Thursday, July 29, 2010

UN vote on the right to water: What is the legal value of the resolution?


From a legal perspective, a question that comes to mind is: what is the legal value of the 28 July 2010 UN General Assembly resolution on the human right to water and sanitation in international law?

Article 38(1) of the Statute of the International Court of Justice, which is widely recognised as the most authoritative statement as to the sources of international law, provides that international treaties, international custom, general principles of law, judicial decisions and the teachings of the most highly qualified publicists are considered as international law.

UN General Assembly resolutions are not covered by article 38. This does not mean that yesterday's resolution has no legal value. There is a huge body of doctrine on the legal significance of UN GA resolutions. Malcom Shaw, International Law, 3rd ed., Cambridge, Cambridge University Press, 2003, at pp. 107-112, provides great insight into the legal context of UN General Assembly resolutions (references are omitted):

«Foremost among the issues that have arisen and one that reflects the growth in the importance of the Third World states and the gradual de-Europeanisation of the world order is the question of the standing of the resolutions and declarations of the General Assembly of the United Nations.

Certain resolutions of the Assembly are binding upon the organs and member states of the United Nations [e.g.: article 17 of the UN Charter]. Other resolutions, however, are not legally binding and are merely recommendatory, putting forward opinions on various issues with varying degrees of majority support. This is the classic position and reflects the intention that the Assembly was to be basically a parliamentary advisory body with the binding decisions being taken by the Security Council.

Nowadays, the situation is somewhat more complex. The Assembly has produced a great number of highly important resolutions and declarations and it was inevitable that these should have some impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law. Where a particular country has consistently voted in favour of, for example, the abolition of apartheid, it could not afterwards deny the existence of a usage condemning racial discrimination and it may even be that that usage is for that state converted into a binding custom. [...]

Where the vast majority of states consistently vote for resolutions and declarations on a topic, that amounts to a state practice and a binding rule may very well emerge provided that the requisite opinio juris can be proved. [...]

Accordingly, such resolutions are able to speed up the process of the legalisation of a state practice and thus enable a speedier adaptation of customary law to the conditions of modern life. The presence of representatives of virtually all of the states of the world in the General Assembly enormously enhances the value of that organ in general political terms and in terms of the generation of state practice that may or may not lead to binding custom. [...]

Nevertheless, one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms. Great care must be taken in moving from a plethora of practice to the identification of legal norms.

Hence, among the most significant issues pertaining to the legal value of yesterday's resolution in international law figures the interrelation between state practice and international custom. In this context, it could be interesting to have a look at which state voted in favour or abstained yesterday, and to put these votes in parallel with the votes cast on the UN General Assembly Resolution on the right to development, 15 February 2000, U.N. Doc. A/RES/54/175, which declares that the rights to food and clean water are fundamental human rights for the right to development (§12 (a)). By the way, it must also be noted that although it is the subject of a GA resolution, the legal status of the right to development in international law remains unclear.

The text of yesterday's resolution and the votes per state can be found here. Canada's official position is as follows:

«The representative of Canada said his delegation had joined the consensus on the resolution that had created the mandate of the independent expert [Catarina de Albuquerque]. The work of that mechanism was expected to further promote study of the issue of access to water and sanitation as a human right and, as such, the text was premature. The non-binding resolution appeared to determine that there was indeed a right without setting out its scope. Since there was no consensus on the matter it was premature to declare such a right in the absence of clear international agreement, he said, adding that he had abstained from the vote

Wednesday, July 28, 2010

The UN resolution on the human right to water is passed


Quick post: the Council of Canadians informs that the UN General Assembly voted today in favour of the resolution on the right to water by 124 yes, 42 abstentions and 0 no.

Tuesday, July 27, 2010

Conference: The right to water and water rights


The UNESCO-IHE Institute for Water Education hosts a colloquium on «The right to water and water rights in a changing world» on 22 September 2010.

This is a great and timely topic. However, the detailed programme notes indicate that the scope of the colloquium might extend to a host of other issues such as effectiveness, climate change, legal adaptability, floods and scarcity. Such a variety of subjects to cover in a single day might hinder a reflection aimed at clarifying the relationships between the human rights to water and other water rights at international and national levels - in itself a formidable task.

