheless be violated in their right to food (see K. Mechlem, Food security and the right to food in the discourse of the United Nations, p. 644). Although one could argue that the right to food covers for this problem anyway, the operation with human dignity makes it at least much easier to identify an immediate claim of the individual.

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cultural rights as well as the non-discrimination clauses of the ICESCR always directly entitle the individual to direct claims. In this respect, there is no difference to the ICCPR. In contrast, the ICESCR does not, as a matter of fundamental principle, directly entitle individuals to demand specific state action but only in certain situations as just referred to. To summarise, international law follows a human rights concept that combines the above described liberal and social approaches. It recognises the vital role of human rights as an instrument of protection of a sphere of freedom against state intervention, but it does also respond to the gap between legal and real opportunities in society. Human rights as explained by liberal approaches are unable to close this gap because they predominantly observe threats to human rights imposed by the state. They are founded on a rigid – though predictable – application of law. Social approaches in international law as for example expressed by the ICESCR do not replace a liberal human rights understanding but supplement it with the societal conditions of their guarantee. Instead of solely focussing on the source of a threat they also analyse the social situation of the human rights holder and the actual need for protection. The contextual approach is therefore an indispensable condition for efficient human rights protection. The discussion also approved that the scope of positive obligations is limited by the principle of democracy and separation of powers because the decision if and how to use resources is a political question not a legal one and therefore assigned to the legislature rather than the judiciary, in the first place. The specific scope of state obligations and individual rights is subject to the single human rights, which will be analysed in Chapter 4. 3.5.3. Non-state actors as addressees of human rights? The current internationalisation or even globalisation of environmental and economic problems and the assumed waning state ability to govern and control these processes have been promoting a debate on the appropriateness of the exclusively state-addressed concept of human rights.164 It has already

164

See for example C. Scott, Multinational enterprises and emergent jurisprudence on violations of economic, social and cultural rights, in: A. Eide/C. Krause/A. Rosas (eds.), Economic, social and cultural rights: a textbook, 2nd rev. ed., Dordrecht [et al.], Nijhoff, 2001, pp. 563–595; J.J. Paust, Human rights responsibilities of private corporations, Vanderbilt journal of transnational law, 35 (2002) 3, pp. 801–825; N. Jägers, The legal status of the multinational corporation under international law, in: M.K. Addo (ed.),

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been exemplified with regard to the water sector that the impact of private action on the exercise of human rights has been increasing.165 Due to the economic and structural power of some corporations, their potential influence on human rights exercise may even be higher than that of many states themselves. In addition, while states may exercise control in the national context, states only have limited ability to govern private activities that transcend state boundaries. In either situation there might be a desire of affected people to claim a violation not via the cumbersome state obligation to protect but to litigate against the non-state actor directly. That is why, it has been suggested to extend the scope of human rights addressees to some private parties, in particular internationally operating corporations.166 Since the historical notion of human rights as a predominant defence instrument against state action has been modified by protective and social concerns already, it seems at least theoretically conceivable to conceptualise human rights not solely towards the state as the addressee but also to other actors that have great power in society. This is because, viewed from the practical interest of human rights holders, it does not make much difference whether the state or a private actor interferes with their rights. The concept of human rights would then shift more towards a comprehensive means by which to defend a personal sphere of freedom against any interferences, whether of state or private origin. The appropriateness of imposing direct human rights obligations on corporations has been suggested for developing countries in particular.167 As they have sometimes lower standards of environmental regulations than developed countries168 human rights are intended to compensate these shortcomings by offering direct redress against private actors. The latter example, however, can also be referred to for exemplifying the basic problem of establishing direct human rights obligations between private actors: it

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Human rights standards and the responsibility of transnational corporations, The Hague [et al.], Kluwer Law International, 1999, pp. 259–270. Cf. above 3.5.2.1. See S. Tully, A human right to access water?, pp. 51 et seqq.; cf. also Chirwa who assumes already the existence of some direct human rights obligations of private actors (D.M. Chirwa, The right to health in international law: its implications for the obligations of state and non-state actors in ensuring access to essential medicine, South African journal on human rights, 19 (2003) 4, pp. 541–566, at pp. 561 et seqq.). Cf. V. Petrova, At the frontiers of the rush for blue gold, p. 598. Cf. J.P. Eaton, The Nigerian tragedy, environmental regulation of transnational corporations, and the human right to a healthy environment, p. 274.

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conceals the state obligations to protect human rights holders by national measures as well as the international opportunities and duties of states to cooperate. States have the obligation to protect human rights holders by national legislation and administration. For example environmental rules may bring about effective protection against acts of third parties. If states fail to establish efficient protective mechanisms in the national context they violate their human rights obligations. The problem therefore seems to be one of insufficient law enforcement and hence one between the citizen and the state in the first place. It is not apparent that direct human rights obligations on the horizontal level can deliver redress for that problem. Yet, there is another alternative to respond to the interest of individuals to enforce their human rights against non-state actors. That is the concept of indirect horizontal effect of human rights in private relations.169 According to this concept human rights are taken into account by the judiciary in deciding cases between private parties.170 While applying a statute the civil court must consider the importance of the pertinent human right. For example, if a court reviews a contract between a private supplier and a consumer on the delivery of water it must be aware of the human rights dimension of freshwater access. As a consequence, the court must protect the water consumer from usury. The theory of indirect third-party effect is founded on the notion that human rights permeate the whole legal system as objective values that influence the interpretation and application of all statutes.171 The gateway for a human rights-orientated interpretation of civil law will usually be its general provisions because they provide the court with a margin of appreciation. In the absence thereof, courts can hardly give effect to human rights because they are bound to the statute. In such a case, however, the legislator might violate its obligation to protect. This demonstrates the close connection between the obligation to protect human

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For a discussion on this theory see B.S. Markesinis, Privacy, freedom of expression, and the horizontal effect of the human rights bill: lessons from Germany, The Law quarterly review, 115 (1998), pp. 47–88. Cf. R. Brinktrine, The horizontal effect of human rights in German constitutional law: the British debate on horizontality and the possible role model of the German doctrine of “mittelbare Drittwirkung der Grundrechte”, European human rights law review, (2001) 4, pp. 421– 432, at p. 424. See in this respect the judgment of the German Constitutional Court with regard to the freedom of opinion (BVerfGE 7, pp. 198 et seqq., at p. 205).

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rights holders by statutes and a human rights-orientated interpretation of statues by civil courts. Concerning private action that crosses borders of states, purely national measures of states are indeed limited. Nevertheless, with this regard international responsibility of states and international law enforcement mechanisms gain relevance. To the same degree that national controlling possibilities diminish protection, human rights protection is in need of an increased transboundary and international protection. Thus, for example Article 2 (1) ICESCR imposes an obligation upon states to seek “international assistance and co-operation” in order to realise the rights of the Covenant. While the appropriateness of direct responsibility of private actors, as a means to bring about better human rights protection, cannot be discussed exhaustively within the scope of this work,172 one should at least keep in mind the fact that current international law does not reflect such an extended concept of human rights.173 International human rights treaties are addressed to the state parties.174 While responsibility of private actors with regard to some selected human rights has been discussed,175 states remain the only entity with all-embracing responsibility for human rights protection.176 The existing

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See with this regard for example the discussion in V. Petrova, At the frontiers of the rush for blue gold, p. 601 who favours direct human rights liability of corporations. Cf. E. Klein, The duty to protect and to ensure human rights under the International Covenant on Civil and Political Rights, in: E. Klein (ed.), The duty to protect and to ensure human rights, pp. 295–325, at pp. 296 et seq. See for example the wording of Articles 2 (1) ICCPR, 2 (1) ICESCR which exclusively speak of “State Party to the present Covenant.” Nevertheless, human rights treaties include state duties to give certain obligations direct horizontal effect in the national legal orders (see for example Article 5 (f ) ICERD). Cf. J.J. Paust, Human rights responsibilities of private corporations, pp. 810 et seqq. In contrast, Paust is of the opinion that private actors, in particular corporations, are directly responsible already according to current international human rights law (cf. J.J. Paust, Human rights responsibilities of private corporations, pp. 802 et seqq.). He argues on the one hand with individual obligations and the clauses prohibiting abuse of rights in international human rights law (preamble and Articles 29 (1), 30 UDHR, Article 5 ICCPR, Articles 27, 29 ACHPR and Article 17 ECHR) and on the other with the existing national legislations that impose such obligations upon private actors (cf. p. 809). The wording of Articles 2 (1) ICCPR, 2 (1) ICESCR makes it, however, difficult to impose directly binding obligations upon individuals (cf. above Chapter 3 note 174). In addition, the national legislation that was adopted in response to the state obligation to protect human rights has to be distinguished from an independent human rights claim against private actors. Environmental law and defence claims in – usually – civil

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international instruments that aim at corporate human rights responsibility do not enjoy binding character but rely on voluntary commitments.177 In addition, they are solely addressed to internationally operating corporations, thereby ignoring that locally operating small companies threaten human rights to a considerable extent, too.178

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law transform the national and international human right obligations of states into national law but they are not deemed to establish a general human rights responsibility between private actors. Cf. for example the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (adopted by the Sub-Commission on the Promotion and Protection of Human Rights on 13 August 2003, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2), Article 12 of the Norms states as follows: “Transnational corporations and other business enterprises shall respect economic, social and cultural rights as well as civil and political rights and contribute to their realization, in particular the rights to development, adequate food and drinking water, the highest attainable standard of physical and mental health, adequate housing, privacy, education, freedom of thought, conscience, and religion and freedom of opinion and expression, and shall refrain from actions which obstruct or impede the realization of those rights.” (for a survey of the norms see C.F. Hillemanns, UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, German law journal Vol. 04 (2003) No. 10, pp. 1065–1080, access via URL: http://www.germanlawjournal .org/pdf/Vol04No10/PDF_Vol_04_No_10_1065–1080_ European_Hillemanns.pdf (accessed 21 March 2005); cf. also The OECD Guidelines for Multinational Enterprises, access via URL: http://www.oecd.org/dataoecd/56/36/1922428.pdf (accessed 17 March 2006), for a survey over the guidelines see J. Karl, The OECD Guidelines for Multinational Enterprises, in: M.K. Addo, Human rights standards and the responsibility of transnational corporations, pp. 89–106. Cf. for a continuative discussion on the responsibility of private corporations S. Anderes, Fremde im eigenen Land: Die Haftbarkeit transnationaler Unternehmen für Menschenrechtsverletzungen an indigenen Völkern, Zürich, Schulthess-Verlag, 2001; J.P. Eaton, The Nigerian tragedy, environmental regulation of transnational corporations, and the human right to a healthy environment; see also several contributions in M.K. Addo (ed.), Human rights standards and the responsibility of transnational corporations.

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3.6. Universalism, particularism and pluralistic legal systems 3.6.1. Universalism vs. particularism of a human rights-based approach to freshwater access There is an ongoing debate on the universal validity and applicability of human rights. Especially voices from Asia and Africa criticise the current human rights understanding for its individualist focus.179 It is described as a product of Western political thought, which does not reflect the philosophical, political and social traditions of non-Western societies and therefore is regarded as an expression of cultural eurocentrism and Western arrogance.180 Whereas current human rights law indeed largely originates in Western traditions, it is, nevertheless, not apparent why particularly developed ideas should not gain universal validity. Furthermore, ethical or philosophical explanations for the universal validity of human rights must not be confused with their universal establishment in positive law. The overwhelming majority of non-Western states adopted and accepted the International Bill of Rights and also its claim to universality.181 All states which ratified the international human rights treaties are consequently bound by them. In addition, it is well accepted that core human rights gained the status of international customary law.182 A basic standard of human rights, thus, even binds those states which are not party to international human rights treaties.

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Not surprisingly, alternative systems are often characterised by the almost absolute subordination of individual rights under group rights (cf. comprehensively for this debate S. Avineri/A. de-Shalit, Communitarianism and Individualism, Oxford, Oxford University Press, 1992). In part, even the appropriateness of law in general as a mechanism of conflict regulation in society is doubted (cf. S.P. Sinha, Legal policentricity, in: H. Petersen/H. Zahle (eds.), Legal policentricity: consequences of pluralism in law, pp. 31–69, at pp. 43 et seqq.). See on this discussion J. Habermas, Die postnationale Konstellation, Politische Essays, Frankfurt am Main, Suhrkamp, 1998, pp. 183 et seqq.; B. Ibhawoh, Between culture and constitution: evaluating the cultural legitimacy of human rights in the African state, Human rights quarterly, 22 (2000) 3, pp. 838–860; A. Vasilache, Ethischer Universalismus und die Vielfalt von Kulturen: Zur Geltungsmöglichkeit und Legitimierung von universellen Werten jenseits der Relativität kultureller Begründungsversuche, WeltTrends, 41 (2003/04), pp. 91–106. Even the P.R. of China signed the two International Human Rights Covenants. Cf. R. Bernhardt, Der völkerrechtliche Schutz der Menschenrechte: Texte, Institutionen, Realitäten, in: K. Dicke, [et al.] (eds.), Weltinnenrecht, pp. 37–45, at p. 38.

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Hence, from a legal perspective the universal applicability of human rights cannot be doubted.183 With regard to a human rights-based approach to freshwater access it is also irrelevant that some of the water-related problems may occur only in certain regions. The existing provisions in international law that may support individual rights to freshwater access, such as the right to life or to an adequate standard of living, are not confined to a certain region, group of people or other subjects of particularism but are abstract regulations that merely have different practical or regional relevance. Another subject is the establishment of specific regional human rights systems, such as the African or the European one. Their standard of protection may go beyond the one established by the international human rights law but it must not fall short of it. Thus, only a higher standard of human rights protection can be subject to particularism. This provides the opportunity to respond to certain regional problems with a corresponding extended protection of human rights. Much more problematic than the universal validity of international human rights law is its universal application. Since the application of international human rights is first of all addressed to the national administrations and to the national judicial bodies, the lack of a uniform perception of law will almost inevitably lead to fragmentation in applying human rights. An adaptation of the different perceptions of human rights can probably only be achieved by an international judicial body with respective universal jurisdiction. The establishment of the Committees for the International Covenants is certainly a first step in this regard. 3.6.2. The human rights-based approach to freshwater access within systems of legal pluralism The question about the applicability of human rights does not only appear at the international level but may also occur as an internal problem. In states with a unitary legal system the applicability of human rights does not meet any specific problems; human rights do apply. Doubts as to the validity of international human rights could, however, be entertained if more than

183

This was also confirmed by the World Conference on Human Rights 1993 in Vienna, where many “non-Western” states took part (see preamble of the Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 12 July 1993).

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one legal system184 were to coexist within a state (legal pluralism).185 In this respect, water management may serve as a classical example for legal pluralism because the concrete water allocation mechanisms are often subject to local or customary law.186 Legal pluralism may occur horizontally, in which cases a legal order is not applicable to the whole state territory. Furthermore it can occur vertically, which means different legal orders apply to different state organisation levels (state, region, municipal). Finally, it may occur personally, then the jurisdiction of a legal system is only imposed on certain persons or groups (for example application of religious law depending on people’s confession). For example, codified law, customary law, traditional or religious law may apply. In an ideal way, legal pluralism awards the same relevance to every legal system. Thus, even traditional law would be an equal part of the national legal order rather than a less authoritative, tolerated parallel system. The coexistence of different legal orders does only meet problems if they deliver contradictive legal remedies for the same social conflict. This is, however, often the case with regard to human rights. Some – especially traditional187 – legal systems are characterised by their opposition to human rights, which is not surprising because the variety of legal sources comes along with a variety of understandings of law that transport different moral perceptions and different concepts of justice. The existence of legal pluralism in the national sphere, therefore, raises the question of how international human rights law is to cope with this conflict in view of its claim to universal applicability. The application of international human rights norms in legally pluralistic systems meets the problem that the differing legal orders gain their

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For the term “legal system” in this regard see S.E. Merry, Legal pluralism, Law and society review, 22 (1988) 5, pp. 869–896, at pp. 870 et seq. See for a comprehensive examination of legal pluralism J. Griffiths, What is legal pluralism, Journal of legal pluralism and unofficial law 24 (1986), pp. 1–56; F. von Benda-Beckmann, Who’s afraid of legal pluralism?, Journal of legal pluralism and unofficial law, (2002) 47, pp. 37–82. See in this respect R. Meinzen-Dick/L. Nkonya, Understanding legal pluralism in water rights: lessons from Africa and Asia, International workshop on “African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa”, 26–28 January 2005, Johannesburg, South Africa, URL: http://www.nri.org/waterlaw/AWLworkshop/ MEINZEN-DICK-R.pdf, pp. 8–1 – 8–14, at pp. 8–3 (accessed 1 July 2006). Traditional law for instance often discriminates certain groups of society (cf. e.g. A. Hellum, Actor perspectives on gender and legal pluralism in Africa, in: H. Petersen/ H. Zahle (eds.), Legal policentricity: consequences of pluralism in law, pp. 13–29, at pp. 15 et seqq.).

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legitimacy from various sources, not necessarily originating from the state. They all require the legitimate use of power against members of society.188 The problem here is that international human rights law solely addresses states as guarantors of human rights and therefore does not directly govern those legal orders that gain their legitimacy beyond state power. However, once a state has signed an international human rights treaty or once human rights apply as customary law, the state is obliged to guarantee them to all people within its jurisdiction and territory and must not accept any loopholes in them. The recognition of competing legal systems and thus the acknowledgment of legal pluralism is – irrespective of the great potential of the concept of legal pluralism in diversifying and complementing the legal order of a state – therefore only admissible to the extent that international human rights law is not affected. Whenever legal systems parallel to state structures get into conflict with the relevant international human rights norms it has to be resolved in favour of human rights. This means, states have to ensure that international human rights are recognised by a non-state authority to the same extent as states are committed themselves. It can hence be summarised that human rights are universally applicable, which includes all parts and levels of internal state organisation, too.

3.7. Concluding observations on the characteristics of a human rights-based approach to freshwater access The preceding discussion has shown that a human rights-based approach to freshwater access is an appropriate tool to enforce the objective of fulfilling basic human water needs in water management. The approach is embedded in a general political, economic189 and legal tendency to focus on the individual as the motor of individual and societal development.190 A human rights-based approach underlies the assumption that the single individual

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Cf. F. v. Benda-Beckmann, Rechtspluralismus, Zeitschrift für Ethnologie, 119 (1994), pp. 1–16, at p. 7. One may think of the World Bank’s strategy to provide people with microcredits. See in this respect P. Cullet/A. Gowlland-Gualtieri, Local communities and water investments, in: E.B. Weiss (ed.), Fresh water and international economic law, pp. 303–330.

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is the best agent of his or her own interests. By providing individuals with rights it makes state commitments justiciable. Thus, the main details of a human rights-based approach that distinguishes it from other objective legal or non-legal concepts is its empowerment component, which makes the individual a subject of the political process. Objective legal instruments, such as international water law as discussed above, and policy instruments belong to a framework of measures that has to be put in place in order to cope with the water crisis but they cannot replace an individual-based approach in water management. The discussion has further shown that human rights serve a function as organising principle of the state, too because they demand consistency with the principles of democracy and the rule of law. Thus, human rights contribute to transparency of state action, accountability and legal certainty. A human rights-based approach is able to cover both the individual interest to safe access to freshwater and the society’s interest to the utilisation of water resources and brings them into adjustment. That shows that a human rights-based approach to freshwater access acts almost automatically as a political concept for water allocation and management, too. In this respect, the analysis has also approved that a human rights-based approach does not ask for a specific water management strategy because it provides the state with a wide scope of appreciation. Nevertheless, it can produce good water politics in as much as it demands the observance of basic premises as a framework for water management. The elaboration of the concepts of human rights to environment and development has revealed that they cannot offer much assistance for the improvement of freshwater access – for both conceptual and legal reasons. This is because the analysis above promoted doubts as to whether the aims of environmental protection and development as general political aims can be made the subject of an operational human rights claim without establishing an identifiable specific personal interest of those particular human rights holders. Thus, in order to make human rights to environment and development operational, they need further conceptualisation in this respect. At the present time merely single human rights, such as the rights to life or health, may be employed for promoting individual interests to environment and development, whilst autonomous rights to environment and development have not yet found their way into international law. Thus, the human rights-based approach to freshwater access currently seems to be the only operational approach for the problem in question.

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The discussion about the scope of a human rights-based approach to freshwater access has also shown that the often suggested separation into justiciable civil and political rights and non-justiciable economic, social and cultural rights does not match their characteristics. Both categories include directly enforceable rights that impose negative, as well as positive, obligations upon the state making this separation futile. Economic, social and cultural rights stronger focus on the state as guarantor of human rights than civil and political rights. This, however, does not exclude them from justiciability but requires a careful determination of the concrete scope of obligations pursuant to the single human rights in either categories. Following this perception, a human rights-based approach to freshwater access – irrespective of whether it rests upon mainly civil and political or economic, social and cultural rights – consists of negative and positive obligations. Negative obligations protect existing freshwater access. In view of the growing pressure from use on this finite resource, negative state obligations therefore must not be underestimated. The negative side of a human rights-based approach to freshwater access guarantees that existing basic human water uses do not succumb when concurring with other utilisation interests, especially increasing agricultural and industrial water uses. The considerations that have been made to the scope of positive obligations of a human rights-based approach demonstrate that the fear of an undue restriction of state’s competence to decide over the use of resources is unfounded. A human rights-based approach sets the ends that state authorities have to bring about, here guaranteeing everybody sufficient freshwater access, but usually not the concrete measures towards this result. The competence of analysing the complex causes of water scarcity and adopting the appropriate measures therefore does not shift to the judiciary but remains the prerogative of the legislature. In this respect, it again must be pointed out that a human rights-based approach to freshwater access is not – as often superficially alleged – primarily concerned with the delivery of water amounts. Since water scarcity among people is first of all a problem of allocation, the main concern of the concept is the promotion of equal access to existing water resources, which does not considerably affect a state’s scope of appreciation. In as much as the delivery of water or similar forms of public services are at question, states usually have wide discretion. The analysis, nevertheless, also revealed that the dignity foundation of human rights as well as the core area of human rights may require specific state action. This chapter has determined the general appropriateness and the characteristics of a human rights-based approach to freshwater access. The concrete

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scope of individual rights and corresponding state obligations depends on the specific human rights in international law. That is why the following chapter will analyse the applicable human rights law in this respect and elaborate its deficits in guaranteeing the human need for water.

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Chapter 4 The human rights-based approach to freshwater access within current international human rights law 4.1. Introduction In contrast to international water law as analysed in Chapter 2, international human rights law a priori and by its nature is committed to the individual. The substantive and procedural rules of human rights law provide the single human being with individual legal entitlements vis-à-vis the state. International human rights are first of all laid down in the so called “International Bill of Rights.” This consists of the Universal Declaration of Human Rights (UDHR), the Covenant on Economic, Social and Cultural Rights (ICESCR) and the Covenant on Civil and Political Rights (ICCPR). Although the International Bill of Rights provides a rather dense system of rules there is no explicit reference to the issue of access to freshwater resources within it. According to the overwhelming importance of this concern and due to the fact that the international human rights instruments contain certainly some rights that are less important for human existence, this seems rather odd. Maybe the access to freshwater as a basic human need was taken for granted and therefore not worth mentioning or it was considered to be an implicit component of other human rights. Indeed, there are quite a few human rights that can be thought of when talking about people lacking even the most basic water needs, like, for example, the human rights to life, food or health. Nevertheless, none of them was made for the sole purpose of securing freshwater access of people. This fact raises doubts as to whether the existing human rights instruments provide a solid basis for a human rights-based approach to freshwater access as elaborated in the previous chapter. It is, for example, certainly not sufficient to regard freshwater access solely in its nutritional function. The social implications of freshwater access have to be taken into account, too. Thus, there is a strong link between freshwater access

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and poverty because present water shortages above all affect poor people. The link can be extended from the individual to society. The human rights-based approach to freshwater access is charged with a particular societal interest because water is essential for biodiversity and a functioning ecosystem.1 Widespread poverty can destabilise water balance and sustainable water management systems by, for example, the slash and burn of forests due to poor people’s lack of productive resources.2 In view of the diversity of interests connected with a human rights-based approach to freshwater access, it cannot simply be derived as an immanent and self-evident component of other human rights. It necessitates instead a differentiated determination of the concrete interests protected by human rights law and the specific scope of obligations imposed on the state in this respect. The following analysis seeks to work out the exact standard of a human rights-based approach to freshwater access in current human rights law and its deficits in this respect. In doing so, some aspects are of particular importance. Many people are unable to fulfil their need for water solely by way of defending their individual freedoms against the interfering state but need the state as guarantor. Chapter 3 has already shown that international law is open for positive obligations of states enabling the efficient exercise of human rights. This general recognition shall be scrutinised with regard to the specific human rights applicable to the issue of freshwater access. Thus, the chapter will turn, in particular, to the question to what extent international human rights law imposes positive obligations upon the state and to what extent they provide the individual water user with entitlements vis-à-vis the state. Human rights are thought to cover the relations of the state and the people affected by its authority. However, watercourses cross international borders and some countries might be unable to provide their citizens with the sufficient amount of water because a riparian state reduces the natural flow of a watercourse in order to fulfil its own water needs. McCaffrey proved that there is a right of states to receive water from co-riparian countries if it serves the fulfilment of vital human needs.3 But, is there also an individual right

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Cf. extensively on this issue J. Scanlon/A. Cassar/N. Nemes, Water as a Human Right?, IUCN, Gland, Cambridge, 2004, p. vii. Cf. D. Shelton, Environmental protection and the right to food, p. 95. Cf. S.C. McCaffrey, Water, human rights and sustainable development, pp. 111 et seqq.

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of citizens of one country addressed to a co-riparian country’s government? The analysis will address this question. International human rights law in general – like other fields of international law, too – is fragmented into many different areas of law. There are the International Bill of Human Rights, customary law, regional and sub-regional human rights treaties and general principles of law. Besides the general human rights treaties, there are some that take up particularly crucial human rights matters as for example torture, or that address particularly vulnerable groups such as children. As there is no codified body of law that addresses the human need for water, the determination of a human rightsbased approach to freshwater access in international law has to consider those different sources and instruments. While interpreting international human rights law, it is also helpful to consider its specification by the relevant treaty bodies. The analysis will therefore discuss the pertinent human rights norms in view of the meaning that the Committee concerned attaches to them in form of its comments on State Reports as well as General Comments. Particular attention will be paid to General Comment No. 15 on the Human Right to Water adopted by the Committee on Economic Social and Cultural Rights. Many aspects of freshwater access during war or armed conflict are enclosed in the Geneva Conventions III and IV and the Additional Protocols I and II. Although they do not contain human rights against a combatant state they nevertheless can be referred to with regard to their underlying ideas and principles while interpreting the relevant human rights norms. International humanitarian law is of particular importance for the problem of transnational watercourses because its obligations are not addressed to the state in which the citizens live at but to the respective combatant state. Therefore, humanitarian law might offer valuable clues for the problem that one state causes water scarcity among people in another riparian state. Outside international law there are some soft law instruments that expressly aim at the fulfilment of the human need for water.4 Though nonbinding, soft law instruments may offer evidence for international consensus and will therefore be taken into account, where appropriate, to assist the interpretation of the relevant human rights norms.

4

See especially Chapter 18 of Agenda 21 (above Chapter 1 note 48).

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4.2. International law explicitly including individual rights to freshwater access Besides increasing awareness of the human rights dimension of freshwater access, this problem only finds sparse expressive response in the international human rights treaties. Article 24 (2) (c) of the Convention on the Rights of the Child (CRC)5 refers to water as a factor for health of children. Article 24 CRC reads as follows: Article 24 CRC 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: ... (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; ...

The reference to freshwater access in subsection (c) only covers one aspect of a human rights-based approach to freshwater access. The article does not provide children with a generic right to freshwater access but merely specifies their right to health with regard to some positive obligations. A second provision in international human rights law that also refers to freshwater access, but covers only a limited field of human rights is Article 14 (2) (h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).6 Article 14 CEDAW states: Article 14 CEDAW 1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the eco-

5

6

Text adopted on 20 November 1989, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entry into force 2 September 1999. Adopted on 18 December 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entry into force 3 September 1981.

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nomic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. 2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: ... (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. ...

The provision addresses the problem of discrimination faced by rural women and subsection (h) of the article mentions water supply as part of women’s right to enjoy adequate living conditions. This can be seen as an attempt to redress the burden of women in developing countries because they are traditionally in charge of the provision of water.7 Nevertheless, Article 14 CEDAW is restricted in terms of both its personal and its substantive scope. In addition, as far as freshwater access gains relevance at all, it is not further specified. Thus, the obligation imposed on the state to ensure adequate living conditions in relation to water supply gives no indication as to its specific embodiment. The value added beyond general human rights law hence remains to be proven. Thus the provisions cannot sufficiently address the necessary protection of vulnerable groups. This affirms the need to discuss a human rights-based approach to freshwater access in general human rights law. A third field expressly referring to aspects of freshwater access is international humanitarian law. Although it does not grant rights of individuals some parts of it will be briefly discussed because it mirrors the responsibility of states for acts executed or impacting on foreign territory, which shall be referred to again while discussing extraterritorial human rights obligations

7

Cf. J. Scanlon/A. Cassar/N. Nemes, Water as a Human Right?, pp. 5 et seq.; According to the United Kingdom Department for International Development (DFID), households in Africa spend 26 % of their time collecting water (cf. DFID, Achieving sustainability: poverty elimination and the environment. Strategies for achieving the international development targets, London, United Kingdom Department for International Development, 2000).

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of states.8 The Geneva Convention III9 and the Geneva Convention IV10 pursue two main objectives, namely the protection of prisoners of war and the protection of the civil population. Articles 20, 26, 29, 46 of the Geneva Convention III guarantee prisoners of war sufficient supply of drinking water for their basic needs and Articles 85, 89, 127 of the Geneva Convention IV and Article 5 (1) (b) of the Additional Protocol II11 guarantee the same right for civilian internees. In addition, Article 54 (2) of the Additional Protocol I12 and Article 14 of the Additional Protocol II include the prohibition of the use of water as a weapon. It prohibits states to interfere with drinking water installations and supplies of the civilian population “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party.”13 In addition, using water as a weapon can be considered a crime of war in the sense of Article 8 Rome Statute.14 The discussed rules of international humanitarian law aim at a particular group or at a particular situation. They are an indispensable response to threats imposed by violent conflicts,15 but they do not provide for individual water access rights. Apart from the specific situation just mentioned, international law does not expressly provide for an individual right to freshwater access. As a result, the following section will attempt to derive such a right from existing human rights treaty law, in particular from the two International Human Rights Covenants.

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Cf. 4.6. below. Geneva Convention relative to the Treatment of Prisoners of War, adopted on 12 August 1949, 75 UNTS 135, entry into force 21 October 1950. Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949, 75 UNTS 287, entry into force 21 October 1950. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted on 8 June 1977, 1125 UNTS 609, entry into force 7 December 1978. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 8 June 1977, 1125 UNTS 3, entry into force 7 December 1978. Article 54 (2) of the Additional Protocol I (above Chapter 4 note 12). Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998); 2187 UNTS 90, entry into force 1 July 2002. As Benvenisti states “the water weapon has become a major source of human rights violations” (E. Benvenisti, Sharing transboundary resources, p. 12, see for some examples pp. 12 et seqq.).

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4.3. Deriving individual rights to freshwater access from international human rights treaty law 4.3.1. Freshwater access as an element of the right to life according to Article 6 (1) ICCPR The right to life is of primary importance in the system of human rights because it is a prerequisite for the exercise of all human rights, whether liberty or welfare rights. Article 6 (1) ICCPR reads as follows: 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.

The following discussion will examine to what extent the right to life can be employed for establishing a human rights-based approach to freshwater access in international law. 4.3.1.1. The negative dimension of Article 6 (1) ICCPR According to Article 6 (1) ICCPR the state is obliged to respect the right to life. Thus, the state has to omit any action that causes death among human rights holders. Referring to the issue of freshwater access, Article 6 (1) ICCPR proscribes the state from interfering with existing freshwater access of a human rights holder if such an action affects the right to life. In this context one may refer to the fact that hardly anybody dies solely due to a lack of water. However, Article 6 ICCPR is not limited to violations that are directly and immediately caused by insufficient water amounts but it has a qualitative dimension, too. The obligation to respect covers all threats imposed by the state. If state-supplied drinking water is of such bad quality as to threaten people’s lives the right is consequently affected as well. Thus, Article 6 protects water users from all acts that directly or indirectly, in terms of quantity or quality, cause deficiencies in freshwater access setting their lives at threat. 4.3.1.2. Limitations of Article 6 (1) ICCPR Another question to be addressed is whether and in how far interferences with the right to life can be justified. Although this seems a rather theoretical question for the problem under consideration, it will nevertheless be discussed in order to fully determine the standard provided by the right to life. Reference may be made to Article 6 (1) third sentence of the ICCPR. Since the provision only outlaws arbitrary deprivations of life it can be

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concluded that non-arbitrary deprivations may be justified. The meaning of the term “arbitrary” has not yet been fully clarified.16 It is certainly no equivalent to the term “intentional” as found in other human rights treaties17 because killings that are unintentional can still be arbitrary and intentional killings can be non-arbitrary and hence justified as for example in the case of self-defence.18 It has been argued that arbitrary means the absence of lawfulness, justice, reasonableness or a due process of law.19 Other human rights included in the Covenant, such as the right to liberty in Article 9 (1) ICCPR or the right to liberty of movement in Article 12 (1), (3) ICCPR, suggest that a limitation can only be considered non-arbitrary if the limitation is specified by law, if the law specifies the reasons and procedure of the limitation and if the limitation is founded on a rational and proportional appreciation of interests. Since the right to life is the fundamental right of all other human rights, it goes without saying that the requirements for its limitation, which the term “arbitrary” wants to move towards, must not fall short of the requirements imposed by other human rights of the Covenant. Rather, the significance of the right to life requires an even stricter standard of rationality and proportionality. Nevertheless, if observing these criteria, a deprivation of life by can be justified, though this may only be conceivable in exceptional cases. This reasoning would in theory also apply to a situation where somebody is denied sufficient water access. However, in practice, there is hardly a situation one can think of where the denial of freshwater setting life at risk can be justified by Article 6 (1) third sentence of the ICCPR because as long as there is sufficient freshwater to sustain all people’s lives, the existing water would have to be allocated first. The limitation of other human rights as a consequence thereof can always be justified because human life is the

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It seems to be deliberately vague designed in order to allow for a case to case appraisal (M. Nowak, U.N. Covenant on Civil and Political Rights, CCPR commentary, 2. rev. ed., Kehl [et al.], Engel, 2005, pp. 127 et seqq.). See extensively on the term “arbitrary” T. Desch, The concept and dimensions of the right to life (as defined in international standards and in international and comparative jurisprudence), Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht, 36 (1985), pp. 77–118, at pp. 102 et seqq. See for example Article 2 of the ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, entry into force 3 September 1953, ETS 5; 213 UNTS 221). Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, p. 127. See the reference in M. Nowak, U.N. Covenant on Civil and Political Rights, p. 128.

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superior legal interest that puts any other interest in an inferior position. This means that the state must not balance at the expense of the right to life while appreciating different individual and societal interests. Examples show that water shortages threatening human life can, for the most part, not be ascribed to active state conduct or with regard to the complex cause of water scarcity it is at least not possible to identify a specific causal link.20 Against this background, positive state obligations gain particular importance. The following section will deal with the positive obligations that Article 6 (1) ICCPR imposes upon the state. 4.3.1.3. The content and scope of positive obligations within Article 6 (1) ICCPR The existence of positive obligations in Article 6 (1) ICCPR The positive obligations of Article 6 (1) ICCPR posit the state as guarantor of human life. This dimension of Article 6 (1) ICCPR, however, has been challenged.21 It was suggested that the right should be understood as including exclusively negative obligations which have the function of defending the individual’s freedom against interference and which therefore would “not guarantee any person against death from famine or cold or lack of medical attention.”22 This restrictive interpretation of Article 6 (1) ICCPR results from a reading that combines sentences 2 and 3 of Article 6 (1) ICCPR. Thus, Hilf states that the derivation of an obligation to take positive measures from Article 6 (1) ICCPR was contrary to the contextual and historical interpretation of Article 6 (1) ICCPR.23 In contextual terms, he

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23

Cf. above 3.5.2.1. Cf. T. Desch, The concept and dimensions of the right to life, p. 101. N. Robinson, Universal Declaration of Human Rights: its origin, significance, application and interpretation, 2nd ed., New York, Institute of Jewish Affairs, 1958, p. 106, cited in Y. Dinstein, The right to life, physical integrity, and liberty, in: L. Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, pp. 114–137, at p. 115; see also T. Desch, The concept and dimensions of the right to life, p. 101; more recently also T. Kiefer/C. Brölmann, Beyond state sovereignty: the human right to water, Non-state actors and international law, 5 (2005), pp. 183–208, at p. 190; some states also suggested it as a sole obligation to forbearance (cf. M. Nowak, U.N. Covenant on Civil and Political Rights, p. 122). Cf. M. Hilf, The right to food in national and international law, in: T. Oppermann/E.-U. Petersmann (eds.), Reforming the international economic order, Duncker & Humblot, Berlin, 1987, pp. 125–146, at p. 143.

