THE HUMAN RIGHT TO WATER

The United Nations General Assembly and the Human Rights Council recognised the human right to water in 2010. This formal recognition has put the issue high on the international agenda, but by itself leaves many questions unanswered. This book addresses this gap and clarifies the legal status and meaning of the right to water through a detailed analysis of its legal foundations, legal nature, normative content and corresponding State obligations.

The human right to water has wide-ranging implications for the distri-bution of water. Examining these implications requires putting the right to water into the broader context of different water uses, and analysing the linkages and competition with other human rights that depend on water for their realisation. Water allocation is a highly political issue reflecting societal power relations, with current priorities often benefitting the well-off and powerful. Human rights, in contrast, require prioritising the most basic needs of all people. The human right to water has the potential to address these underlying structural causes of the lack of access to water rooted in inequalities and poverty, by empowering people to hold the State accountable to live up to its human rights obligations and to demand that their basic needs are met with priority.

The Human Right to Water

Significance, Legal Status and Implications for Water Allocation

Inga T Winkler

OXFORD AND PORTLAND, OREGON2012

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Foreword

Catarina de Albuquerque

As economic, social and cultural rights increase in importance, attention and visibility, it is vital that this recognition is accompanied by strong legal scholarship that can elucidate on the meaning of these rights, extend-ing our understanding of their contents, strengths but also their limits. This is particularly true for the right to water, as a right that has been recently recognised by the United Nations General Assembly and the Human Rights Council, and which is still in the process of finding its place in States’ constitutions and legal framework, but also in national strategies, plans of action and jurisprudence.

To be meaningful, the implications of the right to water in terms of pol-icy and practice must be clearly defined, so that governments can priori-tise and allocate water and other resources in a manner that respects the right to water.

Inga Winkler’s careful research and analysis in her book on The Human Right to Water: Significance, Legal Status and Implications for Water Allocation is thorough and well-balanced, providing comprehensive elaboration of the issues that States need to address in considering how to prioritise and allocate water resources, particularly in those situations where water resources are scarce or contested.

This book considers the inequalities that exist in access to water resources, and the human rights implications of these, particularly exam-ining the societal power relations, reflected in access to water. Political prioritisation of water resources aligned with the human rights frame-work will ensure that the necessary financial means will be found, partic-ularly given the strong economic, social and health benefits of ensuring access to water for all.

In this comprehensive legal treatment of water as a human right, Inga Winkler stems the misconception that a lack of access to water is due to water scarcity, making the point that where States prioritise and allocate water resources in alignment with human rights requirements, the full realisation of rights is within reach.

Inga Winkler’s careful consideration of all the human rights claims on water use, from needs for water for survival, to core needs and full reali-sation of all rights that require water to be realised is instructive and engaging. This book, while it focuses on the requirements for personal

viii Foreword

and domestic use as defined by the human right to water, is not narrow in its recognition of the need for water to realise other rights, including inter alia the right to food, the right to work or cultural rights. The analytical framework that she brings to the prioritisation of water resources could also usefully be applied to other resources required to fulfil human rights, and this is therefore an important addition to the canon of literature on economic, social and cultural rights.

Hence, the work done by Dr Winkler is invaluable in further defining both the limits and the vision of the right to water, and contributes greatly to our understanding of this newly recognised right.

Finally, the issue of allocation of water for different uses while ensuring respect for human rights is one I have been frequently confronted with in my work as Special Rapporteur – both while on country missions, or when faced with concrete situations brought to my attention by alleged victims of violations of this human rights. Hence, academic research in general, and this book in particular, is of significant interest and provides a value added to my work as Special Rapporteur.

Catarina de AlbuquerqueUnited Nations Special Rapporteur on the

human right to safe drinking water and sanitation

Acknowledgements

This book is based on my doctoral thesis, for which the bulk of research was carried out between January 2006 and April 2009. The thesis was sub-mitted to the Faculty of Law of the Heinrich Heine University Düsseldorf in August 2010, and defended in December 2010. Recent legal and politi-cal developments were taken into account in preparing the book for pub-lication until October 2011.

