Briefing note by David Boyd on the human right to water

(BY HUGO)

A briefing note by Professor David Boyd on the human right to water has been published following the InterAction Council's initiative on the global water cirisis reported in a previous post.

Particularly interesting is the brief review of Canada's opposition to the international recognition of the human right to water. In identifying the reason for Canada's position on this subject, Prof. Boyd states that:

«The more likely rationale is (...) that Canada is failing to meet its obligation to respect, protect, and fulfill the right to water. Thousands of Canadians lack access to safe drinking water, predominantly Aboriginal people living on reserves. The federal government estimates that there are approximately 5,000 homes in First Nations communities (representing an estimated 20,000+ residents) that lack basic water and sewage services. Compared to other Canadians, First Nations’ homes are 90 times more likely to be without running water. As of 2010, 49 First Nations communities have high-risk drinking water systems and more than 100 First Nations face ongoing boil water advisories (out of roughly 600 First Nations in Canada). The federal government admits that “The incidence of waterborne diseases is several times higher in First Nations communities than in the general population, in part because of the inadequate or non-existent water treatment systems.” Many of these deplorable situations have been dragging on for years and in some cases decades.» (References omitted)

Of note is the fact that the McGill Law Journal will soon publish the following article referenced as endnote 53 in the briefing paper:

D.R. Boyd. 2011. “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada,” McGill Law Journal, in press.

Dignity and access to water for Negev Bedouins

(BY HUGO)

In this article (forthcoming in the Natural Resources Journal) where the operationalisation of human rights to water is discussed, I was raising the question: «Can a person decide to reside in the middle of a desert and then claim water resources from the state on the basis of human rights?», the answer being that such situations must be carefully identified and delineated ex post at the local level by considering the particular facts at hand.

Interestingly in that context, Tomer Zarchin from Haaretz reports that the Supreme Court of Israel recognised some level of access to water for arab bedouins in the Negev desert based on the constitutional right to dignity. Richard Lightbrown provides additional background to the news whereby the hegemonic effect of formal positive legal order tied to state power over informal indigenous arrangements becomes apparent (this effect is also mentioned in section 4.1 of my article, in particular p.43).

New Right to Water website launched

(BY HUGO)

On 10 december, WaterAid launched a new human rights to water and sanitation website. Some of the main pages of the site related to:

- The legal framework for the human rights to water and sanitation

- How to use the human rights-based approach (HRBA) in water developement

- Recent developments in international law with respects to the human rights to water and sanitation

The web site provides a good introduction to these issues. The site represents the HR advocacy position on the human right to water debate. For example, the site establishes the traditional dichotomy between States - governments, public officials, service providers - as duty bearers and citizens as rights holders. However, the site refers to the plurality of interpretations on what constitutes the HRBA to water (the History of a rights based approach to development section still seems under construction).

For a critical analysis on these issues, see «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management (IWRM) and the Human Rights-Based Approach (HRBA) to Development».

A forthcoming book likely to provide significant substance on the reflection about HRBA and the rights to water is due to be published soon: Anna Russell & Malcolm Langford (eds), The Right to Water: Theory, Practice and Prospects (Cambridge: Cambridge University Press, 2011).

The human right to water in Indonesia

(BY HUGO)

Colleague Mova Al Afghani has recently uploaded on SSRN a paper on «The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources». The paper argues that:

«there are gaps in the Indonesian legal framework in securing transparency, access to information, participation, access to justice and the procedure in recognizing customary rights in water resources management. Without adequate access to these procedural rights, vulnerable, marginalized and financially weaker groups will be left out from water resources management and will not be able to secure their entitlements. The Human Right to Water has potentials for filling such gap by reforming the implementing regulation of the Water Resources Law and enhancing the possibility to obtain legal recourse.»

A very interesting read, notably for the scope of the legal provisions considered in the analysis, as it provides an integrated legal perspective on the challenges and problems at ground level related to water for domestic consumption. Also interesting is section 5 on the role of the human right to water, and particularly subsection 5.b on the human right to water vs. cultural and customary rights, as well as subsection 5.f on the transposition of the International Covenant on Economic, Social and Cultural Rights in Indonesia.

One question that might be discussed a bit more is related to the interaction between the human right to water and other human rights. Reading the paper, it sometimes feels like the human right to water is constituted of a bundle of ‘substantive’ and ‘procedural’ rights (ex: see p.4 last §, as well as subsection 5.b on Right(s) to participation, transparency and access to information). Are these rights constituent human rights included under a human right to water? Are they considered as autonomous human rights? Is this an illustration of the doctrine of indivisible, inter-related and inter-dependent human rights?