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refers to the prohibition of arbitrary deprivation of life in sentence 3 which, according to his opinion, gives reference to a restrictive interpretation of the right to life outlined in sentences 1 and 2 of Article 6 (1) ICCPR. In historical terms he argues that states did not want to take on an (positive) obligation to take any action at the time of establishing the right.24 Thus understood, Article 6 (1) ICCPR would at most guarantee the protection against homicide offences25 but indeed not ask for measures that ensure the basic needs of water users because their lives will usually not be at threat due to a deliberate homicide but to side-effects of private action, such as water pollution, or even by causes that are not man-made. These arguments do not, however, reflect the structure of Article 6 (1) ICCPR. Sentence 1 itself does not give evidence for a restricted interpretation but establishes a comprehensive right to life. Sentence 2 does not limit the scope of protection, either, but expressly imposes a state obligation to protect the right and thus approves the general duty of the state to ensure the Covenant’s rights pursuant to Article 2 (1) ICCPR. Thus, neither sentence 1 of Article 6 (1) ICCPR nor sentence 2 give evidence for a restricted reading of the right to life. Merely sentence 3 of Article 6 (1) ICCPR could be referred to as evidence that positive obligations are not included. It is, however, hard to see why a wide scope of application of the right to life in sentence 1 and an explicit obligation to protect it in sentence 2 should be established, only in order to strongly limit it again by sentence 3. The term “arbitrarily deprived of his life” addresses acts by public authorities that interfere with a person’s life.26 Sentence 3 of Article 6 (1) ICCPR, therefore, declares the arbitrary killing as a violation of the right to life. In contrast, it also declares non-arbitrary killings as legal. But this does not say anything about the state’s responsibility for other threats to human life which are not imposed by the state. Article 6 (1) third sentence of the ICCPR distinguishes legal from illegal killings by the state. But other threats to life, as for example imposed

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26

Cf. M. Hilf, The right to food in national and international law, p. 143. Since sentence 2 of Article 6 (1) ICCPR cannot be ignored, proponents of this restrictive interpretation recognise a state obligation to prevent people from homicide offences of third parties (cf. Y. Dinstein, The right to life, physical integrity, and liberty, p. 115). Systematically, the prohibition of arbitrary killings in sentence 3 of Article 6 (1) ICCPR is superfluous because it is already contained in sentence 1. The expressive record in Article 6 (1) third sentence of the ICCPR can be explained by the circumstance that the arbitrary killing by the state has historically been a typical and often occurring type of deprivation of life.

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by third parties or natural disasters, are not covered by the term “arbitrarily deprived of his life.” Thus, sentence 3 of Article 6 (1) ICCPR is already due to its concept unable to rule any threats which are not going back to active state conduct and is therefore also unable to limit the scope of application of the right to life to its respect level. These threats are exclusively covered by sentences 1 and 2 of Article 6 (1) ICCPR. The argument related to the history of the ICCPR does not sufficiently take into account that the considerations of state parties while negotiating an international treaty are only of secondary importance for the interpretation of international legal norms. It follows from Articles 31 et seqq. of the Vienna Convention on the Law of Treaties, which has been widely accepted as a codification of customary international law,27 that the text of a rule has to be interpreted independently from the original will of the concluding parties but according to the authentic wording and its ordinary meaning. The ICJ confirmed that the “interpretation must be based above all upon the text of the treaty.”28 Especially since Article 41 (2) (b) of the Vienna Convention only refers to the “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”29 and since Article 32 of the Vienna Convention marks “the preparatory work of the treaty and the circumstances of its conclusion”30 as supplementary means of interpretation, it becomes apparent that the historical interpretation is subordinate to other interpretative methods (context, teleological, object and purpose, “effet utile”).31 This responds to the fact that states joining the treaty later cannot identify the historical will of founder-states unless it is documented in the text. In addition, the conditions of law application, in particular the social conditions of human rights protection, may change, which requires international law to adapt. The understanding of the human right to life solely as a prohibition of arbitrary killing falls short of the demands of modern human rights law. Furthermore, such understanding misconceives that the classification of state obligations in negative (respect) and positive

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Cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 67. See the judgement of the ICJ in the Territorial Dispute case (Libyan Arab Jamahiriya/Chad ), ICJ Reports 1994, pp. 21–22, para. 41. Article 41 (2) (b) of the Vienna Convention on the Law of Treaties. Article 32 Vienna Convention on the Law of Treaties. The interpretation method of “effet utile” is indicated by Article 33 (4) of the Vienna Convention on the Law of Treaties but in fact is an unwritten criteria (cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 68).

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ones only in theory is a strict one, which is in practice increasingly fading. The realisation of civil and political rights needs positive state action, as well. Okin explains that civil and political rights can also enjoin the state to take positive measures, “which are frequently complex and require much in the way of expenditure.”32 Indeed, the establishment of law enforcement bodies such as, for example, police and judiciary is not subject to a state’s charity but a claim that emerges from the fundaments of civil and political rights, because it is an indispensable condition for any human rights exercise in general.33 Since the contextual and historical demurs against a wider application of Article 6 (1) ICCPR are not convincing, it can be concluded that there are positive obligations of the state to protect the right to life according to Article 6 (1) sentences 1 and 2 ICCPR. Not surprisingly, the scope of the right to life has experienced an interpretation towards a wider application.34 The Human Rights Committee stated: Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.35

Article 6 (1) ICCPR itself only imposes obligations upon the legislative, which is expressed by the wording “shall be protected by law” in sentence 2 of Article 2 (1) ICCPR. More comprehensive obligations then follow, however, from Article 2 (1) and (2) ICCPR.36 Article 2 (1) ICCPR explicitly states the 32

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S.M. Okin, Liberty and welfare: some issues in human rights theory, in: J.R. Pennock/J.W. Chapman (eds.), Human rights, NOMOS XXIII, Yearbook of the American Society for Political and Legal Philosophy, New York, London, New York University Press, 1981, pp. 230–256, at p. 240; cf. extensively on this argument S. Holmes/C.R. Sunstein, The cost of rights: why liberty depends on taxes, New York, London, W.W. Norton, 1999. Cf. similarly the judgement of the ECHR in Mastromatteo vs. Italy, 37703/97 [2002] ECHR 694 (24 October 2002) para. 67. Cf. S.C. McCaffrey, Water, human rights and sustainable development, p. 106. HRC General Comment 6, The right to life (Art. 6), 30 April 1982, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1, para. 5. See also M. Nowak, U.N. Covenant on Civil and Political Rights, p. 124; E. Klein, The duty to protect and to ensure human rights under the International Covenant on Civil and Political Rights, p. 306.

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obligation to ensure the rights of the Covenant “to all individuals within its territory and subject to its jurisdiction.” The term “ensure” is not restricted to certain state action and is addressed to all powers of the state. Determining the scope of positive obligations provided by Article 6 (1) ICCPR The existence of positive obligations laid down in Article 6 (1) ICCPR does not yet answer the question on the scope of those duties. Their specification meets the problem that usually several ways of ensuring the right to life will exist. On the one hand, any determination of positive obligations has to take into consideration the decision-making prerogative of the state that results from its legislative sovereignty. In addition, the evaluation of a human rights threat that is of non-state origin depends on the prognosis of whether the threat will eventually materialise and therefore always inheres some uncertainty. For these reasons, the state usually cannot be obliged to take specific action but instead does so according to its discretion.37 The state obligation to ensure the right will usually be performed by general measures by the legislative as foreseen in sentence 2 of Article 6 (1) ICCPR and by administrative acts implementing the legislation. On the other hand, determining the standard of positive obligations also has to take into account that the right to life acts as a precondition of all human rights. Distinct from other human rights, which often contain a means to redress an infringement, violations of the right to life are irreversible. Furthermore, as suggested above, insufficient freshwater access also affects the dignity foundation of the right to life. In view of these consequences, state action has to meet a certain standard. Measures taken have to be efficient, to involve all state effort and to utilise all available resources.38 The prerogative of the state over how to use its resources is limited in so far as the balancing of different individual and societal interests has to be carried out in favour of the protection of the right to life. An obligation to ensure the right to life does not, however, mean that the state would have to provide people in need with water wherever they are. Instead, the state also has margin of appreciation in order to determine how to achieve their safe freshwater access.39 Thus, the right to life for example would not protect people from the inconvenience of walking long distances

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Cf. above 3.5.2.3. See also CESCR General Comment No. 15 (above Chapter 1 note 49), para. 41. Cf. A. Epiney, Sustainable use of freshwater resources, p. 391.

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or spending much time in obtaining the necessary amount of water. Those burdens do not affect the right to life and can hence not be made subject of a claim based on Article 6 (1) ICCPR. Only in some situations can the right to life also help people with a claim to specific state action. This will regularly be the case if only one measure brings about the prevention of the threat to the right to life because in such a situation the state margin of appreciation does not ask for consideration. Then, insufficient state conduct or inaction will almost automatically withhold the least standard of human rights protection from human rights holder. In addition, the dignity foundation of Article 6 ICCPR, as suggested above, awards water users with a claim against the state to redress the threat to human life. It goes without saying, positive obligations nevertheless can only be imposed within the factual opportunities of their realisation. Absence of control over state territory40 or limited economic or personnel resources limit the positive obligations of the state. Having said that, the latter situation will hardly occur in practice because the provision of the little amount of clean water necessary to sustain life does not usually exceed state capacity. Thus, the state would have to allocate its resources before it could plead inability due to insufficient state resources. Nevertheless, Article 6 (1) ICCPR as just discussed offers a rather narrow scope of protection for water users. Similar to all basic human needs, deficient freshwater access does not necessarily have to threaten human life itself to have devastating effects on human existence. The academic debate therefore entails an attempt to interpret Article 6 (1) ICCPR beyond the maintenance of life towards a right of living that guarantees “every human being to have the appropriate means of subsistence and a decent standard of life”.41 Although this might be challenging from the perspective of human rights efficiency, it nevertheless causes some objections. Such wide interpreta-

40

41

Cf. D. McGoldrick, Extraterritorial application of the International Covenant on Civil and Political Rights, in: F. Coomans/M.T. Kamminga (eds.), Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004, pp. 41–72, at p. 50; see also the Concluding Observations on Cyprus in 1998 by the HRC noting “that the State party . . . is still not in a position to exercise control over all of its territory and consequently cannot ensure the application of the Covenant in areas not under its jurisdiction” (UN Doc. CCPR/C/79/Add.88, § 3). A.A.C. Trindade, Environment and development, pp. 40 et seq.; see also I.J. Alvarez, The right to water as a human right, in: R. Picolotti/J.D. Taillant (eds.), Linking human rights and the environment, pp. 71–82, at pp. 72, 74.

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tion is hard to reconcile with the wording of Article 6 (1) ICCPR. The legal interest that Article 6 (1) ICCPR wants to protect is human life. If people have sufficient water to sustain life, the human right to life is not affected and hence not violated. Another objection can be made for reasons of the system of the two human rights covenants. There are provisions in international human rights law, such as Articles 11, 12 ICESCR, which expressly refer to an adequate standard of living. They have specific characteristics and different implementation mechanisms. Acknowledging such a wide interpretation of the human right to life would circumvent those requirements and thus render the special provisions of the ICESCR superfluous or would degrade their meaning by giving them solely a declaratory position in international human rights law. This confirms that the right to life cannot be used to derive individual claims beyond the maintenance of human life. Those claims have to be based on the respective rights in the ICESCR or other sources. Along the obligation to employ all possible means for the aim of ensuring people’s freshwater access necessary to sustain life, comes the obligation to ensure the use of the available resources in a non-discriminatory manner. This is established in Article 2 (1) ICCPR. The Article has no independent existence but is an integral part of the Covenant’s substantive rights (in the following “accessory right”). Thus, it cannot be invoked on its own but has to be taken into account during the application of the Covenant’s rights. The provision ensures the application of the Covenant’s rights “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”42 To the extent just described that a right to freshwater access can be derived from Article 6 (1) ICCPR, it obliges states to guarantee it on a non-discriminatory basis.43 Thus, Article 6 (1) ICCPR can be described as setting a minimum standard of freshwater supply. It provides a threshold as a human right to water that guarantees enough water, of a sufficient quality to sustain life, taking into account any threats to it, and prohibits discriminatory behaviour in this area. To such an extent the right to life also acts as a political principle of allocation. This is because the right to life binds the relevant state

42 43

Art. 2 (1) ICCPR. Cf. detailed on the issue of non-discrimination below 4.3.3.3. and 4.3.5.

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decision-making bodies and hence also predetermines the objectives of water management. By this means, the water use for sustaining life gains priority over other water uses. Article 6 (1) ICCPR, however, does not promote rights to freshwater access that aim at an adequate standard of living or that protect personal and bodily integrity. 4.3.2. Freshwater access as part of the right to be free from torture and from inhuman or degrading treatment according to Article 7 ICCPR Insufficient freshwater access not amounting to a threat to human life may still threaten the personal integrity of water users. The ICCPR does not contain a human right that protects against personal injuries generally. Merely certain situations of bodily harm are covered by the Covenant. Article 7 first sentence of the ICCPR states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The provision was referred to in order to deduce a human right to drinking water.44 In fact, however, Article 7 ICCPR cannot offer much assistance for deriving individual rights to freshwater access. Only a tiny aspect of a human rights based approach to freshwater access, which is a deprivation of freshwater that amounts to cruel, inhuman or degrading treatment or even to torture, is covered by Article 7 first sentence of the ICCPR. Thus, the provision prohibits particularly degrading and violating injuries to personal integrity. The existing case law mirrors an even narrower practical relevance of the provision’s scope because it predominantly deals with people who were subject to torture or cruel, inhuman or degrading treatment while in custody.45 Insufficient freshwater access, in contrast, is usually the product of several factors set by state and non-state actors. As far as active state conduct can be made responsible for somebody’s water shortage at all, it will usually neither amount to the qualified grade of injury nor be intentionally undertaken. However, both conditions have to be met in order to claim a violation of Article 7 first sentence of the ICCPR. Similarly limited is the scope of posi-

44

45

Benvenisti refers to Article 7 ICCPR, but also to Article 6 ICCPR and to the right to food according to Article 11 ICESCR (cf. E. Benvenisti, Collective action in the utilization of shared freshwater: the challenges of international water resources law, The American journal of international law, 90 (1996) 3, pp. 384–415, at p. 407). See the evidence in M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 161 et seqq.; The withholding of sufficient freshwater during detention does also violate Article 10 (1) ICCPR.

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tive obligations imposed by Article 7 first sentence of the ICCPR. The term “treatment” suggests the necessity of identifying a causal human conduct. That is an act or an omission of a human being, one done at his request or at least attributable to him or her.46 Article 7 first sentence of the ICCPR hence conceptually excludes degrading situations of socio-economic origin because they cannot be read into the term “treatment”. Positive state obligations can therefore a priori not go beyond a duty to protect the human rights holder against acts of third parties that fulfil the above mentioned criteria. However, in view of the different main causes for current water scarcity, the obligation to protect water users according to Article 7 first sentence of the ICCPR does not serve much practical relevance. The provision therefore is not the appropriate instrument to give people an individual right to freshwater access. 4.3.3. Freshwater access as derived from the right to an adequate standard of living according to Article 11 ICESCR Human rights contained in the ICESCR have a stronger welfare tone than those of the ICCPR. That was one reason why states adopted two separate Covenants rather than compiling all human rights in one document. It was thought, or at least pretended, that only civil and political rights were suitable for direct application.47 To some extent, it was even believed that these human rights do not enjoy legal value, at all, but rather include guiding principles for the policy of governments.48 Although the latter view has been increasingly rejected, a reductionist approach to these rights is still to be found in international human rights law. The different implementation requirements outlined in Article 2 ICESCR and Article 2 ICCPR have been interpreted as to impose directly effective state obligations with regard to civil and political rights and only an obligation to progressive realisation with regard to economic, social and cultural rights.49 If direct application to the rights contained in the ICESCR were to be denied, any analysis of their contribution for establishing freshwater access as a human right would be pointless because they could not serve as a compelling instrument to enforce water utilisation interests of individuals. Chapter 3, however, proved that a 46 47 48 49

Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 159 et seq. Cf. T. Schilling, Internationaler Menschenrechtsschutz, p. 10. Cf. the examination above 3.5.2. Cf. above 3.5.2.3.

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separation into justiciable civil and political rights and non-justiciable economic, social and cultural rights does not mirror the doctrinal structure of human rights. Civil and political human rights comprise neither exclusively of negative obligations, nor economic, social and cultural rights exclusively of positive ones.50 Instead both categories contain a spectrum of negative and positive obligations and merely the extent and weight of them differ. The determination of justiciable and non-justiciable obligations within the human rights contained in the ICESCR can hence not generally be approved or denied but has to be undertaken for every single human right separately. Against this background the ICESCR may deliver support for a human rights-based approach to freshwater access if directly applicable human rights norms can be identified and if they can be employed for people’s freshwater access. The key norm within the ICESCR that can be referred to with regard to individual access to freshwater is Article 11. It reads as follows: Article 11 ICESCR 1. The States Parties to the present Covenant recognize 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 living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. General comment on its implementation 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and foodexporting countries, to ensure an equitable distribution of world food supplies in relation to need.

50

Cf. B.H. Weston, Human rights, p. 265.

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4.3.3.1. Background and structure of Article 11 ICESCR Article 11 ICESCR rephrases the concern of establishing a right to an adequate standard of living outlined in Article 25 UDHR. Along with other human rights contained in the ICESCR, Article 11 transforms this right from a non-binding principle into binding law.51 Whereas Article 25 UDHR deals with the improvement of people’s standard of living in rather general terms, Article 11 has a focal point on the right to food. Paragraph 2 of Article 11 ICESCR describes the “right of everyone to be free from hunger” as “fundamental” and spells out measures required for the realisation of this right. Some further aspects of an adequate standard of living receive specific attention within the ICESCR. Thus, for example Article 12 ICESCR supplements the right to an adequate standard of living outlined in Article 11 ICESCR. In view of the circumstance that an adequate standard of living necessarily embraces the concern of health, Article 12 ICESCR has some redundant traits. Nevertheless, the vagueness of the term “adequate standard of living” justifies the emphasis of certain aspects of this right, which was also the motivation of the Covenant’s drafters.52 The same is true for the right to food, because, at the time of drafting the Covenant increasing malnutrition was one of the most urgent concerns of the international community. Not foreseen at that time, the development of the problem of water scarcity has become as pressing a concern for human rights law as the right to “food, clothing and housing,”53 or the right “to be free from hunger.”54 Access to water even is a precondition for producing food, which certainly would have justified the explicit inclusion of the issue of freshwater access. In absence of its explicit inclusion, a right to freshwater access can only be derived by way of interpretation. Article 11 ICESCR includes two human rights. The first is the right to an adequate standard of living according to section 1, with its special reference to food, clothing and housing. The second is the right to be free from hunger according to section 2 of Article 11 ICESCR. Since the matter of hunger is fully covered by the term “adequate standard of living”, the following analysis will focus on section 1 of Article 11 and 51

52

53 54

Article 25 UDHR can only amount to binding law as far as some aspects thereof entered the status of customary law, which is in view of the strong welfare connotation of the right, however, doubtful. For a survey of the drafting of Article 11 ICESCR see P. Alston, International law and the human right to food, in: P. Alston (ed.), The right to food, pp. 9–68, at pp. 30–31. Article 11 (1) sentence 1 ICESCR. Article 11 (2) ICESCR.

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will refer to the right to be free from hunger and its special measures of realisation in section 2 only as far as it can provide additional support for the determination of a human rights-based approach to freshwater access in international law. 4.3.3.2. The term “adequate standard of living” Although freshwater access is not expressly mentioned, it cannot a priori be exempted from the application of Article 11 (1) ICESCR because the word “including” in its first sentence shows that its catalogue of rights is not exhaustive but open for any concern that belongs to an adequate standard of living.55 Article 11 (1) ICESCR aims at the realisation of a certain standard of human well-being. The difficulty lies within the determination of the necessary components of a standard of living denoted as adequate because it is the outcome of different and in part concurring personal views, cultural implications, and social concerns. That makes it impossible to deliver an exclusive and all embracing definition of this legal phrase. The term “adequate standard of living” should, therefore, instead be interpreted from the view of the concrete problem in question, here the problem of insufficient freshwater access and its implications. Having said that, even with regard to freshwater access it is certainly not possible and sensible to elaborate exact water amounts, quality grades or distribution keys. Those questions ought to be addressed within politics, administration, and the courts on the national level and in case of transboundary watercourses within the relevant management bodies on the bi- and multilateral level because they can better account for the local, national or regional characteristics of water management and the personal needs of water users.56 Nevertheless, it is possible to identify a universal basic consensus in terms of necessary

55

56

Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) paras. 3, 15; see also M. Langford, Ambition that overleaps itself? A response to Stephen Tully’s ‘critique’ of the General Comment on the right to water, Netherlands quarterly of human rights, 26 (2006) 3, pp. 433–459, at pp. 436 et seqq.; dissenting S. Tully, A human right to access water?, pp. 37, 43. For example, in South Africa, a supply of about 6000 litres of safe water per month per household has been set by the Minister of Water Affairs and Forestry in 2001 as a basic level of water supply. The determination of the exact water amounts to be allocated (free of charge) are further delegated to the local authorities (cf. C. Human, The human right to water in Africa: the South African example, in: E. Riedel/P. Rothen (eds.), The human right to water, pp. 83–93, at pp. 88 et seq.).

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components of an adequate standard of living with regard to people’s need for freshwater. Within the consideration of freshwater access in Article 11 (1) ICESCR there is a distinction between the type of water utilisation and the mode of access it supports. Article 11 (1) ICESCR itself gives a first idea as to the scope of utilisation interests covered because it expressly states the right to food. This necessarily comprises water in its nourishment function as drinking water and as water for cooking. When reading Article 11 ICESCR in the light of Article 12 ICESCR, health turns out to be another essential component of an adequate standard of living. Freshwater therefore must be of sufficient quality to sustain human health.57 An adequate standard of living also includes water for hygiene and sanitary needs. In addition, Article 11 (1) ICESCR also covers water uses that do only indirectly contribute to an adequate standard of living. Thus, for example water utilisation necessary to pursue subsistence farming is an essential element of an adequate standard of living because it is the necessary and immediate condition to satisfy the need for food.58 In contrast, agricultural enterprises or other forms of economic activity in agriculture are not covered by the term “adequate standard of living” because these kinds of activity serve the purpose of obtaining income in the first place. This interest has to be addressed within those human rights specifically dealing with it, in particular freedom of occupation or the right to work. Although no doubt a general need to obtain income exists, as a means of realising an adequate standard of living, the convincing point to tie with Article 11 (1) ICESCR would, nevertheless, be the imperilled human need itself, like the one to food or water but not the threat to the exercise of the economic activity and the respective income that eventually leads to non-maintenance of an adequate standard of living. Nevertheless – in contrast to Article 6 (1) ICCPR – it becomes apparent that an adequate standard of living requires a far greater amount of water than is necessary to sustain human survival. As far as the mode of access to water resources is concerned, an adequate standard of living calls for appropriate physical and economic access.59 Thus, access must be reliable and affordable. Reliable means the constant

57

58

59

Cf. B. Toebes, The right to health as a human right in international law, Antwerpen [et al.], Intersentia [et al.], 1999, p. 284. Dissenting T. Kiefer/C. Brölmann, Beyond state sovereignty: the human right to water, pp. 197 et seq. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 12.

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availability within reasonable distance.60 Affordable does not mean for free, but instead that the price of water has to reflect the individual ability of people to pay.61 This relation between the costs of water supply and the individual ability to pay must be adjusted by water management corresponding to the criteria set by an adequate standard of living. An overall criterion for access to freshwater is also its non-discriminatory mode. This conclusion is not an obvious outcome of the wording of Article 11 ICESCR itself but results from Article 2 (1) ICESCR. The Article prohibits any discrimination in the application of the Covenant’s rights. The non-discrimination clause of Article 2 (1) ICESCR, in this respect, predetermines any interpretation of the term “adequate standard of living” in Article 11 (1) ICESCR. The non-discrimination clauses will thus be discussed more detailed below.62 The foregoing survey describes access to freshwater in terms of very basic needs that indisputably belong to an adequate standard of living of everybody. As already outlined, the concrete perceptions as to the necessary components of an adequate standard of living beyond this basic consensus can differ considerably. Since the exercise of a human right first of all depends on the notions of the human rights holder, the right to an adequate standard of living according to Article 11 (1) ICESCR may support various other aspects of water utilisation that the water user deems indispensable and which the state has to respect. However, this does not mean that all of those activities meet an equivalent obligation of the state. Due to the vagueness of the wording, the determination of the exact scope of the norm also has to be undertaken in view of the corresponding state obligation. Thus, for the scope of protection provided for a certain activity within Article 11 (1) ICESCR it is of importance whether this activity involves the state solely with an obligation to respect or also with general positive obligations. Obligations to respect will always cover a wider scope of activities than positive state obligations.

60

61 62

According to WHO criteria basic water access means access within 1 kilometre distance and within 30 minutes round-trip (cf. detailed WHO, Guidelines for drinking-water quality, table 5.1 at p. 91). Cf. WHO, The right to water, Geneva, World Health Organization, 2003, p. 16. See below 4.3.3.3. for non-discrimination within the purview of Article 11; generally for individual rights following the state obligation to equal treatment see below 4.3.5.

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The following discussion will try to determine the concrete claims of the human rights holder and the corresponding state obligations concerning people’s need for freshwater access as they are included in Article 11 ICESCR. 4.3.3.3. Scope of rights and obligations The determination of individual rights and the corresponding state obligations with regard to Article 11 ICESCR are subject to Article 2 (1) ICESCR, which imposes solely an obligation “to take steps . . . with a view to achieving progressively the full realization of the rights.”63 In Chapter 3, the discussion considered the fact that the provision cannot be understood as depriving economic, social and cultural rights of any direct effect but as limiting certain positive obligations in response to the circumstance that state resources being limited and the decision over their use falling within the competence of the legislative, in the first place.64 The negative component of Article 11 ICCPR Applying the above stated findings, Article 2 (1) ICESCR may not restrict the state obligation to respect people’s right to an adequate standard of living according to Article 11 (1) ICESCR because in the absence of a state obligation to deliver any resources, the argument of a state’s limited economic ability to comply with its obligations does not apply. Consequently, people have the right to carry out or omit all acts that bring about freshwater access as necessary for an adequate standard of living. Correspondingly, the state may not deny, limit, or hamper people’s access to freshwater as long as such action would put their right to an adequate standard of living with the just described content at threat. Thus, the state may for example not pollute the water, destroy the infrastructure that is necessary to clean or transport the water, or interfere with the existing traditional or local arrangements of securing water access – neither by law nor by physical intrusion.65 Measures of reallocation between different groups, different areas of the country, or different utilisation interests may amount to a violation of Article 11 (1) ICESCR, too or – as will be discussed below – at least may have to be justified. As already stated, an adequate standard of living may also support the

63 64 65

Cf. Article 2 (1) ICESCR. Cf. above 3.5.2.3. Cf. also CESCR General Comment No. 15 (above Chapter 1 note 49) para. 21.

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use of water in terms of a wider understanding than just very basic needs. Thus, for example people who carry out certain cultural practices of water use necessary for their adequate standard of living may derive a claim from Article 11 (1) ICESCR against the state to respect these practices. The displacement of people living at a watercourse or similar kind of secure water supply also is protected by an obligation to respect. The displacement of people is not, or at least is not only at the centre of the problem of freshwater access because displacement does not necessarily mean that people lose their access to a secure freshwater supply. Other human rights like the right to own property (especially land)66 or the right to free movement in its negative sense according to Article 12 ICCPR67 might be even more affected. Nevertheless, in water scarce areas, the displacement of people can be both the means and the ends of state action and thus a considerable threat to people’s living conditions.68 An individual right not to be displaced from secure water supplies may therefore also be derived from Article 11 (1) ICESCR.69 Article 11 (1) ICESCR also prohibits states from frustrating a water supply, which is provided by other states and international or foreign organisations as humanitarian aid during states of emergency or civil war. This obligation is complementary to the protection of the civil population as delivered by international humanitarian law in terms of its addressee. Thus, both areas of law, international human rights law as well as international humanitarian law recognise the fact that people’s freshwater access is increasingly at threat during times of war, armed conflicts, or emergency. Finally, the obligation to respect also imposes a limitation on the state in its freedom of action in international relations. While negotiating or concluding 66

67

68

69

The right to own property is not guaranteed in the two International Human Rights Covenants. However, the right is established in regional human rights treaties and the constitutions of many states. The so called negative freedoms characterise the opportunity of the holder of the human right to exercise a human right by omissions. With regard to the freedom of movement this guarantees also the right not to move but to stay on a certain location. The term “negative freedoms” is not to be confused with the Latin term “status negativus” which describes the respect-level of human rights in general. See the examples in M. Kothari, Obstacles to making water a human right, in: E. Riedel/ P. Rothen (eds.), The human right to water, pp. 149–159, at p. 153. For indigenous and tribal peoples Article 16 of the ILO Convention No. 169 provides specific rights and procedures concerning the removal from the lands they occupy (cf. below Chapter 4 note 168).

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international agreements, a state has to take into account its obligation to respect the right to an adequate standard of living and may not overtake the treaty obligation to use a watercourse, or to allow for a use of a watercourse that prevents or endangers people’s existing freshwater access. Limitations of the negative component of Article 11 ICESCR As Article 11 (1) ICESCR includes a wide scope of protection, the state may see the need to limit the exercise of the right in order to promote general interests of society or in order to comply with its positive obligations owed to other human rights holders. This is all the more true since Article 11 (1) ICESCR supports diverse interests that may get into conflict with each other and that water management consequently has to adjust thereby restricting some water uses. The Committee on Economic Social and Cultural Rights stated that in case of conflict of different utilisation interests basic needs, such as life or health, will always prevail.70 This conclusion finds support in international law. Competing human rights as well as Article 4 ICESCR as an explicit norm can be consulted for limitations of the exercise of Article 11 (1) ICESCR. Since competing human rights exercises must be reconciled, other human rights promote a systematic constraint on the scope of Article 11 (1) ICESCR. The notion of equitable measurement of different individuals’ interests but also of individuals’ and society’s interests is also expressed by Article 5 (1) ICESCR. The Article provides an outer limit for restrictions of the human rights contained in the ICESCR.71 The maintenance of basic human needs as required by Article 6 ICCPR and the core area of Article 11 (1) ICESCR but also as included in the right to health according to Article 12 ICESCR constitute a precondition for the exercise of all other human rights. For this reason – but also due to the fact that threats to basic needs strongly peril human dignity – these water uses deserve specific protection. This requires them to prevail in case of conflict with other water uses. That is why, a state can justify a limitation of the

70 71

Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 6. Article 5 (1) ICESCR, which uses the same wording as Article 5 (1) ICCPR reads as follows: “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.”

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exercise of Article 11 (1) ICESCR, if human rights of other people promote a superior interest. The concrete adjustment has then to be undertaken on a single case basis. Despite the opportunity to limit Article 11 (1) ICESCR due to competing human rights, Article 4 ICESCR stipulates the concrete conditions and procedures for the limitation of the human rights of the ICESCR. Article 4 ICESCR reads as follows: Article 4 ICESCR The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Within the framework of Article 4 ICESCR interests of society can be enforced against individual interests. The term “solely for the purpose of promoting the general welfare in a democratic society” does not exclude state action for the interest of single human rights holders because the protection of human rights is a treaty obligation, with which to comply is also a fundamental interest of society. Beside the legal determination of the conditions, compatibility with the nature of the rights, and promotion of general welfare, Article 4 ICESCR also affirms the role of human rights in promoting the principle of democracy in society. Although there is no explicit human right to democracy in international law,72 Article 4 ICESCR makes limitations of the Covenant’s rights subject to the welfare in a democratic society. This also gives incentives for a democratic and participatory management of water resources. Once more, this highlights the role of a human rightsbased approach to freshwater access as a principle of political organisation. In addition to the criteria outlined in Article 4 ICESCR, limitations also have to be proportional. Though this condition finds no explicit support in the Covenant, it can be derived from the idea contained in Article 5 (1) ICESCR.73 The provision expresses the notion that the human rights outlined in the Covenant should not be restricted more than necessary. Thus, from

72 73

Cf. above Chapter 3 note 2. Cf. CESCR General Comment 14 (The right to the highest attainable standard of health), 11 August 2000, U.N. Doc. E/C.12/2000/4, para. 29.

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several types of limitations that bring about the state objective in question, always the least restrictive alternative must be employed. In contrast to the right to life, it can be concluded that a more comprehensive scope of protection of the right to an adequate standard of living corresponds with a stronger state opportunity to limit the right. Nevertheless, the state has to respect a non-derogable core area of human rights exercise in Article 11 ICESCR, too.74 The state, therefore, may not prevent people from freshwater access that builds part of the universal basic consensus regarding the necessary components of an adequate standard of living which was discussed above. Because a state opportunity to deprive people even of the most fundamental means of maintaining an adequate standard of living would render Article 11 ICESCR futile and hence conflict with Articles 4 and 5 ICESCR. The content and scope of positive obligations derived from Article 11 ICESCR Whereas the state obligation to respect the right to an adequate standard of living can easily be deduced by classical human rights doctrine, positive obligations are more difficult to determine because they include activities of the state. This is all the more the case since the scope of the right, embodied in Article 11 (1) ICESCR, is rather vague. It was already discussed that the restrictive imposition of direct state obligations by Article 2 (1) ICESCR cannot be understood as completely excluding positive obligations but asks for a sound measurement between the state’s freedom to employ its resources on the one hand and an efficient human rights protection on the other.75 The following part will discuss the content and scope of positive obligations provided by the right to an adequate standard of living with regard to freshwater access. Both provisions, Article 2 (1) ICESCR as well as Article 11 ICESCR, can be referred to for developing positive obligations. Article 2 (1) ICESCR imposes an obligation upon the state “to take steps”. This term is, according to the wording of the provision, not part of the progressive realisation but has direct effect.76 Consequently, there is a direct obligation to take at least some positive action. In addition, Article 11 (1) sentence 2 ICESCR

74 75 76

Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) paras. 37, 39. Cf. above 3.5.2.3. Cf. CESCR General Comment 3 (above Chapter 3 note 128), para. 2.

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calls upon states to “take appropriate steps to ensure the realization of this right.” The wording is rather vague. Certainly, the phrase “steps to ensure” demands active conduct but the exact scope of the obligation remains unarticulated. Does it aim at framework of legislation or does it also demand concrete state action? The vagueness of the norm indicates that as a general principle the state is not bound to take specific action. Nevertheless, the term “appropriate”, which is enclosed in both norms, at least qualifies the positive obligations to be taken. In order to be appropriate, state action must be efficient and must bring about a real improvement of the human rights situation.77 Applying these criteria to the problem in question, state measures must foster people’s access to freshwater and actual progress in this area must be perceptible. In addition, the state has to employ all possible means to safeguard people’s freshwater access. Thus, the state can only refer to the progressive nature of the obligation if there actually is a lack of resources. The provisions demonstrate how a human rights-based approach to freshwater access penetrates water management. Since the state has to deploy all of its available resources for the realisation of the human right, it also has to direct water management systems to the aim of achieving safe freshwater access of its people. The concrete design of those systems again is subject to state discretion. The CESCR in this respect suggests adopting comprehensive and integrated strategies and programmes approaching the supply as well as the demand side of the problem and ensuring that basic water needs are served first.78 In addition, the Committee suggests establishing capable institutions and respective institutional arrangements to implement the strategies and programmes.79 With regard to the right to be free from hunger Article 11 (2) ICESCR provides more specific guidance. Since the scope of the right is much narrower than the one outlined in section 1 – it includes freshwater access only as far as its nutritious function is concerned – the corresponding state obligations do only apply for this specific part of an adequate standard of living, too. The term “to be free from hunger” strongly indicates positive state obligations because it is concerned with the prevention of a situation of hunger rather than with the prevention of somebody’s freedom to defend

77

78 79

See similarly CESCR General Comment No. 15 (above Chapter 1 note 49), para. 45, CESCR General Comment 3 (above Chapter 3 note 128), para. 8 et seqq. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49), para. 25 et seqq. Idem para. 28.

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the right to gain food by him or herself. It is hence not only threat-focussed but considers the context of the lack of food, as well. Subparagraphs (a) and (b) give some, though not exhaustive, assistance to the content and scope of a state’s positive obligations in this respect. The improvement of “methods of . . . distribution of food”, as outlined in subparagraph (a), and the ensuring of “an equitable distribution of world food supplies in relation to need”, as required by subparagraph (b), oblige the state to set a frame that enables people to gain the necessary amount and quality of water for nourishment. Thus, despite its narrow scope, the provision recognises the necessity of allocation. This notion of allocation contained in Article 11 (2) ICESCR can also be employed for freshwater management in general. Accordingly, states must consider the appropriateness of measures of reallocation during the process of determining the principles deemed to rule water management. When it comes to a more specific determination of positive obligations with regard to people’s right to freshwater access within Article 11 ICESCR, it is useful to distinguish between obligations to protect and fulfil.80 A threat to human rights that needs a state obligation to protect is structurally comparable to those that require a state duty to respect. In both situations, the human rights holder claims respect of a sphere of freedom. Solely the actor that puts the human right at risk differs, which is a non-state actor in the first situation and the state itself in the second. In contrast, state obligations to fulfil equip the human rights holder with the necessary means to realise the human right. Consequently, state obligations to protect are deemed to prevent third parties from interfering with freshwater access of people.81 Appropriate steps involve setting a framework of law that guarantees that individuals or groups are not endangered by third parties, which threaten, for example, the quantity or quality of water resources, its distribution systems, or which are in control of water resources and, hence, are able to exclude people from access.82 Thus, if there is a water market, the state has to protect people from usury. Often, this will mean establishing consumer rights. The state will also have to ensure that the private deliverer of water services provides

80 81 82

Idem paras. 20 et seqq. See also CESCR General Covenant 15 (above Chapter 1 note 49), paras. 23–25. See the examination above in 3.5.2.1.

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the services on a non-discriminatory basis. The obligation to protect has a vital function if a state decides to transform its water management system. As already discussed, human rights do not determine at all whether a water system should be public or private. But they guarantee that whatever system is chosen, basic human needs are guaranteed in a similar way.83 The state obligation to respect people’s freshwater access in a publicly run water supply system then turns into an obligation to protect, if the state decides to privatise the water sector. In this respect, a human rights-based approach in general and the obligation to protect, in particular, guarantee continuity of non-alterable basic principles in water management. Another common non-state threat to the guarantee of the basic human need for freshwater is pollution of freshwater resources by third parties. The measures of protection would most likely be legislation, as well. The rise of environmental law in particular has to be seen in the context of environmental threats imposed by third parties. A difficult human rights situation arises when state legislation and the corresponding administrative acts do not immediately remedy inadequate freshwater access. In principle, the imposition of positive obligations, as formulated in Articles 11 and 2 (1) ICESCR, cannot be interpreted as providing for specific claims of the human rights holder. Nevertheless, as explained while discussing the founding of positive obligations in human rights theory and international human rights law,84 there are situations where a general obligation may turn into a specific one in order to achieve a certain result. Such a constellation was already identified with regard to threats to the right to life. It can also be determined for a core area of the right to an adequate standard of living as a minimum standard of freshwater supply.85 Applying the principles elaborated above, the state can be committed to specific acts if a threat imposed by a third party amounts to a violation of the dignity foundation of Article 11 ICESCR. Furthermore, the individual may not be deprived of the bare essentials stipulated by Article 11 ICESCR, because in these cases human rights law would fail to protect even a core area of human rights exercise putting itself into question.86 Thus, for example

83 84 85

86

Cf. D.M. Chirwa, Privatisation of water in Southern Africa, pp. 232 et seq. Cf. above 3.5.2. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 37; but see S. McCaffrey, The human right to water, in: E.B. Weiss (ed.) Fresh water and international economic law, pp. 93–115, at pp. 109 et seqq. Cf. similarly A. Epiney, Sustainable use of freshwater resources, p. 391.