First of all, I would like to thank Prof Dr R Alexander Lorz for supervis-ing my thesis and for giving me the necessary freedom in developing this research while always being available for discussion. I could always count on his support, even for unusual ideas and approaches. Special thanks are also due to Prof Dr Lothar Michael for preparing his review so quickly.

This book could not have been written without the support of a great number of people. During the course of this research, I benefitted greatly from a stay at the Faculty of Law at the University of Stellenbosch, South Africa, and would like to thank Prof Sandra Liebenberg and Prof André van der Walt, as well as Elmien du Plessis and Phephelaphi Dube for wel-coming and hosting me. Likewise, I am grateful for the practical insights gained during my internship with the Water Governance Programme of the United Nations Development Programme in New York, and in par-ticular for discussions with Susanne Schmidt, when it all started. I also owe thanks to the Heinrich Böll Foundation, and in particular to Jutta Helm, which supported me with a scholarship throughout the PhD period. Apart from financial support, I am grateful for the facilitation of interesting discussions and exchanges with other students and research-ers through countless workshops and seminars. I would also like to thank the Friends of Faculty of Law in Düsseldorf for their support through awarding me their thesis award. I am further indebted to the library staff at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg for their ready assistance.

Moreover, I would like to thank Andrea Kämpf, Anna Oehmichen, Lena Partzsch, Katrin Winninghoff and Anna Zimmer for reading, commenting on and discussing various parts of the manuscript. The same thanks go to Lucinda O’Hanlon, Virginia Roaf and Catarina de Albuquerque – you cannot imagine how much our discussions contributed to the develop-ment of this book.

I thank my mum, Edeltraud Winkler, and my sister, Edda Lintz, for their unconditional support to follow my interests in my career and for their constant interest in what I was doing. My husband, Björn Lüssem,

x Acknowledgements

not only supported me over the last few years, but shared my passion for research, understood that human rights followed us everywhere, never stopped being interested in my thoughts and encouraged me when I needed it. Thank you. Final thanks go to Jan for becoming accustomed to piles of books and papers so early in his life and letting me conclude this volume.

Inga WinklerDresden, October 2011

Summary Contents

Foreword viiAcknowledgements ixDetailed Contents xiiiAbbreviations xxiTable of Cases xxiiiTable of Instruments xxvii

1 Introduction 1I. Lack of Access to Water 2II. The Question of Prioritisation 6III. The Emergence of the Human Right to Water 8IV. Scope and Outline of the Book 11

2 Background: Water Availability and Competing Demands 16I. Water Availability and Quality 17II. Competing Water Demands – A Challenge for Allocation 27III. Conclusion: A Question of Prioritisation 35

3 Legal Foundations of the Human Right to Water 37I. Human Rights Treaties 38II. Customary International Law 65III. General Principles 97IV. Conclusion 98

4 Legal Characteristics of the Human Right to Water 100I. Legal Nature of the Right to Water 100II. Obligations Arising from the Right to Water 107III. Normative Content of the Right to Water 125IV. Conclusion 140

5 Human Rights Implications for Water Allocation 141I. Introductory Remarks 141II. Framework for Prioritisation 150III. Different Water Uses and Their Link to Human Rights 155IV. Conclusion: Priorities in Water Allocation 207

6 BenefitsofUnderstandingWaterasaHumanRight 212I. General Benefits of the Human Rights Framework 214II. Possibility of Judicial Enforcement 229III. Conclusion 272

xii Summary Contents

7 Conclusion and Outlook 275

Bibliography 287UnitedNationsDocuments 314Miscellaneous Documents 322

Index 325

Detailed Contents

Foreword viiAcknowledgements ixSummary Contents xiAbbreviations xxiTable of Cases xxiii

United Nations Jurisdiction xxiiiRegional Jurisdictions xxiiiNational Jurisdictions xxiv

