International Law and the Human Right to Adequate, Clean Water - Case Study Example

Introduction Public international law has given both implied and express references to water rights (Bourquain, 2012: p29). Some instruments that will be covered in this paper include the traditional instruments on human rights. In addition, international law instruments that arise from the arena of humanitarian law and more traditional environmental instruments, in which there is an emphasis on water’s importance for human needs, will also be taken into account. Water, rather than being a commodity, is a public good and, therefore, it is incumbent on the international community to legislate laws that implement the human right to clean water as an essential public service. In this case, governments should be required under international law to provide its citizens with adequate and clean water (Bourquain, 2012: p29). In determining the relevance of international laws to the human right to water, this paper will consider conventions and declarations, customary international law, judicial decisions, as well as, their impact on achieving the right to water for all. Literature Review Caponera & Nanni (2011) offer texts of decisions, resolutions, declarations, and general conventions that international organizations, international NGOs, and arbitral and international tribunals on international underground aquifers, relevant basis, lakes, and rivers are expected to use. They provide a detailed look into the vast body of sources concerning international laws on water. Hilderling (2010), on his part, contends that, despite over 75% of the earth’s surface being covered with water, more than one billion of its inhabitants have no access to fresh clean water. In addition, majority of governments across the world do not seem able to address this issue. He also explores political issues that plague water management globally, applying international law principles to policies on water resource development. Cullet (2009) examines water law reforms and regulations in the last fifty years, taking into consideration the economic, social, environmental, and human rights perspective of water as a natural resource. He seeks to analyze international regulation of freshwater by analyzing the basis for reforms that countries will have to adopt in the medium to short term. Biswas et al (2012) bases his argument on the 1992 declaration by the UN that clean water is to be considered an international human right, contending that this is yet to be accepted by most countries. They analyze legal developments of water as a human right, how it impacts national governments and NGOs in implementing this concept, and progress made by Arab countries in providing access for all to clean water. Scanlon et al (2011) also makes the argument that acknowledgement of the human right to water should encourage governments and international organizations to enhance efforts to meet MDGs, raising the critical question regarding whether all have the right to water. They discuss the legal mechanisms in place that guarantee the right to clean water, as well as whether the sole responsibility from these mechanisms is placed on national governments alone. Ripley (2011) examines access to clean water as a human right as determined by international human rights law, especially in occupied territories like Palestine. He critically analyzes the legal status, correlative obligations to this right, substantive content, and the relationships between cultural and economic rights connected to the right to clean water. Bourquain (2012) offers a comprehensive analysis of the human rights based view in safeguarding water supplies and its appropriateness, while also determining its legal grounding in international law. Contending that the law as currently drafted has deficiencies, he discusses concepts of a human rights based approach to access of fresh water through consideration of formal legal appropriateness and suitability regarding legal reality. Salman & McInerney-Langford, on the other hand, trace the right to water via several international legal instruments that recognize this right. They analyze international human rights legal regimes, contending that the relationship between human rights, water, and development is well established in these laws. This human right to water, the author’s argue, is supported by emerging customary international law, soft law instruments, and increasing domestic law instruments. Bulto (2013), on his part, contends that international human rights law has only recently started to tackle the matter of access to clean water, arguing that, previously, international water laws only covered the use of shared rivers and other clean water bodies. In addition, the author shows that the international water laws and human rights laws can be applied concurrently in protecting the rights to water for non-national non-residents. Hoekstra & Chapagain (2009) offer a unique review of critical relationships between human rights to water, sustainable management of water resources, and globalization. The authors are tasked with examining the impact of