Among the participants are Professors Joyeeta Gupta and Laurence Boisson de Chazournes.

Monday, July 26, 2010

Québec water case law 10: Municipal responsibility for disgorgement of septic tanks


In Dionne v. Gatineau (Municipality of) (in French), residents of a municipality claim damages against the municipality in extra-contractual liability before the Court of Appeal. The claim was rejected in first instance.

The defendant municipality delivered construction permits for new developments on its territory between the beginning of the 1970s and the end of the 1980s.

Instead of requiring particularised percolation tests, localisation plans from a land surveyor and an attestation from an engineer for each septic tank installed on a terrain as the by-laws required, the municipality issue construction permits in bulk and relied on an engineer who was hired by the developers, who ignored the by-laws, and who did not performed the required tests.

The Court of Appeal deals quickly with the element of fault. The municipality deliberately violated its own municipal by-laws on sanitary installations for private residences when issuing the construction permits, thus committing a fault. According to the Court, «the conduct of a municipality cannot be considered reasonable when it decides willingly not to follow its own regulations, or in other words, not to follow the law.» (§15) [Rough translation]

The Court of Appeal identifies the element of causality as more problematic: does the evidence establish, on the balance of probability, that damages suffered by the plaintiffs from the 1990s onward are the result of the defendant’s fault? The Court identifies many causes for the disgorgement of the septic tanks that led to health hazards and to the plaintiffs’ damages, among which soil conditions, inadequate construction and maintenance of sanitary installations... However, the Court concludes that the municipal contribution to the damages claimed rises to 75%, as these alternative causes justify the enactment and respect of the municipal by-laws in the first place.

Of note is the fact that this judgement serves to settle 103 claims through 5 representative files jointly selected by the parties’ attorneys. Causality was therefore examined «globally» by the Court. In this case, it is possible to argue that such a global approach adopted in «Justice's best interest» alters the assessment of evidence on the balance of probability in each claim with respect to causality.

This case can be linked to Beaudin v. Sept-Îles (Ville de) (in French), which was rendered in 2008 by the Superior Court and where another municipality was involved in a dispute relating to sanitation services.

Thursday, July 22, 2010

The Kalahari Bushmen and the human right to water


Following up on a previous blog, the BBC reports that the Kalahari Bushmen in Botswana have lost their case to re-open a well that used to be their source of water. To put this case in context, the BBC informs that:

«Diamonds were found in the Central Kalahari Game Reserve, traditional home to the bushmen, in the 1980s - and the government asked them to leave.»

If anyone has a copy of the proceedings and judgement, it would be very kind to provide them.

Meanwhile, the blogosphere is saturated with the news that the UN General Assembly will vote on a motion to recognize the human right to water on 28 July 2010. Will this help the Bushmen? Will Botswana vote in favour of the motion?

Wednesday, July 21, 2010

Renewed litigation in the Asian Carp dispute


The Great Lakes Law Blog from Professor Noah Hall informs that five American States have filed an action in a federal district court against the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to protect Lake Michigan from the invasive Asian carp. This follows a decision by the Supreme Court not to hear the case earlier this year.

It will be interesting to see whether Ontario will continue to represent Canadian interests in this case as it did before the Supreme Court and intervene in the file before the federal district court.

Monday, July 19, 2010

Environmental flow protection in Québec


A series of very interesting articles (here, here and here - in French) from Louis-Gilles Francoeur in Le Devoir discuss the environmental impacts of current record low flows in Québec rivers, and in particular, outline the importance of environmental flow protection in dam operations.

A doctrinal article on «The Emergence of Environmental Flow Protection in Québec Law» to be published in Les Cahiers de Droit's upcoming special issue on water law details the legal aspects of environmental flow protection in Québec.