Table of Instruments xxviiUnited Nations Jurisdiction xxviiInternational Treaties xxviiRegional Jurisdictions xxxiNational Jurisdictions xxxii

1 Introduction 1I. Lack of Access to Water 2

A. Inequalities in Access 3B. Impact on Health and Human Development 5

II. The Question of Prioritisation 6III. The Emergence of the Human Right to Water 8IV. Scope and Outline of the Book 11

2 Background: Water Availability and Competing Demands 16I. Water Availability and Quality 17

A. Physical Water Availability 17i. Assessing per capita water availability: the TARWR index 18ii. Shortcomings of the TARWR index 19iii. Water availability for basic personal and domestic needs 20

B. Human Impacts 20i. Population growth 20ii. Urbanisation 21iii. Increasing demand 22iv. Water pollution 24v. Climate change 25

C. Conclusion 26II. Competing Water Demands – A Challenge for Allocation 27

xiv Contents

A. Water Uses by Sector 27i. Agricultural water use 28ii. Industrial water use 29iii. Domestic water use 30iv. Ecosystems’ reliance on water 30

B. Competing Demands 31i. Competition between cities and agriculture 31ii. Large-scale industrial use 32iii. Impact of water pollution 33iv. Neglect of ecosystems 34v. Neglect of basic human needs 34

III. Conclusion: A Question of Prioritisation 35

3 Legal Foundations of the Human Right to Water 37I. Human Rights Treaties 38

A. Provisions of the Social Covenant 38i. Significance of General Comment No 15 issued by the Committee on Economic, Social and Cultural Rights 38ii. Deriving the right to water from other rights acknowledged in the Social Covenant 41

1. Right to an adequate standard of living – Article 11(1) of the Social Covenant 412. Right to food – Article 11(1) and (2) of the Social Covenant 453. Right to housing – Article 11(1) of the Social Covenant 474. Right to health – Article 12 of the Social Covenant 47

B. Provisions of the Civil Covenant 49i. General considerations 49ii. The right to life – Article 6 of the Civil Covenant 50

C. Other Provisions 55i. Conventions with a limited scope ratione personae 55

1. Convention on the Elimination of All Forms of Discrimination against Women 552. Convention on the Rights of the Child 553. Convention on the Rights of Persons with Disabilities 56

ii. Conventions with a limited scope ratione loci 561. African human rights instruments 562. Arab human rights instruments 573. American human rights instruments 574. European human rights instruments 57

iii. Humanitarian law 58

Contents xv

D. Significance of Treaties beyond their Limited Scope? 60i. Convention on the Elimination of All Forms of Discrimination against Women 60ii. Convention on the Rights of the Child 61iii. Geneva Conventions 62

E. Conclusion in Regard to Human Rights Treaties 64II. Customary International Law 65

A. The Significance of Customary Human Rights Law 65B. State Practice and Opinio Iuris 66

i. Focus on actual behaviour 68ii. Focus on official statements 69iii. Combination of both elements 69iv. Conclusion 70

C. Analysis of Statements on the Right to Water 71i. Universal Declaration of Human Rights 71

1. The Universal Declaration of Human Rights as a reflection of customary human rights law? 722. Selected human rights as customary law? 743. Economic, social and cultural rights as customary law? 75

ii. Other General Assembly resolutions 76iii. Resolutions by the Commission on Human Rights and the Human Rights Council 79iv. Political declarations and statements of recognition 81v. Documents issued by other UN bodies 88vi. Provisions in national constitutions 90vii. Recognition in treaties 93viii. Significance of the Berlin Rules of the International Law Association 93

D. Conclusion in Regard to Customary Law 95III. General Principles 97IV. Conclusion 98

4 Legal Characteristics of the Human Right to Water 100I. Legal Nature of the Right to Water 100

A. Alleged Focus on Positive Interventions 102B. Alleged Lack of Precision 104C. Alleged Lack of Judicial Enforceability 105D. Conclusion 106