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serious threats to health or water supply in its nutritious function will activate a concrete positive obligation to redress the threat. The standard of state obligations will be the higher the less people have control over their own freshwater access because in such a situation the principle of personal responsibility that is inherent in a democratic, human-rights-based society bears no relevance. A specific obligation to protect can nevertheless not be understood as imposing impossible or disproportionate measures.87 The state does not have to follow every vague prognosis of a human rights threat but may appreciate whether a threat is immediate and plausible to occur. The state therefore does not have to bar every single risk from a member of society imposed by another. With regard to the obligation to fulfil, the threat to the right to an adequate standard of living cannot be traced back to state action or another identifiable human conduct but may have various natural, personal, or societal determinants. In addition to the multiple causes of water scarcity there are various opportunities for the state to respond. Freshwater is not a good which the state has to deliver as an immanent obligation, such as, for example, security.88 This, however, does not mean releasing the state from general and some specific obligations to fulfil. The contextuality of human rights justifies the imposition of obligations to fulfil because the argument of personal responsibility of human rights holders carries only weight as long as the single individual is actually responsible for the human rights threat in question. In general, fulfilment means that states have to take measures that aim at the improvement of freshwater access of people. As just discussed, Articles 2 (1) and 11 ICESCR impose such an obligation. As economic, social, personal or natural resources can be limited, Article 2 (1) ICESCR points out that this obligation is subject to the availability of those resources. This circumstance a priori disproves the argument that obligations to fulfil impose upon the state duties that cannot be complied with. In addition the state has a wide margin of appreciation in terms of choice and scope of means. This margin, nevertheless, is limited by some criteria, which guarantee the efficiency of the obligation to fulfil. Thus the

87 88

Cf. T. Schilling, Internationaler Menschenrechtsschutz, p. 92. See in this respect the discussion on a state obligation to protect according to social contract theory, above 3.5.2.2.

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state must start off immediately89 using all possible means,90 as long as they do not endanger other important state objectives and human rights of other people.91 Although, according to Article 2 (1) ICESCR, the state must aim at the full realisation of the right it will nevertheless not violate the right of individuals to an adequate standard of living, if the state is unable to provide the necessary means for fulfilling the need for freshwater even by the priority employment of all existing resources. In such a situation, the state has, however, an obligation to seek for international co-operation and assistance pursuant to Article 2 (1) ICESCR as this is one appropriate means of progressively achieving the full realisation of the Covenant’s rights.92 The Committee on Economic Social and Cultural Rights distinguishes between the obligations to facilitate, to promote and to provide.93 This distinction shall be employed here, because it documents the increase of intensity of specific state obligations in relation to the threatening violation. Accordingly, the obligation to facilitate means to assist people to gain sufficient freshwater access themselves. This obligation is concerned with measures enabling and fostering individual responsibility in the first place. Obligations to promote require measures that produce knowledge and awareness for the concern of freshwater access and its related issues, such as efficient water use or protection of water resources from pollution. Both obligations have a general approach to the advancement of access to freshwater. They respond to conditions of freshwater access that the human rights holder as single individual is hardly able to control. They include recognition of the concern of freshwater access in national policies, the implementation of water utilisation strategies and programmes that aim at the realisation of sufficient freshwater access or the monitoring of water resources.94 In doing so, the state has a broad margin of appreciation, what measures it wants to deploy.

89

90 91

92

93 94

See CESCR General Comment 3 (above Chapter 3 note 128), para. 9; CESCR General Comment No. 15 (above Chapter 1 note 49), para. 18. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 41. Cf. R.E. Robertson, Measuring state compliance with the obligation to devote the “maximum available resources” to realizing economic, social, and cultural rights, Human rights quarterly 16 (1994) 4, pp. 693–714, at p. 700. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 30; see further on this point M. Craven, The International Covenant on Economic, Social and Cultural Rights, pp. 144 et seqq. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49), para. 25. Idem para. 26.

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This means that a single measure usually cannot be made subject to a human rights claim. Once more, only in certain situations, Article 11 ICESCR also imposes an obligation to provide, which means the actual delivery of concrete (water) services.95 Such an obligation has met reservations because, if the delivery of services can be made subject to a concrete human rights claim, a state’s freedom to act is considerably limited.96 Critics, however, ignore that the obligation to provide water is only a very limited part of human rights exercise within Article 11 ICESCR. The concept of such an obligation is not designed to provide everybody with sufficient freshwater irrespective of the neediness of people but acts as a last resort for people who are unable to fulfil their basic needs themselves.97 It is hence neither a replacement nor a substitute for people’s personal responsibility but it recognises that people may suffer from water scarcity for reasons beyond their control. Disability, illness or the economic and social conditions of society can hinder people from access to freshwater. It was already referred to that the ICESCR does not comprise explicit norms granting a concrete claim against the state to provide the necessary means for sustenance. Thus, again, such claims can solely be deduced from the idea of maintenance of a core area of human rights and from the dignity foundation of Article 11 ICESCR as elaborated above. In consequence, it is only – but not less than – the bare essentials that can be made subject of a concrete human rights claim pursuant to Article 11 ICESCR. If they are at threat the state will have an obligation to provide sufficient water itself, thus complementing the general obligations to facilitate and promote freshwater access. Since an individual right against the state to provide freshwater by specific measures will only take place in those exceptional cases the obligation will usually not get into conflict with the state’s economic or other capability, either. If, albeit, such conflict occurs and if a state is unable to fulfil a specific obligation by having taken into account all possible means, it will not violate the right because human rights protection cannot go further than its actual feasibility. This is the notion expressed by both the limitation clause within Article 4 ICESCR and the 95

96 97

This view is also taken by the Committee on Economic, Social and Cultural Rights, cf. CESCR General Comment No. 15 (above Chapter 1 note 49), para. 20 et seqq. See the discussion above 3.5.2. The discussion that has come up concerning this fails the point of a human rights-based approach to freshwater access. The human rights-based approach to freshwater access does not pre-appoint the economic frame of its realisation (see in this respect E. Riedel, The human right to water, p. 594).

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reluctant imposition of positive obligations in Article 2 (1) ICESCR. The concrete water amounts, quality standards or supply conditions can yet again be determined solely on a case by case basis at the national level or, if appropriate and feasible, at the international level. A specific problem is the reduction of an already established standard of fulfilment. As already indicated, the state has a margin of discretion to decide on how to use its resources. It follows that the state is basically free to reallocate them. However, this freedom corresponds with the state’s obligation to progressively implement the rights of the ICESCR according to Article 2 (1) ICESCR. This does not rule out retrogressive measures but the Covenant limits the state in this respect.98 Reallocation of resources may not endanger the achieved standard of water security among people because this would contravene the progressive realisation of Article 11 ICESCR. Although there might not have been an individual claim to the measures the state has taken in order to improve the standard of freshwater supply, a retrogression of these measures, therefore, nevertheless needs a justification.99 This may be done by proving that the state employs other measures that lead to the same standard of fulfilment. A retrogression can also be justified if the state is unable to maintain the standard because of its decreased economic or other ability. The same is true if the state has to serve other public or individual needs of similar relevance and if the state is unable to provide for all of those needs equally. The state then has to seek a balance between competing interests, which eventually may also allow for a retrogression of the achieved standard of freshwater supply. The opportunity to reduce an achieved standard of fulfilment can be deduced from the notion of Article 4 ICESCR, which recognises the need to limit the rights of the Covenant under the described conditions. The obligation not to discriminate The state obligation to guarantee the right without discrimination has particular significance within the exercise of the right to an adequate standard of

98

99

See with this regard CESCR General Comment No. 15 (above Chapter 1 note 49) para. 19. Cf. CESCR idem para. 19; note also General Comment 3 of the CESCR, which states: “Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” (para. 9, cf. above Chapter 3 note 128).

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living. This duty does not only assure that states perform their direct negative and positive obligations on a non-discriminatory basis but does also cover those measures within water management that cannot be made subject to a specific human rights claim. As just discussed, Article 11 ICESCR has a wide scope of application in terms of the water utilisation interests it does support. In contrast, the possibilities to derive concrete individual claims to certain state action from Article 11 ICESCR are rather limited because the state enjoys broad discretion over how to use its resources while realising this right. The obligation of non-discrimination then, however, limits this discretion by some criteria. In this respect, the non-discrimination clauses broaden the relevance of human rights protection in the field of political decision-making. Non-discriminatory freshwater access in Article 11 ICESCR receives support by several human rights norms. Article 2 (2) ICESCR obliges states to guarantee that the rights in the ICESCR “will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 3 ICESCR ensures equality of men and women in this regard. Both norms are accessory, which means they can only be invoked in conjunction with one of the Covenant’s human rights.100 Furthermore, Article 26 ICCPR provides for an independent right to equality. It is applicable to Article 11 ICESCR because it addresses itself not only to the human rights of the ICCPR but to “the law” in general, which consequently includes all rights of the ICESCR, as well.101 As Article 26 ICCPR hence has a general approach to the issue of equality, it will be dealt with separately below.102 Eventually, the International Convention on the Elimination of All Forms of Racial Discrimination103 as well as the Convention on the Elimination of All Forms of Discrimination against Women104 provide further protection against discrimination of particular groups. They gain specific relevance

100 101

102 103

104

See the explanation above p. 133. See HRC General Comment 18, Non-discrimination, 10 November 1989, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1, para. 12. Cf. below 4.3.5. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 December 1965, UN Doc. A/6014 (1966), 660 UNTS 195, entry into force 4 January 1969. Cf. above Chapter 4 note 6.

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in legal practice because individuals are equipped with the opportunity to submit communications to the pertinent Committee.105 Neither of the two International Human Rights Covenants does include a definition of the term “discrimination.” Taking the more specific definitions of Article 1 ICERD and Article 1 CEDAW as an example, the Human Rights Committee promoted a definition that has found wide support and that can be applied to the ICESCR, as well.106 It reads as follows: . . . the Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.107

Applying the quoted non-discrimination clauses to the human right to an adequate standard of living, they require that any limitation of Article 11 ICESCR will be undertaken according to traceable motives that do not pursue one of the above outlined (discriminatory) criteria. A discriminatory limitation of Article 11 ICESCR, hence, a priori constitutes a human rights violation, even though such limitation might have been justifiable if it had been undertaken in a non-discriminatory way. Thus, whereas the interference with people’s existing freshwater access by, for example, the reallocation of water amounts, water pollution or displacement of people can be admissible under certain conditions,108 it can never be so if the measures are chosen on a discriminatory basis. The same is true for a state’s positive obligations according to Article 11 ICESCR. The provision of state services or protecting measures to one human rights holder and the non-provision thereof to another on a discriminatory basis violates Article 11 ICESCR and the relevant non-discrimination clause. Thus, for example the state investing in water supply has to consider the interests of all water users and must not omit connecting a certain group for 105

106 107 108

Cf. Article 14 ICERD (above Chapter 4 note 103) and Article 2 et seqq. Optional Protocol to the Convention on the Elimination of Discrimination against Women, adopted on 10 December 1999, GA res. 54/4, annex, 54 UN GAOR Supp. (No. 49) at 5, UN Doc. A/54/49 (Vol. I); 2131 UNTS 83, entry into force 22 December 2000. Just see CESCR General Comment No. 15 (above Chapter 1 note 49), para. 13. HRC General Comment No. 18 (above Chapter 4 note 101), para. 7. Cf. above 4.3.3.3.

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prohibited discriminatory grounds.109 In this manner, the discrimination clauses determine the general water management policies of states. As a consequence of discrimination, state action can then even be made a subject of a specific human rights claim of the discriminated person although originally no such claim could be derived from Article 11 ICESCR. In such a situation state discretion over the use of resources does not require protection because the state already decided to exercise it in a certain – though discriminatory – way. Following the example just given (of discriminatory investment in water supply), it is clear that a discriminated person could hence establish a claim according to Article 11 ICESCR in conjunction with the relevant non-discrimination clause to the equal enjoyment of those resources provided by the state. In order to avoid the provision of additional services to the discriminated persons the state can merely retrogress the achieved standard, only, however, in fulfilling its obligation of progressively realising the rights according to Article 2 (1) ICESCR. The different vulnerability of groups of water users also obliges states to remove de facto discriminations.110 This is because the obligation to avoid discrimination does not only require equality in law but above all in legal reality, too.111 In this respect, unequal treatment of water users in order to respond to these different vulnerabilities is not only justifiable but even required. The Committee on Economic, Social and Cultural Rights with this regard identified certain groups which have traditionally faced difficulties in gaining water access and that consequently have to be made subject to supportive measures. These are women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees.112 Beside the directly effective obligation not to discriminate, therefore, the progressive obligation to remove de facto discriminations in society has to be respected. The obligation is of a progressive nature because the state itself is not directly accountable for the discrimination but instead social conditions. One instrument to achieve nondiscriminatory conditions in society can be legal measures. In this respect, different treatment of water users in law serves the purpose of realising the human rights of people who have in reality been discriminated against. It

109 110 111 112

Cf. in this respect also CESCR General Comment No. 15 (above Chapter 1 note 49), para. 14. Ibid. See the discussion below 4.3.5. Cf. CESCR General Comment No. 15 (above Chapter 1 note 49), para. 16.

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does not aim at nullifying or impairing their rights. Consequently, there can be no discrimination in the sense of the above-mentioned provisions. 4.3.4. Freshwater access as part of the right to health according to Article 12 ICESCR Although the right to health is already an inherent component of an adequate standard of living, it is subject to specific regulation in Article 12 ICESCR. Article 12 ICESCR states: Article 12 ICESCR 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

For the determination of the term “health” the WHO definition can be referred to, which has met with wide approval.113 It defines health as: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”114 Access to sufficient clean freshwater is a precondition for physical, mental and social health. It therefore forms a part of the scope of application of Article 12 ICESCR. The Committee on Economic, Social and Cultural Rights has argued that water must be “free

113

114

For a discussion on the applicability of the WHO’s definition see A. Heinen, Zwangslizenzerteilung gemäß Artikel 31 TRIPS-Übereinkommen im Hinblick auf den Zugang zu essentiellen Medikamenten, Frankfurt am Main [et al.], Peter Lang, 2004, pp. 19 et seqq. Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June, 1946, signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948.

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from micro-organisms, chemical substances and radiological hazards.”115 The question is whether Article 12 ICESCR goes further than Article 11 ICESCR with regard to the specific concern of freshwater access for maintaining human health. Although the term “highest attainable standard” in the first section gives the impression of awarding an outstanding protection to the right to health, it does not go beyond the standard of protection delivered by Article 11 ICESCR. It rather has the function of clarifying and drawing attention to a particularly important issue of human rights protection.116 Since the term “health” as defined by the WHO refers to complete human well-being, and not only to a reduced standard thereof, it already includes the protection of every necessary component of human health. In regard to a state’s positive obligations, the phrase “highest attainable standard” cannot add substantial value, either, because the exhaustion of all state resources for the realisation of the right is already included in Article 2 (1) ICESCR. Nevertheless, the access to “an adequate supply of safe and potable water”117 at least finds another legal foothold in Article 12 ICESCR. The individual rights and the corresponding obligations that were discussed with regard to Article 11 ICESCR can also be deduced from Article 12 ICESCR inasmuch as the health component of freshwater access is concerned. In this respect the discussion above of Article 11 ICESCR can be referred to. That also means that Article 12 ICESCR provides a similar core standard of a human rights-based approach to freshwater access. In addition, Article 12 (2) ICESCR delivers guidance for the determination of particularly important measures to be taken for realising the right to health. Subsection (b) can be referred to for the coherence between safe freshwater and “environmental and industrial hygiene”118 and subsection (c) for demands addressed to the state to avoid and control water-borne diseases. Despite its limited capacity to increase the standard of freshwater access already delivered by Article 11 ICESCR, Article 12 ICESCR has a major advisory function. The term “highest attainable standard” raises awareness for the state obligation to exhaust its means. Insofar it may corroborate the demands of Article 2 (1) ICESCR. Furthermore, the right to health

115 116

117 118

CESCR General Comment No. 15 (above Chapter 1 note 49), para. 12 b. The CESCR therefore suggests reading Articles 11, 12 ICESCR conjunctively (CESCR General Comment No. 15 (above Chapter 1 note 49), para. 11). CESCR General Comment 14 (above Chapter 4 note 73), para. 43 c. Article 12 (2) (b) ICESCR.

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illustrates the importance of basic human needs, like the one for water, for the enjoyment of all other human rights, whether economic, social and cultural or civil and political rights. 4.3.5. Equal treatment of water users according to Article 26 ICCPR As already indicated in Chapter 3,119 equal access to existing state resources is a main concern of a human rights-based approach to freshwater access. The accessory non-discrimination clauses, as just referred to while discussing the rights to an adequate standard of living and health, cover many aspects of non-discrimination in water management. Nevertheless, beyond the ambit of Articles 11, 12 ICESCR, the ICESCR does not promote protection against discrimination of water users. This does not only leave gaps in human rights protection but it also ignores that non-discrimination and equality are not accessory but are instead independent and central values within the concept of human rights.120 The following part will discuss the equality of water users as an independent legal position in international human rights law. The relevant norm to tie with is Article 26 ICCPR, which promotes this understanding of equality. Article 26 ICCPR reads as follows: Article 26 ICCPR All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Today, it is well established that Article 26 ICCPR contains an independent right.121 According to the wording of the first sentence of Article 26

119 120 121

Cf. above 3.3. Cf. A. Eide, Economic, social and cultural rights as human rights, p. 12. Cf. HRC General Comment 18, Non-discrimination, 10 November 1989, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1, paras. 10, 12; cf. also the HRC’s case law since Broeks vs. Netherlands (below notes 480, 481); for an examination of the relevant case law cf. T. Choudhury, Interpreting the right to equality under Article 26 of the International Covenant on Civil and Political Rights, European human rights law review, (2003) 1, pp. 24–52, at pp. 25 et seqq.; B.G. Ramcharan, Equality and nondiscrimination, in: L. Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political

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ICCPR (“the law”), it does not restrict itself to certain rights. The system of the covenant affirms this reading as well. That follows from the fact that the covenant explicitly imposes an accessory discrimination prohibition upon states in Article 2 (1) ICCPR but avoids a similar clause in Article 26 ICCPR. Finally, it can hardly be the purpose of Article 26 ICCPR merely to restate the obligations provided by Article 2 (1) ICCPR. With regard to the question over the standard of protection that Article 26 ICESCR provides for the interest of water users to an equal share in water resources and to an equal consideration in water management, some aspects require specific consideration. Firstly, does Article 26 ICCPR merely contain a right to formal equality of water users or does it provide a substantive right to equality that obliges the legislator, as well? Secondly, is the provision suitable to derive utilisation rights of water users and, thirdly, does Article 26 ICESCR also impose obligations upon states to prohibit discriminations in the relations between water users and private water providers? In view of the phrase “equal before the law” in the first sentence of Article 26 ICCPR it was argued that the provision only prohibits discriminations in law but cannot be interpreted as to obligate the legislator, as well.122 Thus, Tomuschat argued that the term “equal protection of the law” as stated in the second half of the first sentence of Article 26 ICCPR singled out one aspect of equality before the law but was not deemed to extend the non-discrimination clause to the legislature.123 Yet, considering Article 26 ICCPR in its context and according to its purpose, this leaves no doubt that the legislator is bound by the non-discrimination clause as well. The wording of Article 26 ICCPR clearly distinguishes between two obligations: non-discrimination in law and equal protection of the law. If, however, human rights holders even have a right to equal protection of the law, it makes no sense to exempt the legislator from its own non-discrimination responsibility. This reading finds further support in sentence 2 of the provision, which contains a general prohibition

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Rights, pp. 246–269, at p. 252; but see Tomuschat who conceives Article 26 ICCPR merely as a procedural safeguard of civil and political rights (cf. C. Tomuschat, Equality and non-discrimination under the International Covenant on Civil and Political Rights, in: I. von Münch (ed.), Staatsrecht, Völkerrecht, Europarecht: Festschrift für Hans-Jürgen Schlochauer zum 75. Geburtstag am 28. März 1981, Berlin [et al.], de Gruyter, 1981, pp. 691–716, at pp. 708 et seqq.). Cf. C. Tomuschat, Equality and non-discrimination under the International Covenant on Civil and Political Rights, pp. 695 et seqq. Idem p. 705.

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of discrimination. The practice of the Human Rights Committee developed since Broeks vs. The Netherlands124 and Zwaan-de Vries vs. the Netherlands125 leaves no doubt that the state is obliged to avoid any discrimination in the laws it enacts. Both cases were based upon individual communications that challenged gender-specific distinctions made by Dutch unemployment law. The Committee rejected a restrictive application of Article 26 ICCPR and found that the enactment of the law, here the Dutch social law, had to follow Article 26 ICCPR. In General Comment 18, the Committee affirmed that Article 26 ICCPR does not only prohibit discrimination in law but “in fact in any field regulated and protected by public authorities.”126 This reading of Article 26 ICCPR, nowadays, has met acceptance.127 Applying this understanding of Article 26 ICCPR to the problem in question means that any law that implements a water management strategy must follow the obligation not to discriminate. This way, the interest of water users to an equal share in water resources finds access to general water management schemes. In addition, the phrase “equal before the law” as just discussed binds the subsequent concrete administrative water management measures executed in water law. The specific individual rights that follow from Article 26 ICCPR are still subject to debate. There doubtless is a claim of water users to defend their existing water access against any discriminatory interference by the state. However, much more important is the function of a human rights-based approach to entitle water users to an equal share in resources. The Committee practice just referred to has great relevance in this respect because if Article 26 ICCPR is understood as binding any state action, it also covers the social law, which means it applies to positive obligations. That does not mean that the right to equal treatment does award certain water utilisation rights or corresponding social rights as such. For the enforcement of that concern, the right to life, an adequate standard of living and health are

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S.W.M. Broeks v. The Netherlands, Communication No. 172/1984, UN Doc. CCPR/ C/29/D/172/1984 (9 April 1987). F.H. Zwaan-de Vries v. The Netherlands, Communication No. 182/1984, UN Doc. CCPR/C/29/D/182/1984 (9 April 1987). HRC General Comment No. 18 (above Chapter 4 note 101) para.12; for extensive HRC practice in this respect see T. Choudhury, Interpreting the right to equality under Article 26 of the International Covenant on Civil and Political Rights, p. 26. Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, p. 629; T. Marauhn, Social rights beyond the traditional welfare state, pp. 304–305.

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applicable as examined above. Nevertheless, the right to equal treatment can award people with derivative utilisation rights. Once the state has decided to employ its resources for a certain purpose, Article 26 ICCPR guarantees that every person finds equal consideration in this respect. That means that Article 26 ICCPR can entitle water users to claim a certain share in those resources provided by the state. Water users are directly entitled to the claim because a discriminatory allocation practice by the state does not ask for protection.128 The difference of the claims deriving from Article 26 ICCPR to those that derive from accessory non-discrimination clauses is their independence from the ambit of any other human right. Thus, Article 26 ICCPR binds the state in a wider ambit than accessory non-discrimination provisions because it commits states to equality in general. The obligation to non-discrimination does not prohibit all differentiations between water users. If the state follows a legitimate purpose based on reasonable and objective differentiation criteria, an unequal treatment can be justified.129 In so far, there is no difference to the accessory non-discrimination provisions discussed above.130 Against the background of these findings, the problem described in the introduction of the preference of certain – in particular industrial and agricultural – uses over basic human water uses in public water management represents a violation of Article 26 ICCPR. That is to say disregarding a person’s basic water needs for the benefit of agricultural or industrial purposes would conflict with the state obligation to equal protection of the law. As a consequence it triggers a corresponding claim of human rights holders to a human rights consistent reallocation of water utilisation rights. While the fulfilment of basic human water needs will usually also fall in the scope of application of Article 2 (2) ICESCR in conjunction with Articles 11 and 12 ICESCR, Article 26 ICCPR can gain specific relevance in enforcing the non-discrimination obligations. The

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The HRC in Broeks v. The Netherlands (above Chapter 4 note 124) argued in this respect: “. . . that what is at issue is not whether or not social security should be progressively established in the Netherlands but whether the legislation providing for social security violates the prohibition against discrimination contained in Article 26 of the International Covenant on Civil and Political Rights and the guarantee given therein to all persons regarding equal and effective protection against discrimination.” (para. 12.5). Cf. HRC General Comment No. 18 (above Chapter 4 note 101), para. 13; cf. extensively on this point also T. Choudhury, Interpreting the right to equality under Article 26 of the International Covenant on Civil and Political Rights, pp. 39 et seqq. Cf. 4.3.3.3.

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reason for this is that, in contrast to the rights of the ICESCR, the right to equal treatment according to Article 26 ICCPR can be made subject to an individual communication to the Human Rights Committee. In the course of increasing efforts to privatise public water management systems, the question of how to safeguard the equal treatment of water users in private relations requires consideration. Article 26 ICCPR does not address private parties directly but it provides for a positive state obligation to protect individuals against discriminations by them. While determining the scope of this obligation, one has to take into account the privacy of persons as a limiting factor thereof.131 Thus, Article 26 ICCPR cannot be understood as to prohibit all discriminations in private relations.132 It would, however, oppose the clear wording and the purpose of the provision to entirely exempt discriminations by private parties from the ambit of Article 26 ICCPR, as suggested by Tomuschat.133 A state obligation to protect is conceptually targeted at private action. In addition, Article 26 second sentence ICCPR prohibits “any discrimination”, which indicates the purpose to cover not only discriminations in the relations between the citizen and the state but in social reality, too. Furthermore, privacy does only cover a narrow personal sphere. Therefore, the state has at least an obligation to intervene if discrimination occurs in the quasi-public sphere134 because privacy is not affected therein.135 This is all the more worth mentioning since the quasipublic sphere can be subject to informal power bringing about major threats to human rights. This reading of Article 26 ICCPR finds further support by Article 5 (f ) ICERD, which explicitly mentions a state obligation to ensure non-discrimination in the quasi-public sphere. The Human Rights Committee approved the existence of a state obligation to protect against discriminations in the quasi-public sphere. It stated: . . . the State party is under an obligation to ensure that all individuals within its territory and subject to its jurisdiction are free from discrimination, and consequently the courts of States parties are under an obligation to protect

131 132 133

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Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, p. 632. Ibid. Tomuschat argues with the autonomy of private persons, cf. C. Tomuschat, Equality and non-discrimination under the International Covenant on Civil and Political Rights, p. 710. The quasi-public sphere describes the legal relations of private parties beyond their personal privacy, in particular their legal relations in everyday life. Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, p. 632.

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individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment.136

In light of the foregoing remarks, the state obligation to ensure non-discrimination according to Article 26 ICCPR covers the entire private water management sector because water management is a general concern in society that affects the subsistence of people. As a consequence, the state must observe its obligations when pulling back from the public provision of water services. The state has to ensure that private water suppliers exercise their control over access to freshwater resources in a non-discriminatory manner. The state has a certain degree of discretion over how to perform its obligation to protect human rights holders against discrimination. Nevertheless, not differing from other human rights, measures taken have to be effective and this is all the more important if basic water needs are concerned. 4.3.6. Particular protection of freshwater access of minorities by international human rights treaties In contrast to the non-discrimination clauses discussed above, international legal protection of minorities targets individuals as part of a group whose members need particular protection due to their ethno-cultural, territorial and personal situation.137 Their protection comes as a response to the fact that minorities usually do not have a strong standing in national decisionmaking processes and thus likely to become subject to discrimination or other form of illegal limitation of their human rights. Threats to human rights often are closely connected to environmental degradation.138 States might undertake or allow for logging, gas or oil exploration or other activity deemed to bring about immediate economic progress at the expense of

136

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Franz Nahlik v. Austria, Communication No. 608/1995, U.N. Doc. CCPR/C/57/ D/608/1995 (1996); cf. also several Committee’s Comments on State Party Reports such as, for example, UN Doc. CCPR/CO/72/CZE (2001), paras. 8, 9; UN Doc. CCPR/ CO/71/HRV (2001), para. 19; UN Doc. CCPR/CO/71/VEN (2001), para. 23; UN Doc. CCPR/CO/81/SEMO (2004), para. 23. Cf. G. Pentassuglia, Minority protection in international law: from standard-setting to implementation, Nordic journal of international law, 68 (1999) 2, pp. 131–160, at p. 131. Cf. C. Dommen, Claiming environmental rights, Georgetown international environmental law review, 11 (1998) 1, pp. 1–48, at p. 1.

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minority groups residing in the affected area.139 The harmful side effects of those polluting activities can particularly affect indigenous140 or other vulnerable minorities141 because they are often especially dependent on the natural resources located in the relevant area.142 Furthermore, members of minorities often face difficulties in participating in water management and in realising an equal share in water resources. For these reasons they are even more in need for additional measures of empowerment, in particular for human rights-based measures of interest enforcement.143 Of course, members of minorities can, like all members of society, use their human rights to life, to adequate standard of living, to health, or to non-discrimination in order to enforce their interest to adequate access to freshwater. In this respect, the non-discrimination clauses of the two International Human Rights Covenants gain particular importance because they contain criteria that may also distinguish a certain minority from the majority or other minorities in society, such as for example race or national origin. There arises, however, the question whether or not the specific threats faced by minorities find additional response in international human rights law. The following part observes Article 27 ICCPR in this regard. Subsequently, the position of so-called traditional water rights or similar claims to autono-

139 140

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142 143

See the examples in C. Dommen, Claiming environmental rights, pp. 1–2. Cf. K. Schillhorn, Kulturelle Rechte indigener Völker und Umweltvölkerrecht – Verhältnis und Vereinbarkeit, Berlin, Duncker & Humblot, 2000, pp. 17 et seq.; Kingsbury favours an open-ended definition that allows for coping with different concepts of indigenous peoples (cf. B. Kingsbury, “Indigenous peoples” in international law: a constructivist approach to the Asian controversy, The American journal of international law, 92 (1998) 3, pp. 414–457, at pp. 414 et seqq.). For a comprehensive compilation of international legal instruments taking up protection of indigenous peoples see L. Watters, Indigenous peoples and the environment: convergence from a Nordic perspective, UCLA journal of environmental law & policy, 20 (2001/2002) 2, pp. 237–304, at pp. 261 et seqq. Dommen refers to studies undertaken in the United States which prove racial minorities being placed disproportionally at risk by environmental hazards and refers particularly to a lack of safe drinking water (C. Dommen, Claiming environmental rights, p. 2). Cf. L. Watters, Indigenous peoples and the environment, p. 239. Hammer, in contrast, considers a purely individual-oriented approach to freshwater access inadequate and pleads instead for “a group-oriented context that accounts for broader social policies and considerations.” In this regard he suggests that the rights of indigenous peoples can serve as a framework for the promotion of the human right to water (cf. detailed L. Hammer, Indigenous peoples as a catalyst for applying the human right to water, International journal on minority and group rights, 10 (2004), pp. 131–161, at pp. 140 et seqq.).

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mous water management of minorities in international human rights law will be discussed. 4.3.6.1. Rights to freshwater access of members of minorities derived from Article 27 ICCPR The United Nations has given only little support to minority protection on the universal level.144 The Universal Declaration of Human Rights does not include any provision specifically protecting minorities. Article 27 ICCPR is still the main provision of universally binding character that delivers protection to individuals who belong to a minority.145 It reads as follows: Article 27 ICCPR In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

As the adoption of Article 27 ICCPR is the result of difficult and contentious state negotiations,146 its wording is very cautious and vague. Accordingly, the legal meaning that is attached to the article is controversial. The provision has been described as a mere restatement of the state obligations to nondiscrimination.147 Indeed, if Article 27 ICCPR only applies to the issue of discrimination it only has a declaratory meaning. However, as argued here, Article 27 ICCPR goes beyond a mere restatement by providing additional protection to members of minorities in regard to their interest in freshwater access.

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Regional human rights law is similarly reluctant. Article 14 ECHR refers to the issue of minority protection but solely with regard to non-discrimination and its application is limited to national minorities. In the meantime, however, the entry of force of the Framework Convention for the Protection of National Minorities complements the ECHR to some extent (cf. detailed on the Convention M. Weller (ed.), The rights of minorities in Europe: a commentary on the European Framework Convention for the Protection of National Minorities, 1st ed., Oxford [et al.], Oxford University Press, 2005). Cf. A. Spiliopoulou-Åkermark, Justifications of minority protection in international law, London [et al.], Kluwer Law International, 1996, p. 131. Cf. the survey in M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 638 et seqq. Cf. F. Ermacora, Volksgruppenrecht und Minderheitenschutz im regionalen Rahmen, in: F. Wittmann (ed.), Volksgruppenrecht: ein Beitrag zur Friedenssicherung, München [et al.], Olzog, 1980, pp. 115–125, at p. 124.

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Firstly, its character as an individual human right has to be determined. In order to demonstrate that the beneficiary of Article 27 ICCPR is the single individual rather than the group, reference may be made to the phrase “persons belonging to such minorities.” This also reveals that human rights holders are not only nationals or citizens but all persons subject to the jurisdiction of the state in question. A contextual consideration of the Covenant affirms this perception. As Article 2 (1) ICCPR speaks of “all individuals within its territory and subject to its jurisdiction”, a limitation of the personal scope of application of the Covenant’s rights needs an explicit provision, as for example done in Article 25 ICCPR for citizens. If a human rights provision lacks such specific restriction it is consequently awarded to everyone. Opponents of this view argue that the term “minority” traditionally relates to nationals or citizens, especially at the time of the League of Nations.148 They, however, misconceive that a historical understanding of a legal term cannot overrule the clear opposite wording and context of a provision, especially if it was established despite the knowledge of the historical understanding attached to the term. The peculiarity of Article 27 ICCPR lies in the fact that it mediates an individual right whose exercise, however, falls within a context that is determined by the life of the group. The ethnic, religious or linguistic specifics of the minority predetermine the concrete content of the human right of the single members of the minority group because they only enjoy the right to perform their customs “in community with the other members of their group.”149 Due to this connection, it is of specific relevance to identify the criteria that characterise a certain group as a minority pursuant to Article 27 ICCPR.150 Article 27 ICCPR specifies the types of minorities that are protected but not the term “minority” itself. The 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,151 cannot be consulted for interpretative assistance because it

148

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Cf. F. Ermacora, The protection of minorities before the United Nations, Recueil des cours/Académie de Droit International de La Haye, 182 (1983) 4, pp. 247–370, at p. 305; E.H. Pircher, Der vertragliche Schutz ethnischer, sprachlicher und religiöser Minderheiten im Völkerrecht, Bern, Stämpfli, 1979, p. 25. Cf. the wording of Article 27 ICCPR. For a comprehensive discussion see L.B. Sohn, The rights of minorities, in: L. Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights, pp. 270–289, at pp. 276 et seqq. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and

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does not contain a definition, either. Despite a lack of a formal definition, some criteria have, nevertheless, gained broad acceptance in legal discourse.152 Thus, a group is understood as a minority according to Article 27 ICCPR, if the total sum of its members is numerically inferior to the rest of the population, if it forms a stable unit with historic continuity,153 and if it can be distinguished from the majority by ethnic, religious or linguistic characteristics.154 Unlike the terms “religious” and “linguistic” the definition of the term “ethnic” entails more difficulties. Biological or physically recognisable features as indicated by the term “racial” in Articles 2 (1) or 26 ICCPR do not seem to bear much relevance because these are not sufficient factors for the cohesion of a group. Instead, the existence of an independent culture seems to be the fundamental criterion to qualify a certain group in society as an ethnic minority because it turns a conglomeration of people into a unit and enables the community life that Article 27 ICCPR targets to protect. Minorities also must be distinguished from “peoples” in the sense of Article 1 ICCPR. Although a group can form both a minority and a people, the term “people” does not relate to the numerical inferiority of the protected group.155 However, the basic distinction is drawn by the different concepts of self-determination of minorities and peoples. Whereas Article 27 ICCPR awards a right to self-determination only within the framework of the state, Article 1 ICCPR allows as a basic principle156 also for the establishment of

152

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Linguistic Minorities, GA res. 47/135, annex, 47 UN GAOR Supp. (No. 49) at 210, UN Doc. A/47/49 (1993). Cf. comprehensively M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 642 et seqq. Cf. C. Tomuschat, Protection of minorities under Article 27 of the International Covenant on Civil and Political Rights, in: R. Bernhardt (ed.), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, Berlin [et al.], Springer, 1983, pp. 949–979, at p. 955. Cf. also the definition delivered by the Capotorti Report of 1979, which has found wide acceptance (F. Capotorti, Study on the rights of persons belonging to ethnic, religious and linguistic minorities, New York, United Nations, 1979, p. 96). For details on the controversial definition of the term “peoples” see T. Schilling, Internationaler Menschenrechtsschutz, pp. 213 et seqq. That was at least the view of the drafters. Whether or not Article 1 ICCPR contains a right to secession has become highly debated (see in this respect G. Pentassuglia, State sovereignty, minorities and self-determination: a comprehensive legal view, International journal on minority and group rights, 9 (2002) 4, pp. 303–324, at pp. 304 et seqq.; G. Welhengama, The legitimacy of minorities’ claim for autonomy through the right

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the state itself.157 In addition, Article 27 ICCPR includes an individual right, whereas Article 1 ICCPR is shaped as a collective right. Once the elements of Article 27 ICCPR are determined then, secondly, its appropriateness for establishing a higher standard of a human right to freshwater access of persons belonging to a minority group needs consideration. Whether Article 27 ICCPR indeed includes an individual right to freshwater access of members of a minority is not obvious from its wording. However, a lack of freshwater or certain limitations on the mode of freshwater access can threaten a person’s right to exercise the culture, religion or language in community with the group as granted by Article 27 ICCPR. For some minorities (in particular indigenous ones) culture and the environment – the term “environment” necessarily including water – are in such a way intertwined that “[a]ny harm to one is almost certain to damage the other”.158 In such cases the individual right stipulated by Article 27 ICCPR may well be affected. Threats to Article 27 ICCPR with regard to freshwater access will primarily affect local minorities because they rely on certain local water resources, whereas the protection of dispersed minorities will regularly already be achievable by the non-discrimination clauses. Thus, for example, water pollution or dam projects flooding dwellings, farmlands and sacred sites may force a group to leave their ancestral territory.159 Similar effects may be caused by river impoundment drying up agricultural area and marshlands. For example, the measures taken to regulate the water flow of some sub-Saharan watercourses stopped the regular flooding and hence dried up approximately half of the irrigated area.160 As a consequence, many tribal communities located in the affected area suffered socio-cultural stress

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to self-determination, Nordic journal of international law, 68 (1999) 4, pp. 413–438, at pp. 430 et seqq.). Cf. C. Tomuschat, Protection of minorities under Article 27 of the International Covenant on Civil and Political Rights, p. 974; Tomuschat, nevertheless, rightly refers to the circumstance that the common definition of minorities brings them close to the characteristics of a people, which leads to some fluidity in the application of these norms in legal practice (cf. idem p. 975). L. Watters, Indigenous peoples and the environment, p. 240. Pearce in 1992 estimated that about sixteen million people, most of them belonging to minorities, had become refugees of dam construction (cf. F. Pearce, The dammed: rivers, dams and the coming world water crisis, London, Bodley Head, 1992, pp. 154 et seq.). Cf. E. Benvenisti, Collective action in the utilization of shared freshwater, p. 405.

