The Right to Water

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This presentation provides an introduction to the human right to water as defined under international human rights law, and its consequences on broader water management and governance.

It was initially developed for a lecture at the UNESCO Center for Water Law - at the University of Dundee - July 2011.

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The Right to Water

  1. 1. The Human Right to Water Human Rights & Water Sector Governance Univ. of Dundee09/01/2012 1
  2. 2. Contents1. Understanding the Human Rights Legal System2. Definition of the Human Right to Water3. Implementation Challenges4. Opportunities09/01/2012 2
  3. 3. 1. Understanding the Human Rights Legal System“There will be no development without security and no security without development. And both development and security also depend on respect for human rights and the rule of law.” Kofi Annan, In Larger Freedom (2005)09/01/2012 3
  4. 4. 1.1. A new paradigm• UN Charter (1945) – Art.55 – Art.56 – Art.103• The International Bill of Rights – UDHR (1948) – ICESCR (1966-1976) – ICCPR (1966-1976)09/01/2012 4
  5. 5. 1.2. Four Generations?• Vienna Declaration (1993)“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”, Vienna Declaration, para.5.09/01/2012 5
  6. 6. 2. Definition of the Human Right to Water“The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water- related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.”, CESC – GC 15 (2002)09/01/2012 6
  7. 7. 2.1 The misconceptionsMisconception International Law• Water for free • Affordable• Public ownership • State’s regulation• Tap water & Flush latrine • Meeting the objectives• Immediate entitlement • “Progressive realization” + “maximum of available resources”• Only about a goal • Goals + Means (State’s margin of discretion)09/01/2012 7
  8. 8. 2.2 Is there a need for a definition?• Interdependence of Human Rights• Indirect approach – Anti-American system – National Courts (e.g. India)• Jurisprudence of other TB (CAT; CERD; ICCPR)• CESC - GC 15 (2002); Role of TB/Courts  Margin of discretion of the State• Justification (MBO)09/01/2012 8
  9. 9. 2.3 The Objectives & The MeansObjectives Means• Sustainability • Non-discrimination• Quantity (15 – 200l ppd) • Access to information – Education (Hygiene)• Quality (WHO standards) • Participation• Cultural acceptable – Definition of priorities / budget allocations• Physically accessible (500m) – Implementation?• Financially affordable (3% of • Remedy income) – NAT: Administrative/Const. courts – INT: Reg. & Int’l HR mechanisms09/01/2012 9
  10. 10. 3. Implementation Challenges“Water is rightfully considered part of the ‘commons’ and managed for the benefit of all people. This is based on the understanding that there are some areas that should not be left to the whims of the market, but rather should be managed as a social good and that water resource management is environmentally sustainable”09/01/2012 10
  11. 11. 3.1. The recent political steps…• Mandate of IE/SR on Right to Water & Sanitation (2008- )• UN GA – Resolution (2011)• UN HRC – Resolution (2011)09/01/2012 11
  12. 12. 3.2. Case study – Sierra Leone• Clause 4.4 & 4.6:The Company is entitled to: …stop up or alter the course of any watercourse;…shall be entitled to have exclusive possession over all that forms part of the Demised Premises including villages, rivers, forests and all other forms of environment…. shall be entitled to designate such areas as it wishes…”• Clause 5.2(a):All Disputes shall be referred to and finally resolved by arbitration in [London] before[three] arbitrators under the [Rules of Arbitration of the International Chamber of Commerce]from time to time in force… (d) None of the parties may appeal to any court on a question of law arising out of an award made in the arbitration…(e) The award shall be final and binding on the parties or anyone claiming through or under them.09/01/2012 12
  13. 13. 3.3. Hierarchy of norms & Harmonization Challenges• Constitutional Recognition – Min. Land, Mines & Energy ; Agriculture; Environment; Education; Finances; …• BIT – Arbitration Courts – Suez/Aguas Argentinas vs. Argentina (ICSID, 2010)• Market based & values based – California; Australia; …09/01/2012 13
  14. 14. 4. Opportunities09/01/2012 14
  15. 15. 4.1. Building bridges• Water: • Environment: – UNECE – Water Convention – Aarhus Convention – UNECE – Protocol on • Human Rights (TBs) Water & Health – Shadow Reports: CEDAW ;• Water-Related: CRC – Post 2015 – MDGs – Complaints: IACHR (Guatemala) – WHO – May 24th Resolution – Research: ACHPR (Extractive Industry) – UNISDR - GP-DRR • HR (Political) – UNFCCC – SR – UN HRC09/01/2012 15
  16. 16. 4.2. The WaterLex ApproachGovernance Functions Our Human Rights Lens1. Situation analysis • Non-discrimination2. Priority setting • Access to information3. Budget allocation • Participation4. Project planning • Remedy5. Human Resources allocation Our goal • Sustainability, Quantity, Qua6. Monitoring & Evaluation lity, Acceptability, Physical Accessibility, Affordability09/01/2012 16
  17. 17. 5. Conclusion1. Need to look at RTWS within dynamic of IHRL (itself within broader Int’l Law Framework)2. Procedural Guarantees are the 1st step to ‘operationalize’ RTWS3. Multi-level entry points Thanks!09/01/2012 17 (

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