Synergies and tensions between IWRM and the HRBA in the water sector

(BY HUGO)

A paper titled «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management and the Human Rights-based Approach to Development» is now posted on the Social Science Research Network and is available here. The abstract is as follows:

Water resources management has been shaped by a variety of paradigms reflecting the evolution of government policies and transient societal values. Integrated Water Resources Management (IWRM) became a predominant management framework in the 1990s. The Human Rights-Based Approach (HRBA) to development has also emerged recently as an influential approach in the water sector. IWRM and the HRBA to development in the water sector overlap significantly. The interactions between the two approaches remain largely unexplored although their repercussions may be significant. Because they do not share identical premises and objectives, the concurrent implementation the two approaches might also lead to tensions detrimental to water resources management. The aim of this article is to explore the interactions between IWRM and the HRBA to development in the water sector. Questions raised by perceived conflicts are identified to help address potential tensions when the two approaches coexist. Synergies between IWRM and the HRBA are also detailed to establish how the two approaches are aligned.

The paper notably explores tensions between the following:

- The HRBA as an anthropocentric approach and the need for an ecosystemic contextualisation of claims on water resources;

- The HRBA as an vehicle for developmental aspirations and the acknowledgement of limits in water resources availability;

- The indistinct duties of right-holders in regards to the user-pays principle;

- Economic water management and the need to protect marginal groups and the poor;

- The evasiveness of the HRBA and the need for a stable and consistent framework for prospective water management.

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

(BY HUGO)

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.»

The UN resolution on the human right to water is passed

(BY HUGO)

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.

Minority, indigenous and cultural human rights and basic access to water

(BY HUGO)

An interesting case regarding the capacity of human rights to provide access to water is developing in Botswana.

Ekklesia is informing that the Kalahari Bushmen are taking the Government of Botswana to court over what they describe as its refusal to allow them access to a water borehole on their own land.

A summary statement of fact by Survival International describes the context of the case:

- Boreholes in the Kalahari were the Bushmen's source of water;

- The Botswana Government evicted the Bushmen from the Kalahari in 2002 and sealed-off the wells;

- In 2006, the Botswana High Court ruled that the Bushmen's eviction by the Government was unlawful and unconstitutional, despite the fact that the government had removed the clause protecting Bushmen rights in the constitution during the proceedings. The Bushmen returned to the Kalahari but the Court determnied that the Government had no obligation to provide them services;

- Despite long negociations, the Government currently refuses to reopen the sealed borehole;

- The Bushmen argue that their right to live in the Kalahari surley includes the right to obtain water by their own means;

- The Government argues that the Bushmen's have to face the consequences of their choices for having decided to live in a place where ther is no water, and that the Bushmen endanger the life of wild animals.

This case is loaded with interesting issues regarding the human rights providing basic access to water, including:

- The determination of the specific human right(s) that will provide redress and ultimatly access to water for the Bushmen should the Court accept their claim. This is related to debates on the proliferation and prioritisation of human rights justifying access to volumes of water for basic needs. In the context of the Bushmen's claim, this issue will probably be influenced by the 2006 judgement;

- Protection of the environment as per the Government's argument for denying access to the wells vs the fulfilment of basic human human needs for water. This is related to the extent of the State's duty to respect, protect and fulfil human rights, and is particularly intersting given the fact that the Bushmen are not asking the Government to take positive steps to provide them with water while the Government argues that water cannot be obtained in a desert.

The case is due to be heard at Botswana’s High Court in Lobatse on 9 June 2010. A web search has not yielded the official court documents (for the present claim as well as for the 2006 decision). Many thanks to anyone who can provide access to them.

One last element that appears relevant in the context of the above: the UN Expert on Human Rights, Catarina de Albuquerque, pushes for the implementation of the human right to water and the human right to sanitation in Slovenia as the chosen instrument to redress discrimination against the Roma minority. Moreover, the Commissioner links human rights to water and sanitation to the implementation of the EU Wastewater Directive.

Environmental flows in the UK: ecosystems vs. humans

(BY HUGO)

An article from Louise Gray in the Telegraph warns that one in three rivers in England and Wales is in danger of dying out due to demand for drinking water. According to the article:

«The Environment Agency estimate that river flows in some areas could be reduced by 80 per cent by 2050 and ecosystems in a third of river catchments are already in danger of drying out in a hot summer.»

This is interesting from a legal perspective because of a heavy trend noticeable in water allocation frameworks where water uses must be authorised by an administrative agency. Under such regimes, it is common to find that the criteria guiding the administrative discretionary power to authorise a water use must prioritise public health and access to drinking water. For example, the recent Act 21, 2009 (Québec) provides that:

19 (...) 31.76. The Minister’s power of authorization under this subdivision must be exercised so as to ensure the protection of water resources, particularly by fostering sustainable, equitable and efficient management of the resources in light of the precautionary principle and the effects of climate change.