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or even faced the destruction of their way of life.161 As long as such threats violate the right to life, health, adequate standard of living or to non-discrimination, Article 27 ICCPR does not add substantial value. If however, a particular deficit in freshwater access does not fall within the scope of protection of those human rights but “merely” amounts to a threat to the cultural, religious or linguistic life of the minority, the provision can indeed increase the standard of protection. This is because the right of members of ethnic, religious or linguistic minorities to maintain cultural, religious or (although less likely) linguistic life according to Article 27 ICCPR may amount to a right to exercise freshwater access in a certain way, including the right to exclude certain uses by others. Similar as in the case of other human rights, the state has an obligation to respect the right guaranteed by Article 27 ICCPR. This obliges the state while managing water resources to omit any encroachments with freshwater access of persons who belong to a minority to the extent that it interferes with their way of life and culture. According to these criteria, it can constitute an unlawful interference with Article 27 ICCPR, if the state for example expropriates land where a watercourse is located or deprives members of a minority group of their water utilisation rights. This does not generally prevent the state from justifying an interference with the minority right in a specific case. A limitation of the right can be necessary if traditional practices conflict with vital state interests, such as for example the interest to protect the local flora and fauna. However, since Article 27 ICCPR does not provide a limitation clause, it can only be limited by means of conflicting human rights or the derogation clause of Article 4 (1) ICCPR. In addition, it goes without saying that the exercise of the minority right may not be abused in terms of Article 5 ICCPR. Any attempts, however, to apply the limitation clauses of other human rights, as for example Article 18 (3) ICCPR162 misconceive that Article 27 ICCPR constitutes lex specialis because the right is deemed to promote specific protection of minorities and hence also to deliver rights to minorities which the majority does not necessarily enjoy.163 As a procedural element of Article 27 ICCPR, the Human

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Ibid. Cf. for this approach C. Tomuschat, Protection of minorities under Article 27 of the International Covenant on Civil and Political Rights, p. 976. Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 666 et seq.

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Rights Committee also has deduced a right to efficient participation164 in the decision-making regarding all questions that concern the minority.165 This is all the more important, since cultural practices of minorities can be very heterogeneous and the state may have difficulties in anticipating them. The right to get involved in the process of decision-making hence is another element of supplementary protection provided by Article 27 ICCPR because it goes beyond the level of the general right to take part in the conduct of public affairs and elections according to Article 25 (a) and (b) ICCPR. In this respect, the right to participation of members of a minority group provides the procedural framework for an adjustment between the state demand to all-embracing regulation of the water sector and the demand of the members of the minority to use the water resources which they are dependent on according to their cultural practices. Examples have shown that many threats to the way of life of minorities are imposed by third parties or are derogated due to general social conditions in society.166 This gives rise to the question whether there are positive state obligations in favour of minorities. The negative formulation “shall not be denied the right” in Article 27 ICCPR seems to point in a different direction. This, however, does not mean to rule out any positive state obligations regarding minorities because the wording and the context of Article 27 ICCPR do not exclude positive duties as imposed by Article 2 (1) and (2) ICCPR.167 In addition, we may refer to ILO Convention No. 169 for interpretative assistance.168 Minority groups subject to Article 27 ICCPR and indigenous or tribal peoples subject to the ILO Convention are in part

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Cf. comprehensively on effective participation of minorities A. Verstichel, Recent developments in the UN Human Rights Committee’s approach to minorities, with a focus on effective participation, International journal on minority and group rights, 12 (2005), pp. 25–41. Cf. HRC in Mahuika et al. vs. New Zealand CCPR/C/70/D/547/1993, notes 9.6–9.8; see also HRC General Comment 23 (The rights of minorities, Art. 27), 8 April 1994, para. 7. Cf. the Ecuadorian and Nigerian examples referred to above (cf. above Chapter 3 note 52); For a case study on the connection of environmental degradation and violations of human rights of indigenous peoples in Ecuador see A. Fabra, Indigenous peoples, environmental degradation and human rights: a case study. in: A.E. Boyle/M.R. Anderson (eds.), Human rights approaches to environmental protection, pp. 245–263). Cf. M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 662 et seqq. Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), adopted on 27 June 1989, 72 ILO Official Bull. 59; 28 ILM 1382 (1989), entry into force 5 September 1991.

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identical and may face similar problems. The Convention has a focus on the protection and advancement of human rights of indigenous and tribal peoples in social reality. Although it does not provide for specific individual rights, the Convention can nevertheless be consulted because it imposes obligations upon the state to develop “co-ordinated and systematic action to protect the rights of these peoples”.169 Thus, the ILO Convention addresses the state first of all in its role as guarantor of human rights. The Convention generally obliges states to promote the human rights of these peoples and to assist the members of peoples in the exercise of their rights.170 With regard to freshwater access, two provisions are specifically relevant. According to Article 6 (1) (b) of the ILO Convention states shall “[e]stablish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them.” Article 7 (4) of the ILO Convention asks governments for “measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.” Applying these rules to the problem in question, states are called upon to provide these peoples with opportunities to participate in all questions concerning the management of water resources which they are dependent on and to elaborate the water management strategies jointly with them. Reading Article 27 ICCPR in the light of the rules just described leaves no doubt that states have positive obligations to promote and assist members of minorities in their interest in freshwater access pursuant to Article 27 ICCPR in conjunction with Article 2 (1) and (2) ICCPR. The concrete measures to be chosen are at the discretion of the state. This is all the more the case because, due to the heterogeneity of existing minorities, the specific content of the right in Article 27 ICCPR cannot be determined in advance. Consequently, there are no specific positive obligations in this respect. However, as with other human rights, threats to the core area of Article 27 ICCPR may also require specific state action. For example, irreversible interferences with the preservation of the minority’s culture, religion and language by third party action can trigger a state

169

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Cf. the wording of Article 2 (1) of the ILO Convention No. 169 (above Chapter 4 note 168). Cf. for example Article 2 (2) (b), (c), Article 4, Article 5 (a), (c) of the ILO Convention No. 169 (above Chapter 4 note 168).

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obligation to protect the minority.171 In addition, in an indirect way, legal claims of a person belonging to a minority group can be derived from Article 27 ICCPR. Thus, if the state employs resources for a certain group on a discriminatory basis, the members of the disadvantaged group can claim equal partaking in these state resources, as well.172 With regard to positive obligations, however, it must not be forgotten that Article 27 ICCPR does not contain a legal guarantee for the enduring existence of a particular minority group by any means. A group may abandon community life due to crumbling solidarity and group identity, rather than because of the described actions of the state, third parties, or the discriminatory conditions in society. In such a situation, a member of the group will find no legal redress against a disbanding group in Article 27 ICCPR. It can be concluded that – in addition to the standard of freshwater access already established by the rights to life, an adequate standard of living, health and non-discrimination – members of minorities also enjoy a human right laid down in Article 27 ICCPR that contributes to the access to freshwater necessary for the maintenance of their cultural, religious or linguistic life to the extent described. 4.3.6.2. “Traditional” water rights or similar claims to autonomous water management by minorities Locally concentrated minorities often have an interest in meeting the needs of their members independently from state influence. That is why some call for autonomous management of natural resources including water resources.173 They challenge the state claim to an all-embracing management of water resources with so called “endless” or traditional water utilisation rights,174 171

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Similarly arguing M. Nowak, U.N. Covenant on Civil and Political Rights, pp. 662 et seqq. See on this point the discussion above 4.3.3.3. and 4.3.6. Cf. D.A. Posey, Traditional resource rights: international instruments for protection and compensation for indigenous peoples and local communities, Gland [et al.], IUCN, 1996, p. 5; for several examples in India see S. Muralidhar, The right to water: an overview of the Indian legal regime, in: E. Riedel/P. Rothen (eds.), The human right to water, pp. 65–81, at pp. 73 et seqq. Thereby, customary water law in many cases proves similar or more effective than state law because it often better responds to the actual consensus of people on how their resources should by used. In addition, customary law may be backed by local authority and community sanctions (cf. R. Meinzen-Dick/L. Nkonya, Understanding legal pluralism in water rights, pp. 8–3 et seqq.).

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which are of pre-state origin and that the state therefore must not interfere with, or with a right to autonomous water management.175 This raises two questions in international human rights law: firstly, does international human rights law support claims of minorities to non-derogable traditional utilisation rights or similar forms of autonomous water management? This is of importance as the affirmation of this question would mean giving those minorities extensive opportunities to meet their needs for freshwater access themselves as a claim in international law. Secondly, does international human rights law set limits on the acceptance of traditional water utilisation rights or autonomous water management in the national sphere? The first question needs consideration in terms of two different groups: minorities according to Article 27 ICCPR and peoples according to Article 1 (1) ICCPR. As a general rule, international law does not protect traditional or customary law of a minority against the regulating state. Due to the sovereignty of states the formation of law is subject to the domestic process.176 Thus, whether pre-state traditional or customary water law – such as specific models of water allocation177 – gains legal effect or not has to be determined in the national context according to the relevant legislative competences and in view of possibly conflicting norms,178 in particular national and international human rights. In this respect, there is no difference to other areas of law where states face the challenge of legal pluralism. Nevertheless, Article 27 ICCPR may indirectly protect the regulatory content of some traditional or customary law. Article 27 ICCPR obliges the state to respect the self-management of water resources if self-management is necessary to exercise the minority’s culture, religion or language and it obliges the state to justify any interference here. However, as the exercise of minority rights

175 176

177

178

Cf. more extensively D.A. Posey, Traditional resource rights, pp. 13 et seqq. For some examples of national experiences cf. S. Burchi, The interface between customary and statutory water rights – a statutory perspective, International workshop on “African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa”, 26–28 January 2005, Johannesburg, South Africa, URL: http://www.nri.org/waterlaw/ AWLworkshop/BURCHI-S.pdf, pp. 32–1–32–9 (accessed 26 June 2006). See on the topic of legal pluralism in water law R. Meinzen-Dick/L. Nkonya, Understanding legal pluralism in water rights, idem, pp. 8–1–8–14. Meinzen-Dick/Nkonya refer to the fact that pluralism in water law is often further increased because the conflicting state law, customary law, or religious laws may themselves be plural (cf. idem pp. 8–3).

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in Article 27 ICCPR may be subject to limitation, it does not provide for non-derogable water utilisation rights or autonomous water management and the water sector remains under state control. ILO Convention No. 169 confirms this finding. The Convention does not provide for non-derogable rights but rather focuses on equal participation “in the use, management and conservation of these [natural] resources.”179 By awarding indigenous communities ownership and possession180 over land and by exacerbating their re-location181 the Convention gives them a certain rank in the management of natural resources, which influences the balancing of different utilisation interests. However, it does not award minority communities with the right to manage natural (water) resources autonomously. There is a different situation if a minority according to Article 27 ICCPR also constitutes a people. Peoples enjoy the right to self-determination pursuant to Articles 1 No. 2 and 55 UN Charta, Article 1 (1) ICCPR and Article 1 (1) ICESCR. The right to self-determination entitles peoples to decide their own affairs,182 which consequently includes the right to self-determined water management. The two International Human Rights Covenants expressly refer to the peoples’ right to dispose over natural resources. Article 1 (1), (2), ICCPR and Article 1 (1), (2) ICESCR read as follows: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

According to the conceptual framework of the modern state the total sum of persons who form an existing state constitute a people and hence enjoy the right to self-determination. The crucial question rather is whether a certain minority group, which is not identical with the population of the whole

179 180 181 182

Article 15(1) sentence 2 of the ILO Convention No. 169 (above Chapter 4 note 168). Cf. Articles 13 et seqq. of the ILO Convention No. 169 (above Chapter 4 note 168). Cf. Article 16 of the ILO Convention No. 169 (above Chapter 4 note 168). Cf. A. Cassese, The self-determination of peoples, in: L. Henkin (ed.), The international bill of rights: the Covenant on Civil and Political Rights, pp. 92–113, at pp. 96 et seqq. Cassese is, however, reluctant in awarding minorities the status of a people (cf. p. 96).

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state, can claim to be a people, too. The answer to this question depends on the meaning of the term “peoples.”183 Due to the dividing line between Article 1 and Article 27 ICCPR, which the drafters had articulated, a minority could merely put its claims within the framework of Article 27 ICCPR because Article 1 ICCPR was thought to solely entitle the entire people of a state and not certain parts of its population.184 Underlying this concept was the view of the identity of nation and state (nation-state).185 This concept does, however, not mirror the actual situation of many states, where a minority exists regarding itself a people, too. A state can even consist of several peoples.186 Therefore, this strict approach to the term “peoples” has – although still not uncontroversial187 – been softened towards a view that the right to self-determination is not solely recognised for all inhabitants who form a state but to “all peoples”, which can also mean a group of persons, as opposed to the state.188 The determination of the concrete elements deemed necessary to qualify a certain group of persons as a people is, however, highly debated.189 It is therefore not possible to discuss all concepts of it within the present study. Nevertheless, taking some features for determining a people that are prevalently used, such as common

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The term “peoples” as outlined in the ILO Convention No. 169 (cf. above Chapter 4 note 168) cannot be referred to in this respect because Article 1 (3) of the Convention expressly denies the term any implications it may have under international law. Cf. R. Higgins, Problems and process, p. 112. On this point see B. Anderson, Imagined communities: reflections on the origin and spread of nationalism, rev. ed., London [et al.], Verso, 1991, pp. 5 et seqq. For the concept of and difference between nation-state and state-nation cf. R. Brubaker, Citizenship and nationhood in France and Germany, Cambridge, Massachusetts, Harvard University Press, 1992, pp. 1–20. See the examination in P.A. Clark, Taking self-determination seriously: when can cultural and political minorities control their own fate?, Chicago journal of international law, 5 (2005) 2, pp. 737–751, at pp. 738 et seqq. Cf. G. Welhengama, The legitimacy of minorities’ claim for autonomy through the right to self-determination, pp. 434 et seqq.; O. Kimminich, A “federal” right of self-deterimation?, in: C. Tomuschat (ed.), Modern law of self-determination, Dordrecht [et al.], Nijhoff, 1993, pp. 83–100, at pp. 90, 92. For a discussion cf. G. Pentassuglia, State sovereignty, minorities and self-determination, pp. 307 et seqq., E. MacWhinney, Self-determination of peoples and plural-ethnic states: secession and state succession and the alternative, federal option, Recueil des cours/Académie de Droit International de La Haye, 294 (2002), pp. 167–263; P.A. Clark, Taking self-determination seriously, pp. 739 et seqq.

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culture, history, ethnic identity or consent,190 it can be illustrated that those criteria may also be used to identify a minority. Thus it seems plausible to qualify those minorities as a people (in the sense of Article 1 ICCPR) who inhabit a certain area, who have enough members to constitute a state, and who represent the population majority in the area in question.191 In view of these criteria, in particular many indigenous communities can be regarded as peoples with the corresponding right to self-determination as long as they can be attributed to a certain territory.192 The question then is, however, whether the status of a certain minority as a people automatically mediates the right to full self-determination including the right to autonomous management of resources, here in case of water resources. Awarding the status of a people to a certain minority within a state produces a tension in international law between the right to self-determination of this minority and the right of self-determination of the entire people constituting the state. The wording of Article 1 ICCPR does not give support for a limitation of the right to self-determination of a minority people. Nevertheless, a way must be sought around this tension in legal practice. The scope of the right to self-determination of a people within a state must therefore be determined in relation to the concurring right to self-determination of the entire people. This means that the right to self-determination of a certain people may not challenge the sovereignty of the entire people and the territorial integrity of the state, which includes the latter’s ability to act in all questions that concern the state as a whole.193

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The UNESCO International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples suggested the following definition: “. . . a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f ) territorial connection; (g) common economic life;” In addition they suggested that the people must be of a certain number and that “the group as a whole must have the will to be identified as a people or the consciousness of being a people” (cf. Final Report and Recommendations, para. 22, SHS-89/CONF.602/7). Cf. D. Murswiek, The issue of a right of secession – reconsidered, in: C. Tomuschat (ed.), Modern law of self-determination, pp. 21–39, at p. 27. Cf. L. Hammer, Indigenous peoples as a catalyst for applying the human right to water, p. 150. It is therefore only consequent to argue that self-determination does not necessarily include a right to secession because that would terminate a state in its existing form and hence contravene its sovereignty and territorial integrity (cf. idem, para. 6.).

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Thus, a minority people – as a general rule194 – has no right to external selfdetermination.195 There is however no reason to deny a people the right to self-determination within the frame of the state. Hence, there is no reason to deny a people the right to the management of water resources according to Article 1 (2) ICCPR, either. The concrete adjustment between the selfdetermination of a people and the entire people can only be undertaken on a case to case basis with due regard to the specifics of the state and the relevant minority people. In this context, it is therefore regarded as sufficient to point out that minorities, which form a people, enjoy a right to autonomous water management.196 Turning to the second question, international human rights law also sets limits to the acceptance of traditional water utilisation rights by the state and to the exercise of autonomous water management by a minority. In this respect, it is not important whether a minority enjoys a right to autonomous water management or obtains a right to self-management by voluntary state action. In either case, water management must follow the international human rights obligations. International human rights law determines the exercise of autonomous water management in two ways. The first is the human rights guarantee within the area subject to autonomous water management. Thus, water management must be exercised with respect to the human rights of individual community members and other people inhabiting the area in question. Water management therefore must not be discriminatory and has to ensure that everybody has sufficient freshwater access. The second aspect is the responsibility regarding the entire state. This means that it must be assured that the water needs of the entire population, in particular their basic needs, can be fulfilled. Thus, utilisation claims of the state for the reason of fulfilling the basic needs of its population cannot be objected referring to a right to autonomous water management. Otherwise, it would prevent the state from fulfilling its obligations according to

194

195 196

For possible exceptions see D. Murswiek, The issue of a right of secession – reconsidered, pp. 25 et seqq. Cf. also L.B. Sohn, The rights of minorities, p. 276. Hannun describes the right to autonomy as “one step above minority rights, one step below full self-determination” (H. Hannum, Autonomy, sovereignty, and self-determination: the accommodation of conflicting rights, Philadelphia, University of Pennsylvania Press, 1990, p. 453); Kimminich describes autonomy as limited self-determination (cf. O. Kimminich, A “federal” right of self-determination, p. 92).

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international human rights law. Similarly, the state can only recognise traditional or customary water laws as far as they do not violate human rights. Since Article 1 ICCPR solely includes a collective right,197 individuals cannot derive direct claims to freshwater access from them. Nevertheless, in an indirect way, the provision also supports individuals. Article 1 ICCPR can be used as interpretative assistance for Article 27 ICCPR.198 The right to self-determination can turn the balance when concurring interests of the individual belonging to a minority and the state have to be adjusted. In addition, the interpretation of Article 27 ICCPR in the light of Article 1 ICCPR also has a procedural advantage. The right to self-determination as a collective right cannot be made subject to an individual communication to the Human Rights Committee because, according to Article 2 Optional Protocol to the Covenant,199 this procedure is only applicable to individual rights.200 Despite this exclusion, the right to self-determination becomes indirectly justiciable inasmuch as it influences the interpretative result of Article 27 ICCPR, because the latter contains an individual right that can be made subject to an individual communication. To summarise, minorities do not find direct support for “traditional” water rights in international human rights law but merely via Article 27 ICCPR. Nevertheless, those minorities that also form a people according to Article 1 (1) ICCPR enjoy the right to self-determination. This right allows for autonomous management of those water resources located in the area a minority people inhabits, however, in relation to the right to self-determination of the entire people and subject to international human rights obligations.

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The International Court of Justice referred to the principle of self-determination as a right of peoples (Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 31). The Human Rights Commission mentioned twice that Article 1 ICCPR may be consulted for interpreting Article 27 ICCPR (cf. Mahuika et al. v. New Zealand, HRC no. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 para. 9.2 and J.G.A. Diergaardt et al. v. Namibia, HRC no. 760/1997, U.N. Doc. CCPR/C/69/D/760/1997 para. 10.3). Optional Protocol to the International Covenant on Civil and Political Rights, adopted on 16 December 1966, GA res. 2200A [XXI], 21 UN GAOR Supp. [No. 16] at 59, UN Doc. A/6316 [1966]; 999 UNTS 302, entry into force 23 March 1973. Cf. also Fongum Gorji-Dinka v. Cameroon, HRC no. 1134/2002, U.N. Doc. CCPR/ C/83/D/1134/2002 para. 4.4.

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4.4. Freshwater access as part of customary international human rights law A human rights-based approach to freshwater access may not only be based on treaty law but also on customary international law according to Article 38 (1) (b) ICJ Statute. As the standard of protection derivable from international human rights treaties does not fully meet the demands of a human rights-based approach to freshwater access, the following discussion shall examine whether customary international law goes beyond the standard established by treaty law. 4.4.1. International custom with regard to a generic human right to water The determination of rights supporting freshwater access in customary international law faces the difficulty that human rights are already comprehensively included in the two International Human Rights Covenants and some specific treaties. In particular, the negative component of human rights supporting freshwater access can be determined quite exactly. Thus, the above analysis disclosed that they provide the right holders with sufficient means to defend the already existing conditions of freshwater access against state interference. This consequently leaves less space for customary rules to develop. Positive state obligations are more difficult to identify in international treaty law, especially with regard to claims to concrete state action guaranteeing people’s freshwater access. The issue of positive obligations, therefore, is the aspect of human rights protection where international customary law could bring supplementary clarification. In fact, however, it does not. As will be seen, the standard of protection delivered by international customary law with regard to an individual right to freshwater access does not go beyond treaty law. Since the regional, climatic, hydrological and economic heterogeneity of the issue of freshwater leads to similarly heterogeneous state conduct, it is complicated to systematically discern a common state practice with regard to specific positive state obligations. In addition, states are reluctant to take on duties that bind their resources more than necessary to fulfil their obligations arising from treaty law. In order to illustrate the current state of customary international law the International Law Association Rules on Water Resources of 2004 shall be referred to because they are deemed to reflect the current state of law concerning all watercourses whether national

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or international.201 The Revised Helsinki Rules refer to an individual right to freshwater access, but are, however, hesitant regarding its scope. One article of the Revised Helsinki Rules shall be discussed as an example because it explicitly deals with the basic human need for freshwater. Article 17 of the Revised Helsinki Rules states as follows: Article 17 The Right of Access to Water 1. Every individual has a right of access to sufficient, safe, acceptable, physically accessible, and affordable water to meet that individual’s vital human needs. 2. States shall ensure the implementation of the right of access to water on a non-discriminatory basis. 3. States shall progressively realize the right of access to water by: a. Refraining from interfering directly or indirectly with the enjoyment of the right; b. Preventing third parties from interfering with the enjoyment of the right; c. Taking measures to facilitate individuals access to water, such as defining and enforcing appropriate legal rights of access to and use of water; and d. Providing water or the means for obtaining water when individuals are unable, through reasons beyond their control, to access water through their own efforts. 4. States shall monitor and review periodically, through a participatory and transparent process, the realization of the right of access to water.

Paragraph 1 of Article 17 provides for a similar standard of protection as can be derived from the human rights to an adequate standard of living and health according to Articles 11 and 12 ICESCR. However, when it comes to the specific state obligations the provision remains below the standard that can be derived from Articles 11, 12 ICESCR as just examined. Treaty law includes some positive obligations with direct effect. In contrast, paragraph 3 of Article 17 of the Revised Helsinki Rules makes all positive obligations subject to progressive realisation.202 Article 17 of the Revised Helsinki Rules can therefore neither prove additional protection for people

201 202

Cf. preface of the Revised Helsinki Rules (above Chapter 2 note 21). This is also expressed by the ILA’s commentary on Article 17 of the Revised Helsinki Rules (cf. International Law Association Rules on Water Resources, URL: http://www .ila-hq.org/html/layout_committee.htm (accessed 12 September 2005).

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seeking freshwater access nor indicate a development of international law in such a direction. Another provision that needs to be discussed for establishing a more sophisticated standard of freshwater access in customary international law, is Article 25 (1) UDHR. Article 25 (1) UDHR stipulates the “right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services”. The rights to health and an adequate standard of living as outlined in Article 25 (1) UDHR cover the issue of freshwater access and there is no limitation as to their immediate realisation, either. However, the UDHR is a resolution of the General Assembly and therefore of non-binding character. Thus, it can only have binding effect as far as it constitutes the basis for the development of customary rules.203 Due to the Declaration’s comprehensive character and its diverse matters, such a transformation into customary law can only be proven for every single human right separately. Examining Article 25 (1) UDHR one may observe that its content found expression in Articles 11 and 12 ICESCR and thus already was transformed into treaty law. Articles 11, 12 ICESCR express wide state consent as to the understanding of the right to an adequate standard of living and the right to health. This makes it impossible to prove an advanced state practice and opinio iuris solely on the basis of Article 25 UDHR.204 With a lack of additional state practice and opinio iuris, Articles 11, 12 ICESCR therefore constitute the current limit of state obligations. As for those few remaining states that are not party to the ICESCR, it may at least seem possible to determine an equivalent standard of human rights protection in customary international law.205 Despite the adoption of Articles 11, 12 ICESCR it nevertheless remains possible in the future to develop certain specific positive obligations in customary international law. Especially the progressive realisation of human rights as outlined in Article 2 (1) ICESCR requires further state practice. Whether such state practice would then be regarded as a binding interpretation

203

204 205

See on this matter H. Hannum, The status of the Universal Declaration of Human Rights in national and international law, Georgia journal of international & comparative law, 25 (1995/96) 1/2, pp. 287–397, especially pp. 317 et seqq. Cf. M. Hilf, The right to food in national and international law, p. 132. See comprehensively on the right to health B. Toebes, The right to health as a human right in international law.

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of Articles 11, 12 ICESCR according to Article 31 paragraph 3 (b) of the Vienna Convention on the Law of Treaties or as a separate rule in customary international law is irrelevant because in any case state practice and opinio iuris would first have to be proven. Up to the present time, though, such specific state action has not been developed. 4.4.2. International custom with regard to the specific interest of participation and access to information in water matters The following part discusses whether customary international law indirectly promotes the human right to freshwater by establishing individual rights to participation and access to information. The discussion above has already shown that a human rights-based approach to freshwater access must not be reduced to its role of defending or providing people’s access to water but also has a procedural function that aims at enabling people to influence the decision-making process of water management. This includes transparency of government action, the opportunity of people to have their interests heard and taken into account in the formulation and implementation of water management policies.206 Access to information and participation promote this interest of the individual.207 Whereas litigation is a subsequent means of enforcing a human right to water, participation guarantees water users to enforce their interests already in the process of developing a water management strategy by awarding them the right to be heard and the right to participate in decisions.208 In addition, an adequate balancing of concurring individual and public interests requires the participation of water users, because it leads to the necessary information flow to the state.209

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Cf. E. Hey, Sustainable use of shared water resources, p. 133. O’Neill refers to the example of the Cochabamba Case where the details of the negotiations between AdT and the Bolivian government have not been made public, thus withholding people concerned the information necessary to input in the decision-making process or to promote their resistance (T. O’Neill, Water and freedom: the privatization of water and its implications for democracy and human rights in the developing world, Colorado journal of international environmental law and policy, 17 (2006) 2, pp. 357–383, at p. 380). Cf. A. Kiss/D. Shelton, International environmental law, p. 674. Cf. C. Bruch, Evolution of public involvement in international watercourse management, in: C. Bruch [et al.] (eds.), Public participation in the governance of international freshwater resources, Tokyo [et al.], United Nations Univ. Press, 2005, pp. 21–72, at p. 23 et seq.

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Corresponding to participation is the guarantee of access to the necessary information because the human rights holders can only effectively participate and hence enforce their interests if they obtain the relevant information that built its foundation. The issues of participation and access to information are not sufficiently observed in the applicable universal treaty law, despite their relevance. Article 25 ICCPR solely stipulates the right to participation in general public affairs, and includes the right to vote, but does not provide for an individual right to participate in the concrete administrative processes.210 Proving the existence of a general human right to participation and access to information in customary international law tends to be a long exercise that merits a separate study. Therefore, this part will merely examine the salient problems of such a right with regard to freshwater access.211 The question arising with regard to participation and information rights regarding water management in customary international law is twofold: firstly, is there a rule that obliges states to involve affected people in the decision-making process of water management and to grant them access to necessary information? Secondly, is the single individual entitled to claim the right? For considering a rule as customary international law Article 38 (1) (b) ICJ Statute requires the objective element of “a general practice” and the subjective one “accepted as law.” The International Court of Justice qualifies state practice as relevant if it proves to be settled,212 extensive and virtually uniform.213 Opinio iuris shall be evidenced by state “belief that this practice is rendered obligatory by the existence of a rule requiring it.”214 The discussion of the current state of law shall again be undertaken in view of the Revised Helsinki Rules. As will be seen, customary international law does not yet provide for a directly effective individual right to participation and information. Article 18 of the Revised Helsinki Rules, which deals with public participation and access to information of people affected by water management, states as follows:

210 211

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See also Article 21 UDHR. Cf. comprehensively on the topic M.M. Mbengue/M. Tignino: Transparency, public participation, and amicus curiae in water disputes, in: E.B. Weiss (ed.), Fresh water and international economic law, pp. 367–405, at pp. 378 et seqq. Cf. ICJ Judgment in The North Sea Continental Shelf Cases (FRG/Den./FRG/Neth.), ICJ Rep. 1969 para. 78. Cf. idem para. 74. Cf. idem para. 78.

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Article 18 Public Participation and Access to Information 1. In the management of waters, States shall assure that persons subject to the State’s jurisdiction and likely to be affected by water management decisions are able to participate, directly or indirectly, in processes by which those decisions are made and have a reasonable opportunity to express their views on plans, programs, projects, or activities relating to waters. 2. In order to enable such participation, States shall provide access to information relevant to the management of waters without unreasonable difficulty or unreasonable charges. 3. The information subject to access under this Article includes, without being limited to, impact assessments relating to the management of waters. 4. In providing information consistently with this Article, States need not provide access to information that would compromise: a. Intellectual property rights, including commercial or industrial secrets; b. Rights of individual privacy; c. Criminal investigations or trials; d. National security; and e. Information that could endanger ecosystems, historic sites, and other naturally or culturally important objects or locations.

The provision lays down an obligation to assure participation in the management of water resources. In order to prove the pertinent state practice the International Law Association refers to various treaty laws. Indeed, some specific legal instruments such as Article 14 (a) of the Convention on Biological Diversity,215 Article 3 (a) of the Convention to Combat Desertification216 or Article 4 (1) (i) of the UN Framework Convention on Climate Change217 commit states to provide for public participation. In addition, the Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters,218 the so called

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Adopted on 5 June 1996, 1760 UNTS 79; 31 ILM 818 (1992), entry into force 29 December 1993. United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, adopted on 17 June 1994, 1954 UNTS 3; 33 ILM 1328 (1994), entry into force 26 December 1996. United Nations Framework Convention on Climate Change, adopted on 9 May 1992, U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992), entry into force 21 March 1994. Convention on Access to Information, Public Participation in Decision-Making and

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Aarhus Convention, contains comprehensive rules regarding participation and access to information for the European context.219 Reference to treaty law, however, is suitable only to a limited extent because by adopting treaties for certain issues, states want to bind themselves only in this specific context and not in general terms. Furthermore, the regional treaty law, such as the Aarhus Convention, cannot establish a global practice, either. Nevertheless, with regard to water management, the International Law Association’s view gains support from various policy instruments that promote public participation in different ways.220 Article 2 of the Dublin Statement on Water and Sustainable Development states that “[w]ater development and management should be based on a participatory approach, involving users, planners and policy makers at all levels.”221 Principle 10 of the Rio Declaration articulates the need of “the participation of all concerned citizens” and, more generally, the preamble to Agenda 21, Chapter 23, considers broad public participation as a “prerequisite for the achievement of sustainable development.”222 Paragraph 26 of the Johannesburg Declaration on Sustainable Development uses similar language.223 The essence of those rules seems to be that most states concede and recognise an obligation to provide for some kind of public participation. Furthermore, there is a corresponding trend that states increasingly allow for public participation in various ways.224 Thus, it can well be argued that there is an emerging rule in customary international

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Access to Justice in Environmental Matters, adopted on 28 June 1998, 2161 UNTS 447; 38 ILM 517 (1999), entry into force 30 October 2001. Cf. in particular Articles 3 to 8 of the Aarhus Convention. See for a comprehensive examination M. Woodhouse, Is public participation a rule of the law of international watercourses?, Natural resources journal, 43 (2003) 1, pp. 137–183. Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment: Development Issues for the 21st Century, Dublin, Ireland (1992), available at URL: http://www1.umn.edu/humanrts/instree/dublinwater1992 .html (accessed 21 September 2005). Agenda 21: Programme of Action for Sustainable Development, U.N. GAOR, 46th Sess., Agenda Item 21, UN Doc A/Conf.151/26 (1992); see for an examination R. Picolotti, Agenda 21 and human rights: the right to participate, in: R. Picolotti/J.D. Taillant (eds.), Linking human rights and the environment, pp. 47–56. Report of the World Summit on Sustainable Development, Annex Johannesburg Declaration on Sustainable Development, A/CONF.199/20. Cf. M. Woodhouse, Is public participation a rule of the law of international watercourses?, p. 182.

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law that obliges states to give its people an opportunity to participate by some means in the decision-making process concerning water management. Having said that, in terms of the concrete procedures and embodiment of public participation it does not seem possible to identify a settled or virtually uniform state practice at this moment. Instead, there is a heterogeneous conglomeration of participation schemes. There is no agreement identifiable as to the beneficiaries, the scope, and the directness or indirectness of public participation. For this reason it is subject to state discretion to choose the concrete mode of public participation. This discretion is merely “limited by the obligation to assure that participation is genuine.”225 As far as the entitled entity is concerned, the ILA comment on Article 18 of the Revised Helsinki Rules points out that current customary international law provides individuals with a claim to participate in decision-making processes concerning waters.226 However, the ILA then has to admit that this right currently cannot be specifically determined due to a lack of state practice regarding the concrete procedures and content of the right. This uncertainty is, among others, expressed by the circumstance that Article 18 (1) of the Revised Helsinki Rules cannot even determine whether an individual can directly claim participation or solely indirectly via bodies that are recognised by the state. Current state practice regarding public participation hence misses a precise essence necessary to make such a norm operational in legal practice and that could be made subject to an individual right. Solely on the basis of the non-discrimination clauses referred to above – in particular Article 26 ICCPR – an individual may enjoy a specific claim to participation. Thus, a state which decides to provide for certain measures of participation must not exclude parts of its population on the basis of discriminatory criteria.227 Current state practice therefore indeed suggests a basic obligation to ensure participation, however, not as a right of the individual.228 Since the embodiment of public participation remains fully with the state, a more specific state practice would have to develop, in order to make public participation 225

226 227 228

Cf. the ILA’s commentary on Article 18 of the Revised Helsinki Rules (above Chapter 4 note 202). Ibid. See above 4.3.5. Similarly M.A. Fitzmaurice, Some reflections on public participation in environmental matters as a human right in international law, Non-state actors and international law, 2 (2002) 1, pp. 1–22, at p. 11.

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subject to a human rights claim.229 Such state practice would have to define the term “public” as well as the mode of participation.230 Article 18 of the Revised Helsinki Rules therefore does not yet mirror the current state of law but rather reflects the ILA’s view on which direction international law will presumably develop. Indeed, in view of increasing state practice and corresponding opinio iuris, Article 18 of the Revised Helsinki Rules provides a perspective for a more fundamental right to participation regarding the management of freshwater resources in the future. The right to information faces the same difficulties as the right to participation. While section 2 of paragraph 18 of the Revised Helsinki Rules mirrors the desirable concept of a right to information, it does not yet express the current state of customary international law. A right to information can be defined as the freedom to seek information that is available to the public, as a right to get access to the information that is held by the government or even as a right to oblige the government to collect and provide the necessary data and information.231 The right to seek information that is available to the public is the self-evident outflow from the right to freedom of expression as stated in Article 19 (2) ICCPR. Often, however, publicly available information will not be sufficient to appreciate all decisive factors. Due to expenditure, costs or legal restrictions only the state may be able to ascertain the necessary data for the acts it wants to undertake and that affect people. In these cases people need the public authorities to collect and provide the information necessary to participate effectively in the decision-making process. It is the latter concept that is taken up in Article 18 (2) of the Revised Helsinki Rules. The determination of the corresponding state practice is, however, even more difficult than in the case of participation. There are several legal and policy instruments that provide for access to information232 but it is not currently possible to identify a settled and

229

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231 232

See, however, Bruch who argues that rules on public involvement are rapidly crystallising (C. Bruch, Evolution of public involvement in international watercourse management, pp. 21 et seqq.). Scanlon [et al.] identify certain core procedural obligations that should accompany a human rights-based approach to freshwater access (cf. J. Scanlon/A. Cassar/N. Nemes, Water as a Human Right?, p. 31). A. Kiss/D. Shelton, International environmental law, p. 669. Cf. the compilation in the ILA’s Sources of the International Law Association Rules on Water Resources, (http://www.ila-hq.org/html/layout_committee.htm, accessed 25 July 2006), pp. 56 et seqq.