II. Obligations Arising from the Right to Water 107A. The Tripartite Typology 107

i. Obligation to respect 108ii. Obligation to protect 108iii. Obligation to fulfil 110

xvi Contents

B. Non-discrimination 112C. Obligations to Progressive Realisation and Core Obligations 115

i. Principle of progressive realisation 115ii. Minimum core approach 117

1. Rationale of the approach 1182. Inability to realise the minimum core 1223. Criticism of the minimum core approach 122

iii. Conclusion 125III. Normative Content of the Right to Water 125

A. Availability 126i. Kinds of water uses covered by the right to water 126

1. Water for sanitation? 1272. Water for irrigation? 129

ii. Quantity of water guaranteed 131B. Safety and Acceptability 134C. Accessibility 135D. Affordability 137E. Summary 139

IV. Conclusion 140

5 Human Rights Implications for Water Allocation 141I. Introductory Remarks 141

A. Current Trends in Water Allocation 142i. Influential declarations on water policy 142ii. Illustrative examples from domestic legislation 144iii. Conclusion 147

B. A Human Rights Perspective 148i. The issue of prioritisation in General Comment No 15 148ii. The issue of prioritisation in the Report of the High Commissioner 149iii. Need for a detailed analysis of human rights implications 150

II. Framework for Prioritisation 150A. Levels of Realisation of Human Rights 151B. The Broader Picture: Realisation of All Human Rights to the Greatest Possible Extent Using All Available Resources 154

i. Alternatives for realisation 154ii. Direct access required? 155iii. Quantity of water required 155

III. Different Water Uses and Their Link to Human Rights 155A. Personal and Domestic Use 157

Contents xvii

i. Link to the human right to water 157ii. Relevance at different levels 157iii. Considerations in the balancing process 157

B. Water for Food Production 158i. Link to the human right to food 159ii. Relevance at different levels 160

1. Survival level 1602. Core level 1613. Level of full realisation 161

iii. Considerations in the balancing process 1631. No general reliance on direct access to water for food production 1632. Specific situation of those relying on subsistence agriculture 1643. Potential for water saving 1674. Summary 168

C. Water for Production of Clothing 168i. Link to the right to clothing as a component of the right to an adequate standard of living 169ii. Relevance at different levels 169iii. Considerations in the balancing process 170

D. Water for Sanitation 170i. Link to the human right to sanitation 173ii. Relevance at different levels 179iii. Considerations in the balancing process 179

E. Water for Power Generation 180i. Access to energy services as part of the right to an adequate standard of living? 181ii. Relevance at different levels 183iii. Considerations in the balancing process 184

F. Water as a Means of Personal Transportation 184G. Productive Uses of Water 185

i. Link to the human right to work 185ii. Relevance at different levels 186iii. Considerations in the balancing process 187

H. Water for Cultural and Religious Practices 188i. Link to the human right to take part in cultural life and the freedom of religion 188ii. Relevance at different levels 189iii. Considerations in the balancing process 190

I. Indigenous Water Uses 190i. Link to indigenous rights 191ii. Relevance at different levels 195iii. Considerations in the balancing process 196

xviii Contents

J. Recreational Uses of Water 196K. Water for Preserving and Protecting Ecosystems 196L. Right to Development? 201M. Cutting Across all Water Uses: Non-discrimination 202N. Summary: Priorities at Different Levels 202

i. Survival level 204ii. Core level 205iii. Level of full realisation of human rights 205iv. Level beyond human rights guarantees 207

IV. Conclusion: Priorities in Water Allocation 207

6 BenefitsofUnderstandingWaterasaHumanRight 212I. General Benefits of the Human Rights Framework 214

A. Reaching Beyond and Beneath the Millennium Development Goals 215B. The Concept of Rights-holders and Duty-bearers 217C. The Human Rights Principles of Participation, Non-discrimination and Accountability 218

i. Participation 219ii. Non-discrimination and attention to marginalised and vulnerable groups and individuals 221iii. Accountability 224