international laws on local water resources, while also identifying the impact of these laws on water-dependent nations. Boelens (2009) tackles this issue from a slightly different angle, addressing how various legal regimes have dealt with the huge plurality of local rights to water, especially in Andean countries. He also examines how official policies aimed at recognizing local identities and rights lead to increasingly prevalent politics of confinement and codification. Pahl-Wostl et al (2011) further argue for the need of a global perspective to water management, contending that water governance requires a global dimension with a multi-level design. Further, they claim that international laws governing access to clean water exist, although current international water governance is hindered by a fragmented arrangement. Drieschova et al (2011) set out to examine the manner in which uncertainties are reflected in specific international treaties and laws on fresh water management. International water laws and treaties, they claim, seek to spread dangers arising from uncertainty through concurrent inclusion of simultaneous management strategies, while there has also been a trend towards open ended laws, rather than codified rules, in international water laws. Russell (2010) furthers this argument, arguing that beginning in the early 90s, there has been a concerted effort to integrate human rights in the activities of international organizations. For this specific study, Russell uses the right to water, examining how international water human rights are comprehended by trans-governmental organizations in water development cooperation. Dellapenna & Gupta (2008) also set out to investigate the evolution of national water laws, their co-evolution alongside international water laws, and whether they are close to seriously impacting on management of global water resources. Accordingly, the authors contend that global water laws are increasingly influenced by international human rights groups, especially with regards to the right to water. McCaffrey (2011) contends that the law of Trans-boundary aquifers overlaps with the UN Watercourses Convention. In addition, this overlap introduces a potentially fatal concept about the sovereignty of nations over trans-boundary aquifers, which the author notes could hamper the right to water for some people. Langford (2010), on the other hand, examines conceptual responses to the problem of fresh water, such as the social, public, and commodity approaches, arguing that nations are legally obligated by international law to protect, respect, and fulfill the right to clean water sans discrimination. The author shows benefits of taking human rights based approach to water availability. Finally, Cullet (2011) contends that water laws are presently at a cross-road with its primary principles and structure challenged by water’s increasingly international dimensions. However, he argues, neither national nor international water laws acknowledge the pertinent link between water access at local level and the global cycle of water. The author concludes that water laws must take into consideration a broader understanding of water resources, especially with regards to human rights and environmental laws. Conventions and Declarations The conventions and declarations that touch on the right to clean water can be divided into three main areas: global environmental instruments, global instruments, and regional arrangements. Global Instruments on the Environment Human rights to water are more often expressly mentioned in declarations and resolutions that lack legal binding. Regional and international instruments accept that access to adequate quantity and quality of water is crucial to achieving basic human rights like well-being, health, and life (Scanlon et al, 2011: p66). The Stockholm Declaration is an environmental instrument that accepts the fundamental and basic right to a quality environment, allowing for well-being and dignity of life. In addition, it also recognizes that natural resources should be safeguarded to benefit generations both future and present. The Mar del Plata Action Plan, best known to be a result of the UN Water Conference in 1977, recognized that water was a right for all, declaring that everyone has the right to quality and quantity of water that is equal to their fundamental needs (Scanlon et al, 2011: p67). This conference’s outcome was the launch of the “Water for All” slogan and the declaration of the International Drinking Water Supply Decade. The Dublin Statement was made during the Conference on Sustainable Development and Water in Dublin. The fourth principle of the statement reaffirmed water human rights for all; explicitly stating that recognition of all human beings’ fundamental right to clean water at affordable prices was vital (Caponera, 2011: p33). Another instrument under this category was Agenda 21, which can be considered the basic non-binding legal instrument for the international environment. Freshwater is covered under Chapter 18, which contends that the right to water involves quantity, quality, and access as its central principles. It notes