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virtually uniform practice in this matter.233 Therefore, Article 18 (2) of the Revised Helsinki Rules cannot be referred to in order to prove the existence of a right to information in customary international law but it may initiate a development towards the acceptance of the right.

4.5. Freshwater access as part of general principles of international law Eventually, it will be discussed how far the determined standard of a human rights-based approach to freshwater access in treaty law can be strengthened by respective general principles according to Article 38 (1) (c) ICJ Statute. In view of the increasing codification of international law, the general principles are first of all deemed to concretise opinio iuris of states, to assist the interpretation of existing norms and to close gaps in treaty law.234 In contrast to international custom, general principles do not have to be confirmed by state practice, which explains their independent position in international law. The term “recognised by civilized nations” means that the substantial, procedural or structural principle in question has to be binding law in the national legal systems.235 They have to be determined by way of legal comparison. Furthermore, the principle must be transferable into the international context. This is the case if the situation considered on the international level and the situation covered by national law are sufficiently analogous.236 States respond to the problem of water scarcity differently.237 Some states do indeed recognise an explicit human right to freshwater access,238 some respond via generic human rights that are enclosed in their national con-

233

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This admits also the ILA by stating that “considerable room exists for debating the precise contours of that right.” (See Commentary on Article 18 of the Revised Helsinki rules, above Chapter 4 note 202). Cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 76. The attribute “civilized” today cannot be understood as bearing any substance. Instead, all recognised states are subject to the term “civilized nations.” (cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 77). Cf. C. Dominicé, Methodology of international law, in: R. Bernhardt/Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht Heidelberg (eds.), Encyclopedia of public international law, Vol. 3 (1997), Amsterdam [et al.], North-Holland, pp. 354–360, at p. 358. See in this respect M. Langford, The right to water in national law: a review, in: E. Riedel/ P. Rothen, (eds.), The human right to water, pp. 115–125. See below pp. 189 et seqq.

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stitutions239 and some consider the human need for freshwater solely as a general policy objective or as objective legal provisions.240 Among the states that expressly guarantee a human right to water within their legal systems is South Africa.241 Article 27 (1) (b) of the Constitution of South Africa of 1996 stipulates as follows: Article 27 Health care, food, water and social security 1. Everyone has the right to have access toa. health care services, including reproductive health care; b. sufficient food and water; and c. social security, including, if they are unable to support themselves and their dependents, appropriate social assistance. 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. 3. No one may be refused emergency medical treatment.

The South African Constitution also specifies the general obligation of the state with regard to human rights. Article 7 (2) of the South African Constitution obliges the state to “respect, protect, promote and fulfil the rights in the Bill of rights.” Additionally, Article 27 (2) of the Constitution expressly imposes positive obligations on the South African state with regard to the human right to water, though subject to the available resources and not as a directly effective obligation but as one to be progressively realised. Thus, the South African state enjoys broad discretion to decide how it realises the right. The guarantee of a right to social security including social benefits in Article 27 (1) (c) of the South African Constitution, however, also indicates that under certain conditions it may support concrete claims of the human rights holder to governmental assistance. Beyond that, the human right to water is not detailed, which leaves its embodiment to the legislator242 and the courts. In South African legal practice, the human right to water has been

239 240 241

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See below Chapter 4 note 250. See below Chapter 4 note 248. See for a country study R. Stein, Water law in a democratic South Africa: a country case study examining the introduction of a public rights system, Texas law review, 83 (2005) 7, pp. 2167–2183. See for instance the Water Services Act 108 of 1997 (No. 18522, Government Gazette, 19 December 1997).

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applied by courts on several occasions. For example, in the case of Residents of Bon Vista Mansions v. Southern Metropolitan Local Council,243 the municipal water provider discontinued the supply of water to the applicants since they had been unable to pay the water bill. The High Court of South Africa found that the disconnection of water supply violated the human right to water as outlined in Article 27 (2) of the South African Constitution. The Court argued with the obligation to respect the human right to water because an already existing access to water supply was interrupted.244 Some other countries have established a human right to water in their constitutions, as well. Article 23 number 20 of the Ecuadorian Constitution of 1998 guarantees a right to a quality of life which safeguards among others the supply of potable water and sewage disposal.245 In addition, Article 42 of the Ecuadorian Constitution relates to water as a factor for the maintenance of human health. It obliges the state to supply people with sufficient freshwater and sewage disposal in order to guarantee the human right to health. Some further provisions deal with the role of the state in water supply in an objective manner.246 According to Article 90 (1) of the Ethiopian Constitution of 1998 “[e]very Ethiopian is entitled, within the limits of the country’s resources, to . . . clean water.” Article 14 of the Constitution of Uganda of 1995 stipulates a right to “clean and safe water.” In some other countries the constitutional process is on the move and the establishment of a human right to water in their constitutions seems likely.247 Nevertheless, currently only a small number

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High Court of South Africa (2002), 6 BCLR 625 (W); For an abstract of the case and the judgement cf. URL: http://www.communitylawcentre.org.za/ser/casereviews/2002_ 6_BCLR_625.php (accessed 20 July 2005). Interestingly, the judge also based his judgment on the ICESCR. The duty to consider international law during the interpretation of the Bill of Rights is stipulated in Article 39 (1) (b) of the South African Constitution. Thus, it is not left to the legislative to implement the international human rights standard but the courts give them legal effect in inner state law of South Africa, too. Article 23 number 20 of the Constitution of Ecuador states as follows: “El derecho a una calidad de vida que asegure la salud, alimentación y nutrición, agua potable, saneamiento ambiental; educación, trabajo, empleo, recreación, vivienda, vestido y otros servicios sociales necesarios.” Cf. Articles 244, 246, 247, 249 of the Constitution of Ecuador of 1998. Thus, the people of Uruguay opted for an amendment of the Constitution embodying a human right to access to water and sanitary facilities (referendum on 31 October 2004); Furthermore, the Draft Constitution of Kenya (2005) states in Article 65: “every person

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of states explicitly included a human right to water in their constitutions.248 In addition, the standard of protection differs considerably. Some constitutions grant such a right without any further specification of its precise content. In South Africa the legislator and the courts provided the right with a clearer shape and it can be assumed that this process is going to continue.249 Nevertheless, there is currently no common principle in national legal orders that supports the conclusion that a human right to water has developed as a general principle. The identification of specific obligations derived from other human rights applicable to the issue of freshwater access faces tremendous difficulties, too. Most states guarantee human rights that can be applied to the problem of water scarcity such as, for example, the right to life and health.250 However, as yet the standard of protection does not go beyond that of the International Human Rights Covenants. To summarise, states deliver a heterogeneous response to the problem of freshwater access that neither reveals a general principle regarding a generic human right to water nor singles out specific obligations applicable to the issue of freshwater access.

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has the right to water in adequate quantities and of satisfactory quality” and in Article 66: “every person has the right to a reasonable standard of sanitation.”; The government of Belgium adopted a water resolution recognising that a right to water (on the basis of General Comment No. 15) should be incorporated in the Belgian constitution. Costa Rica considers similar steps. Some more countries incorporated objective legal provisions. They oblige the state but do not entitle the single individual to corresponding claims; as examples may serve Article 216 (4) of the Constitution of Gambia (1996) and Article 112 of the Constitution of Zambia (1996). C. Human identifies four factors to increase of people with freshwater access. These are proper legislation, an independent judiciary, political will to succeed and adequate (financial and human) resources (cf. C. Human, The human right to water in Africa, p. 84). See for example two Indian cases that base freshwater access on the right to life: In Subhash Kumar v. State of Bahir the court held that the right to life included access to unpolluted water (1991 AIR 420); A state obligation to provide water to people who face an immediate threat to survival was suggested in Attakoya Thangal v. Union of India (1990, 1 KLT 580); for an analysis of the determination of individual access rights by Indian courts see S. Muralidhar, The right to water, pp. 69 et seqq. A detailed review of three Argentine cases can be found in C. Fairstein, Legal strategies and the right to water in Argentina, in: E. Riedel/P. Rothen (eds.), The human right to water, pp. 95–113, at pp. 97 et seqq. For further examples see E.B. Bluemel, The implications of formulating a human right to water, pp. 977 et seqq.

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4.6. Extraterritorial obligations of states concerning the basic human need for water A question that relates to the internationalisation of environmental problems is the one concerning the responsibility of states for acts affecting people on neighbouring or otherwise related territories. With increasing state dependence on resources located outside their territories or transboundary resources, the international effects of domestic measures in water management may grow, too. Thus, for instance the diversion of water in upstream states may cause water scarcity among the population of downstream states. Similarly, the pollution of a joint international watercourse by one state may not only affect the people on its territory but on the other riparian state’s territory, as well. Of course, as the above analysis has revealed, affected people have the individual right to claim against their own government seeking protective measures on the bilateral or multilateral level in order to stop the foreign state’s harmful activity. In particular the law dealing with international watercourses forms the avenue for this interstate adjustment of conflicting utilisation interests. However, such indirect legal remedies only serve as an auxiliary instrument for affected people because the source of the relevant human rights threat can actually clearly be identified in these cases – the foreign (riparian) state. The question that has to be answered is hence whether the foreign state only has a responsibility according to the law on international watercourses,251 or whether there is a direct responsibility regarding the riparian state’s population according to international human rights law, too. Among the two human rights Covenants, only the ICCPR explicitly specifies its territorial scope of application. Article 2 (1) ICCPR obligates the state to guarantee the Covenant’s rights to “all individuals within its territory and subject to its jurisdiction.” A formal reading based on the wording of the provision suggests that any human rights responsibility ends at the border of states leaving cross border action without human rights remedy. However, the genesis of the provision promotes doubts to this strict territorial limitation.252 The history of the adoption of Article 2 (1)

251 252

See on this matter above Chapter 4 note 3. Cf. T. Buergenthal: To respect and to ensure: state obligations and permissible derogations, in: L. Henkin, (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights, pp. 72–91, at p. 74.

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ICCPR suggests that states intended to avoid human rights responsibility to persons who are subject to their jurisdiction (in particular nationals) but stay outside their sovereign territory.253 This is because in such a case the human rights threat emanates from another state authority.254 The situation that a state acts on the foreign territory violating human rights of people itself was, however, not within the main focus of the states while discussing the provision. An interpretation according to the context and the purpose of Article 2 (1) and the whole Covenant affirms the existence of certain extraterritorial human rights obligations.255 The ICCPR includes rights that can only be meaningfully exercised if the human rights holder is outside the territory of the responsible state, such as, for example, the right to enter one’s own country according to Article 12 (4) ICCPR. This indicates that the Covenant’ rights can apply exterritorialy, too. In addition, the provision does not intend to create an anarchic area where states may act without due regard to human rights.256 That is even more the case as the state on whose territory the activity takes place cannot be held directly responsible, either, because it can invoke Article 2 (1) ICCPR as well arguing that the violation has been undertaken by a different state authority. Such a state could then only be made responsible through its obligation to protect. This would not, however, deliver the same standard of protection. The exclusion of harmful activities that can be clearly attributed to a state would hence contravene the purpose of comprehensively binding states to human rights. Article 2 (1) ICCPR therefore can only be interpreted as excluding direct state

253

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Cf. D. McGoldrick, Extraterritorial application of the International Covenant on Civil and Political Rights, pp. 66 et seqq. Cf. detailed M. Nowak, U.N. Covenant on Civil and Political Rights, p. 43. The HRC stated in this respect that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” (HRC General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 Mai 2004, CCPR/C/21/Rev.1/Add.13, § 10); cf. also D. McGoldrick, Extraterritorial application of the International Covenant on Civil and Political Rights, p. 49. Similarly also M. Scheinin, Extraterritorial effect of the International Covenant on Civil and Political Rights, in: F. Coomans/M.T. Kamminga (eds.), Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004, pp. 73–81, at pp. 79 et seq.

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responsibility for acts of a foreign authority but not for its own misconduct on foreign territory.257 With regard to transboundary water pollution or withholding water amounts “merely” the damage takes place on the foreign territory and not the action that causes the damage. Nevertheless, the legal relevance of transboundary pollution must follow the same principle as those acts executed on foreign territory because it shows the same structure. The damage to individuals in both cases originates from the foreign state no matter whether it acts from its own or on foreign territory.258 Support of this view can also be found in international humanitarian law, which underlies the same rationale of protection of civilian populations in other countries.259 Applying international humanitarian law does not require that the act that caused damage to another state’s population was undertaken in that state but merely the occurrence of damage there. It can, hence, be concluded that acts of one state affecting freshwater access of people in another triggers a responsibility, according to the ICCPR, to the extent that freshwater access finds support in the Covenant. This means that a foreign state’s responsibility may first of all be established if its active conduct threatens the right to life according to Article 6 (1) ICCPR. Contrastingly, the question concerning positive obligations of a foreign state requires a different answer. In future, it may be a conceivable situation that water scarcity in one country can only find relief by another’s delivery of water or similar assistance in eliminating water scarcity. However, in such a situation the population suffering from water scarcity is not subject to the foreign state’s jurisdiction because there is no active conduct of the other state that yields jurisdiction. Transboundary responsibility of states according to the ICCPR therefore cannot be extended to positive obligations but is limited to active conduct, irrespective of the duty to deliver water amounts according to international water law. The ICESCR does not expressly stipulate its territorial scope of application. This may be explained by the circumstance that states originally conceived 257 258

259

Idem pp. 76 et seqq. Scheinin in this respect introduces the criteria of “effective control over the circumstances that result in a human rights violation.” Accordingly there is extraterritorial human rights responsibility if “the territorial state at the level of facticity has no means to prevent the violation” (M. Scheinin, Extraterritorial effect of the International Covenant on Civil and Political Rights, p. 83). Cf. S.C. McCaffrey, Water, human rights and sustainable development, p. 113.

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economic, social and cultural rights of limited legal effect. Since, however, the ICESCR does as well contain some directly binding obligations the issue of extraterritorial responsibility of states needs consideration. The territorial application of the ICESCR eventually follows the same principle as the ICCPR. This means acts that are attributable to a foreign state trigger responsibility according to the ICESCR.260 The Committee on Economic, Social and Cultural Rights stated in respect of a state’s international human rights responsibility as follows: To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction.261

The argument for such responsibility is similar to the one regarding the ICCPR. The ICESCR strives for comprehensive human rights protection.262 Thus, whenever states exercise jurisdiction they are bound to human rights. Normally, this jurisdiction is limited to the territory of states. If, however, a state exercises authority on another state’s territory – whether legally or illegally – there is no reason why it should be released from its human rights obligations. Another argument is that Article 2 (1) ICESCR commits states

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Cf. R. Künnemann, Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights, in: F. Coomans/M.T. Kamminga (eds.), Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004, pp. 201–231, at pp. 216 et seq. CESCR General Comment No. 15 (above Chapter 1 note 49) para. 31. The Committee’s view met with some resistance. For example, the Canadian representative, Gregson, in a debate within the UN Commission on Human Rights expressed the concerns of the Canadian government as follows: “Her Government was, however, concerned about General Comment No. 15 on the right to water, adopted by the Committee on Economic, Social and Cultural Rights. While accepting that Governments owed a responsibility to their own people to provide access to a clean drinking water supply and sanitation, it did not agree that there was a “right” to drinking water and sanitation owed between States. The internationalization of a right to water between States was not grounded on any plausible reading of the Covenant on Economic, Social and Cultural Rights and was therefore opposed by her Government.” (UN Doc. E/CN.4/2003/SR.56, para. 49). Similarly also R. Künnemann, Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights, p. 202.

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to “international assistance and co-operation.”263 It is true that this obligation only applies to interstate relations and does not make a state the addressee of human rights enjoyed by another state’s population. However, the underlying idea of the provision can be referred to.264 Article 2 (1) ICESCR inheres the objective to achieve the full realisation of the Covenant’s rights as fast as possible and refers to international assistance and cooperation as a means of achieving this goal. It would be contrary to the purpose of this rule to allow states to inflict harm on people living on another state’s territory because this would even reduce the already achieved standard. Contrariwise, not every act that has effects on another state’s population entails accountability according to the ICESCR. In view of the vagueness and diversification of some rights guaranteed within the Covenant the imposition of obligations must take into account existing principles of international water law. Thus, the state has a right to serve its own utilisation interests on its territory. Thereby according to the principle of equitable utilisation the infliction of some harm on a riparian state is not per se unlawful.265 Only if water use goes beyond what is regarded equitable the responsibility according to human rights law seems possible. This suggests that only injuries of a certain degree of seriousness may amount to a human rights violation according to the ICESCR. Thus, a state that pollutes a watercourse causing diseases of people in a neighbouring state will violate their right to health according to Article 12 ICESCR, because this kind of water utilisation can hardly be regarded equitable. In contrast, not every interference with freshwater access that may fall under the wide scope of protection of an adequate standard of living according to Article 11 ICESCR will at the same time constitute non-equitable utilisation. It can hence be summarised as follows: harmful acts of a state to another’s population triggers human rights responsibility according to the ICESCR, if it does not prove being equitable in the sense of international water law. Whereas obligations to respect can be established, positive obligations cannot be derived from the ICESCR. Only active conduct can constitute the exercise of state authority and, hence, trigger human rights account-

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See in this regard also CESCR General Comment No. 15 (above Chapter 1 note 49) para. 30. Cf. S.I. Skogly/M. Gibney, Transnational human rights obligations, Human rights quarterly, 24 (2002) 3, pp. 781–798, at p. 791. Cf. on this discussion above 2.2.4.

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ability.266 Claims to the delivery of water or similar assistance, therefore, can only be asserted by the state and only under very specific conditions. Such claims of one state against a riparian state are based upon the principles of no-harm and equitable utilisation as well as the principle to cooperate.267 They request that the utilisation of a transboundary watercourse has to serve the basic human need for water prior to other uses. A state can, therefore, demand the water amount out of a joint watercourse necessary to fulfil the basic needs of its population. A second situation is times of war or armed conflict. The Geneva Conventions III and IV and the Additional Protocols I and II include obligations of states to supply water to another state’s civil population and certain categories of combatants.268 In respect to positive state obligations, it is, however, difficult to transfer such rationale to a situation of water scarcity in peacetime. In times of war the obliged state exercises authority and control over people and drinking water installations in a similar manner as the combatant state itself. This justifies the imposition of comprehensive positive obligations. In peacetime such authority is not executed by another state.269 The rules that ask for joint action and international cooperation270 in order to realise the human rights in the Covenant – in particular Articles 2 (1) and 11 (2) ICESCR – only impose very general and unspecified obligations upon the parties.271 They are therefore not appropriate for deriving such concrete duties like the delivery of water. Apart from the specific situations just referred to, according to current human rights law, the delivery of water or similar assistance is merely subject to humanitarian (water) aid.

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268 269

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See, however, Künnemann who attempts to identify at least some positive obligations of states, in particular an obligation to protect a human rights holder in a foreign country against actions of their own citizens (R. Künnemann, Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights, pp. 219 et seqq.). See in this respect S.I. Skogly/M. Gibney, Transnational human rights obligations, pp. 786 et seqq. Cf. the regulations outlined above 4.2. Similarly Hilf with regard to the supply of food (cf. M. Hilf, The right to food in national and international law, pp. 143–144). See comprehensively hereunto R. Künnemann, Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights, pp. 222 et seqq. Cf. P. Alston/G. Quinn, The nature and scope of states parties’ obligations under the International Covenant on Economic, Social and Cultural Rights, Human Rights Quarterly, 9 (1987) 2, pp. 156–229, at p. 191.

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4.7. Concluding observations on the international human rights law’s contribution to freshwater access The analysis within this chapter has confirmed that a human rights-based approach to freshwater access finds support in current international human rights law. International human rights law is therefore able to fill parts of the gap that the purely objective international water law leaves open as far as individual claims of water users are concerned. In view of the necessary components of a human rights-based approach to freshwater access discussed in Chapter 3, the analysis, however, has also revealed deficits of current international human rights law. The current state of the law can be summarized as follows. Despite the dense system of human rights rules at the universal level, international law does not expressly stipulate a generic human right to freshwater access. The current standard of protection and the demand for reform in this area of law must therefore be determined by way of interpreting general human rights norms applicable to the issue of freshwater access. Human rights are primarily embodied in the two International Human Rights Covenants. Additionally, there are specific human rights treaties dealing with particularly vulnerable groups. Two of these conventions – the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women – even expressly deal with a right to freshwater access. However the analysis has revealed that the scope of protection delivered to children and women is deficient. In personal terms the CEDAW restricts itself to the protection of freshwater access of rural women. In addition, neither of the Conventions provides a comprehensive right to water but singles out specific aspects thereof. The CEDAW solely covers the aspect of discrimination, the CRC – though more comprehensive – perceives freshwater access solely as a factor for health. However, even those parts that are subject to regulation lack the necessary specification of the claims of the human rights holders and the corresponding state obligations. This means that both Conventions themselves are in need of specification, in order to make those rights that deal with freshwater access operational in practice. The CEDAW and the CRC therefore also prove to be inappropriate for directing the interpretation of the general human rights treaties. Human rights that can be referred to in order to derive individual rights to freshwater access are the right to life pursuant to Article 6 (1) ICCPR, the right to an adequate standard of living pursuant to Article 11 ICESCR –

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the latter supplemented by the right to health according to Article 12 ICESCR –, the minority rights according to Article 27 ICCPR as well as several non-discrimination clauses in both Covenants, in particular the right to equal treatment pursuant to Article 26 ICCPR. Article 6 (1) ICCPR can be drawn upon for that part of water utilisation necessary to maintain human survival. This does not simply mean any quantitative fulfilment of the need for water. The dignity foundation of the right to life as outlined in the preamble of the Covenant also requires a humane mode of water access. First of all, Article 6 (1) ICCPR provides water users with an individual right against the state to respect their existing freshwater access. Beyond that, the right to life also imposes positive obligations upon the state. The analysis has shown that positive obligations cannot be conceptualised in a comparable way as negative obligations can because the state authorities are granted a wide scope of appreciation on how to ensure human life and hence water access in this regard. Nevertheless, the Covenant establishes some criteria that determine the scope of appreciation of states and that the human rights holder can draw upon. Thus, measures taken have to be appropriate and the state must employ all possible means to bring about the guarantee of people’s freshwater access. In certain situations a water user may even have a claim to specific measures by the state. That is in particular the case, if a threat to somebody’s freshwater access affects the dignity foundation of the right to life. It is true that the right to life only supports a limited part of a human rights-based approach to freshwater access. Nevertheless, its importance for proving the existence of such an approach in international law may not be underestimated. Due to the lack of a compelling superior interpretation and enforcement authority, international law relies on the comprehension of states regarding the law’s meaning. As the direct effect of Article 6 (1) ICCPR is undisputed in legal discourse, the right to life as a consequence equips a human rights-based approach to freshwater access with a basic substantial content that cannot be challenged. In this respect, it cannot therefore be contested that a human rights-based approach to freshwater access is supported in international law. The rights to an adequate standard of living and health support a more advanced standard of protection of a human right-based approach to freshwater access in international law than the right to life. Their major insufficiency lies, however, in the imposition of only a lowered standard of positive state obligations, which is indicated by the formulation “to take steps . . . with a view to achieving progressively the full realization of the rights” in Article 2

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(1) ICESCR. A general restriction of the legal effect of economic, social and cultural rights is inappropriate because some of the rights in the Covenant have a similar significance as the rights outlined in the ICCPR. In addition, the argument of the limited availability of resources is unfounded because it is a syllogism from the purpose of human rights that positive obligations do only exist vis-à-vis the factual ability of the state to comply with them. Nevertheless, while the analysis has suggested that the term “to take steps” cannot be understood as impeding any direct effect,272 it at least curbs the imposition of direct state obligations with regard to the Covenant’s rights. The analysis has shown that Articles 11, 12 ICESCR contain a direct obligation to respect people’s freshwater access to the extent that it serves the maintenance of an adequate standard of living or health. In addition, the state obligation not to discriminate directly obliges states to omit differentiations between water users on the basis of the prohibited criteria. Those obligations have direct effect because they do not ask for any state resources and are, hence, concurrent with the purpose of Article 2 (1) ICESCR. Directly effective positive obligations prove more difficult to be derived. The state has a general duty to employ all available resources for the realisation of the rights in question pursuant to Article 2 (1) ICESCR, but there are only inadequate corresponding rights of the individual water user. Only in certain situations, where the water user is affected in the dignity foundation of Articles 11, 12 ICESCR, or where the core area of these rights is affected, the Covenant also supports concrete claims of individuals to the provision of freshwater access. This is because, in such a situation, the release of the state from this responsibility would question the whole concern of efficient human rights protection underlying the two International Human Rights Covenants. The vagueness of Article 2 (1) ICESCR in imposing directly binding state obligations leads to yet another problem that affects the efficient application of a human rights-based approach to freshwater access in legal practice. Although it has been shown that the rights to health and to an adequate standard of living include obligations with direct effect, their legal character remains challenged, which also weakens a human rights-based approach in social reality. The Covenant lacks clearly articulated instructions that states cannot ignore. As long as the content of the Covenant is not bindingly

272

Cf. above 3.5.2.3. and 4.3.3.3.

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interpreted that way it seems difficult to enforce the full scope it already provides for a human rights-based approach to freshwater access. In Chapter 3, non-discrimination was referred to as one central pillar of a human rights-based approach to freshwater access.273 In Chapter 4 it has been shown that the existing non-discrimination provisions in the two Covenants can be employed for the issue of freshwater access. Especially due to the vague imposition of state obligations by the ICESCR the non-discrimination clauses work as a supplement because they doubtless have direct effect and can penetrate that part of water management that actually cannot be made subject to a human rights claim. Thus, it was shown that Articles 11, 12 ICESCR, in conjunction with the non-discrimination clauses, may also provide concrete claims to state action. Furthermore, Article 26 ICCPR directly entitles water users to an equal claim in water resources. This can include claims to the provision of water or water supply facilities. Eventually, the obligation not to discriminate determines also the political field and therefore enhances a human rights-based approach to freshwater access in its role as a political instrument of water allocation and management. The non-discrimination provisions within the Covenants are also an instrument for certain minorities to respond to their specific vulnerability and to enforce their specific interests to freshwater access. The analysis has revealed that only a few specific problems of minorities remain unsettled, if state obligations not to discriminate are applied rigorously. Beyond that, Article 27 ICCPR delivers protection against interferences with freshwater access of minorities that destroy the basis of their existence. The provision guarantees their access to freshwater necessary for the maintenance of their cultural, religious or linguistic life. The provision is of particular relevance for regional minorities because they are often dependent on watercourses located in their residing area. Although even for minorities the focal point of their interests will be the enforcement of their rights to an adequate standard of living and health, Article 27 ICCPR may not be undervalued in view of no or rudimentary regulation in the regional human rights treaties. The existence of only inadequate positive obligations of states reveals another problem of a human rights-based approach to freshwater access in current international human rights law. It has already been described how third parties – in particular corporations – can threaten people’s existing

273

Cf. above 3.2.

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freshwater access or hamper their attempts to gain stable water supply.274 The necessity can hardly be disputed to bind corporations to a similar standard of human rights that international human rights law establishes between the individual and the state because the ideal of a balance of power between private persons does often not exist. This does not mean making corporations an addressee of international human rights themselves. Such binding effect can also be established by national legislation. However, if international human rights law does not directly provide individual redress against human rights violations of third parties, it at least has to impose respective positive obligations upon the state to establish protective measures at the national level. In this respect, the analysis disclosed that states have an obligation to set a framework of law that guarantees users not to be excluded from water access by private suppliers. Accordingly, the state cannot dispose of its human rights obligations by privatising water supply but has to ensure that everybody retains sufficient water access. Nevertheless, in contrast to these broad general obligations, there are only insufficient corresponding claims of water users to specific state action because general obligations to adopt – especially legislative – measures usually do not mediate specific entitlements of the individual. That means, although the acts of third parties interfering with freshwater access can equally be identified as if the state acts itself, there normally are no claims of water users against the state to lift this threat by concrete administrative measures. Again, only if the bare essentials of water users are threatened Articles 11, 12 ICESCR equip water users with a concrete claim against the state to redress the threat. Facing the tendency of state withdrawal from public water supply and distribution, current state obligations to protect do hence not keep up with the increased degree of threats to human rights. The analysis has further shown that transboundary human rights responsibility is not well developed, despite the internationalisation of the problem of water scarcity. Only active transboundary interferences with freshwater access can trigger a human rights responsibility but beyond that there are no claims of individuals against another state to assist in situations of water scarcity. Such demands can merely be made on the state-level according to international water law and according to the state obligations to co-operate and assist each other pursuant to Article 2 (1) ICESCR.

274

Cf. above 3.5.2.1.

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Another aspect of interest enforcement of water users is public participation. In this respect international human rights law is indeed deficient. Neither the treaty nor the international customary law or general principles currently constitute an individual right to participate in the decision-making process. As far as a rule in customary international law is emerging it lacks any comprehensible content. There is no indication as to the conditions and the manner of public participation: directly or indirectly, as a right of the group or of the individual. In addition, there are no specifications concerning the procedure how the state has to deal with the arguments and interests submitted by participating people. The same is true for the access to information by water users. The right to information has not yet emerged as a rule of customary international law. In contrast to the law on international watercourses, international human rights law contains individual rights that support freshwater access of people. Since, however, their precise embodiment is too vague and imperfect to exhaustively respond to the problem of water scarcity the question arises how to strengthen a human rights-based approach to freshwater access in international law. The following chapter will deal with opportunities to bring about an improvement of a human rights-based approach to freshwater. In doing so, the chapter will also refer to the aspect of law perception in social reality in order to increase the contribution of human rights in solving the problem of water scarcity.

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Chapter 5 Improving a human rights-based approach to freshwater access 5.1. Introduction The previous chapters have revealed deficits of international water and human rights law in ensuring the basic human need for freshwater. This chapter will elaborate different strategies aiming at an improvement of international law in this respect. The discussion will be twofold: I will first address the normative aspects, but second also empirical and practical elements. The main subject of elaboration will be the improvement of formal legal rules. Although the forgoing analysis has certainly disclosed a need for reform, the deficits identified do not necessarily ask for the development of new treaty law. There are various alternative options that can be pursued towards an improvement of the current standard of pertinent human rights law. Some of those options will be analysed and discussed in relation to the treaty avenue of improving freshwater access. The discussion of the formal legal standard must also consider the practical conditions for the operation of law. The effectiveness of the formal legal standard depends on various – not necessarily legal – factors that ultimately determine the “success” of a legal rule. Thus, for example the discussion so far has shown that the current fragmentation in international law curbs recognition of higher standards with regard to the basic human need for freshwater. At present, aspects of water utilisation – like others – are part of different areas of law. There is international water law, the international bill of rights and some rules of international humanitarian law. The fragmentation renders the interpretation of law by the entitled entities difficult but also by addressees and other societal actors. Chayes & Chayes argue that states which undertake international obligations usually intend to comply with them and refer to ambiguous rules instead and indeed limited capacity as the main reason for states’ non-compliance with international

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law.1 Although in case of the relation of international water law and human rights law norm ambiguity does not really occur but can be avoided by a pertinent interpretation, fragmentation nevertheless may produce similar effects of non-compliance. This is all the more the case, as the ascertained standard of human rights protection is the outcome of a complex interpretative process that produces statements which are not as clear as one may wish.2 Dommen in this respect also refers to the circumstance that enforcement mechanisms of international human rights are hardly used by environmental circles.3 He traces back this phenomenon to the reason that human rights procedures or even the rights themselves seem more complicated than they actually are.4 The need to foster the regard and awareness for international law therefore seems undisputable. In this respect, this chapter will also turn to the increasing role of soft law instruments in international law. Eventually, it must be taken into account that not every appropriate reform at the international level will find adequate support by states. Thus, the discussion will also be one of the best versus the feasible measure.

5.2. The need to connect human rights law with international water law Both international water law and international human rights law give the impression of dealing with entirely separate subjects of regulation. This leads to a non-uniform perception of the legal consideration of the basic human need for water in international law. In fact, however, both bodies of law are closely interwoven. Thus, the circumstance that international water law does not include individual rights of access does not mean that there are no such rights in international law, in general. Indeed in some situations, international human rights law is applicable to transboundary water issues and may provide water users with individual claims. International human rights law may also act as a factor for facilitating the definition and application of

1

2

3 4

Cf. A.H. Chayes/A. Chayes, The new sovereignty: compliance with international regulatory agreements, Cambridge, Massachusetts, Harvard University Press, 1995, pp. 32 et seq. Cf. M. Craven, Some Thoughts on the emergent right to water, in: E. Riedel/P. Rothen (eds.), The human right to water, pp. 37–47, at p. 41. Cf. C. Dommen, Claiming environmental rights, pp. 3 et seq. Idem p. 4.

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international water law.5 It is clear that water management policies which states agree upon and actual water utilisation may not violate human rights. The interpretation of the principles of equitable utilisation and no-harm must therefore follow the human rights perspective to freshwater access. This means that water utilisation contrary to human rights can never be regarded equitable and always inflicts harm on the riparian state in the sense of the principle, too. The importance of human rights law becomes evident with regard to determining the priorities among competing water uses. The interpretation of the relevant principles in international water law in Chapter 2, in particular Articles 5 to 7 and 10 of the UN Watercourse Convention, has shown that the basic human need for water enjoys priority over other less vital uses.6 However, since the Convention uses ambiguous language in this regard this reading is a difficult exercise that provokes debates about the utilisation principle’s correct meaning leading to uncertainty in the practical application of these principles. In contrast, reading international water law in the light of human rights law leaves no doubt as to the priority of water utilisation for basic human needs over other water uses. Human rights law hence delivers a hierarchy of values that the interpretation of other fields of law – here international water law – has to follow. The link between international water law and human rights has yet a territorial dimension. The restriction of international water law’s application to transboundary watercourses indicates that states enjoy full freedom of decision over their national watercourses, which in fact does not exist. Despite the inapplicability of international water law, water management on the national level operates within a human rights framework that determines a basic content of water management and in its procedure. Thus, some legal ideas underlying the principles of equitable and reasonable utilisation and no-harm apply to the management of national watercourses, too. Current fragmentation, however, blurs the partial congruence of the legal requirements for national and international water management and hence curbs the process of uniform law application. In view of the witnessed fragmentation and due to the lack of compelling enforcement entities it is important to find instruments that facilitate the process of law interpretation and application and that urge states to comply

5

6

Cf. L. Hammer, Indigenous peoples as a catalyst for applying the human right to water, pp. 133 et seqq. Cf. above 2.3.1.3.

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with their obligations. It is therefore essential to put the applicable human rights content close into the context of that field of law that inherently deals with the use of water resources, here the water law. Otherwise human rights run the risk that they do not unfold their full legal and practical effect. Putting human rights in the context of international – and national – water law will force states to attend to their human rights obligations while applying the water utilisation principles. As a consequence, the position of water users and other societal actors in the conflict of water allocation would be strengthened. There are several approaches suitable for bringing about a better link between international water law and human rights law. There is the possibility of interpretation as just referred to as well as the treaty amendment and the soft law alternatives. Improvement may also be brought the institutional way, in particular the set up of national and transboundary water management institutions able to perceive and implement all those norms applicable to the watercourse in question and the affected water users. The approach of reading all those rules in international law applicable to all water resources, whether national or international, conjunctively has been taken up by the ILA. Their Revised Helsinki Rules give a close picture of the association’s view of the current state of law. Although the ILA has no competence to adopt binding interpretations of the relevant international law, the Revised Helsinki Rules carry importance as assistance for determining existing obligations of states and rights of water users because they are considered as subsidiary sources according to Article 38 (1) (d) ICJ Statute.7 The ILA is widely respected due to its accumulated expert knowledge and in particular due to the circumstance that it has ascertained the state of law in various fields in great detail and correctly for some decades now. The second intention of the ILA despite a survey of the current state of law is to anticipate the way international water law will develop in the near future. In the following, opportunities of fostering the development of a human rights-based approach to freshwater access in international law will be elaborated in the light of improving the formal legal standard, a better law perception in practice and in view of their feasibility in international relations.

7

Cf. W. Vitzthum, Begriff, Geschichte und Quellen des Völkerrechts, p. 79.

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5.3. Establishing new international treaty law 5.3.1. Increasing the normative content of a human rights-based approach to freshwater access Often, the adoption of new treaty law is favoured as the most obvious and compelling solution to the law’s deficits with regard to guaranteeing the basic human need for freshwater.8 Thus, in particular some NGOs claim the necessity to establish an explicit human right to water.9 However, as will be seen, the adoption of an explicit human right to water is not the compelling consequence of current international law’s shortcomings. Indeed, treaty law enables the concrete and intentional embodiment of all necessary components of a human rights-based approach to freshwater access in international law. Thus, treaty law could remove all deficits revealed by the foregoing analysis and hence achieve a comprehensive formal recognition of a human right to water. In addition, clearly stating the content of the law would make it easier for states to comply with or in other words harder for them to depart from the standard, the law wants to accomplish.10 That is to say, applying human rights for the issue of freshwater access would not be the matter of a complicated legal interpretation, instead states could discern the content of the law.11 The same is true for the individuals concerned. The establishment of explicit rules would better enable them to discern their rights. A second advantage of adopting new treaty law certainly is the possibility to overcome some of the just described fragmentation in international law. Combining human rights with international water law by, for example, establishing individual access rights in the UN Watercourse Convention – as far as it will eventually enter into force at all – or by adopting a separate convention on the issue of freshwater access would link these different areas of law and hence reduce the negative effects of fragmentation.

8

9 10 11

Cf. J. Scanlon/A. Cassar/N. Nemes, Water as a Human Right?, p. 21; A. Cahill: ‘The human right to water – a right of unique status’: the legal status and normative content of the right to water, The international journal of human rights, Vol. 9 (2005) No. 3, pp. 389–410, at p. 405. Cf. E. Riedel, The human right to water, p. 603. Cf. E.B. Bluemel, The implications of formulating a human right to water, p. 972. Cf. A. Hardberger, Whose job is it anyway? Governmental obligations created by the human right to water, Texas international law journal, 41 (2006) 3, pp. 533–568, at pp. 538 et seq.