D. Conclusion 228II. Possibility of Judicial Enforcement 229

A. Justiciability of the Human Right to Water 230i. Alleged lack of capacity 232ii. Alleged lack of legitimacy 232iii. Alleged vagueness of legal provisions on the human right to water 236iv. Conclusion 237

B. Enforcement in National Courts 237i. Invoking international human rights law in national courts 238

1. Relationship between international law and national law 2382. Direct applicability 2393. Conclusion 242

ii. Reliance on national guarantees of the right to water 2421. Obligations to respect 2442. Obligations to protect 2453. Obligations to fulfil 247

a. South African reasonableness review 248b. The minimum core in the courts 250c. Concluding remarks on obligations to fulfil 254

Contents xix

iii. Conclusion 254C. Enforcement at the International Level 256

i. Instruments assessing general human rights compliance 257

1. Reporting procedures 2572. Procedures for responding to human rights violations 2593. Special Procedures 2604. Universal periodic review by the Human Rights Council 263

ii. (Individual) complaint mechanisms 2651. Optional Protocol to the Social Covenant on an Individual Complaint Mechanism 2652. Other complaint mechanisms in the area of economic, social and cultural rights 2673. Individual complaints in the context of procedures aiming at the protection of civil and political rights 2694. Confidential complaint procedure 2705. Individual complaints to Special Procedures 271

iii. Conclusion 271III. Conclusion 272

7 Conclusion and Outlook 275

Bibliography 287UnitedNationsDocuments 314 Conference Reports 314 General Assembly 315 Economic and Social Council 316 Commission on Human Rights 316 Human Rights Council 317 Sub-Commission on the Promotion and Protection of Human Rights 319 Human Rights Committee 320 Committee on Economic, Social and Cultural Rights 320 Committee on the Rights of the Child 321 Other Bodies 322Miscellaneous Documents 322

Index 325

Abbreviations

AAAS American Association for the Advancement of ScienceAbs Absatz (paragraph)ACHPR African Commission on Human and Peoples’ RightsACHR American Convention on Human RightsAIDS Acquired Immune Deficiency SyndromeArt ArticleArts ArticlesBanjul Charter African (Banjul) Charter on Human and Peoples’ Rightsc contre (versus)c/ contra (versus)CEDAW Convention on the Elimination of All Forms of

Discrimination against WomenCESCR Committee on Economic, Social and Cultural RightsCivil Covenant International Covenant on Civil and Political RightsCOHRE Centre on Housing Rights and EvictionsCRC Convention on the Rights of the ChildCRPD Convention on the Rights of Persons with DisabilitiesD+C Development + CooperationDAC Development Assistance CommitteeDIE Deutsches Institut für Entwicklungspolitik (German

Development Institute)ECHR European Convention for the Protection of Human

Rights and Fundamental FreedomsECOSOC Economic and Social CouncilEU European UnionFIAN FoodFirst Information and Action NetworkGWP Global Water PartnershipHIV Human Immunodeficiency VirusHRBA Human Rights-Based ApproachIACHR Inter-American Commission on Human RightsICCPR International Covenant on Civil and Political RightsICERD International Convention on the Elimination of All

Forms of Racial DiscriminationICESCR International Covenant on Economic, Social and

Cultural RightsILA International Law AssociationILO International Labour Organization

xxii Abbreviations

IMF International Monetary FundIWRM Integrated Water Resources ManagementJPoI Johannesburg Plan of Implementationkcal kilo-caloriekcal/c/d kilo-calorie per capita per dayl/c/d litres per capita per daylit litera (letter)m3 cubic metrem3/yr/c cubic metre per year per capitaMDGs Millennium Development Goalsmg/l milligramme per litreNGO non-governmental organisationNHRI National Human Rights InstitutionOECD Organisation for Economic Co-operation and