that these principles should be a general objective in ensuring that sufficient water supply is maintained for all, as well as provide that everybody in any socio-economic condition and development stage has the right to equitable quality and quantity of water (Caponera, 2011: p33). Finally, it also holds that water should be considered as an economic and social good, a natural resource and that its quality and quantity should determine how it is used. The Millennium declaration, as well as the discourse undertaken at the WSSD in Johannesburg, enhanced the linkage of human development goals and environmental health in global elimination of poverty. While the WSSD, as well as the Kyoto, Bonn, and Hague sessions of the World Water Forums, did not explicitly recognize water as a basic human right, the WSSD’s Political Declaration included water as a human right, committing itself to increase access to clean water and other basic requirements like sanitation (Salman & McInerney-Lankford, 2012: p89). Global Instruments The right to water is recognized explicitly under the Geneva Conventions and additional protocols. However, these only relate to the rights to drinking water. Articles 20, 29, and 46 of 1949’s Geneva Convention III cover the conditions for evacuation, food, hygiene, and conditions under which prisoners are to be kept respectively, which includes access to drinking water (Cullet, 2011: p248). Articles 85, 89, and 127 of 1949’s Geneva Convention IV touch on the right to sufficient clean water by prisoners (Cullet, 2011: p248). The UN charter, while not making an explicit mention of water, elevates water’s role within the global community to achieve the charter’s ultimate goal. Article 55 seeks to promote universal respect for human rights and their observance; this is in addition to, the basic freedoms for everybody sans discrimination on the basis of religion, language, and sex. It also promotes solutions of health, social, economic, and related issues and global educational and cultural cooperation. Finally, it also promotes higher living standards, conditions for social and economic development and progress, and full employment. With the current population trends, climatic changes, and inevitable water shortages, these undertakings will require making the right to water an avenue for achievement of these goals (Cullet, 2011: p249). The Covenants of 1966, including the ICCPR and ICESCR, recognize the right to water implicitly. The right to water is evident in the ICESCR’s articles eleven and twelve. The UNCESCR in General Comment No. 15 of 2002 left no doubt about the right legal position, contending that human rights to water were critical for humans to live in dignity, making it essential for the achievement of other human rights (Russell, 2010: p61). This General Comment interprets articles 11 and 12 by recognizing the duty of member states to take active and progressive steps to ensure access to secure and safe drinking water for all. Article 2 of the GC requires this is undertaken without discrimination and equitably. The ICCPR affirms everybody’s right to life, which was initially interpreted as meaning that all people must be guaranteed the right to life in political and civil terms. The HRC adopted a GC on the matter, expanding its meaning to include such measures as increasing life expectancy and reducing infant mortality by eliminating epidemics and malnutrition (Russell, 2010: p61). Thus, protection by member states against intentional and arbitrary denial of access adequate water is crucial because it is a fundamental resource to the sustenance of life. The Vienna Declaration mentions that, the right to development is an integral, inalienable, and universal part of basic human rights. In the Declaration on the Right to Development, Article 8 states that countries must undertake all requires steps at national level for the realization of development rights, while also ensuring that there is equality in opportunity to access basic resources for all (Pahl-Wostl, 2011: p422). This article was interpreted by the General Assembly in Resolution 54/117 (Pahl-Wostl, 2011: p422), which stated that the right to clean water was a basic and fundamental human right, while both the international community and national governments were morally required to promote this right. The Convention on Child Rights and CEDAW are the only two treaties on human rights that have directly addressed the right to water. CEDAW requires that state parties seek to eliminate gender discrimination, especially with regards to rural women and their access to water supply (Boelens, 2009: p310). This recognition of water is necessary because women in rural areas are burdened with having to travel long distances looking for water. The Convention on Child Rights, on the other hand, recognizes the right of every child to acceptable health standards in combating malnutrition and disease through readily available technology and providing clean drinking water within the primary health care framework (Boelens, 2009: p310). Unlike CEDAW, the most important issue, related to water for children is health and quality of