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The adoption of new treaty law will however only add substantial value to the already existing standard of freshwater access if it drafts the access rights in a detailed manner. In comparison, the often proposed incorporation of a generic human right to water in international law would not bring about a considerable improvement but would first of all carry symbolic importance. This is due to the fact that current human rights law already provides appropriate protection with regard to an obligation the respect and in terms of the non-discriminative role of a human right to water. Deficits can first of all be witnessed with regard to a state’s positive obligations. The explicit establishment of a human right to water in international law, however, can hardly contribute to the necessary specification in this regard for the reason that human rights are usually formulated in a rather broad manner. Thus, such a right would be in need of specification itself. The establishment of an explicit human right to water in international law would hence have to come along with a more detailed regulation regarding its scope of protection, in particular the positive obligations it does impose. In terms of the formal legal standard, the debate on the adoption of new treaty law should therefore rather be one of adopting a “Convention for Freshwater” or at least of incorporating comprehensive rules into existing treaties.12 Such a convention could stipulate the necessary elements of an appropriate human rights-based approach to freshwater access in international law, such as the obligations of private parties or at least the state’s obligations to protect against third party action. It would also have to clarify the controversial debate over social and economic barriers of water access because that was one question why individual rights to freshwater access were not included in the UN Watercourse Convention.13 The rules could stipulate more detailed measures of implementation, monitoring and compliance control. Furthermore the institutional, procedural and organisational preconditions for the practical operation of a human right to water could be designed. On top of that, a convention or a similar legal instrument could adjust the basic human need for water to environment protection, development and to other water uses. Whereas the incorporation of detailed rules is on the one hand a necessary condition for improving a human rights-based approach to freshwater access

12

13

Cf. T. Clarke, On making water a human right through public policy action, in: E. Riedel/ P. Rothen (eds.), The human right to water, pp. 161–167, at p. 162 et seq. See above Chapter 2 and note 77.

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by new treaty law, it is on the other the biggest obstacle to the success of the concept. Currently it seems unlikely that comprehensive state obligations regarding people’s freshwater access will become international law in the near future. The existing debate on the adoption of new treaty law regarding individual rights of water access indicates that states are not willing to expressly undertake as comprehensive obligations. Rather, conflicting state interests on this issue bear the risk of producing a formal compromise with no more or even fewer binding obligations than can already be derived from treaty law by way of interpretation. In this regard Riedel refers to the risk that a limited treaty could produce the impression that there is no further need for reform or for developing this area of law with the effect even of hampering the success of a human rights-based approach to freshwater access.14 With regard to a treaty that offers inadequate rules to the problem this seems indeed true. However, the mere establishment of a generic human right to water, similar to the right to food according to Article 11 ICESCR, would not be affected by this risk. The establishment of an explicit human right to water could bring about a better law perception in legal practice by raising awareness.15 Despite causing little formal legal improvement an explicit generic human right to water would have a striking message that current interpretations of existing law cannot deliver. Thus, the explicit recognition might also foster the process of implementation because the right could not be “overlooked” in the process of balancing conflicting state and individual interests but also of different interests of water users. Quoting an international human rights norm can also be a useful tool in the national political debate. An explicit human right would hence ensure that the basic human need for water does not get marginalized in both legal discourse and public consciousness. Yet, even if one favoured the adoption of such a broadly formulated human right to water it would first have to find the consent of states, which currently appears to be hard work. Against the background of the above discussed difficulties, the adoption of new treaty law – whether in form of a detailed freshwater convention or as a generic human right – merely seems in theoretical terms to be a promising approach. From a pragmatic perspective on the improvement of freshwater access, however, it does not seem auspicious.

14 15

Cf. E. Riedel, The human right to water, p. 605. Cf. P. Gleick, Implementing the human right to water, in: E. Riedel/P. Rothen (eds.), The human right to water, pp. 143–147, at p. 144.

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Due to the lack of global consensus it might however also be worth contemplating establishing an explicit right to water in the regional context.16 In such a context it seems more likely to achieve a consensus on the necessity of adopting detailed regulations to freshwater access of individuals because states might face similar water and societal problems. In addition, it could be easier to incorporate such obligations as part of a comprehensive legal system of water management in the region. A second and more promising opportunity of enhancing a human rightsbased approach to freshwater access by new treaty law is the fortification of the remedial side of human rights by increasing their formal and practical justiciability. This opportunity shall be elaborated next. 5.3.2. Establishing individual complaint mechanisms by an Optional Protocol to the ICESCR The improvement of a human rights-based approach to freshwater access in international law can also be approached from the side of its implementation. Human rights guaranteed in an international treaty, which a state has ratified, are applicable in the national sphere. Chapter 3 pointed out that, in principle, all human rights, whether civil and political or economic, social and cultural, are justiciable (or at least have justiciable components) in the national context.17 The state is obliged to establish the procedural conditions to give the human rights effect in the national sphere, including appropriate remedies.18 Thus, implementation of human rights must first of all be sought at the national level.19 In case of a working national judiciary the claimant

16

17 18

19

This opportunity favours Beyerlin (cf. U. Beyerlin, Nachhaltige Nutzung natürlicher Ressourcen und Menschenrechtsschutz, p. 64). Cf. above 3.5.2.3. These might be judicial remedies but also quasi-judicial remedies such as complaints to Ombudspersons, national human rights commissions or parliamentary commissions. Interesting in this respect is the judgement of the European Court of Human Rights in Zander v. Sweden relating to potential pollution of a drinking-water well (14282/88 [1993] ECHR 59, 25 November 1993). The Court held that the absence of judicial review for a Swedish government’s decision violated the right to a fair trial according to Article 6 (1) ECHR (cf. paras. 29 and 35.1 of the judgement). This view is also expressed in the Vienna Declaration of 1993 (UN Doc. A/CONF.157/23; 32 ILM 1661 [1993]). Article 36 of part I reads as follows: “The World Conference on Human Rights reaffirms the important and constructive role played by national institutions for the promotion and protection of human rights, in particular in their advisory

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will obtain sufficient remedies for the alleged violation rendering relief at the international level superfluous. Where no relief is granted in the national context an international human rights supervisory body gains importance. Remedies at the international level therefore are actually a substitute for failures of the state in the national legal system. One shortcoming of international human rights law with regard to compelling states that avoid complying with their obligations is the sparse incorporation of individual complaint mechanisms. Till now, only civil and political rights can be made subject to an individual’s communication to the Human Rights Committee.20 Thus, the interference with a person’s freshwater access amounting to a violation of Article 6 (1) ICCPR can be made the subject of an individual communication according to the procedure outlined in Articles 1 to 5 of the Optional Protocol to the ICCPR.21 The same is true for the non-discrimination rights included in the ICCPR and the minority rights in Article 27 ICCPR. The part of water access, however, solely covered by Articles 11 and 12 ICESCR does not find an equivalent individual complaint mechanism in international law. Neither does the right to selfdetermination according to Article 1 ICCPR, because it is no individual right in the sense of Article 1 first sentence of the Optional Protocol to the ICCPR but a collective right.22 The non-existence of individual complaint mechanisms for economic, social and cultural rights on the international level curbs the ability of human rights law to assist people in gaining their basic water needs. Indeed, the absence of such remedies does not in formal legal terms diminish states’ obligations to guarantee economic, social and cultural rights on the national level. However, it practically reduces the pressure upon states to implement them because states do not have to fear legal consequences for their non-compliance. The discussion about the adoption of an Optional Protocol to the ICESCR similar to that of the ICCPR is as old as the debate on the division of human rights into two

20

21 22

capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights.” Four out of the six principal UN human rights treaties provide for individual complaints procedure. Solely the ICESCR and the Convention on the Rights of the Child are not equipped with individual complaints procedure. Cf. above Chapter 4 note 199. A. Rosas, The right of self-determination, in: A. Eide/C. Krause/A. Rosas (eds.), Economic, social and cultural rights, pp. 111–118, at pp. 114 et seq.

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categories.23 This study shall not explain the specific legal design of such an Optional Protocol. For that discussion one may refer to the existing drafts of an Optional Protocol to the ICESCR24 and the subsequent discussion of it.25 It shall instead be pointed out how such an Optional Protocol would support a human rights-based approach to freshwater access. The adoption of an Optional Protocol is not a specific step on behalf of the realisation of the basic human need for water, but would bring about an improvement for the implementation of all economic, social and cultural rights and hence also those that provide people with individual water access rights. The incorporation of an individual complaint mechanism for economic, social and cultural rights would yield two major effects: firstly, the recognition of an individual complaint mechanism would enable people to seek relief for a human rights violation that is not sufficiently remedied in the national legal system. The finding of the relevant supervisory body that the complainant is violated in one or several human rights of the Covenant will, as a consequence, put pressure on the violating state to remedy the violation in question and to adjust its actions in the future.26 Such “litigation” on the international level could contribute considerably to the acceptance of economic, social and cultural rights in legal practice in a way that the reporting system cannot do independently. In contrast, establishing state complaint mechanisms with regard to economic, social and cultural rights is

23

24

25

26

Cf. M. Nowak, The need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, The Review/International Commission of Jurists, 55 (1995), pp. 153–165, at p. 153. See in particular the consideration of the CESCR on the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights as concluded at its fifteenth session (E/C.12/1996/SR.44–49 and 54). The preparation of an Optional Protocol to the ICESCR regarding individual and group complaint mechanisms was encouraged by the Vienna World Conference on Human Rights (cf. paragraph 75 Vienna Programme of Action, A/CONF.157/23). Cf. M. Nowak, The need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; E. de Wet, Recent developments concerning the draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, South African journal on human rights, 13 (1997) 4, pp. 514–548; K. Arambulo, Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights, pp. 173 et seqq.; C. Tomuschat, An optional protocol for the International Covenant on Economic, Social and Cultural Rights? in: K. Dicke [et al.] (eds.), Weltinnenrecht, pp. 815–834. Cf. P. Alston, No right to complain about being poor, p. 92.

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no promising opportunity. Experiences with the state complaint mechanism in the ICCPR27 have shown that states use this option rarely.28 States are reluctant to accuse another state of violating its human rights obligations because they have no actual self-interest in the other state’s compliance with international human rights.29 Thus, they will usually not burden their international relations for the benefit of the citizens of another state.30 The representation of the individual’s interests by another state therefore only is an imperfect substitute for direct individual litigation.31 Equipping the individual is hence decisive.32 Secondly, the incorporation of an individual complaint mechanism could also contribute to the specification of a human rights-based approach to freshwater access in international law and would therefore yield a hard legal effect. The analysis above has shown the vagueness of the relevant human rights norms and thus the difficulties in specifying the concrete state obligations concerning people’s freshwater access to be a major deficit in current international human rights law. The case law produced by the authorised supervisory body in response to an individual complaint would help to elaborate the precise meaning of the applicable human rights norm. Thus, the currently vague standard of human rights supporting freshwater access in international law could be better conceptualised and applied.33 This will also make the rights more likely to become

27 28

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32

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Cf. Articles 41–43 ICCPR. Cf. L. Henkin, Inter-state responsibility for compliance with human rights obligations, in: L.C. Vohrah, [et al.] (eds.), Man’s inhumanity to man: essays on international law in honour of Antonio Cassese, The Hague [et al.], Kluwer Law International, 2003, pp. 383–397, at p. 389; Henkin argues that states have an obligation according to customary international law even to ensure compliance by all other states with their human rights obligations (cf. L. Henkin, Inter-state responsibility for compliance with human rights obligations, pp. 383, 394 et seqq.). Cf. T. Marauhn, Individualbeschwerde für völkerrechtlich gewährleistete wirtschaftliche, soziale und kulturelle Rechte?, p. 252. Ibid. Nevertheless, state complaints may gain value with regard to gross or mass violations of human rights, which may particularly occur in authoritarian or totalitarian states. That is to say, individual complaints cannot impose the same pressure that can be produced by states or the state community. In addition, due to the public pressure in such situations it will be more difficult for states to shirk to blame another violating state. For a dissenting opinion see M.J. Dennis/D. Stewart, Justiciability of economic, social, and cultural rights, pp. 501 et seqq. Similarly V. Petrova, At the frontiers of the rush for blue gold, p. 601.

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subject to scrutiny at the national level by judicial or similar bodies.34 As Alston suggests in this respect: the most telling jurisprudential value of the complaints procedure is the fact that the collected ‘views’ of the Committee based on individual cases are of infinitely greater value in shedding light on the meaning of the various rights formulations than either the Committee’s General Comments or the insights generated by its examination of state reports.35

Concerns that the granting of individual legal remedies would trigger a “flood” of complaints do not rebut and may in fact confirm this approach. The utilisation of individual complaint mechanisms by human rights holders proves the relevancy of economic, social and cultural rights. Enforcement measures serve the purpose of giving effect to freedom that human rights legally protect. Rejecting those mechanisms contains the disguised confession that the human rights in question have massively been violated. This of course cannot negate the necessity of setting up complaint mechanisms but justifies their establishment because they realise that economic, social and cultural rights and, hence, as well a human rights-based approach to freshwater access are taken seriously. In addition, there are well approved floodgates that prevent popular complaints, such as victim requirements, exhaustion of domestic remedies or rules on abuse of the right to submit a complaint.36 The requirement of the exhaustion of all domestic remedies does as a side-effect foster the development of those national legal remedies since this seems to be the way for states to avoid proceedings at the international level, which will always raise more public attention than inner state proceedings.37 If the admissible criteria are applied properly, there is not even a need to restrict complaint mechanisms to individuals because groups or any other legal entity would have to show that they were affected in their own human rights, too.38 The often-suggested threat of unduly restraining

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Cf. A.P.M. Coomans, The role of the UN Committee on Economic, Social and Cultural Rights in strengthening implementation and supervision of the International Covenant on Economic, Social and Cultural Rights, Verfassung und Recht in Übersee, 35 (2002) 2, pp. 182–200, at p. 196; P. Alston, No right to complain about being poor, p. 88. P. Alston, No right to complain about being poor, p. 91. Cf. for example the criteria in Articles 1 to 3 of the Optional Protocol to the ICCPR (above Chapter 4 note 199). Cf. M. Nowak, The need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, p. 164. The concern of providing legal entities with instruments with which to complain is of

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the competence of the state to decide over the use of resources caused by the high number of successful individual complaints about people’s right to freshwater access is not sound because – as already discussed – Article 2 (1) ICESCR makes the realisation of the rights subject to the state ability to provide the necessary resources. This means that in cases of actual inability to provide sufficient water resources states would not violate the human rights in question. Of particular relevance for the effectiveness of complaint mechanisms is the option for single water users to submit their complaints in a class action. Such a measure might prevent the state from frustrating running proceedings by satisfying the single water user who filed the complaint. Furthermore, class actions provide cheaper access to law enforcement institutions. In view of the circumstance that deficient access to law enforcement institutions is – beside the structural and organisational deficits of the institutions themselves – first of all a problem in the context of poverty, class action can bring about a real improvement in enforcing human rights supporting freshwater access. This is even more the case as deficient freshwater access highly correlates with poverty, too.39 Thus, there are several options to improve a human rights-based approach to freshwater access by amending treaty law. The practically complicated establishment of an explicit human right to water in international law seems thereby not to be the compelling consequence of the deficiencies of current law. The adoption of an Optional Protocol establishing an individual complaint mechanism is also worth considering. In addition, such a step would not be limited to the issue of water scarcity but address an improvement of all economic, social and cultural rights. The discussion on the advantages of establishing an Optional Protocol has already indicated an alternative to the establishment of an explicit human right to water, which is the interpretative avenue of law improvement. Its discussion follows in the subsequent part.

39

minor relevance with regard to economic, social and cultural rights anyway, because most of those rights apply due to their nature solely to human beings. Cf. for the problem the discussion in the Introduction (above 1.2.).

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5.4. Specifying and developing the human rights-based approach to freshwater access by the interpretation of existing law 5.4.1. Specification by interpreting existing law The task of interpretation is to discern the meaning of the law, especially where legal norms are ambiguous or vague. The foregoing analysis in Chapters B and D indeed suggests that the utilisation principles of international water law and the human rights applicable to individual freshwater access suffer from uncertainty in law application due to their vagueness. Thus, the analysis arrived for example at the conclusion that the right to an adequate standard of living according to Article 11 ICESCR serves a wide scope of human activity including water utilisation for fulfilling basic human needs but is imprecise when it comes to positive obligations of states to realise this right.40 Since the specification of law with regard to individual water access rights first of all takes place within the frame of existing law, there is, apart from its symbolic value, no compelling need for a treaty amendment. The specification of law then rather is a question of interpretation. Choosing the interpretative avenue of law specification also means to avoid the whole procedure and unpredictability of an alteration of an international treaty. It rather implements a strategy of small but constant steps. In addition, the interpretative option ensures flexibility of law application because it allows for the constant redefinition of law in view of changing natural, scientific or societal circumstances of water scarcity. Furthermore, it provides the opportunity to consider soft-law documents and policy considerations of states and international organisations. The interpretation of for example the water utilisation principles in the light of human rights or soft law are at the same time a contribution in overcoming fragmentation. It is true, law interpretation may not produce as striking messages as the establishment of an explicit human right to water. Nevertheless, in view of the above described difficulties in amending international treaties one may ask, whether the attraction of attention can also be achieved by other instruments such as resolutions, policy documents or interpretations by reputable international bodies such as the Committees.41 40 41

See on this matter above 4.3.3.2. and 4.3.3.3. For an account of the contribution of the Human Rights Committee for the universal protection of human rights cf. W. Wense, Der UN-Menschenrechtsausschuß und sein Beitrag zum universellen Schutz der Menschenrechte, Berlin [et al.], Springer, 1999, in

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The interpretation of international law needs institutions that guarantee its universally accepted application. The establishment of individual complaint mechanisms with regard to economic, social and cultural rights would no doubt increase the authority of those international institutions in charge of the interpretation of the relevant treaties. However, no matter whether the efforts taken towards their establishment will eventually be successful or not, the interpretative opportunities provided by the existing set of institutions already inheres considerable potential for increasing the current standard of freshwater access as a human right. Above all in this regard, the supervisory bodies of the human rights treaties gain importance because they are deemed to identify the current state of law and to supervise compliance by states. Every treaty within the UN human rights regime is equipped with some form of a monitoring body. Each supervisory body is provided with relevant instruments such as General Comments, Suggestions, Recommendations, Reports or Communications.42 Applying these instruments, supervisory bodies specify the content of the law in the form of guiding or authoritative interpretations, in some situation, however, also as binding interpretations or initial point for the development of law. General Comment No. 15 of the CESCR exemplifies the opportunities of legal interpretation by the relevant supervisory bodies but also their limits within the current system. 5.4.2. General Comment No. 15 of the CESCR as an example for specifying the human rights-based approach to freshwater access The CESCR is a subsidiary body of the Economic and Social Council.43 It carries out the function of monitoring the ICESCR assigned to ECOSOC. General Comments are the instruments that enable the Committee to intentionally take up a social problem, to produce its view on the state of the law in this regard and to give it to the attention of states and other

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particular pp. 63 et seqq.; see also T. Buergenthal, The U.N. Human Rights Committee, Max Planck yearbook of United Nations law, 5 (2001), pp. 341–398. See for example Articles 40 ICCPR et seqq., 21 ICESCR, 9 ICERD, 45 CRC, 21 CEDAW. The CESCR was not set up by the ICESCR itself. It was instituted by the Economic and Social Council according to Article 68 UN Charta (Res. 1985/17). The Economic and Social Council is pursuant to Articles 16 et seqq. ICESCR the formally designated monitoring body of the Covenant.

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law users.44 They are not addressed to single states but the entirety of states. General Comments do not constitute binding law. This means that states do not necessarily have to follow it but may form or perpetuate their dissenting opinion because the Committee has no court-like jurisdiction. As they, however, constitute definite statements of the Committee’s practice45 states are nevertheless under high pressure to comply with the law in the manner seen in the General Comments46 because committees are appointed as a main interpreter of law. Provided with this authority, General Comments act as a kind of official and authoritative interpretation that is deemed to guarantee a uniform application of the law.47 Challenging the content of a General Comment therefore means also challenging a consistent and uniform law application. General Comment No. 15 mirrors the effort of the CESCR to specify the content of the ICESCR with regard to freshwater access as a human right. The CESCR spells out the practical problem and its legal dimension. It determines the legal basis of the right to water, its normative content, the state obligations and the implementation and does also embrace policy documents into its legal interpretation.48 By distinguishing general and specific obligations and in particular by identifying core obligations49 with direct

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See for a survey of the Committee’s work A.P.M. Coomans, The role of the UN Committee on Economic, Social and Cultural Rights. Cf. E. Riedel, Allgemeine Bemerkungen zu Bestimmungen des Internationalen Paktes über Wirtschaftliche, Soziale und Kulturelle Rechte der Vereinten Nationen, in: Deutsches Institut für Menschenrechte (ed.), Die “General Comments” zu den VN-Menschenrechtsverträgen, Baden-Baden, Nomos, 2005, pp. 160–171, at p. 164. Simma speaks of a legal obligation to consider the findings of the Committee “seriously and in good faith in any domestic review of the issues falling within the ambit of the Covenant”(B. Simma, The examination of state reports: International Covenant on Economic, Social and Cultural Rights, in: E. Klein (ed.), The monitoring system of human rights treaty obligations, Berlin, Menschenrechtszentrum der Universität Potsdam, Vol. 5, Berlin-Verlag Spitz, 1998, pp. 31–48, at p. 39). Cf. T. Schilling, Internationaler Menschenrechtsschutz, p. 244. Hammer describes General Comment No. 15 as a “brave, but somewhat overbearing, form of policy analysis” (L. Hammer, Indigenous peoples as a catalyst for applying the human right to water, p. 131.). This allegation can however hardly be made. The Committee makes always clear what it considers binding law and uses policy documents solely as interpretation assistance and to illustrate necessary steps to realise or implement the right. See the contributions in A. Chapman/S. Russell (eds.), Core obligations: building a framework for economic, social and cultural rights, Antwerp, Intersentia, 2002.

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effect the Committee gives the human rights-based-approach to freshwater access a specific shape.50 In addition, it chooses the way of deriving a separate human right to water rather than solely referring to human rights applicable to the issue of freshwater access. This makes no difference in formal legal terms because it carries the same rights and obligations51 but attracts considerable attention. Not surprisingly, the Comment increased awareness among states, non-governmental organisations and the public for the problem of deficient freshwater access. A recent study on the human right to water by the World Bank indicates that following the adoption of General Comment No. 15 even the World Bank increasingly pays attention to economic, social and cultural rights, although it had taken a reluctant approach before.52 Nevertheless, despite the fact that states usually have considered the existing General Comments not as overstepping the Covenant’s reporting procedure,53 General Comment No. 15 did not meet the uniform acceptance by states but triggered a controversial discussion about the appropriateness of its content.54 In particular, state obligations regarding economic access to

50

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52 53 54

Riedel points out that the existence of core obligations with regard to every human right in the ICESCR has been widely accepted in the practice of the state report system (E. Riedel, Allgemeine Bemerkungen zu Bestimmungen des Internationalen Paktes über Wirtschaftliche, Soziale und Kulturelle Rechte, p. 167). For these reasons, the critique of General Comment No. 15 made by Tully does not meet the point. He argues that states have not yet “recognised an obligation to progressively realise a right to access water under Articles 11 or 12 of the Covenant . . .” and concludes “that an entitlement to access water . . . does not exist under contemporary international law” (see S. Tully, A human right to access water?, p. 43). Since, however, General Comment No. 15 remains within the ambit of Articles 11, 12 ICESCR, there is no need for a separate state recognition because these rights already belong to binding international law. Cf. S.M.A. Salman/S. McInerney-Lankford, The human right to water. Cf. E. Riedel, The human right to water, p. 593. See for example a statement of the United States representative Danies explaining its vote in this respect: “With regard to OP 8 concerning a so-called ‘right to water,’ the United States does not believe it appropriate specifically to refer in resolutions to the general comments of treaty-based human rights committees, as these committees have not been given the mandate by the States Parties to those treaties to issue binding or authoritative legal opinions. With respect to General Comment No. 15 of the Committee on Economic, Social and Cultural Rights, the United States notes that it does not share the view of the Covenant expressed in that document” (Explanation of Vote, Statement Delivered by Joel Danies, U.S. Delegation to the 61th Commission on Human Rights, URL: http://geneva .usmission.gov/humanrights/2005/0415Item10L24.htm, accessed 5 July 2006).

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water resources provoked objection by some states.55 This documents that an informal acceptance by states has not yet been developed to recognise a committee’s competence in performing binding interpretations in its comments. Nevertheless, General Comment No. 15 marks the initial point for a dialogue with states and other actors regarding the actual problem, the deficits of international law and the deficient implementation of existing state obligations in the national context. The dialogue may contribute to the further specification of the law.56 A major deficit within the current set of institutions lies in the fragmentised competence of the respective Committees.57 Every Committee supervises the treaty it was appointed to. As a consequence of these split supervisory responsibilities the CESCR founds the human right to water on the ICESCR, in particular Articles 11, 12 ICESCR, but cannot officially interpret other international human rights treaties. This means that for example Articles 6 (1), 26 or 27 ICCPR remain unconsidered although these rights can significantly contribute to substantiate the human rights-based approach to freshwater access in international law. The fragmented institutional abilities hence weaken the interpretative approach to law specification. The establishment of an International Court of Human Rights or a similar body with comprehensive jurisdiction therefore is indeed worth considering as connecting or merging interpretation competences would encourage the opportunities to bring about a law specification by interpretation.58 The

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Cf. the remarks of Paul Bentall, from the Foreign and Commonwealth Office, London, explaining the view of the British Government at the International Conference on the Human Right to Water in Berlin, Germany, 21–22 October 2005 (K. Engbruch, Workshop Report – Day one: The right to water in international and national law, in: E. Riedel/ P. Rothen (eds.), The human right to water, pp. 127–141, at pp. 129 et seq. Cf. A.P.M. Coomans, The role of the UN Committee on Economic, Social and Cultural Rights, p. 184. That is why, Simma suggests establishing a “Super-Committee” instead of entrusting the monitoring function to the six UN treaty bodies (B. Simma, The examination of state reports, p. 43). Currently, only two regional human rights systems, the African and the European, set up a human rights court. In addition, both systems provide people with the opportunity to launch an individual complaint (cf. Article 34 ECHR, Article 5 (3) of the Protocol to the ACHPR). However, in the African human rights system, the individual complaint is subject to the general consent of the state in question to accept the jurisdiction of the Court pursuant to Articles 5 (3), 32 (6) of the Protocol to the ACHPR. In addition the Court must not accept the complaint of individuals for any reason. Thus, the only treaty

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objections to General Comment No. 15 as well as the fact that it determines water utilisation not entirely show that the adoption of the Comment does not render obsolete the need for further specification of international law but rather serves as initial point thereof. In the process of implementing and supervising human rights treaties, a certain interpretation regarding a human right to water can also obtain binding character or even foster the evolvement of human rights law beyond the content that was associated with the treaty at the time of its adoption. These mechanisms shall be discussed next. 5.4.3. The implementation dialogue between supervisory body and state as a means of producing binding interpretations and evolving law General Comments as just discussed are unilateral interpretations on the part of the Committees. Yet, the process of implementing and supervising human rights treaties has also a dialogic dimension because supervisory bodies and states are deemed to work together in this regard. The state and the relevant treaty body enter into an implementation dialogue where they produce and exchange their views on the state of the law.59 Especially the reporting system promotes this dialogue because it necessitates cooperation. Despite the general conclusion that interpretations by the Committees do not bind the states to follow them, the implementation dialogue might also bring about legally binding interpretations concerning the human rights norms in question.60 This will be the case if a certain interpretation of an existing human rights norm by a treaty body finds the consent of the pertinent state. Especially, unchallenged or even conceded violations identified in reports or observations of treaty bodies may determine a specific meaning of law as mandatory. This is because experience have shown that states confronted with the allegation of having committed a human rights violation often do

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that offers individuals compelling access to an international human rights court is the ECHR. See exemplarily B.-O. Bryde, Die Tätigkeit des Ausschusses gegen jede Form der Rassendiskriminierung (CERD), in: E. Klein (ed.), Rassische Diskriminierung – Erscheinungsformen und Bekämpfungsmöglichkeiten, Berlin, Berlin Verlag Arno Spitz, 2002, pp. 61–79. For examples of the development of treaty standards with regard to the ICERD and the ICCPR cf. A. Seibert-Fohr, The role of the reporting system in respect of the development of human rights treaties’ application, in: E. Klein (ed.), The monitoring system of human rights treaty obligations, pp. 111–120, at pp. 112 et seqq.

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not challenge the existence of the human rights obligation itself or a certain violation of it but instead promise to remedy those violations in the future and they usually accept the General Comments as the state of the law, too.61 The same is true if states argue they are unable to comply with the human right in question due to a lack of resources because in such a situation they do not challenge the existence of respective human rights obligations as such. The dialogue between the supervisory body and states can eventually lead to a multilateral agreement regarding the interpretation of a human rights norm according to Article 31 paragraph 3 (b) of the Vienna Convention on the Law of Treaties. The determination of the human rights-based approach to freshwater access in international law is on its way. General Comment No. 15 constitutes the reference point whereupon the further specification of the law by the CESCR will rely. Though reluctant in accusing concrete human rights violations, the Committee has already several times expressed its concerns regarding deficient freshwater access of people while considering states parties’ reports.62 One may reckon that the CESCR will intensify its activities in order to increase the effect of its findings in General Comment No. 15 leading to a further specification of the Covenant with regard to people’s freshwater access.

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Cf. E. Riedel, Allgemeine Bemerkungen zu Bestimmungen des Internationalen Paktes über Wirtschaftliche, Soziale und Kulturelle Rechte, pp. 164 et seq. Riedel states that prior to the adoption of General Comment No. 15, water rights had been addressed to in 33 out of 114 concluding observations since 1993 (cf. E. Riedel, The human right to water, p. 596.). See for example the Concluding Observations of the CESCR from 21 May 2001 (E/C.12/1/Add.60) concerning the initial report of Bolivia on the implementation of the ICESCR, where the Committee expresses its concerns regarding deficient access to sanitation and potable water of many Bolivian people (para. 13). A compilation of water-related decisions of the CESCR and the CERD until 2004 can be found in: Centre on Housing Rights and Evictions (ed.), Legal resources for the right to water: international and national standards, Geneva, 2004; the study identifies six key concerns in the practice of the Committees, these are: • imbalances in water supply between urban and rural areas and between indigenous and non-indigenous peoples; • State failure to especially ensure the supply of water to vulnerable groups such as children; • neglect of deprived urban areas; • non-utilisation of budget items earmarked for social expenditure in the State’s overall budget; • restrictions on access to water by persons living under foreign occupation; and • cases where large segments of the population remain without safe drinking water (cf. p. 97).

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Increasing water scarcity may also require a progressive development of the law. New law can above all be generated by treaty amendments as suggested above. Supplementary, the development of international law may, however, also be the effect of the implementation dialogue. In certain situations the outcome of the implementation dialogue may not only be a binding interpretation of the law but may also leave the frame of the treaty by producing new customary norms in international law. Thus, a state which tolerates or approves a certain committee practice will launch the necessary general state practice and opinio iuris. Of course, such progressive interpretation of a human rights norm could also be understood as an immanent development of the treaty. The binding content of the human right would then be treaty law and not customary law. In fact, however, this distinction does not yield practical differences because in both cases opinio iuris of the state has to be proven. Treaty interpretation with the prospect to generate legally binding readings or even new customary rules may hence constitute a flexible alternative to treaty amendments. 5.4.4. Fostering the human rights-based approach to freshwater access by establishing transboundary water management institutions The foregoing discussion has illustrated the importance of institutions for the specification and implementation of international law. Beyond specification on the universal level, there is potential on the regional level. Regional human rights supervisory bodies, such as the African Commission on Human Rights or the European Court of Human Rights, have referred to human rights norms outlined in the International Bill of Rights.63 In view of the growing state dependence on water resources located on foreign territory or dependence on international watercourses the importance of transboundary (water) resources management institutions64 in specifying and implementing international human rights may grow, too. In the future states will presumably face difficulties to fulfil their water needs by unilateral action and will

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See on this point with regard to the ECHR J.G. Merrills, The development of international law by the European Court of Human Rights, Manchester [et al.], Manchester University Press, 1993. Benvenisti favours an ecosystem approach and consequently suggests the establishment of ecosystem management institutions (cf. E. Benvenisti, Sharing transboundary resources, pp. 101 et seqq.).

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hence have to seek for cooperation.65 Ad hoc negotiations at the interstate level are not the appropriate means to continuously perform transboundary cooperation because they lack the joint administrative body to implement water management strategies. Water management as well as management of other natural resources has to deal with risks and uncertainties which are difficult to predict and which therefore require constant data collection and analysis.66 In order to adjust conflicting water uses, water management in particular needs to assess the impact certain water uses have on the water resource, the environment or other water users. Transboundary water management institutions, based on a community of interests approach, are much better suited to respond to the regional needs of natural resource management. That is to say, institutional cooperation can guarantee that international watercourses are no longer divided (or even split) between riparian states, but are rather treated as a whole, in the interest of all riparian entities. Another advantage of those organisations is their ability to act independently from the influence of short-term politics, given they enjoy autonomous decision-making powers, which may even culminate in supranational structures. As a result, national interests do not necessarily supersede communal, local or individual interests. This also means that the beneficiaries of such transboundary water management are the individuals who rely on the resource for whatever purposes. Transboundary water management institutions are not only appropriate to deal with general water management questions and to consider interests of individuals as a part of it but can also form an institutional backup for the human rights of water users.67 The relationship between water management institutions and human rights is in fact twofold. On the one hand, human rights impose constraints on the institutions. Human rights deter-

65 66 67

Ibid. Idem p. 108. A guiding example for the explicit reference to the human right to water in a regional treaty is the Senegal River Water Charter (Charte des Eaux du Fleuve Sénégal). It was adopted by Senegal, Mauritania, and Mali under the roof of the Organisation pour la Mise en Valeur du fleuve Sénégal (OMVS) in May 2002 (URL: http://www.lexana.org/traites/omvs_200205 .pdf, accessed 14 June 2006). Article 4 third paragraph of the Senegal River Water Charter states as follows: “Les principes directeurs de toute répartition des eaux du Fleuve visent à assurer aux populations des États riverains, la pleine jouissance de la ressource, dans le respect de la sécurité des personnes et des ouvrages, ainsi que du droit fondamental de l’Homme à une eau salubre, dans la perspective d’un développement durable.”

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mine transboundary water management institutions either via the state’s national and international human rights obligations or via the institution’s direct human rights responsibility as subject of international law.68 In any case, subject to their jurisdiction, institutions must ensure the same formal legal standard of human rights protection as the states which establish the institutions.69 Thus, states cannot escape their human rights obligations by transferring authorities to a – supranational – water management body.70 On the other hand, the set up of institutions is a means to give human rights effect in legal reality. Equipped with respective powers, transboundary water resource management institutions are able to transform international – and national – human rights obligations of states into water management politics. Managing watercourses always means prioritising conflicting interests of utilisation. Management institutions may execute this task by a set of rules that elaborate rights and obligations of riparian states and water users according to the international legal framework. In doing so, the institution will have to specify state’s international human rights obligations by appropriate regulations, such as administrative or implementing rules. This finally gives the applicable international human rights a specific shape that the vaguely formulated International Covenants cannot deliver. Holistic and joint management of a watercourse hence provides the pertinent institution with the factual opportunity to realise the supreme rank the basic human need for water enjoys already in formal legal terms. Frequently disadvantaged groups such as indigenous societies may particularly benefit from institutionalised transboundary water management because they may find a competent body to address their needs. Through the implementation of sustainable water management strategies and environment protection, transboundary institutions can also promote the interests of future generations. Transboundary institutions approach the management of a watercourse comprehensively, which enables the reconciliation of water utilisation interests, environment protection and human rights

68

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On this point see P.H.F. Bekker, The legal position of intergovernmental organizations: a functional necessity analysis of their legal status and immunities, Dordrecht [et al.], Nijhoff, 1994, pp. 54 et seqq. Cf. in this respect also G. Ress, The duty to protect and to ensure human rights under the European Convention on Human Rights, pp. 185 et seqq, 204. See more generally in respect of the accountability of international organisations R. Künnemann, Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights, pp. 214 et seqq.

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protection. Since unborn generations find no support from human rights, environment protection is the avenue to promote their interests.71 Within the frame of their territorial jurisdiction water management institutions could eventually also be authorised to receive individual complaints of water users. Especially with regard to countries having less developed legal systems transboundary water management institutions could improve access to law enforcement mechanisms with regard to freshwater. This opportunity must, however, not misconceive that transboundary watercourse institutions are not foremost set out to settle conflicting water utilisation interests in a court-like procedure. Since they by their very nature serve the idea of interstate cooperation, they rather represent the cooperative way of law enforcement, too. There is no doubt, the state remains the main actor in guaranteeing human rights. Nevertheless, transboundary water management institutions can, subject to their territorial jurisdiction, implement a state’s obligations. Transboundary water management institutions can in particular reduce the gap of human rights protection that arises out of deficient responsibility of states in the transboundary context.

5.5. Soft law and policy instruments strengthening a human rights-based approach to freshwater access The enhancement of a human rights-based approach to freshwater access may not only be made a subject of hard law but also of soft law and policy instruments. In this respect it has already been stated that policy instruments and human rights cannot replace but must instead supplement each other.72 The adoption of soft law and policy instruments guarantees fast and easy response to the problem of water scarcity among people because they avoid the complex process of law generation.73 Despite their inability to make states commit themselves to implementing a certain practice they may be of significance because they are usually generated with strong support of expert bodies, which enjoy high reputation and hence impose pressure upon

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See with this regard also A. Epiney, Sustainable use of freshwater resources, pp. 384 et seqq. Cf. above 3.3. Cf. G. Palmer, New ways to make international environmental law, p. 269.

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states to comply with them. In addition, soft law instruments can constitute the initial point of law development if states recognise such necessity.74 The negotiating process, starting with resolutions, declarations or codes of conduct, can eventually lead to the adoption of new treaty law. Furthermore, soft law may gain the status of customary international law if states employ the respective general practice subsequently (hardening of soft law).75 In view of the circumstance that international law provides a set of rules for freshwater access but remains too vague when it comes to state’s positive obligations, soft law instruments may first of all assist interpretation. The same is true for voluntary guidelines and codes of conduct as they can supplement the legal instruments in this regard. The recent Voluntary Guidelines on the right to food by the FAO exemplify this opportunity.76 They aim to specify the relatively vague human right to food in order to make it better manageable and hence to foster its implementation in the national context.77 Thereby they establish a holistic approach to its realisation by identifying states’ international legal obligations against the background of national food security and with regard to various conditions of its implementation, such as the political structure of states, economic and institutional aspects, policy considerations and international cooperation. Such practical guidance could also be a model for fostering the fulfilment of the basic human need for water. In fact, many rules in the Voluntary Guidelines could similarly apply to the implementation of the human right to water, solely adapted to the specifics of freshwater access.78 Deemed as assistance for all law appliers, such guidelines could draw attention in the national and world forum of public opinion and hence foster the reception of a human rights basedapproach to freshwater access in practice. In addition, they provide support of international and civil society organisations to continue their activities to transform the international legal obligations of states regarding people’s freshwater access into national law and national reality.