In line with Francoeur's reasoning, this article also concludes that Québec water law must address the impacts of dam operations on environmental flows and provide adequate normative guidelines to protect freshwater ecosystems from degradations resulting from unsustainable alterations to surface hydrologic regimes. In particular, the article establishes that the Politique des débits écologiques réservés that aims at protecting aspects of environmental flows in Québec rivers downstream of dams could be improved:

1 - The Politique does not apply to water uses anterior to 1999 and cannot serve to restore aquatic ecosystem quality compromised by an anterior use other than on a voluntary basis;

2 - The Politique's implementation is discretionary, and alterations considered unacceptable under the Politique such as complete river-flow cut-offs are authorised in practice. The economic and technical feasibility exclusion ensures that any type of environmental flow alteration can be authorised, thus significantly reducing the Politique’s effectiveness as a normative instrument;

3 - The Politique focuses exclusively on the provision of water for fish and neglects the effects of flow alteration on other components of the biotic assemblages integral to aquatic ecosystem quality;

4 - Reliance on the principle of compensation for lost habitats in the Politique can lead to the acceptance of important shifts in ecosystem species composition. For example, loss of habitats suitable to species adapted to high flow velocity can be considered acceptable under the Politique because balanced by gains in habitats for species adapted to standing water. However, repetition of such a compensation project after project may homogenise fish biodiversity;

5 - The discrete implementation of the Politique through ad hoc authorisations under various regimes may hinder the capacity to address cumulative impacts on environmental flows and ecosystems. This risk is particularly significant when rivers earmarked for out-of-site habitat compensation are not identified during the authorisation process for specific projects.

As a result, the Government's undertaking in the Québec Water Policy (undertaking 22) to improve environmental flow protection remains essential and must be carried out.

Thursday, July 15, 2010

Water case law in Québec 9: Validity of a municipal regulation protecting riparian areas


Wallot v. Québec (City of) (in French) is another example of what appears to be a trend in Québec environmental law: the municipal arena shapes up to be the major battle front on environmental matters. The quote introducing the judgement immediately sets the tone:

«“There is no such thing as absolute ownership. Ownership is being modified constantly by social exigences” (William de Montmollin Marler)»

The reach of this comment is revealed further as the Court acknowledges that our economic system essentially relies on private property (§158).

In this case, the plaintiffs ask the Superior Court to declare null the defendant municipality’s regulation protecting the riparian area around Lake St. Charles.

The lake is the source of 50% of the drinking water provided by the defendant municipality, serving close to 300 000 persons.

During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc.

The municipal regulation is adopted in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the lake.

The plaintiffs are the owners of riparian properties on the Lake St. Charles who contest the validity of the regulation to avoid being forced to return part of their properties to a more natural state.

Firstly, the Court examines whether the defendant municipality is competent to adopt the challenged regulation. The Court states that the extent of municipal powers to regulate environmental matters must be interpreted liberally rather than restrictively. The object of the regulation is to protect the lake’s water quality by preventing the continued degradation of the lake’s riparian area and relates to public interest. This falls within the ambit of the municipal powers to regulate the environment under the Municipal powers Act (see notably sections 2, 4, 6, 19 and 26.1). On this issue, the Court thus concludes that the defendant municipality had the power to adopt the regulation challenged by the plaintiffs.

Secondly, the Court examines whether the regulation is reasonable or abusive. On this issue, the plaintiffs argue that the regulation is equivalent to a «forced dispossession without expropriation and/or a disguised expropriation». This argument mainly relies on section 952 of the Civil Code of Québec, according to which the defendant municipality should have indemnified the plaintiffs. Again, Courts will only interfere with the exercise of municipal powers in exceptional situations. A municipal regulation severely limiting the use of property rights is within the discretionary competence of municipal authorities. In expropriation cases, the general rule is and has long been that any statute providing for expropriation without compensation must be expressed in the clearest and most unequivocal terms, which is not the case for the regulation challenged. However, the Court determines that the plaintiffs keep some usage of the naturalised strip of land subject to the regulation and that their rights are not totally negated. Therefore, the regulation is reasonable and valid.

Thirdly, the Court examines whether the regulation’s adoption process conformed to obligations of procedural equity applicable to acts from an administrative authority. Citizens to which a regulation applies must be informed and have an opportunity to submit their observations. The Court reviews the decision process leading to the adoption of the regulation and determines that it was equitable.

As a result, the plaintiffs’ motion is rejected and the regulation stands. The judgement is on appeal.