DevelopmentOptional Protocol Optional Protocol to the International Covenant on

Economic, Social and Cultural RightsProtocol of Additional Protocol in the Area of Economic, Social and San Salvador Cultural Rights to the ACHRRes ResolutionRevised ESC Revised European Social CharterSDC Swiss Agency for Development and CooperationSocial Covenant International Covenant on Economic, Social and Cultural RightsTAC Treatment Action CampaignTARWR Total Actual Renewable Water ResourcesUDHR Universal Declaration of Human RightsUN United NationsUNDP United Nations Development ProgrammeUNECE United Nations Economic Commission for EuropeUNESCO United Nations Educational, Scientific and Cultural

OrganizationUN-Habitat United Nations Human Settlements ProgrammeUNICEF United Nations Children’s FundUPR Universal Periodic ReviewWHO World Health OrganizationWSSD World Summit on Sustainable Development

Table of Cases

UNITEDNATIONSJURISDICTION

InternationalCourtofJusticeBarcelona Traction Case (Belgium v Spain), 5 February 1970, [1970] ICJ

Reports 34 .....................................................................................................74Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v United States of America), Merits, 27 June 1986, [1986] ICJ Reports 4 .........................................................................67, 69–70

North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark/Federal Republic of Germany v Netherlands), 20 February 1969, [1969] ICJ Reports 3 ...............................................................67, 69, 93

Oil Platforms case (Republic of Iran v United States of America), Preliminary Objection, 12 December 1996 [1996] ICJ Reports 803 .......38

REGIONALJURISDICTIONS

African Commission on Human and Peoples’ RightsFree Legal Assistance Group and Others v Zaire, Communications

Nos 25/89, 47/90, 56/91, 100/93 (1995) ................................................268Social and Economic Rights Action Center and the Center for

Economic and Social Rights v Nigeria, Communication 155/96, decision taken at 30th Ordinary Session, Banjul, The Gambia, from 13 to 27 October 2001, ACHPR/COMM/A044/1659 ..33, 200, 268

EuropeanCourtofHumanRightsAirey Case, 9 October 1979, Series A, vol 32 ..............................................269Butan et Dragomir c Roumanie, Requête no 40067/06, 14 February 2008 ..

269–70Zander v Sweden, 25 November 1993, Series A, No 279B .......................270

Inter-American Court of Human RightsVillagran Morales et al v Guatemala (’Street Children’ Case), 19

November 1999, Annual Report of the Inter-American Court of Human Rights 1999, 665 .......................................................................53, 57

Inter-American Commission on Human RightsMapuche Paynemil and Kaxipayiñ Communities, Case No 12.010 .......267

xxiv Table of Cases

NATIONALJURISDICTIONS

ArgentinaJuez Sustituta de Primera Instancia y 51 Nominación en lo Civil y Comercial,

Ciudad de Córdoba, Argentina, Quevedo Miguel Angel y Otros c/ Aguas Cordobesas SA, Acción de Amparo, 8 April 2002 ...............245

Primera Instancia y 8 Nominación en lo Civil y Comercial, Ciudad de Córdoba, Argentina, Marchisio José Bautista y Otros, Acción de Amparo (Expte No 500003/36), 19 October 2004 .............................253–5

BangladeshSupreme Court of Bangladesh, Dr Mohiuddin Farooque v Bangladesh,

Writ Petition 998 of 1994, CA 24 of 1995, Appellate Division (Civil), 25 July 1996 ...................................................................................................92

IndiaSupreme CourtCharan Lal Sahu v Union of India, 22 December 1989, All India

Reporter 1480 ...............................................................................................92Francis Coralie Mullin v The Administrator, Union Territory of

Delhi, 13 January 1981, (1981) 2 Supreme Court Reports 516 .............243Municipal Council, Ratlam v Shri Vardhichand and Others, 29 July

1980, (1981) 1 Supreme Court Reports 97 ..........................................177–8Subhash Kumar v State of Bihar and Others, 9 January 1991, [1991]

All India Reporter 420 ................................................................................92Vellore Citizens Welfare Forum v Union of India, [1996] All India

Reporter 2715 .....................................................................................238, 245

High Court of KeralaFK Hussain v Union of India, 26 February 1990 ...............................245, 255Perumatty Grama Panchayat v State of Kerala, 16 December 2003