water. Regional Agreements Some instruments are particulate to Africa, including the African Charter on People’s and Human Rights that generally notes the right of all people to an environment that is favorable and satisfactory to their development (Biswas et al, 2012: p45). In addition, the Child Welfare and Rights African Charter states that all children have a right to the best possible state of spiritual, mental, and physical health. State parties are, thus, mandated to ensure that children are provided with adequate safe water for drinking. The San Salvador protocol, especially Article 11, which was made during the American Human Rights Convention for Cultural, Social, and Economic Rights, provides the right for all to live in an environment that is healthy with access to fundamental services (Biswas et al, 2012: p46). Undoubtedly, these basic services are inclusive of supply of clean water. There are also several implicit and explicit regional legal instruments that recognize water as a human right. The ECEL Resolution on water rights is a definitive link between water and rights, considering water access as crucial to sustainable development and not possibly controllable solely by market forces (McCaffrey, 2011: p569). In addition, the right to water is not dissociable from right to housing or the right to food, which are human rights, while there is also an unbreakable link between the right to health and that to water. In Article I of the ECEL Resolution, every person, for the sake of his or her health and life, has the inalienable right to water. The ECE Protocol also specifically notes that state parties must take all measures possible to ensure that there is sufficient supply of safe water for drinking. It also mentions that the right to water has three essential aspects, contending that equitable water resource access that is sufficient in terms of quality and quantity must be provided for all, particularly those under risk of social or political exclusion. Article 6 of the ECE Protocol reinforces the access to sanitation and water, providing that all state parties must pursue the attainment of access for all to clean water (McCaffrey, 2011: p569). Customary International Law Environmental law’s development as recognized law has led to the formation of other law sources to analyze the right to water, and its existence, especially since uniform practice by the state indicates opinio juris (Dellapenna & Gupta, 2008: p437). National constitutions provide an appropriate source of emergent rights to water, as do the interpretation of courts concerning constitutional fundamental human rights. Although more than sixty constitutions are referent to obligations of states to the environment, only fewer than half have express references to its citizens’ right to live in a healthy environment. The Bill of Rights in South Africa is the only one that expressly states the right of its people to access adequate clean water. Therefore, taking the position that there is an emerging uniform practice of the constitution is not entirely correct, particularly since most states are yet to apply or even interpret these norms, despite heightened prevalence of environmental norms in many constitutions (Dellapenna & Gupta, 2008: p437). In most traditionally civil law countries, constitutional rights in the traditional view were not considered as self-executing, instead requiring legislation to implement and empower constitutional provisions and allow citizens to invoke constitutional protection (Dellapenna & Gupta, 2008: p439). However, the global rise of constitutionalism has seen courts take the view that the constitution acts as an independent source of human rights, which can be enforced sans implementation of additional legislation. Therefore, it is now possible for courts to rely on their constitution’s provisions on the environment when ensuring that human needs are met by access to water or preventing water pollution. In cases where there are no environmental provisions in the constitution, courts rely on a person’s right to life, which is a common provision in most constitutions. Since there is a prevalence of constitutions incorporating penumbral rights, which are rights not mentioned in the constitution explicitly, but adhere to existing rights and principles, it has become easier to adopt emerging basic rights (Dellapenna & Gupta, 2008: p439). Common and civil law states also have in their constitutions the Public Trust Doctrine, which makes a requirement that all governments protect water and other basic resources that they hold for the public in trust (Ripley, 2011: p50). Many constitutions around the world have taken up this doctrine, using it severally to review actions by the state. In addition, courts in Sri Lanka, as well as India, have also based judgments on this doctrine when called upon to protect the environment. In the case of Mehta v. Kamal (1977) that involved the diversion of the flow of a river, it was the Supreme Court’s ruling that the Indian government was in violation of public trust through its decision to lease an environmentally significant and sensitive forest land to a