On more point is worth mentioning in this judgement. The Court often mentions the precautionary principle and refers to the landmark obiter from the Supreme Court on this subject in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Ville de) (see §31 of the Spraytech case and §91, 92 and 175 of the Wallot case). More particularly, in the section of the judgement determining the reasonable nature of the regulation, the Court states that the testimonies have established «a significant rational link» between the provisions of the regulation and the protection of a drinking water quality source. At this point, the Court reiterates that, according to the precautionary principle, no scientific evidence is required with respect to the evaluation of the means used in the regulation. In this context, the mention of the precautionary principle can only be considered an obiter in the Wallot case.

Tuesday, July 13, 2010

Canada vs the human right to water and projected trade agreement with the European Union


An article by Maude Barlow and Anil Naidoo from the Council of Canadians in the Toronto Star outlines Canada's role as the leading opponent to the materialisation of the right to water as the UN general Assembly has been presented with a motion on this issue.

Canada's official position is that recognition of the right to water would force Canada to share its water with the USA. This is a weak argument from a legal point of view. As the article points out, a state's obligations to respect, protect and fulfil human rights are to its own citizens. The article identifies a more pressing menace to Canadian waters:

«Far more dangerous to this country’s water are the provisions of NAFTA, which give American companies rights to Canada’s water, and the proposed Canada-E.U. Comprehensive Economic and Trade Agreement (CETA), which will give water corporations the right to challenge local public control of water services.»

The impact of NAFTA on water apportionment and conservation in Canada has been studied in detail by legal doctrine. However, the impact of the projected CETA on water resources management needs to be studied.

The Department of Foreign Affairs has some information to start with. A legal opinion by Steven Shybman from Sack, Glodblatt, Mitchell LLP is made available by the Columbia Institute Centre for Civic Governance and focuses on the impact of CETA on municipal procurements and in particular on the procurements related of drinking water services (see p.18 & ff).

I do not have have the time to look at primary sources and the general legal context of CETA at the moment, but Shybman's opinion suggests that the agreement would be detrimental to municipal control over drinking water services in Canada.

It appears that the draft text of CETA was leaked by the Trade Justice Network last April. One question is why governmental secrecy in the first place? Another one is why do Canadian negotiators appear to agree to initially unfavourable terms for Canadian interests? This seems to be a general tend in international economic trade to the extent that incompetence has been envisaged as an explanation (see Shybman's opinion p.22).

I do not believe this is the case. However, as demonstrated regularly over recent years in daily news, a critical perspective on our political leaders' commitment to general public interest and welfare is healthy.

Monday, July 12, 2010

Water case law in Québec 8: Demolition of a new encroachement in the St Lawrence River riparian zone


In Farazli v. Neuville (Ville de) (in French), the Court of Appeal dismisses the appeal of a Superior Court order to demolish works altering the St Lawrence River riparian zone.

The appellant built a large patio, a septic tank and a boat slip on her property in the St Lawrence River riparian zone in violation of the applicable provincial and municipal regulations and while only works for the stabilisation of the river bank against erosion were authorised.

The Superior Court ordered the destruction of the works and the restoration of the site in its initial condition under section 227 of the Act respecting Land Use Planning and Development. The Court of Appeal upholds the Superior Court decision.

Sunday, July 11, 2010

Wasted water in the North American Great Lakes


Environmental Defence Canada recently published a report, Down the Drain: Water Conservation in the Great Lakes Basin, that shows how wasteful and inefficient water use is in the Great Lakes region. Among notable facts:

«Canadians are among the world’s highest water users per capita, second only to the United States. Current estimates are that Canadians use on average 329 litres of water each day in their homes, the equivalent to over 650 bottles of water (500ml) per day» (p.4)

«the total number of dwellings with inefficient toilets in the Great Lakes and St. Lawrence ecosystem is 4,351,601 – translating into roughly 10 million individuals using inefficient toilets in their homes. Using this information it was determined that a total 213 billion litres of water would be conserved annually by updating all remaining inefficient toilets to efficient ones.» (p.7)

«there is a potential water savings of over 65 billion litres each year if all inefficient shower fixtures in the Great Lakes basin were updated to newer, water efficient models.» (p.8)

«the potential water savings from changing inefficient clothes washers in the Great Lakes basin totals as much as 163 billion litres per year.» (p.10)

«Potential savings from introducing conservation measures on outdoor water use (like lawn watering) is approximately 140 billion litres per year.» (p.12)

As the St. Lawrence River sets record lows flows since the beginning of the year, the report makes an essential and timely point.