(Plachimada case) ..............................................................................109, 246

NepalSupreme Court, Suray Prasad Sharma Dhungel v Godavari Marble

Industries and others, Writ Petition 35/1992, 31 October 1995 ............92

PakistanSupreme Court, General Secretary, West Pakistan Salt Miners Labour

Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore Industries and Mineral Development, Punjab, Lahore, Human Rights Case No 120 of 1993, 12 July 1994, [1994] Supreme Court Monthly Review 2061 ........92

High Court of Sindh at Karachi, Sindh Institution of Urology and Transplantation and Others v Nestlé Milkpak Limited &

Table of Cases xxv

Others, Original Civil Jurisdiction, Suit No 567 of 2004, 30 November 2004 .....................................................................................109

SouthAfricaConstitutional CourtChairperson of the Constitutional Assembly, ex parte: in re

Certification of the Constitution of the Republic of South Africa, 6 September 1996, (1996) 10 Butterworths Constitutional Law Reports 1253 (CC) .....................................................................234, 244

Government of the Republic of South Africa and Others v Grootboom and Others (2000), 11 Butterworths Constitutional Law Reports 1169 ............................................................123–4, 215, 248–50

Lindiwe Mazibuko and Others v The City of Johannesburg and Others, 8 October 2009 ......................................................................132, 252

Minister of Health v Treatment Action Campaign 2002, 10 Butterworths Constitutional Law Reports 1033 (CC) 1945 .....................................................119, 121, 123, 235, 248–50

Supreme Court of AppealCity of Johannesburg and Others v Lindiwe Mazibuko and Others,

25 March 2009 ....................................................................................132, 252

High Court, Witwatersrand Local DivisionLindiwe Mazibuko and Others v The City of Johannesburg and

Others 2008 .............................................................131–2, 137, 238, 250, 252Residents of Bon Vista Mansions v Southern Metropolitan Local

Council, 5 September 2001 (2002) 6 Butterworths Constitutional Law Reports 625 (W) .........................................................................238, 244

Table of Instruments

UNITEDNATIONSJURISDICTION

Charter of the United Nations (1945) ..........................72, 90, 256–7, 259, 269 Art 55 ..............................................................................................................72Statute of the International Court of Justice (1945) Art 38(1)(b) ....................................................................................................65 Art 38(1)(c) .....................................................................................................97United Nations Declaration on the Rights of Indigenous

Peoples (2007) ................................................................................193–5, 203 Art 26(1) .......................................................................................................193 Art 29 ............................................................................................................193 Art 32 ............................................................................................................194Universal Declaration of Human Rights

(1948) ...................................................................9, 38, 55, 71–6, 95, 103, 106 Art 8 ..............................................................................................................230 Art 22 ........................................................................................................71, 75 Arts 23–24 ......................................................................................................75 Art 25 ..........................................................................................71, 73, 75, 253 Arts 26–27 ......................................................................................................75

INTERNATIONALTREATIES

Convention on the Elimination of All Forms of Discrimination against Women (1979) ..........................55, 60–1, 65, 78–9, 98–9, 112, 182, 221, 276

Pt I ..................................................................................................................61 Art 1 ..............................................................................................................112 Art 3 ................................................................................................................55 Art 7 ..............................................................................................................219 Art 10 ..............................................................................................................61 Art 11 ..............................................................................................................61 Art 11(1)(a) ...................................................................................................186 Art 12 ......................................................................................................61, 159 Art 13 ............................................................................................................219 Art 13(c) .......................................................................................................189 Art 14 ........................................................................................................55, 61 Art 14(2) .......................................................................................................219 Art 14(2)(h) ......................................44, 55, 60, 98, 173, 175–6, 182, 185, 276