private developer (Ripley, 2011: p50). The Supreme Court in Sri Lanka also made a decision in a case concerning a project to mine phosphate in the Eppawela region, ruling that the petitioner’s reliance on the Public Trust Doctrine was restrictive in scope (Cullet, 2009: p70). Rather, they broadened the doctrine to include public guardianship in preventing forced relocation of people living in Sri Lanka’s Central Province and protecting agricultural lands and a fresh water catchment area. Thus, the judges held that the state’s organs were guardians and that the people committed the preservation, as well as care, of resources like water to them. In many cases where courts are presented with an activity that degrades the environment and directly threatens access to water and protection of the right to life and health, they have used provisions on the right to the environment or to life (Cullet, 2009: p70). While there may not yet be a universal right to water in constitutions around the world, there has been an increasing tendency by courts to interpret existing provisions in the constitutions liberally. Judicial Decisions Decisions made in the past twenty-five years indicate that, while the human right to water is not recognized per se within national laws, there is an emerging trend towards this. Judge Weeramantry held in Gabcikovo v. Nagymaros (1997) that protecting the environment is a fundamental part of the doctrine of human rights because it is an indispensable condition for other human rights, including life and health (Langford, 2010: p281). He continued that damaging the environment undermines, as well as impairs, all the human rights that are included in the aforementioned Universal Declaration on Human Rights and other instruments of human rights. Although no express recognition exists, there has been willingness by courts on human rights to interpret existing provisions liberally and creatively when making their decisions (Langford, 2010: p281). Several instances show the manner in which water is increasingly being recognized as an essential part of basic human rights. The right to health integrates the right to water. The African Commission, in communications 100/93, 56/91, and 47/90, argued that the Congolese government’s failed to provide its people with adequate and safe water for drinking, adequate medicines, and electricity respectively (Bulto, 2013: p61). This was in direct contravention of the African Charter, specifically Article 16. The article contends that all individuals in the member states must have the right to the best achievable mental and physical health. In addition, the member state parties were required to ensure that they took any appropriate and possible measure to protect their citizen’s right to health. The right to water has also been recognized as an integral part of the right to respect for an individual’s home and private life. In Lopez Ostra v. Spain (1994), the ruling from the European Human Rights Court held that particular impairment of the environment that portends harmful results to inhabitants and individuals, even sans serious health endangerment, is a violation of such human rights as respect to an individual’s private home and life (Drieschova et al, 2011: p392). In this case, a plant for waste treatment caused health issues and was a nuisance for the local inhabitants after vital resources like water were contaminated, leading to their forced relocation. The right to water is also an important part of the right to culture. In the Lubikon Lake Case (1990), the UNHRC made a decision that exploration for gas and oil led to deprivation of the local people’s right to live in their traditional culture and way of life (Drieschova et al, 2011: p392). This, they found, was in violation of the ICCPR’s Article 27. Another human right intertwined with the right to water is the right to property, which can be seen in Zander v. Sweden (1993) that involved potential well-water pollution due to the activities of a dump close by (Hildering, 2010: p44). The claim from the applicants was concerned with the inhabitants’ ability to utilize their well water for the purpose of drinking. Because this was part of the applicant’s property rights, the European Human Rights Convention’s Article 6 could be invoked and applied. In this case, the court ruled that Article 6(1) had been violated by the dump’s location. The Human Rights Court of the Americas also explicitly noted in 2001’s Awas Tingni case that there was an association between the environment and human rights. While ruling, the court quantified that the rights of indigenous Nicaraguan’s to the environment, natural resources, and property had been violated as per the Americas Human Rights Convention’s Article 21 (Hildering, 2010: p44). In this case, the Nicaraguan government had given concessions to a Korean firm to log timber in a fresh water catchment area sans the consent of the inhabitants. Another area in which the right to water is integrated is in the right to personal security, liberty, and life. In the Port Hope Case, in 1980, a complaint brought to the court alleged that there was massive water pollution