In addition, every decision in the exercise of the Minister’s power of authorization must give priority to satisfying public health, sanitation, civil protection and drinking water supply needs. Every such decision must also aim to reconcile

(1) the protection needs of aquatic ecosystems; and

(2) the needs of agriculture, aquaculture, industry, energy production and other human activities, including recreation and tourism. (Emphasis added)

This section is not in force yet, and it is not possible to determine the result of its implementation as well as the tribunals' interpretation of it.

However, a preliminary reading of §2 of article 31.76 appears to establish a priority in favour of human uses for drinking water. This is entirely consistent with the political push for the materialisation of a human right to water throughout the world.

However, as seen from the UK situation, human water uses for drinking purposes might destroy ecosystems. This raises many questions:

1 - Must human water uses for drinking purposes be prioritised in all situations? Even accepting that they must always be prioritised, are such human uses sustainable without a functioning ecosystem?

2 - How is it possible to reconcile the human right to water for domestic usages and the emerging human right to a clean, or healthy (etc) environment? In developing countries where a majority of poor people is disenfranchised and living directly off ecosystem services, is it not appropriate to prioritise the right to a healthy environment to ensure access to water in order to preserve the natural purification of water function performed by the environment?

It seems appropriate to finish this post with a quote from Professor John Merrills, «Environmental Rights» in Daniel Bodansky, Jutta Brunnée & Ellen Hey, eds., International Environmental Law (Oxford: Oxford University Press, 2007) 663 at 666-668:

«Rights and preferences tend to be confused - sometimes it must be said deliberately - because when there are conflicting demands, whether in relation to jam tarts or the environment, having the desired objective recognized as a right is a crucial means of establishing priorities. When preference confronts preference the result in moral terms is a stand-off. When right confronts preference, on the other hand, the holder of the right has a trump card with which to pre-empt preferences and other non-moral considerations. What is true here of moral rights is true a fortiori when such rights are translated into law.

[...] If rights are a good way of ensuring that something is taken seriously, designating an entitlement a human right is even better, on account of the status of this class of rights in legal and moral discourse. [...I]f a preference can be turned into a right, the position of the new rights-holder is much strengthened, especially in comparison with rivals whose preferences have not been so transformed.

There may also be other effects, however. Suppose that instead of being confronted with a mere preference, our rights-holder is confronted with another rights-holder. We are now back to the same position of preference being confronted with preference, with the important difference that, as Lomasky has explained, since both parties are armed with rights, accommodation through compromise may now be much less appealing. The tendency for disputes to become more acrimonious when rights are at stake can also be seen elsewhere. A rights-holder confronted by a rival with a mere preference will expect to get his way, and, although the purpose of rights is to ordain such priorities, the natural tendency to 'stand on our rights' cannot be said to do much to promote social harmony or, in some cases, social welfare. When there are only competing preferences, we can try to maximize social welfare by utilizing a cost-benefit analysis. However, once a preference is converted into a right, trade-offs can no longer be considered in the same way. Moreover, a proliferation of rights and rights holders not only multiplies the opportunities for rights-holders to come into conflict with each other, but also generates a tension between rights as a basis for actions and other moral considerations.» (Reference omitted)

Human Right to Water: «a concept in search of a content»

A recent post on the new Water and Sanitation Blog reflects on the normative content of the human right to water in the context of inherent human rights indeterminacy.

The post uses the sting of Mazibuko cases to raise very interesting and timely questions on the concrete minimum core of the human right to water.

As perceptively observed in Katherine Young’s article «The Minimum Core of Economic and Social Rights: A Concept in Search of Content», (2008) 33 Yale J. Int’l. L. 113, Professor Peter Danchin recognises that the «insurmountable problem for the notion of core obligations is that the particular forms of duties are intrinsically polycentric and cannot be subject to a definitive ranking».

However, Professor Danchin also states that the emerging area of benchmarks and indicators provides one possible way for the materialisation of a non-relative normative content for the human right to water.

As argued in a previous post and in a forthcoming article, a more defensible position might be to accept the impossibility of an ex ante determinate normative content for the minimum core of a human right to water.

To imbue the human right to water with a determinate, non-relative content necessarily implies the materialisation of quantitative and qualitative standards generally applicable to ensembles of singular situations. It also implies an underlying standardisation of basic human water needs for groups of individuals regardless of discrepancies in concrete personal situation and needs.