74 75 76

77 78

Cf. B.-O. Bryde, Wasser fließt bergab, p. 52. See the discussion above 3.4.2.3. Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security, Report of the 30th Session of the Committee on World Food Security (CFS), Supplement, FAO Doc. CL 127/10–Sup.1, Annex 1 (2004). Cf. foreword to the Voluntary Guidelines. Cf. E. Riedel, The human right to water, p. 604.

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5.6. Concluding observations on prospects for the improvement of a human rights-based approach to freshwater access This chapter has aimed to give a survey of strategies to promote a human rights-based approach to freshwater access in international law. The above discussion moved away from a purely doctrinal approach. Both the method of adopting new treaty law as well as the method of interpreting existing law, as the two main strategies, have specific characteristics that make them suitable in this regard. Both contain opportunities to overcome current fragmentation in law, to specify and improve the legal standard of freshwater supply and to implement the existing legal standard. Of course generating new rules includes the opportunity to an immediate and purpose-driven increase of the formal legal standard of individual freshwater access. However, in view of little chances to realise the adoption of an explicit human right to water in international law and even less chances to combine it with rules imposing detailed and far-reaching positive obligations upon states, the question of alternative instruments of law improvement must be posed. Human rights law can adapt itself to new or changing social conflicts without formulating additional human rights. Thus, human rights law has already considerably evolved towards a better recognition of societal conditions of human rights protection. The development of positive obligations with regard to the right to life may serve as an example for the option of law to go forward.79 Authoritative interpretations by the treaty supervisory bodies and the implementation dialogue between those bodies and the state are the main instruments to promote the process of law specification and development. It is true that not every deficit of law can be adjusted or corrected by its interpretation. This is all the more the case since interpretation may not disrespect the intent of states representing the will of their people. Thus, for example one who proposes an independent human rights responsibility of third parties – in particular corporations – cannot impose such obligation by interpretation but has to choose the way of changing the law. Nevertheless, the discussion suggests that a good deal of law improvement can take place within the framework of current treaties and by the current sets of institutions, which makes the establishment of an explicit human right to water dispensable from a formal legal perspective. Thus coming back to the example of corporations

79

See above 4.3.1.3.

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threatening human rights80 it was, for example, possible to develop state obligations to protect individuals against third party interferences during the process of law application and implementation. States could then fulfil their obligation to protect by imposing independent human rights duties on third parties by national legislation, for example. In contrast, for improving the measures of individuals to enforce their right to freshwater access a law amendment seems inescapable. The establishment of an individual complaint mechanism with regard to economic, social and cultural rights asks for an Optional Protocol similar to that to the ICCPR. Such a step would empower the affected water users, encourage the CESCR in the process of implementation, and eventually promote the indivisibility of civil and political rights, on the one hand, and economic, social and cultural rights on the other in legal reality. Indeed, the issue of freshwater access is no matter that can exclusively be assigned to one of the two “categories” of human rights. Both International Covenants support individual water rights and hence exemplify the view pointed out in numerous UN resolutions that all human rights must be considered indivisible, interrelated and interdependent.81 The adjustment of the monitoring procedures under both Covenants, by adopting a relevant Optional Protocol to the ICESCR, would therefore only catch up with the cognition of indivisibility, which is nowadays hardly contestable.82 In addition, such step would contribute to the coherence of the international legal system. The discussion about transboundary water management institutions has pointed out the institutional opportunities of improving the standard of human rights protection and its implementation. Promoted by a transboundary watercourse commission and embedded in general and all-embracing water management, the human rights-based approach to freshwater access can most suitably enforce the interests of water users. The adoption of soft law instruments may supplement international human rights law but cannot replace the legal route of law improvement. The discussion has shown that non-binding instruments can in particular push law development and may raise awareness in this regard.

80 81 82

Cf. above Chapter 3.5.2.1. Cf. above Chapter 3 note 135. See the discussion above 3.5.2.3.

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Chapter 6 Conclusions This study has considered the problem of water scarcity and insufficient freshwater access of people to serve their basic needs from a human rights perspective. Having taken the view that international water law serves as the proximate legal domain to address current problems of water access, the study set off by undertaking an analysis of its basic principles in this respect. The study has exposed that international water law does not appropriately respond to current water problems for the following reasons. Despite the coherence of national and transboundary water management problems, international water law solely applies to watercourses that extend beyond the territorial borders of states. This leaves people dependent on national watercourses unprotected. In addition, international water law does not provide for individual rights of access for water users but exclusively entitles riparian states. The general utilisation principles in international water law are not able to safeguard people’s water needs in an objective way, either. The design of the utilisation principles mirrors the traditional conflict between upstream and downstream states over water amounts. The general utilisation principles are, however, not able to cope with the complex causes of current water shortages among individuals. The two main utilisation principles in international water law – no harm and equitable utilisation – are rather vague and hence do not provide much guidance towards achieving the objective of establishing water security. In view of the deficiencies of international water law, in particular its ineffectiveness in empowering the individual to take part in water management, the study has continued to elaborate a human rights-based concept of freshwater access. As has been demonstrated, human rights are an appropriate and necessary component of a comprehensive strategy to combat deficient freshwater access. Water scarcity in general is a multifaceted problem that requires measures on both sides, supply as well as demand. However, in view of the fact that basic human water needs only account for a tiny part of human water use, a human rights-based approach first of all focuses

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on allocation by providing people with a claim to an equal share in water resources. Thus, a human rights-based approach empowers the individual. Those people who do not yet have sufficient freshwater access and those whose existing freshwater access is at threat obtain an instrument to enforce their utilisation interests. While a human rights-based approach consequently has a focus on the most vulnerable people, it must, nevertheless, not be reduced to this function. The discussion has exposed that human rights also serve as a political concept of allocation that determines general water management schemes towards the result of fulfilling people’s basic needs but also towards a certain procedure. Thus, a human rights-based approach contributes to accountability of state conduct, transparency of water management and legal certainty in water utilisation. The discussion on the nature and scope of obligations attached to a human rights-based approach to freshwater access has also rebutted any objections against it, using implementation costs or state sovereignty over the use of resources as a base. As has been shown, a human rights-based approach to freshwater access – like all human rights – consists of negative as well as positive obligations. Thus, there is no systematic difference to other human rights but merely a quantitative one in as much as the human rights-based approach to freshwater access stronger employs the state as guarantor of human rights. However, even the stronger focus on positive obligations does not overstrain state capacity. Apart from the minimum essential water needs that are not dependent on state resources, a human rights-based approach does not demand an immediate realisation of everybody’s freshwater access because it takes into account the actual capacity of states. The approach intends to set up a process towards this objective. With regard to the provision of the bare essentials, in contrast, a human rights-based approach indeed aims at immediate fulfilment by state action. In this respect, restricting state sovereignty over the use of resources is precisely the desired effect. By prioritising basic water needs over other individual or societal interests, the approach safeguards a basic living condition following human dignity, without which a decent life is virtually impossible. Having elaborated the concept of a human rights-based approach to freshwater access, the study has proceeded determining the specific standard of the approach in current international human rights law. With the lack of an explicit generic human right to water in current law, the study has attempted to derive individual access rights from various human rights outlined in the general human rights treaties. Following the recognition that

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the human rights-based approach to freshwater access cannot be exclusively assigned to the category of civil and political or economic, social and cultural rights the analysis consulted rights of either categories. It has arrived at the conclusion that there are human rights in international law supporting individual freshwater access. These are Articles 6 (1), 27 ICCPR, Articles 11, 12 ICESCR and several non-discrimination clauses in both Covenants, in particular the obligation to equal treatment according to Article 26 ICCPR. The pertinent human rights have different facets that deliver a different standard of protection and emphasise different concerns of a human rights-based approach to freshwater access. The analysis of applicable human rights has distinguished between negative and positive state obligations. The study has arrived at the conclusion that the respect component of a human rights-based approach to freshwater access receives adequate protection by international law. Thereby the right to life pursuant to Article 6 (1) ICCPR only represents a tiny sector of the approach. However, the rights to an adequate standard of living and to health according to Articles 11 and 12 ICESCR comprehensively support the respect component of the approach. Article 2 (1) ICESCR does not generally prevent the direct effect of the Covenant’s rights but merely with regard to certain state obligations. Thus, it has been shown that Articles 11, 12 ICESCR impose directly binding obligations upon states to respect existing freshwater access of people to the extent necessary to maintain an adequate standard of living and the personal conditions of health. This makes interferences of states with existing freshwater access of people not impossible but it commits them to undertake an appropriate appreciation of concurring utilisation interests and to observe a legal procedure, in particular the non-discriminatory exercise of water management. With regard to the respect component of a human rights-based approach to freshwater access, therefore, no formal legal need for reform was ascertained. When determining the scope of positive state obligations, the study has differentiated between individual claims deriving from the state obligation to equal treatment according to Article 26 ICCPR and independent claims against the state to undertake a certain action. Article 26 ICCPR equips the individual water user with a claim to an equal share in water utilisation. Thus, the state must equally consider the interests of water users while employing its resources (such as investments in water infrastructure) and may differ between water users only on the basis of non-arbitrary reasons. It is true, Article 26 ICCPR does not compel states to establish certain social

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rights at all. However, the significance of Article 26 ICCPR becomes obvious when reading the provision in conjunction with the obligation “to take steps” and to employ “the maximum of its available resources” according to Article 2 (1) ICESCR. This is because Article 2 (1) ICESCR commits the state to use its resources for the realisation of the rights at all, and Article 26 ICCPR guarantees the equal partaking of people in the use of the resources to be provided. The derivation of independent claims of water users to demand a certain state action, in contrast, only finds weak support in international human rights law. The discussion of Article 6 (1) ICCPR has proven the existence of an individual claim against the state to establish the life-conserving conditions of water access. For the part of freshwater access, however, that goes beyond human survival, Article 6 (1) ICCPR cannot deliver redress. This is why, the analysis has mainly drawn on the rights to an adequate standard of living and health according to Articles 11, 12 ICESCR. It has been shown, that Article 2 (1) ICESCR does not generally exclude directly enforceable individual entitlements. Thus, if the bare essential water needs are in question, or if the dignity foundation of the rights to an adequate standard of living and health is concerned, the state must undertake the necessary action to relieve those threats, be it protective measures or the provision of services. Correspondingly, the single individual has a concrete and directly effective claim to such action. However, beyond this very basic standard of protection the analysis of Articles 11, 12 ICESCR in conjunction with Article 2 (1) ICESCR has not delivered support for directly enforceable individual entitlements to freshwater access. The vagueness of Articles 2 (1), 11, 12 ICESCR renders the determination of concrete individual claims difficult. Thus, Article 2 (1) ICESCR on the one hand imposes the obligation upon states to exhaust all available resources to implement the Covenant’s rights. Read in conjunction with the wide scope of protection delivered by Articles 11, 12 ICESCR, the obligation according to Article 2 (1) ICESCR imposes comprehensive obligations upon states to realise people’s freshwater access. On the other hand, the vagueness of these provisions hampers the derivation of individual claims of water users to actually demand this realisation from the state. This deprives the rights to an adequate standard of living and health some of their legal effectiveness. In this respect, the study has revealed a need for specifying and developing the content of the applicable rights in the ICESCR. Such measures could reduce the current gap between the wide scope of the general state obligations to realise the rights on the

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one hand and the low standard of specific and directly effective individual claims of human rights holders on the other. Further specifying and developing the rights and obligations attached to the applicable human rights correspond with their progressive nature that requires them to constantly evolve and adapt to state capacity as foreseen by Article 2 (1) ICESCR. If a human rights provision is subject to progressive realisation, one has to seek for instruments that are able to bring about such specification. This was the main concern of the final chapter. The foregoing results have led to a discussion on the opportunities to improve the current standard of a human rights-based approach to freshwater access in international law. The discussion has considered both the formal legal standard of a human rights-based approach to freshwater access as well as its operation. It has elaborated two main strategies in this respect: adopting new treaty law as well as interpreting existing law. In view of the fact that current international human rights law suffers from vagueness and imprecision as far as state obligations and corresponding individual rights are concerned in the first place, the study has revealed that the establishment of an explicit human right to water is not the compelling consequence of current law’s deficits. This is because an explicit human right to water would almost naturally suffer from some vagueness too and would therefore be in need of specification itself. Therefore, the establishment of an explicit human right to water, despite the little practical chances of realising a pertinent treaty amendment anyway, would mainly serve the function of drawing people’s attention in public and legal discourse thereto. Against this background, the study has continued evaluating alternative or supplementary opportunities of law improvement. It has arrived at the conclusion that authoritative interpretations by the treaty supervisory bodies, such as undertaken in General Comment No. 15 by the CESCR, and the implementation dialogue between those bodies and the state are the main instruments to foster the process of law specification and evolution. In particular, the implementation dialogue between the CESCR and states may produce binding interpretations or generate new customary law that give the rights in the Covenant a specific shape. The result may be the development of opportunities of water users to derive directly enforceable entitlements from the human rights to an adequate standard of living and health. Albeit, the study has also revealed that the law improvement, by specifying existing law, may only promise a real progress in guaranteeing a human rightsbased approach to freshwater access if accompanied by the establishment of

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individual complaint mechanisms with regard to the ICESCR. Adopting a respective Optional Protocol would contribute to both specifying the concrete obligations pursuant to the single human rights in the Covenant and a better law perception in legal practice. Individual complaint measures concerning economic, social and cultural rights strengthen the procedural side of a human rights-based approach to freshwater access because they empower water users to enforce their rights. For this reason individual complaints render the process of effective law specification within the implementation dialogue just possible. The establishment of new treaty law in this respect is therefore a necessary step to improve the standard of a human rights-based approach to freshwater access in international law, second to none. The adoption of individual complaint procedures would also promote the equality of civil and political rights and economic, social and cultural rights. In this respect, the discussion of a human rights-based approach to freshwater access has approved the indivisibility of human rights because both categories of rights, whether civil and political or economic, social and cultural, contribute to the fulfilment of basic human water needs.

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Bibliography Addo, Michael K. (ed.): Human rights standards and the responsibility of transnational corporations, The Hague [et al.], Kluwer Law International, 1999. Affeltranger, Bastien/Otte, Alexander: Shared freshwater resources: management or governance?, in: Turton, Anthony/Ashton, Peter/Cloete, Eugene (eds.): Transboundary rivers, sovereignty and development: hydropolitical drivers in the Okavango River basin, Pretoria, South Africa, African Water Issues Research Unit & Green Cross International, 2003, pp. 251–274. Akweenda, Sackey: From Harmon to Helsinki: the evolution of key principles in international water law, in: Turton, Anthony/Henwood, Roland (eds.): Hydropolitics in the developing world: a southern African perspective, Pretoria, African Water Issues Research Unit, 2002, pp. 97–104. Allan, John Anthony: Virtual Water – Economically invisible and politically silent: a way to solve strategic water problems, International water and irrigation journal, (2001), pp. 4–11. Alston, Philip: What’s in a name: does it really mater if development policies refer to goals, ideals or human rights? in: Helmich, Henny (ed.): Human rights in development cooperation, SIM Special No. 22, Utrecht, 1998, pp. 95–106. ——: No right to complain about being poor: the need for an Optional Protocol to the economic rights covenant, in: Eide, Asbjørn/Swinehart, Theresa (eds.): The future of human rights protection in a changing world, Fifty years since the Four Freedom Address, Essays in honour of Torkel Opsahl, Oslo, Norwegian University Press, 1991, pp. 79–100. ——: Out of the Abyss: the challenges confronting the new U.N. Committee on Economic, Social and Cultural Rights, Human rights quarterly, 9 (1987), pp. 333–381. ——/Quinn, Gerard: The nature and scope of states parties’ obligations under the International Covenant on Economic, Social and Cultural Rights, Human rights quarterly, 9 (1987) 2, pp. 156–229. ——: International law and the human right to food, in: Alston, Philip (ed.): The right to food, ’s-Gravenhage, Nijhoff, 1984, pp. 9–68. —— (ed.): The right to food, ’s-Gravenhage, Nijhoff, 1984. ——: A third generation of solidarity rights: progressive development or obfuscation of international human rights law?, Netherlands international law review, (1982), pp. 307–322. Alvarez, Ignacio J.: The right to water as a human right, in: Picolotti, Romina/Taillant, Jorge D. (eds.): Linking human rights and the environment, Tucson, Arizona, University of Arizona Press, 2003, pp. 71–82. Anderes, Sabrina: Fremde im eigenen Land: Die Haftbarkeit transnationaler Unternehmen für Menschenrechtsverletzungen an indigenen Völkern, Zürich, Schulthess-Verlag, 2001. Anderson, Benedict: Imagined communities: reflections on the origin and spread of nationalism, revised ed., London [et al.], Verso, 1991. Arambulo, Kitty: Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights: theoretical and procedural aspects, Antwerpen [et al.], Intersentia – Hart, 1999. Arnold, Craig Anthony: Privatization of public water services: the states’ role in ensuring public accountability, Pepperdine law review, 32 (2005) 3, pp. 561–604.

BOURQUAIN_f8-239-254.indd 239

7/31/2008 11:21:23 AM

240

Bibliography

Atapattu, Sumudu: The right to a healthy life or the right to die polluted? The emergence of a human right to a healthy environment under international law, Tulane environmental law journal, 16 (2002) 1, pp. 65–126. Avineri, Shlomo/de-Shalit, Avner: Communitarianism and Individualism, Oxford, Oxford University Press, 1992. Barandat, Jörg: Sie graben uns das Wasser ab…: Grenzüberschreitende Gewässersysteme und internationales Recht, E+Z, Entwicklung und Zusammenarbeit/Development and Cooperation, 42 (2001) 6, pp. 181–184. Beaumont, Peter: The 1997 UN Convention on the Law of Non-navigational Uses of International Watercourses: its strengths and weaknesses from a water management perspective and the need for new workable guidelines, Water resources development, Vol. 16 (2000), pp. 475–495. Beetham, David: Democracy and human rights, Cambridge [et al.], Polity Press, 1999. Bekker, Peter H.F.: The legal position of intergovernmental organizations: a functional necessity analysis of their legal status and immunities, Dordrecht [et al.], Nijhoff, 1994. Benda-Beckmann, Franz von: Who’s afraid of legal pluralism?, Journal of legal pluralism and unofficial law, (2002) 47, pp. 37–82. ——: Rechtspluralismus, Zeitschrift für Ethnologie, 119 (1994), pp. 1–16. Benvenisti, Eyal: Sharing transboundary resources, Cambridge [et al.], Cambridge University Press, 2002. ——: Collective action in the utilization of shared freshwater: the challenges of international water resources law, The American journal of international law, 90 (1996) 3, pp. 384–415. Benvenuto Lima Jr., Jayme: The expanding nature of human rights and the affirmation of their indivisibility and enforceability, in: Klein Goldewijk, Berma/Baspineiro, Adalid Contreras/Carbonari, Paulo Cesar (eds.): Dignity and human rights: the implementation of economic, social and cultural rights, Ardsley, N.Y., Transnational Publishers, 2002, pp. 45–61. Bernhardt, Rudolf: Der völkerrechtliche Schutz der Menschenrechte: Texte, Institutionen, Realitäten, in: Dicke, Klaus [et al.] (eds.): Weltinnenrecht, Liber amicorum Jost Delbrück, Berlin, Duncker & Humblot, 2005, pp. 37–45. Beyerlin, Ulrich: Nachhaltige Nutzung natürlicher Ressourcen und Menschenrechtsschutz, in: Dicke, Klaus [et al.] (eds.): Weltinnenrecht, Liber amicorum Jost Delbrück, Berlin, Duncker & Humblot, 2005, pp. 47–65. ——: Sustainable use of natural resources – a key to combating poverty, Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht, 63 (2003), pp. 417–437. ——: Umweltvölkerrecht, München, Beck, 2000. ——/Marauhn, Thilo: Law-making and law-enforcement in international environmental law after the 1992 Rio conference, Berlin, Erich Schmidt, 1992. Bielefeldt, Heiner: Access to water, justice and human rights, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 49–52. Birnie, Patricia W./Boyle, Alan E.: International law and the environment, 2nd ed., Oxford, Oxford University Press, 2002. Bluemel, Erik B.: The implications of formulating a human right to water, Ecology law quarterly, 31 (2004) 4, pp. 957–1006. Böckenförde, Ernst-Wolfgang: Grundrechtstheorie und Grundrechtsinterpretation, Neue Juristische Wochenschrift 27 (1974), pp. 1529–1538. Bossuyt, Marc: International human rights systems: strengths and weaknesses, in: Mahoney, Kathleen E./Mahoney Paul (eds.): Human rights in the twenty-first century, A global challenge, Dordrecht [et al.] Nijhoff, 1993, pp. 47–55.

BOURQUAIN_f8-239-254.indd 240

7/31/2008 11:21:23 AM

Bibliography

241

Bothe, Michael: The right to a healthy environment in the European Union and comparative constitutional law, in: Pâques, Michel (ed.): Recente ontwikkelingen in het Europees milieurecht, Antwerpen, Story-Scientia, 1998, pp. 1–8. Bourne, Charles B.: International water law, London [et al.], Kluwer Law International, 1997. Boyle, Alan E.:The role of international human rights law in the protection of the environment, in: Boyle, Alan E./Anderson, Michael R. (eds.): Human rights approaches to environmental protection, Oxford, Clarendon Press, 1996 (reprinted 2003), pp. 43–69. ——/Anderson, Michael R. (eds.): Human rights approaches to environmental protection, Oxford, Clarendon Press, 1996 (reprinted 2003). Brinktrine, Ralf: The horizontal effect of human rights in German constitutional law: the British debate on horizontality and the possible role model of the German doctrine of “mittelbare Drittwirkung der Grundrechte”, European human rights law review, (2001) 4, pp. 421– 432. Brubaker, Rogers: Citizenship and nationhood in France and Germany, Cambridge, Massachusetts, Harvard University Press, 1992. Bruch, Carl: Evolution of public involvement in international watercourse management, in: Bruch, Carl [et al.] (eds.): Public participation in the governance of international freshwater resources, Tokyo [et al.], United Nations Univ. Press, 2005, pp. 21–72. Bruhács, János: The law of non-navigational uses of international watercourses, Dordrecht [et al.], Nijhoff, 1993. Bryde, Brun-Otto: Die Tätigkeit des Ausschusses gegen jede Form der Rassendiskriminierung (CERD), in: Eckardt Klein (ed.): Rassische Diskriminierung – Erscheinungsformen und Bekämpfungsmöglichkeiten, Berlin, Berlin Verlag Arno Spitz, 2002, pp. 61–79. ——: Menschenrechte und Entwicklung, in: Faber, Heiko/Stein, Ekkehart (eds.): Auf einem Dritten Weg: Festschrift für Helmut Ridder zum 70. Geburtstag, Neuwied, Frankfurt am Main, Luchterhand, 1989, pp. 73–83. ——: Wasser fließt bergab: Die Verschmutzung internationaler Binnengewässer und ihre Bekämpfung, in: Mayer-Tasch, Peter Cornelius (ed.): Die Luft hat keine Grenzen, Frankfurt am Main, Fischer Taschenbuch Verl., 1986, pp. 43–55. Buchanan, G. Sidney: A conceptual history of the state action doctrine: the search for governmental responsibility, Houston law review, 34 (1997), first part pp. 334–424, second part pp. 665–775. Buergenthal, Thomas: The U.N. Human Rights Committee, Max Planck yearbook of United Nations law, 5 (2001), pp. 341–398. ——: To respect and to ensure: state obligations and permissible derogations, in: Henkin, Louis (ed.): The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, pp. 72–91. Bulloch, John/Darwish, Adel: Water wars: coming conflicts in the Middle East, London, Gollancz, 1993. Burchi, Stefan: The interface between customary and statutory water rights – a statutory perspective, International workshop on “African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa”, 26–28 January 2005, Johannesburg, South Africa, URL: http://www.nri.org/waterlaw/AWLworkshop/BURCHI-S.pdf, pp. 32–1–32–9 (accessed 26 June 2006). Cahill, Amanda: ‘The human right to water – a right of unique status’: the legal status and normative content of the right to water, The international journal of human rights, Vol. 9 (2005) No. 3, pp. 389–410. Caponera, Dante A.: Principles of water law and administration, Rotterdam [et al.], Balkema, 1992. Capotorti, Francesco: Study on the rights of persons belonging to ethnic, religious and linguistic minorities, New York, United Nations, 1979.

BOURQUAIN_f8-239-254.indd 241

7/31/2008 11:21:23 AM

242

Bibliography

Cassese, Antonio: The self-determination of peoples, in: Henkin, Louis (ed.): The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, pp. 92–113. Castro, Paulo Canelas de: The judgement in the case concerning the Gabčíkovo-Nagymaros Project: positive signs for the evolution of international water law, Yearbook of international environmental law, pp. 21–31. Centre on Housing Rights and Evictions (ed.): Legal resources for the right to water: international and national standards, Geneva, 2004. Chanda, Alfred W.: The role of lower courts in the domestic implementation of human rights, Zambia law journal, 33 (2001), pp. 1–17. Chandler, David: Universal ethics and elite politics: the limits of normative human rights theory, International journal of human rights, 5 (2001) 4, pp. 72–89. Chapman, Audrey/Russell, Sage (eds.): Core obligations: building a framework for economic, social and cultural rights, Antwerp, Oxford, Intersentia, 2002. Chayes, Antonia Handler/Chayes, Abram: The new sovereignty: compliance with international regulatory agreements, Cambridge, Mass., Harvard University Press, 1995. Chinkin, Christine M.: The role of non-governmental organisations in standard setting, monitoring and implementation of human rights, in: Norton, Joseph J. (ed.): The changing world of international law in the twenty-first century: a tribute to the late Kenneth R. Simmonds, The Hague [et al.], Kluwer Law International, 1998, pp. 45–66. Chirwa, Danwood Mzikenge: The right to health in international law: its implications for the obligations of state and non-state actors in ensuring access to essential medicine, South African journal on human rights, 19 (2003) 4, pp. 541–566. ——: Privatisation of water in Southern Africa: a human rights perspective, African human rights law journal, 4 (2004) 2, pp. 218–241. Choudhury, Tufyal: Interpreting the right to equality under Article 26 of the International Covenant on Civil and Political Rights, European human rights law review, (2003) 1, pp. 24–52. Churchill, Robin R.: Environmental rights in existing human rights treaties, in: Boyle, Alan E./Anderson, Michael R. (eds.): Human rights approaches to environmental protection, Oxford, Clarendon Press, 1996 (reprinted 2003), pp. 89–108. Clark, Paul A.: Taking self-determination seriously: when can cultural and political minorities control their own fate?, Chicago journal of international law, 5 (2005) 2, pp. 737–751. Clarke, Tony: On making water a human right through public policy action, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner WissenschaftsVerlag, 2006, pp. 161–167. Coomans, Alphonsus P.M.: The role of the UN Committee on Economic, Social and Cultural Rights in strengthening implementation and supervision of the International Covenant on Economic, Social and Cultural Rights, Verfassung und Recht in Übersee, 35 (2002) 2, pp. 182–200. Coomans, Fons/Kamminga Menno T. (eds.): Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004. Cranston, Maurice: What are human rights?, London [et al.], Bodley Head, 1973. Craven, Matthew: Some Thoughts on the emergent right to water, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 37–47. Craven, Matthew C.R.: Unity, diversity and the fragmentation of international law, The Finnish yearbook of international law, 14 (2003), pp. 3–34. ——: The International Covenant on Economic, Social and Cultural Rights: a perspective on its development, Oxford, Clarendon Press, 1995. Cullet, Philippe/Gowlland-Gualtieri, Alix: Local communities and water investments, in: Weiss, Edith Brown (ed.): Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005, pp. 303–330.

BOURQUAIN_f8-239-254.indd 242

7/31/2008 11:21:23 AM

Bibliography

243

Davidson, Scott: Human rights, Buckingham [et al.], Open University Press, 1993. Dellapenna, Joseph W.: The customary international law of transboundary fresh waters, International journal of global environmental issues, Vol. 1 (2001) 3/4, pp. 264–305. Delmon, Jeffrey: Water projects: commercial and contractual guide, London [et al.], Kluwer Law International, 2001. Dennis, Michael J./Stewart, David P.: Justiciability of economic, social, and cultural rights: should there be an international complaints mechanism to adjudicate the rights to food, water, housing, and health?, The American journal of international law, 98 (2004) 3, pp. 462–515. Desch, Thomas: The concept and dimensions of the right to life (as defined in international standards and in international and comparative jurisprudence), Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht, 36 (1985), pp. 77–118. DFID: Achieving sustainability: poverty elimination and the environment. Strategies for achieving the international development targets, London, United Kingdom Department for International Development, 2000. Dicke, Klaus [et al.] (eds.): Weltinnenrecht, Liber amicorum Jost Delbrück, Berlin, Duncker & Humblot, 2005. ——: The founding function of human dignity in the Universal Declaration of Human Rights, in: Kretzmer, David/Klein, Eckart: The concept of human dignity in human rights discourse, The Hague [et al.], Kluwer, 2000, pp. 111–120. Dinstein, Yoram: The right to life, physical integrity, and liberty, in: Henkin, Louis (ed.): The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, pp. 114–137. Dominicé, Christian: Methodology of international law, in: Bernhardt, Rudolf/Max-PlanckInstitut für Ausländisches Öffentliches Recht und Völkerrecht Heidelberg (eds.): Encyclopedia of public international law, Vol. 3 (1997), Amsterdam [et al.], North-Holland, pp. 354–360. Dommen, Caroline: Claiming environmental rights, Georgetown international environmental law review, 11 (1998) 1, pp. 1–48. Dröge, Cordula: Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, Berlin [et al.], Springer, 2003. Dupuy, Pierre-Marie: Le droit à la santé et la protection de l‘environnement, in: Dupuy, René-Jean (ed.): Le droit à la santé en tant que droit de l‘homme, Alphen aan den Rijn, Sijthoff & Noordhoff, 1979, pp. 340–427. Eaton, Joshua P.: The Nigerian tragedy: environmental regulation of transnational corporations, and the human right to a healthy environment, Boston university international law journal, 15 (1997) 1, pp. 261–307. Eckstein, Gabriel E.: Development of international water law and the UN Watercourse Convention, in: Turton, Anthony/Henwood, Roland (eds.): Hydropolitics in the developing world: a southern African perspective, Pretoria, African Water Issues Research Unit, 2002, pp. 81–96. Eide, Asbjørn: Economic, social and cultural rights as human rights, in: Eide, Asbjørn/Krause, Catarina/Rosas, Allan (eds.): Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 9–28. ——: Realization of social and economic rights and the minimum threshold approach, Human rights law journal, 10 (1989) No. 1–2, pp. 35–51. Elver, Hilal: Peaceful uses of international rivers: the Euphrates and Tigris rivers dispute, Ardrsley, NY, Transnational Publishers, 2002. Engbruch, Katharina: Workshop Report – Day one: The right to water in international and national law, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 127–141. Epiney, Astrid: Sustainable use of freshwater resources, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 63 (2003) 2, pp. 377–396.

BOURQUAIN_f8-239-254.indd 243

7/31/2008 11:21:23 AM

244

Bibliography

Ermacora, Felix: The protection of minorities before the United Nations, Recueil des cours/ Académie de Droit International de La Haye, 182 (1983) 4, pp. 247–370. ——: Volksgruppenrecht und Minderheitenschutz im regionalen Rahmen, in: Wittmann, Fritz (ed.): Volksgruppenrecht: ein Beitrag zur Friedenssicherung, München [et al.], Olzog, 1980, pp. 115–125. Fabra, Adriana: Indigenous peoples, environmental degradation and human rights: a case study. in : Boyle, Alan E./Anderson, Michael R. (eds.): Human rights approaches to environmental protection, Oxford, Clarendon Press, 1996 (reprinted 2003), pp. 245–263. Fairstein, Carolina: Legal strategies and right to water in Argentina, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 95–113. Feldman, David: Human dignity as a legal value – Part I, Public law, (1999), pp. 682– 702. Filmer-Wilson, Emilie: The human rights-based approach to development: the right to water, Netherlands quarterly of human rights, 23 (2005) 2, pp. 213–241. Fitzmaurice, Malgosia A.: Some reflections on public participation in environmental matters as a human right in international law, Non-state actors and international law, 2 (2002) 1, pp. 1–22. Giordano, Meredith A./Wolf, Aaron T.: Sharing waters: post-Rio international water management, Natural resources forum, 27 (2003), pp. 163–171. Gleick, Peter: Implementing the human right to water, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 143–147. ——/Singh, Ashbindu/Shi, Hua: Threats to the world’s freshwater resources: a report of the Pacific Institute for Studies in Development, Environment, and Security, Oakland, California, 2001. ——: The human right to water, Water policy (1999) 1(5), pp. 487–503. ——: Water and conflict: Fresh water resources and international security, International Security, 18 (1993) Vol. 1, pp. 79–112. Gold, Joseph: Strengthening the soft international law of exchange arrangements, American journal of international law, 77 (1983), pp. 443–489. Gormley, W.P.: Human rights and environment: the need for international co-operation, Leyden, Sijthoff, 1976. Griffiths, John: What is legal pluralism, Journal of legal pluralism and unofficial law, 24 (1986), pp. 1–56. Haas, Peter M.: Why comply, or some hypotheses in search of an analyst, in: Weiss, Edith Brown (ed.): International compliance with nonbinding accords, Studies in transnational legal policy No. 29, Washington, DC, American Society of International Law, 1997, pp. 21–48. Habermas, Jürgen: Die postnationale Konstellation, Politische Essays, Frankfurt am Main, Suhrkamp, 1998. Hailbronner, Kay: Der Staat und der Einzelne als Völkerrechtssubjekte, in: Vitzthum, Wolfgang Graf (ed.): Völkerrecht, 2. Auflage, Berlin, New York, de Gruyter, 2001, pp. 161–265. Hammer, Leonard: Indigenous peoples as a catalyst for applying the human right to water, International journal on minority and group rights, 10 (2004), pp. 131–161. Hancock, Jan: Environmental human rights: power, ethics and law, Aldershot [et al.], Ashgate, 2003. Handl, Günther: Human rights and protection of the environment, in: Eide, Asbjørn/Krause, Catarina/Rosas, Allan (eds.): Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 303–328.

BOURQUAIN_f8-239-254.indd 244

7/31/2008 11:21:24 AM

Bibliography

245

Hannum, Hurst: The status of the Universal Declaration of Human Rights in national and international law, Georgia journal of international & comparative law, 25 (1995/96) 1/2, pp. 287–397. ——: Autonomy, sovereignty, and self-determination: the accommodation of conflicting rights, Philadelphia, University of Pennsylvania Press, 1990. Hanschel, Dirk: Environment and human rights – cooperative means of regime implementation, Yearbook of human rights & environment, 3 (2003), pp. 189–261. Hardberger, Amy: Whose job is it anyway? Governmental obligations created by the human right to water, Texas international law journal, 41 (2006) 3, pp. 533–568. Heinen, Antje: Zwangslizenzerteilung gemäß Artikel 31 TRIPS-Übereinkommen im Hinblick auf den Zugang zu essentiellen Medikamenten, Frankfurt am Main [et al.], Lang, 2004. Hellum, Anne: Actor perspectives on gender and legal pluralism in Africa, in: Petersen, Hanne/Zahle, Henrik (eds.): Legal policentricity: consequences of pluralism in law, Aldershot [et al.], Dartmouth, 1995, pp. 13–29. Henkin, Louis: Inter-state responsibility for compliance with human rights obligations, in: Vohrah, Lal Chand [et al.] (eds.): Man’s inhumanity to man: essays on international law in honour of Antonio Cassese, The Hague [et al.], Kluwer Law International, 2003, pp. 383–397. —— (ed.): The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981. Hey, Ellen: Sustainable use of shared water resources: the need for a paradigmatic shift in international watercourses law, in: Blake, Gerald H. [et al.] (eds.): The peaceful management of transboundary resources, London [et al.], Graham & Trotman/Nijhoff, 1995, pp. 127–152. Higgins, Rosalyn: Problems and process: international law and how we use it, Oxford, Clarendon Press, 1994. Hilf, Meinhard: The right to food in national and international law, in: Oppermann, Thomas/Petersmann, Ernst-Ulrich (eds.): Reforming the international economic order, Duncker & Humblot, Berlin, 1987, pp. 125–146. Hillemanns, Carolin F.: UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, German Law Journal, Vol. 04 (2003) No. 10, access via URL: http://www.germanlawjournal.org/pdf/Vol04No10/ PDF_Vol_04_No_10_1065–1080_European_Hillemanns.pdf (accessed 21 March 2005). Homer-Dixon, Thomas: Environment, scarcities and violence, New Jersey, Princeton University Press, 1999. ——: Environmental scarcities and violent conflict, International Security, 19 (1994) I, pp. 5–40. Holmes, Stephen/Sunstein, Cass R.: The cost of rights: why liberty depends on taxes, New York, London, W.W. Norton, 1999. Hoof, Godefridus J.H. van: The legal nature of economic, social and cultural rights: a rebuttal of some traditional views, in: Alston, Philip (ed.): The right to food, ’s-Gravenhage, Nijhoff, 1984, pp. 97–110. Horwitz, Morton J.: The history of the public/private distinction, University of Pennsylvania law review, 130 (1982), pp. 1423–1429. Human, Casper: The human right to water in Africa: the South African example, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner WissenschaftsVerlag, 2006, pp. 83–93. Isensee, Josef: Das Grundrecht als Abwehrrecht und Schutzpflicht, in: Isensee, Josef/Kirchhof, Paul (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland, Band V,

BOURQUAIN_f8-239-254.indd 245

7/31/2008 11:21:24 AM

246

Bibliography

Allgemeine Grundrechtslehren, 2nd ed., Heidelberg, Müller Juristischer Verlag, 2000, pp. 143–241. Isensee, Josef/Kirchhof, Paul (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland, Band V, Allgemeine Grundrechtslehren, 2nd ed., Heidelberg, Müller Juristischer Verlag, 2000. Jägers, Nicola: The legal status of the multinational corporation under international law, in: Addo, Michael K. (ed.): Human rights standards and the responsibility of transnational corporations, The Hague [et al.], Kluwer Law International, 1999, pp. 259–270. Kalpakian, Jack: Identity, conflict, and cooperation in international river systems, Burlington, VT, Ashgate, 2004. Karl, Joachim: The OECD Guidelines for Multinational Enterprises, in: Addo, Michael K. (ed.): Human rights standards and the responsibility of transnational corporations, The Hague [et al.], Kluwer Law International, 1999, pp. 89–106. Kiefer, Thorsten/Brölmann, Catherine: Beyond state sovereignty: the human right to water, Non-state actors and international law, 5 (2005), pp. 183–208. Kimerling, Judith: Rights, responsibilities, and realities: environmental protection law in Ecuador’s Amazon oil fields, Southwestern university journal of law and trade in the Americas, 2 (1995) 2, pp. 293–384. Kimminich, Otto: A “federal” right of self-deterimation?, in: Tomuschat, Christian (ed.): Modern law of self-determination, Dordrecht [et al.], Nijhoff, 1993, pp. 83–100. Kingsbury, Benedict: “Indigenous peoples” in international law: a constructivist approach to the Asian controversy, The American journal of international law, 92 (1998) 3, pp. 414–457. Kipping, Martin: Wasserkonflikte und Wasserkooperation am Senegalfluss, in: Kipping, Martin/Lindemann, Stefan: Konflikte und Kooperation um Wasser: Wasserpolitik am Senegalfluss und internationales Flussmanagement im Südlichen Afrika, Spektrum, Berliner Reihe zu Gesellschaft, Wirtschaft und Politik in Entwicklungsländern Bd. 90, Münster, Lit-Verlag, 2005, pp. 22–107. Kiss, Alexandre/Shelton, Dinah: International environmental law, Ardsley, N.Y., Transnational Publishers, 2004. Klein, Eckart: The duty to protect and to ensure human rights under the International Covenant on Civil and Political Rights, in: Klein, Eckart (ed.): The duty to protect and to ensure human rights, Menschenrechtszentrum der Universität Potsdam, Bd. 8, Berlin, Berlin-Verl. Spitz, 2000, pp. 295–325. —— (ed.): The monitoring system of human rights treaty obligations, Berlin Menschenrechtszentrum der Universität Potsdam Vol. 5, Berlin-Verlag Spitz, 1998. Klein Goldewijk, Berma/Baspineiro, Adalid Contreras/ Carbonari, Paulo César (eds.), Dignity and human rights: the implementation of economic, social and cultural rights, Ardsley, N.Y., Transnational Publishers, 2002. Koskenniemi, Martti/Leino, Päivi: Fragmentation of international law? Postmodern anxieties, Leiden journal of international law, 15 (2002) 3, pp. 553–579. Kothari, Miloon: Obstacles to making water a human right, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 149–159. Krings, Günter: Grund und Grenzen grundrechtlicher Schutzansprüche, Duncker & Humblot, Berlin, 2003. Künnemann, Rolf: Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights, in: Coomans, Fons/Kamminga Menno T. (eds.): Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004, pp. 201–231. Langford, Malcolm: Ambition that overleaps itself? A Response to Stephen Tully’s ‘Critique’ of the General Comment on the Right to Water, Netherlands quarterly of human rights, 24 (2006) 3, pp. 433–459.