from the nuclear waste being dumped in Ontario’s Port Hope, which was threatening the residents’ lives (Hoekstra & Chapagain, 2009: p56). Although this complaint was eventually declared inadmissible by the Human Rights Committee of the UN because local remedies were yet to be exhausted, the Committee still commented that the case did raise pertinent issues under the ICCPR’s 6th Article that mandated states to protect the life of its citizens. The Human Rights Commission of America is authorized to study situations touching on human rights in OAS member states and, in their report on Ecuador’s human rights conditions; they discovered the exposure of inhabitants to poisonous by-products in their water from oil exploration, which put their health and lives in jeopardy. Thus, the court held that if degradation and contamination of the environment portends a serious and sustained threat to the health and lives of inhabitants, foregoing rights to integrity, physical security, and life are implicated (Hoekstra & Chapagain, 2009: p56). Conclusion From the discussion above, it is clear that there is yet to be an explicit recognition of the right to water by all. While the right to water exists, especially given the fact that water is a fundamental part of life, the present overview of instruments as indicated does not clearly define the right. The human right to water is yet to find a clear definition in international human rights law, which means that it is yet to be recognized explicitly as part of essential basic human rights. Instead, there is an interpretation of the human right to water forming an implicit part of human rights that are already defined or as being an express part of instruments that are not binding. These latter instruments are meant to attain particular ends. After the passing of the World Summit on Sustainable Development (WSSD) and the Millennium Goal Declaration, there has been a promising possibility for formation of more powerful links between the individual instruments as they seek to achieve a common aim and objective. Sustainable development can now be implemented meaningfully with further advancement in helping to find a common link between aspects of human rights present in sustainable environmental development and socio-cultural development, while also ensuring that economic success via the advantages that quality water in sufficient quantities can provide. This is crucial in making sure that, in the present and the future; there is access to adequate quality water in similarly adequate quantities to meet societal requirements. References Biswas, A. K., Rached, E., & Tortajada, C. (2012). Water as a human right for the Middle East and North Africa. London, Routledge. Boelens, R. (2009). The Politics of Disciplining Water Rights. Development and Change. 40(2), 307-331. Bulto, T. S. (2013). The extraterritorial application of the human right to water in Africa. Cambridge, UK: Cambridge University Press Bourquain, K. (2012). Freshwater access from a human rights perspective: a challenge to international water and human rights law. Leiden, Martinus Nijhoff Publishers. Caponera, D. A., & Nanni, M. (2011). Principles of water law and administration: national and international. New York, Taylor & Francis. Cullet, P. (2009). Water law, poverty, and development: water sector reforms in India. Oxford, Oxford University Press. Cullet, P. (2011). Water law in a globalized world: the need for a new conceptual framework. Journal of Environmental Law. 23(2), 233-254. Dellapenna, J., & Gupta, J. (2008). Toward Global Law on Water. Global Governance: a Review of Multilateralism and International Organizations. 14(4), 437. Drieschova, A., Fischhendler, I., & Giordano, M. (2011). The role of uncertainties in the design of international water treaties: an historical perspective. Climatic Change. 105(3-4), 387-408. Hildering, A. (2010). International law, sustainable development and water management. Delft, the Netherlands, Eburon. Hoekstra, A. Y., & Chapagain, A. K. (2009). Globalization of water: sharing the planet's freshwater resources. Malden, MA, Blackwell Pub. Langford, M. (2010). The United Nations concept of water as a human right: a new paradigm for old problems? International Journal of Water Resources Development. 21, 273-282. McCaffrey, S. C. (2011). The International Law Commission's flawed Draft Articles on the Law of Transboundary Aquifers: the way forward. Water International. 36(5), 566-572. Pahl-Wostl, C., Gupta J., & Petry D. (2011). Governance and the global water system: A theoretical exploration. Global Governance. 14(4), 419-435. Ripley, A. C. (2011). The human right to water and its application in the occupied Palestinian territories. New York, Routledge. Russell, A. F. S. (2010). International organizations and human rights: realizing, resisting or repackaging the right to water? Journal of Human Rights. 9(1), 1-23. Salman, S. M. A., & McInerney-Lankford, S. A. (2012). The human right to water: legal and policy dimensions. Washington, D.C., World Bank. Scanlon, J., Cassar, A., & Nemes, N. (2011). Water as a human right? Gland, Switzerland, IUCN Publications. Read More