Thus, the ex ante standard setting required by the materialisation of a determinate minimum core for human rights to water inevitably leads to the theoretical acceptance of exceptional situations where more water than actually required to cover basic human needs must be provided to a specific individual, BUT ALSO to situations where less water that actually required to cover basic human needs will be provided to a specific individual.

Because of the latter possibility, the idea of ex ante determination of a standardised minimum core for human rights to water must be rejected.

This becomes apparent through the following example:

The UN independent expert Catarina de Albuquerque refers to the World Health Organisation Guidelines as standards for water quality in the context of human rights to water. However, these guidelines specifically mention that scarce resources require targeted regulation based on a risk-benefit approach (p.2).

A priori, this is reasonable: concentrate first on the most critical threat to public health, the threat that can cause the most harm to the largest number of people before moving to address lesser health threats when and if resources allow it.

However, in the meantime, the minority of individuals that suffer from non-prioritised water contamination cannot claim cleaner water based on a human right because the risk-benefit approach integrated into human rights necessarily implies exceptions where actual basic human needs will not be covered.

Hence, through this approach, human rights become associated to regulatory frameworks that aim at saving a majority by sacrificing a minority, something that could arguably be considered anathema to a more traditional vision of human rights.

This does not mean that the existence of a human right to water should be contested. On the contrary, this post argues in favour of human rights but focuses on their most potent function: ex post discursive recourses to redress or compensate structural imbalances, imperfections or failures in prospective water resources management regimes.

In this context, recourses to gain access to water based on human rights stay open to all in all situations where human rights are violated, but the minimum core remains generally indeterminate only to be specified on a case by case basis by tribunals when confronted with a concrete particular situation.

To finish this post, a quote from Martti Koskenniemi, «The Pull of the Mainstream», (1989-1990) 88 Michigan Law Review 1946 at 1962, seems appropriate:

«Here is a final paradox: late-modern legal, social, and linguistic theory has taught us that rules, whether extracted from behaviour or texts, are of necessity indeterminate. Thinking of human rights in terms of legal rules will extend indeterminacy into those rights as well. The secularization of human rights rhetoric involved in its becoming mainstream, then, may not be the best way to protect human rights. By remaining in the periphery, in the field of largely subconscious, private, moral-religious experience that defies technical articulation, human rights may be more able to retain their constraining hold on the way most people, and by extension most states, behave.»

Do the human rights to water improve access to water?

(BY HUGO)

The brother blog Indonesia Law Reporter has just posted a few reflections on an recent article by David Zetland, «Water Rights and Human Rights: The Poor Will not Need Our Charity if We Need Their Water».

This interesting article covers many important issues discussed by the Indonesia Law Reporter.

From a purely legal perspective, Zetland's article is guilty of totally ignoring the actual legal classifications pertaining to property rights and ownership, especially in the context of continental legal traditions.

In the Napoleonic tradition, property offers usus, fructus and abusus to the owner. Property may vary in form through specified modalities, and can be divided into constituent rights through recognised dismemberments.

These typologies and the related legal constructs and mechanisms, which are specific to each jurisdictions, have an important impact on the economic management of water resources because they often determine the transaction costs related to transfers of rights.

Unfortunately, blackboard economics tend to overlook the very significant impacts of legal «technicalities», which are particularly crucial in jurisdictions where the doctrine of numerus clausus is accepted (see for example this article).

According to this doctrine, the number of forms for property rights are not infinite, but limited to a specific few recognised forms. This forces newly proposed resources management regime to fit into the existing legal taxonomy for property rights, and constrains inovation.

Finally, although the assessment of the effectiveness of Zetland's proposal is entirely beyond the competences of this blog, it remains usefull to point out that all national scale experiments to create a water market for allocative efficiency have de facto failed up to now, and spectacularly so in most cases.

MDGs: Drinking water targets would be met, but not for Sanitation

(BY HUGO)

According to a new report from the World Health Organisation and UNICEF, "Progress on sanitation and drinking-water – 2010 Update", the world appears on track to meet the Millenium Development Goals with respect to drinking water in 2015, but likely to miss the 2015 sanitation MDGs by almost one billion people.

Global Water Intelligence on private sector participation in watsan

(BY HUGO)

Global Water Intelligence is taking a stance on the issue of public vs private sector participation in drinking water service provision which is examined by Catarina de Albuquerque, UN independent expert on the right(s) to water and sanitation.

Review of the MDGs: New directions for the HRBA to development in the water sector?

(BY HUGO)

With little time left until the 2015 deadline to achieve the Millennium Development Goals, the UN General-Secretary produces a preliminary report on progress towards the MDGs through a review of successes, best practices and lessons learnt, obstacles and gaps, challenges and opportunities.

This might have an impact on the international development agenda related to attainment of human right to water and sanitation.