BOURQUAIN_f8-239-254.indd 246

7/31/2008 11:21:24 AM

Bibliography

247

——: The right to water in national law: a review, in: Riedel, Eibe/Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner Wissenschafts-Verlag, 2006, pp. 115–125. ——: The United Nations concept of water as a human right: a new paradigm for old problems?, Water resources development, 21 (2005) 2, pp. 273–282. Lange, Roel de: Divergence, fragmentation, and pluralism: notes on polycentricity and unity in law, in: Petersen, Hanne/Zahle, Henrik (eds.): Legal policentricity: consequences of pluralism in law, Aldershot [et al.], Dartmouth, 1995, pp. 103–126. Laskowski, Silke R.: Wasserrecht – Völkerrechtliche, europarechtliche und nationalrechtliche Sicherungen des Menschen- und Grundrechts auf Wasser, Habilitationsschrift Universität Hamburg, 2005. Lee, John: The underlying legal theory to support a well-defined human right to a healthy environment as a principle of customary international law, Columbia journal of environmental law, 25 (2000) 2, pp. 283–346. MacWhinney, Edward: Self-determination of peoples and plural-ethnic states: secession and state succession and the alternative, federal option, Recueil des cours/Académie de Droit International de La Haye, 294 (2002), pp. 167–263. Mbengue, Makane M./Tignino, Mara: Transparency, public participation, and amicus curiae in water disputes, in: Weiss, Edith Brown (ed.): Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005, pp. 367–405. Mapulanga-Hulston, Jackbeth K.: Examining the justiciability of economic, social and cultural rights, International journal of human rights, 6 (2002) 4, pp. 29–48. Marauhn, Thilo: Individualbeschwerde für völkerrechtlich gewährleistete wirtschaftliche, soziale und kulturelle Rechte?, in: Aschke, Manfred/Hase, Friedhelm/Schmidt-de Caluwe, Reimund (eds.): Selbstbestimmung und Gemeinwohl, Baden-Baden, Nomos, 2005, pp. 243–262. ——: Social rights beyond the traditional welfare state: international instruments and the concept of individual entitlements, in: Benvenisti, Eyal/Nolte, Georg (eds.): The welfare state, globalization, and international law, Berlin [et al.], Springer, 2004, pp. 275–319. ——: Das Grundrecht auf Zugang zu den Leistungen der sozialen Sicherheit: Anmerkungen zur Normkategorie der sozialen Grundrechte, in: Matscher, Franz (ed.): Erweitertes Grundrechtsverständnis: internationale Rechtsprechung und nationale Entwicklungen, Kehl am Rhein [et al.], Engel, 2003, pp. 247–288. Markesinis, Basil S.: Privacy, freedom of expression, and the horizontal effect of the human rights bill: lessons from Germany, The law quarterly review, 115 (1998), pp. 47–88. McCaffrey, Stephen C.: The human right to water, in: Weiss, Edith Brown (ed.): Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005, pp. 93–115. ——: The law of international watercourses: non-navigational uses, Oxford [et al.], Oxford University Press, 2001. ——: The evolution of the law of international watercourses, Austrian journal of public and international law, 45 (1993) 2, pp. 87–111. ——: Water, human rights and sustainable development, in: Trindade, Antônio Augusto Cancado (ed.): Derechos humanos, desarrollo sustentable y medio ambiente, Instituto Interamericano de Derechos Humanos, San José, Brasília, IIDH [et al.], 1992, pp. 99–115. ——: A human right to water: domestic and international implications, Georgetown international environmental law review, 5 (1992) 1, pp. 1–24. McGoldrick, Dominic: Extraterritorial application of the International Covenant on Civil and Political Rights, in: Coomans, Fons/Kamminga Menno T. (eds.): Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004, pp. 41–72. ——: Sustainable development and human rights: an integrated conception, The international and comparative law quarterly, 45 (1996) 4, pp. 796–818.

BOURQUAIN_f8-239-254.indd 247

7/31/2008 11:21:24 AM

248

Bibliography

McIntyre, Owen: The emergence of an ‘Ecosystem Approach’ to the protection of international watercourses under international law, Review of European Community & international environmental law 13 (1) 2004, pp. 1–14. Mechlem, Kerstin: Food security and the right to food in the discourse of the United Nations, European law journal, 10 (2004) 5, pp. 631–648. Meinzen-Dick, Ruth/Nkonya, Leticia: Understanding legal pluralism in water rights: lessons from Africa and Asia, International workshop on “African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa”, 26–28 January 2005, Johannesburg, South Africa, URL: http://www.nri.org/waterlaw/AWLworkshop/MEINZEN-DICKR.pdf, pp. 8–1–8–14 (accessed 1 July 2006). Merrills, John G.: The development of international law by the European Court of Human Rights, Manchester [et al.], Manchester University Press, 1993. Merry, Sally Engle: Legal pluralism, Law and society review, 22 (1988) 5, pp. 869–896. Micklin, Philip: Managing water in Central Asia, London, Royal Institute of International Affairs, 2000. Mitchell, Ronald B.: Compliance theory: an overview, in: Cameron, James/Werksman, Jacob/Roderick, Peter (eds.): Improving compliance with international environmental law, London, Earthscan Publications, 1996, pp. 3–28. Mühlhans, Mathias: Internationales Wassernutzungsrecht und Spieltheorie, Frankfurt a.M. [et al.], Peter Lang, 1998. Muralidhar, S.: The right to water: an overview of the Indian legal regime, in: Riedel, Eibe/ Rothen, Peter (eds.): The human right to water, Berlin, BWV Berliner WissenschaftsVerlag, 2006, pp. 65–81. Murswiek, Dietrich: Freiheit durch Teilhabe oder Teilhabe gegen Freiheit?, in: Isensee, Josef/Kirchhof, Paul (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland, Band V, Allgemeine Grundrechtslehren, 2nd ed., Heidelberg, Müller Juristischer Verlag, 2000, pp. 243–289. ——: The issue of a right of secession – reconsidered, in: Tomuschat, Christian (ed.): Modern law of self-determination, Dordrecht [et al.], Nijhoff, 1993, pp. 21–39. Nicholson, Simon: Water scarcity, conflict, and international water law: an examination of the regime established by the UN Convention on International Watercourses, New Zealand journal of environmental law, 5 (2001), pp. 91–125. Nowak, Manfred: U.N. Covenant on Civil and Political Rights, CCPR commentary, 2. revised ed., Kehl [et al.], Engel, 2005. ——: The need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, The Review/International Commission of Jurists, 55 (1995), pp. 153–165. Nowrot, Karsten/Wardin, Yvonne: Liberalisierung der Wasserversorgung in der WTORechtsordnung: die Verwirklichung des Menschenrechts auf Wasser als Aufgabe einer transnationalen Verantwortungsgemeinschaft, Beiträge zum transnationalen Wirtschaftsrecht, Heft 14, Halle, Institut für Wirtschaftsrecht, 2003. OHCHR: Human rights and poverty reduction: a conceptual framework, New York and Geneva, United Nations, 2004. Okin, Susan M.: Liberty and welfare: some issues in human rights theory, in: Pennock, J. Roland/Chapman, John W. (eds.): Human Rights, NOMOS XXIII, Yearbook of the American Society for Political and Legal Philosophy, New York, London, New York University Press, 1981, pp. 230–256. Olmstead, Sheila M.: Water Supply and Poor Communities: What’s price got to do with it?, Environment 45 (2003) 10, pp. 22–35. O’Neill, Timothy: Water and freedom: the privatization of water and its implications for democracy and human rights in the developing world, Colorado journal of international environmental law and policy, 17 (2006) 2, pp. 357–383.

BOURQUAIN_f8-239-254.indd 248

7/31/2008 11:21:24 AM

Bibliography

249

Orwin, Clifford/Prangle, Thomas: The philosophical foundation of human rights, in: Plattner, Marc F. (ed.): Human rights in our time: essays in memory of Victor Baras, Boulder [et al.], Westview Press, 1984, pp. 1–22. Padilla, David: An African human rights court: reflections from the perspective of the InterAmerican system, African human rights law journal, 2 (2002) 2, pp. 185–194. Pallemaerts, Marc: The human right to a healthy environment as a substantive right, in: Dejeant-Pons, Maguelonne/Pallemaerts, Marc: Human rights and the environment: compendium of instruments and other international texts on individual and collective rights relating to the environment in the international and European framework, Strasbourg, Council of Europe Publ., 2002, pp. 11–21. Palmer, Geoffrey: New ways to make international environmental law, American journal of international law, 86 (1992), pp. 259–283. Paust, Jordan J.: Human rights responsibilities of private corporations, Vanderbilt journal of transnational law, 35 (2002) 3, pp. 801–825. Pearce, Fred: The dammed: rivers, dams and the coming world water crisis, London, Bodley Head, 1992. Pentassuglia, Gaetano: State sovereignty, minorities and self-determination: a comprehensive legal view, International journal on minority and group rights, 9 (2002) 4, pp. 303–324. ——: Minority protection in international law: from standard-setting to implementation, Nordic journal of international law, 68 (1999) 2, pp. 131–160. Petersen, Hanne/Zahle, Henrik (eds.): Legal policentricity: consequences of pluralism in law, Aldershot [et al.], Dartmouth, 1995. Petrova, Violeta: At the frontiers of the rush for blue gold, Brooklyn journal of international law, 31 (2006) 2, pp. 577–613. Picolotti, Romina: Agenda 21 and human rights: the right to participate, in: Picolotti, Romina/Taillant, Jorge D. (eds): Linking human rights and the environment, Tucson, Arizona, University of Arizona Press, 2003, pp. 47–56. ——/Taillant, Jorge D. (eds.): Linking human rights and the environment, Tucson, Arizona, University of Arizona Press, 2003. Pircher, Erich H.: Der vertragliche Schutz ethnischer, sprachlicher und religiöser Minderheiten im Völkerrecht, Bern, Stämpfli, 1979. Posey, Darrell A.: Traditional resource rights: international instruments for protection and compensation for indigenous peoples and local communities, Gland [et al.], IUCN, 1996. Ramcharan, Bertrand G.: Equality and nondiscrimination, in: Henkin, Louis (ed.): The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, pp. 246–269. Raustiala, Kal/Slaughter, Anne-Marie: International law, international relations and compliance, in: Carlsnaes, Walter/Riss, Thomas/Simmons, Beth A. (eds.): Handbook of international relations, London [et al.], Sage, 2002, pp. 538–558. Rawls, John: The law of peoples, With “The idea of public reason revisited”, Cambridge [et al.], Cambridge University Press, 1999. Razzaque, Jona: Trading water: the human factor, Review of European Community & international environmental law, 13 (2004) 1, pp. 15–26. Redgwell, Catherine: Life, the universe and everything: a critique of anthropocentric rights, in: Boyle, Alan E./Anderson, Michael R. (eds.): Human rights approaches to environmental protection, Oxford, Clarendon Press, 1996 (reprinted 2003), pp. 71–87. Reimann, Markus: Die nicht-navigatorische Nutzung internationaler Süßwasserressourcen im Umweltvölkerrecht, Frankfurt am Main [et al.], Lang, 1999. Ress, Georg: The duty to protect and to ensure human rights under the European Convention on Human Rights, in: Klein, Eckart (ed.): The duty to protect and to ensure human

BOURQUAIN_f8-239-254.indd 249

7/31/2008 11:21:24 AM

250

Bibliography

rights, Menschenrechtszentrum der Universität Potsdam, Bd. 8, Berlin, Berlin-Verl. Spitz, 2000, pp. 165–205. Riedel, Eibe: The human right to water, in: Dicke, Klaus [et al.] (eds.): Weltinnenrecht, Liber amicorum Jost Delbrück, Berlin, Duncker & Humblot, 2005, pp. 585–606. ——: Allgemeine Bemerkungen zu Bestimmungen des Internationalen Paktes über Wirtschaftliche, Soziale und Kulturelle Rechte der Vereinten Nationen, in: Deutsches Institut für Menschenrechte (ed.): Die “General Comments” zu den VN-Menschenrechtsverträgen, Baden-Baden, Nomos, 2005, pp. 160–171. Robertson, Robert E.: Measuring state compliance with the obligation to devote the “maximum available resources” to realizing Economic, Social, and Cultural Rights, Human rights quarterly 16 (1994) 4, pp. 693–714. Robinson, Nehemiah: Universal Declaration of Human Rights: its origin, significance, application and interpretation, 2nd ed., New York, Institute of Jewish Affairs, 1958. Rodriguez-Rivera, Luis E.: Is the human right to environment recognized under international law?, Colorado journal of international environmental law and policy, 12 (2001) 1, pp. 1–45. Rosas, Allan: The right of self-determination, in: Eide, Asbjørn/Krause, Catarina/Rosas, Allan (eds.): Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 111–118. ——: The right to development, in: Eide, Asbjørn/Krause, Catarina/Rosas, Allan (eds.): Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 119–130. Rosegrant, Mark W./Ximing, Cai/Cline, Sarah A.: World water and food to 2025: dealing with scarcity, Washington D.C., International Food Policy Research Institute, 2002. Saeijs, H.L.F./Berkel, M.J.: The global water crisis: the major issue of the twenty-first century, a growing and explosive problem, in: Brans, Edward H.P. (ed.): The scarcity of water, London [et al.], Kluwer Law International, 1997, pp. 3–20. Salman, Salman M.A.: Evolution and context of international water resources law, in: Boisson de Chazournes, Laurence/Salman, Salman M.A. (eds.), Les ressources en eau et le droit international – Water resources and international law, Académie de droit international de LA Haye, Leiden [et al.], Nijhoff, 2005, pp. 45–94. Salman, Salman M.A./McInerney-Lankford, Siobhán: The human right to water: legal and policy dimensions, Washington D.C., World Bank, 2004. Scanlon, John/Cassar, Angela/Nemes, Noémi: Water as a Human Right?, Gland, Cambridge, IUCN, 2004. Scheinin, Martin: Extraterritorial effect of the International Covenant on Civil and Political Rights, in: Coomans, Fons/Kamminga Menno T. (eds.): Extraterritorial application of human rights treaties, Antwerp, Oxford, Intersentia, 2004, pp. 73–81. ——: Economic and social rights as legal rights, in: Eide, Asbjørn/Krause, Catarina/Rosas, Allan (eds.): Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 29–54. Schillhorn, Kerrin: Kulturelle Rechte indigener Völker und Umweltvölkerrecht – Verhältnis und Vereinbarkeit, Berlin, Duncker & Humblot, 2000. Schilling, Theodor: Internationaler Menschenrechtsschutz, Tübingen, Mohr Siebeck, 2004. Schlütter, Birgit: Water rights in the West Bank and in Gaza, Leiden journal of international law, 18 (2005) 3, pp. 621–644. Scott, Craig: Multinational enterprises and emergent jurisprudence on violations of economic, social and cultural rights, in: Eide, Asbjørn/Krause, Catarina/Rosas, Allan (eds.): Economic, social and cultural rights: a textbook, 2nd revised ed., Dordrecht [et al.], Nijhoff, 2001, pp. 563–595.

BOURQUAIN_f8-239-254.indd 250

7/31/2008 11:21:25 AM

Bibliography

251

Seibert-Fohr, Anja: The role of the reporting system in respect of the development of human rights treaties’ application, in: Klein, Eckart (ed.): The monitoring system of human rights treaty obligations, Berlin, Menschenrechtszentrum der Universität Potsdam Vol. 5, BerlinVerlag Spitz, 1998, pp. 111–120. Selby, Jan: Water, power and politics in the Middle East: the other Israeli-Palestinian conflict, London, I.B. Tauris, 2003. Shelton, Dinah: The environmental jurisprudence of international human rights tribunals, in: Picolotti, Romina/Taillant, Jorge D. (eds): Linking human rights and the environment, Tucson, Arizona, University of Arizona Press, 2003, pp. 1–29. ——: Environmental protection and the right to food, in: Trindade, Antônio Augusto Cancado (ed.): Derechos humanos, desarrollo sustentable y medio ambiente, Instituto Interamericano de Derechos Humanos, San José, Brasília, IIDH [et al.], 1992, pp. 83–98. ——: Human rights, environmental rights, and the right to environment, Stanford journal of international law, 28 (1991), pp. 103–138. Simma, Bruno: The examination of state reports: International Covenant on Economic, Social and Cultural Rights, in: Klein, Eckart (ed.): The monitoring system of human rights treaty obligations, Berlin, Menschenrechtszentrum der Universität Potsdam Vol. 5, Berlin-Verlag Spitz, 1998, pp. 31–48. Sinha, Surya Prakash: Legal policentricity, in: Petersen, Hanne/Zahle, Henrik (eds.): Legal policentricity: consequences of pluralism in law, Dartmouth, Aldershot [et al.], 1995, pp. 31–69. Skogly, Sigrun I./Gibney, Mark: Transnational human rights obligations, Human rights quarterly, 24 (2002) 3, pp. 781–798. Smets, Henri: Economics of water services and the right to water, in: Weiss, Edith Brown (ed.): Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005, pp. 171–189. ——: Implementing the right to drinking water in OECD countries, TA 1251: 22/11/99– 12/01/00, Working Party on Environmental Performance, OECD-Seminar on the social and environment interface, 22–24 September 1999, access via URL: http://www.tradeobservatory.org/library.cfm?RefID=25084 (accessed 3 December 2005). Sohn, Louis B.: The rights of minorities, in: Henkin, Louis (ed.): The International Bill of Rights: the Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, pp. 270–289. Spiliopoulou-Åkermark, Athanasia: Justifications of minority protection in international law, London [et al.], Kluwer Law International, 1996. Spillmann, Kurt R.: Wasser als Thema der Weltpolitik, in: Kaiser, Karl/Schwarz, Hans-Peter (eds.): Weltpolitik im neuen Jahrhundert, Bonn, Bundeszentrale für politische Bildung, 2000, pp. 150–172. Steiger, Heinhard: Le droit à un environnement humain: proposition pour un protocole additionel à la Convention européenne des Droits de l‘Homme, Berlin, Schmidt, 1973. Stein, Robyn: Water law in a democratic South Africa: a country case study examining the introduction of a public rights system, Texas law review, 83 (2005) 7, pp. 2167–2183. Stone, Christopher D.: Should trees have standing? and other essays on law, morals and the environment, Dobbs Ferry, NY [et al.], Oceana Publications, 1996. Tanzi, Attila/Arcari, Maurizio: The United Nations Convention on the Law of International Watercourses: a framework for sharing, London [et al.], Kluwer Law International, 2001. Teclaff, Ludwik A./Teclaff, Eileen: Documents, in Teclaff, Ludwik A./Utton, Albert E. (eds.): International groundwater law, London [et al.], Oceana Publications, 1981, pp. 189–489. Teclaff, Ludwik A.: Evolution of the river basin concept in national and international water law, Natural Resources Journal, 36 (1996) 2, pp. 359–391.

BOURQUAIN_f8-239-254.indd 251

7/31/2008 11:21:25 AM

252

Bibliography

Tietje, Christian: Internationalisiertes Verwaltungshandeln, Berlin, Duncker & Humblot, 2001. Toebes, Brigit C.A.: The right to health as a human right in international law, Antwerpen [et al.], Intersentia [et al.], 1999. Tomuschat, Christian: An optional protocol for the International Covenant on Economic, Social and Cultural Rights? in: Dicke, Klaus [et al.] (eds.): Weltinnenrecht, Liber amicorum Jost Delbrück, Berlin, Duncker & Humblot, 2005, pp. 815–834. —— (ed.): Modern law of self-determination, Dordrecht [et al.], Nijhoff, 1993. ——: National implementation of international standards on human rights, Canadian human rights yearbook (1984/85), pp. 31–61. ——: Protection of minorities under Article 27 of the International Covenant on Civil and Political Rights, in: Bernhardt, Rudolf (ed.): Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, Berlin [et al.], Springer, 1983, pp. 949–979. ——: Equality and non-discrimination under the International Covenant on Civil and Political Rights, in: Münch, Ingo von (ed.): Staatsrecht, Völkerrecht, Europarecht: Festschrift für Hans-Jürgen Schlochauer zum 75. Geburtstag am 28. März 1981, Berlin [et al.], de Gruyter, 1981, pp. 691–716. Trindade, Antônio Augusto Cançado: Environment and development: formulation and implementation of the right to development as a human right, in: Trindade, Antônio Augusto Cancado (ed.): Derechos humanos, desarrollo sustentable y medio ambiente, Instituto Interamericano de Derechos Humanos, San José, Brasília, IIDH [et al.], 1992, pp. 39–70. —— (ed.): Derechos humanos, desarrollo sustentable y medio ambiente, Instituto Interamericano de Derechos Humanos, San José, Brasília, IIDH [et al.], 1992. Tuerk, Elisabeth/Ostrovsky, Aaron/Speed, Robert: GATS and its impact on private sector participation in water services, in: Weiss, Edith Brown (ed.): Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005, pp. 143–172. Tully, Stephen: A human right to access water? A critique of General Comment No. 15, Netherlands quarterly of human rights, 23 (2005) 1, pp. 35–63. Turton, Anthony/Henwood, Roland (eds.): Hydropolitics in the developing world: a southern African perspective, Pretoria, African Water Issues Research Unit, 2002. UNESCO: Water for people, water for life: the United Nations world water development report, New York, UNESCO/Berghahn, 2003. Utton, Albert E.: Which rule should prevail in international water disputes: that of reasonableness or that of no-harm?, Natural resources journal, 36 (1996) 3, pp. 635–641. Vasilache, Andreas: Ethischer Universalismus und die Vielfalt von Kulturen: Zur Geltungsmöglichkeit und Legitimierung von universellen Werten jenseits der Relativität kultureller Begründungsversuche, WeltTrends, 41 (2003/04), pp. 91–106. Verstichel, Annelies: Recent developments in the UN Human Rights Committee’s approach to minorities, with a focus on effective participation, International journal on minority and group rights, 12 (2005), pp. 25–41. Vierdag, Egbert W.: The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, Netherlands yearbook of international law, 9 (1978), pp. 69–105. Vitzthum, Wolfgang Graf: Begriff, Geschichte und Quellen des Völkerrechts, in: Vitzthum, Wolfgang Graf (ed.): Völkerrecht, 2. Auflage, Berlin, New York, de Gruyter, 2001, pp. 1–85. —— (ed.): Völkerrecht, 2. Auflage, Berlin, New York, de Gruyter, 2001. Wallace, Rebecca M.M.: International law, 5th ed., London, Sweet & Maxwell, 2005. Watters, Lawrence: Indigenous peoples and the environment: convergence from a nordic perspective, UCLA journal of environmental law & policy, 20 (2001/2002) 2, pp. 237–304.

BOURQUAIN_f8-239-254.indd 252

7/31/2008 11:21:25 AM

Bibliography

253

Welhengama, Gnanapala: The legitimacy of minorities’ claim for autonomy through the right to self-determination, Nordic journal of international law, 68 (1999) 4, pp. 413–438. Weiss, Edith Brown (ed.): Fresh water and international economic law, Oxford [et al.], Oxford University Press, 2005. ——: Introduction, in: Weiss, Edith Brown (ed.): International compliance with nonbinding accords, Studies in transnational legal policy No. 29, Washington DC, American Society of International Law, 1997, pp. 1–20. —— (ed.): International compliance with nonbinding accords, Studies in transnational legal policy No. 29, Washington, DC, American Society of International Law, 1997. Weller, Marc (ed.): The rights of minorities in Europe: a commentary on the European Framework Convention for the Protection of National Minorities, 1st ed., Oxford [et al.], Oxford University Press, 2005. Wense, Wolf von der: Der UN-Menschenrechtsausschuß und sein Beitrag zum universellen Schutz der Menschenrechte, Berlin [et al.], Springer, 1999. Wescoat, James L.: Beyond the river basin: the changing geography of international water problems and international watercourse law, Colorado journal of international environmental law and policy, 3 (1992), pp. 301–330. Weston, Burns H.: Human rights, Human rights quarterly, Vol. 6 (1984) 3, pp. 257–283. Wet, Erika de: Recent developments concerning the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, South African journal on human rights, 13 (1997) 4, pp. 514–548. WHO: Guidelines for drinking-water quality, Third edition, Volume 1, Recommendations, Geneva, World Health Organization, 2004. ——: The right to water, Geneva, World Health Organization, 2003. WHO/UNICEF: The global water supply and sanitation assessment 2000 report, Geneva, World Health Organization, 2000. Wildhaber, Luzius: Soziale Grundrechte, in: Wildhaber, Luzius: Wechselspiel zwischen Innen und Aussen: Schweizer Landesrecht, Rechtsvergleichung, Völkerrecht, Basel [et al.], Helbing und Lichtenhahn, 1996, pp. 482–503. Wolf, Aaron T. [et al.]: International river basins of the world, International journal of water resources development, Vol. 15 (1999) No. 4, pp. 387–427. ——: Conflict and cooperation along international waterways, Water policy, 1 (1998) 2, pp. 251–265. Woodhouse, Erik J.: The “Guerra del Agua” and the Cochabamba Concession: social risk and foreign direct investment in public infrastructure, Stanford journal of international law, 39 (2003) 2, pp. 295–350. Woodhouse, Melvin: Is public participation a rule of the law of international watercourses? Natural resources journal, 43 (2003) 1, pp. 137–183. Wouters, Patricia K./Rieu-Clarke, Alistair S.: The role of international water law in promoting sustainable development, 2003, URL: http://www.dundee.ac.uk/law/iwlri/Documents/ StudentsMaterial/AlistairRieuClarke/PDFs/Article.pdf (accessed 22 March 2004).

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Index Aarhus Convention, 185 absolute territorial integrity, 26–28, 176 absolute territorial sovereignty, 26–28, 36 accessory right, 133, 153, 158–159, 161 access to information, 37, 52, 59, 72, 182–185, 187–188, 203 accountability, 64–65, 92, 115, 196, 234 addressee of human rights, 55, 83, 107, 142, 196, 202 adequate standard of living, see right to affordable water, 13, 56, 60, 139–140, 180 Agenda 21, 13, 26, 52, 185 agricultural water use, 4, 17, 116, 139, 161, 168 allocation/reallocation, 1–2, 4–6, 11–12, 25, 50–53, 55, 58, 66, 89, 95, 113, 142, 147, 152, 154, 161, 173, 208 Athens Resolution, 18 authoritative interpretation, 32, 51, 63, 113, 219–223, 230 autonomous water management, 172–178 basic needs, 3–5, 10–12, 32, 35, 38, 43, 47–48, 56, 105, 124, 128, 140, 142–143, 151, 177, 197 basic water access, 139–140 Berlin Rules, see Revised Helsinki Rules causes of water scarcity, 3–5 characteristics of a human rights-based approach, 56–66, 114–117 class action, 217 climate change, 4 Cochabamba Case, 8, 182 Committee on Economic, Social and Cultural Rights, 13, 219–225 commodity approach, 7, 12, 115 common management approach, 23–26 community of interest, 10, 226 complaint individual, 64, 212–217 state, 214–215 compliance/non-compliance, 14, 42, 49, 52–53, 64–65, 78–82, 205–206, 210, 213, 215, 219

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confined groundwater, 24, 35–36, 44, 47–48, 50–51 conflict of uses, 40–41, 143 see also priority of water uses Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 122–123, 153–154, 198 Convention on the Rights of the Child, 122, 198 cooperation, see international cooperation coping strategies, see strategies of crisis management core obligations/standard, 62, 104–105, 116, 143, 145, 148, 151, 157, 171, 200, 220 corporations, see non-state actors customary human rights law, 179–188 customary water law, 22, 43–49 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 166 development, see right to dignity, 3, 61–62, 103–105, 116, 131–132, 143, 148, 151, 199–200 direct effect, 100–106, 114, 116, 135, 155, 161, 183, 189, 200–202 discrimination, see non-discrimination domestic (human) water rights, 188–191 downstream states, 24, 27, 29, 51, 192 Dublin Statement on Water and Sustainable Development, 12–13, 185 duty, see obligation economic access, 5, 56, 88, 139–140, 221 ECOSOC, 219 ecosystem approach, 50, 225 empowerment, 55, 58, 60, 65, 94, 96, 115, 164, 231 environment, right of the, 69–70 environment, right to, 69, 72–82 environmental rights, 69–72

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entitlements, 120, 202 see also positive obligations and direct effect equality, see right to equality equitable utilisation, 26–30, 37–39, 41–42, 44–45, 48, 51, 196–197, 207 extraterritorial obligations, 192–197 fragmentation, 50, 72, 112, 121, 205–207, 209, 218 freedom of decision, 90, 207 freshwater access, adequate, 1–2, 138–141 freshwater convention, 209, 211 function of a human rights-based approach, 56–66, 114–117 General Comment No. 15, 13, 219–223 general obligation, 98, 148, 151, 189, 202 general principles of international law, 188–191 Geneva Conventions, see humanitarian law global freshwater resources, 3 groundwater, 24, 26, 35–37, 44, 47–48, 51, 87 group rights, see minorities and self-determination of peoples Harmon Doctrine, 27–28 health, see right to Helsinki Rules, 19–21, 24, 43–45 see also Revised Helsinki Rules High Court of South Africa, 190 history of international water law, 18–31 horizontal effect, 93, 108 see also indirect horizontal effect humanitarian law, 121, 123–124, 142, 194, 205 human rights theory, 85, 89–91, 96 Human Rights Committee, 130, 154, 160, 162, 178, 213 humane mode, 199 hygiene, 139, 156 ILO Convention No. 169, 170, 174 implementation, 11, 42, 53, 61–62, 82, 135, 150, 210–214, 222–225, 229–230 implementation dialogue, 223–225 improvement strategies, 5–10, 205–231 inadequate freshwater access, see freshwater access indigenous peoples, 52, 155, 168, 171, 176, 227

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indirect horizontal effect, 108–109 individual complaints, see complaints indivisibility of human rights, 97–98, 231 industrial water use, 4, 17, 21, 116, 156, 161 information, see access to information institutions, see transboundary management institutions Institute of International Law, 18 International Bill of Rights, 111, 119 International Declaration on the Elimination of All Forms of Racial Discrimination, 153–154 international cooperation, 5, 10, 25–26, 30, 34, 37, 42, 108, 196–197, 225–226, 228–229 International Law Association, 18 International Law Association Rules on Water Resources, see Revised Helsinki Rules International Law Commission, 19 international watercourse, concept, 23–26, 33–35 international water law, 46–47, 50 Johannesburg Plan of Implementation, 59 justiciability of social rights, 93, 116, 136, 212 legal pluralism, 112–114, 173 liberal human rights understanding, 89–94, 106 life, see right to limitation of human rights, 125–127, 143–145, 154, 166, 169, 174, 176 Madrid Declaration, 18, 21 management institutions, see transboundary management institutions Mar del Plata Conference, 12–13 margin of appreciation, 102–103, 116, 131–132, 149–152 Millennium Development Goals, 5, 59–60 minorities, 2, 165–172 monopolies, see natural monopolies national water rights, 188–191 natural monopolies, 8, 90 navigational water use, 20–22, 30 negative obligations, 85–86, 125–127, 141–145 no-harm principle, 26–30, 38, 197, 207

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Index

non-discrimination, 33, 102, 106, 140, 152–156, 158–163, 201 Non-Governmental Organisation (NGO), 18, 221 non-navigational water use, 20–22 non-state actors, 2, 78, 87–88, 106–110, 147, 201–202, 230 objective legal instruments, 33–43, 54, 58, 115 Obligation to facilitate, 150–151, 180 Obligation to respect, 85–86, 125–127, 141–145 Obligation to promote, 150, 171 Obligation to provide, 92, 104, 131, 150–152, 217 Obligation to protect, 88, 91–92, 108, 128–130, 147–149, 162–163, 171–172, 193, 210, 231 Obligation to fulfil, 39, 53, 102–104, 147, 149–151 Optional Protocol to the ICCPR, 178, 213 ICESCR, 212–217 participation, see public participation particularism, 111–112 peoples, see self-determination of physical access, 139, 180 policy concepts, 59–66 political concept of water allocation, 12, 55, 58, 66, 115, 133, 135, 201 positive obligation, 86–106 see also obligation to pricing of water, 7, 12, 88, 90 priority of water uses, 11, 21–22, 40, 104, 134, 207 private actors, see non-state actors private water supply, 7, 12, 115, 162–163, 202 procedural guarantees, 33, 56–57, 61, 86, 90, 126, 144, 169–170, 182 progressive realisation, 100–104, 135, 145–146, 152, 155, 181, 225 public participation, 57, 59, 170, 182–187 public-private-partnerships, 9 public water supply, 7, 12, 115, 148, 163, 202 reallocation, see allocation Residents of Bon Vista Mansions v. Southern Metropolitan Local Council, 190

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257

result function, 56–58, 61 Revised Helsinki Rules, 30–31, 43, 45, 51, 180–188, 208 retrogressive measures, 152 right to an adequate standard of living, 135–155 right to development, 82–84 right to environment, see environment right to equality, 158–163 right to food, 137, 139, 211, 229 right to health, 156–158 right to information, see access to information right to life, 125–134 right to participation, see public participation right to be free from hunger, 137–138, 146–147 rights of the child, 122, 198 Rome Statute, 124 Salzburg Resolution, 18 sanitary needs, 49, 139 scope of appreciation, 102–103, 116, 131–132, 149–152 self-determination of peoples, 167, 174–178 Seoul Rules, 44, 47 social contract theory, 91 social human rights approaches, 91–96, 98, 106 soft law, 228–229 South Africa, 189–191 specific obligation, 149, 151, 191, 220 specification of law, 215, 218–227 Stockholm Declaration, 29 strategies of crisis management, 5–9 subsistence, 46, 90, 132, 139, 163, 174 supervisory body, 213–215, 219, 223–225 supply and demand, 4, 7, 11 sustainable access, 59 territorial integrity/sovereignty, see absolute traditional water rights, 172–178 transboundary obligations, see extraterritorial obligations transboundary management institutions, 225–228 transboundary water management, 10 UN Conference on Environment and Development (Rio Conference), 13

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UN-Convention on the Law of the Non-navigational Uses of International Watercourses, 18, 22, 31–43, 209–210 UN-Declaration on the Right to Development, 83 UN Millennium Declaration, 5 UN World Summits, 5, 6 UNICEF, 1 Universal Declaration of Human Rights, 3, 119, 137, 165, 181 universalism, 111–112 upstream states, 24, 26–27, 29–30, 51, 192 utilisation principles, see equitable utilisation and no-harm vital human needs, see basic needs voluntary guidelines, 229

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war over water, see water war water basin concept, 23–26 water conflicts, see conflict of uses watercourse, see international watercourse water allocation, see allocation water management, 6–10 water pollution, 3, 23, 26, 29–30, 37, 73–74, 87, 128, 148, 150, 154, 168, 192, 194 water price, see pricing water scarcity, 1–3 reasons for, 3–5 water security, 32–34, 42, 49, 51, 53, 60, 66, 152 water war, 2 weapon, water as, 121, 124, 142, 197 WHO, 1, 156–157 World Bank, 114, 221 World Summit on Sustainable Development, Johannesburg, 6

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