xxviii Table of Instruments

Art 18 et seq. ................................................................................................259 Optional Protocol .......................................................................................267Convention on the Rights of the Child (1989) ..........55–6, 60–2, 98, 103, 115 Preamble ........................................................................................................61 Art 2(1) .........................................................................................................112 Art 4 ..............................................................................................................115 Art 6 ................................................................................................................56 Art 6(1) ...........................................................................................................62 Art 9 ................................................................................................................61 Art 12 ............................................................................................................219 Art 15(1) .........................................................................................................62 Art 24 ..............................................................................................................62 Art 24(2)(c) .................................................................48, 56, 98, 159, 197, 275 Art 24(2)(e) ..........................................................................................159, 173 Art 26(1) .........................................................................................................62 Art 27 ......................................................................................................44, 175 Art 27(1) ...........................................................................................56, 62, 176 Art 27(3) .......................................................................................................159 Art 31 ............................................................................................................189 Art 32 ............................................................................................................186 Art 44 et seq .................................................................................................259Convention on the Rights of Persons with Disabilities

(2006) .....................................................................................56, 103, 112, 221 Art 27(1) .......................................................................................................186 Art 28(1) .......................................................................................................175 Art 28(1)(a) ..................................................................................................159 Art 28(2)(a) ......................................................................................44, 56, 276 Art 29 ............................................................................................................219 Art 35 et seq. ................................................................................................259Geneva Conventions ...............................................................38, 59–60, 62, 64 3rd Geneva Convention relative to the treatment of prisoners of

war (1949) .....................................................................................................59 Art 3 ........................................................................................................63–4 Art 7 ............................................................................................................62 Art 20 ..........................................................................................................59 Art 26 ..........................................................................................................59 Art 29 ..........................................................................................................59 Art 46 ..........................................................................................................59 4th Geneva Convention relative to the protection of civilian persons

in time of war (1949) ...................................................................................59 Art 3 ........................................................................................................63–4 Art 8 ............................................................................................................62 Art 85 ..........................................................................................................59 Art 89 ..........................................................................................................59

Table of Instruments xxix

Art 127 ........................................................................................................59 Additional Protocol I (1977) ...........................................................59–60, 62 Art 54 ..........................................................................................................59 Art 75 ..........................................................................................................59 Art 75(2) .....................................................................................................60 Additional Protocol II (1977) ......................................................59–60, 62–4 Art 4 ............................................................................................................59 Art 4(2) .......................................................................................................60 Art 5 ......................................................................................................59–60 Art 5(1)(b) ..................................................................................................60 Art 6 ............................................................................................................59 Art 14 ..........................................................................................................59ILO Convention (No 169) concerning Indigenous and Tribal Peoples

in Independent Countries (1989) ....................................................191, 195 Art 15(1) .......................................................................................................193 Art 23 ............................................................................................................192International Bill of Rights ..............................................................55, 173, 275 see also ICCPR; ICESCR; UDHRInternational Convention on the Elimination of all Forms of Racial

Discrimination (1966) ........................................................................112, 221 Art 1(1) .........................................................................................................112 Art 5(e)(i) .....................................................................................................186 Art 5(e)(vi) ...................................................................................................189International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families (1990) ...........................................................................................................186

International Covenant on Civil and Political Rights (1966) ...............................................37, 49–50, 52, 55, 64, 103, 188, 269, 275

Art 1 ..............................................................................................................195 Art 2 ................................................................................................................52 Art 2(1) .....................................................................................52, 54, 112, 202 Art 2(3) .........................................................................................................230 Art 4(2) ...........................................................................................................60 Art 6 ................................................................................49–50, 52, 54, 98, 269 Art 6(1) .......................................................................................................50–1 Art 18 ............................................................................................................188 Art 19 ............................................................................................................221 Arts 21–22 ....................................................................................................221 Art 25 ............................................................................................................219 Art 26 ............................................................................................112, 202, 269 Art 27 ....................................................................................................189, 192 Art 40 ............................................................................................................259 Optional Protocol .......................................................................................269 see also International Bill of Rights

xxx Table of Instruments

International Covenant on Economic, Social and Cultural Rights (1966) ................9–10, 37–40, 42, 49–50, 54–5, 58, 64–6, 75, 78–9, 88, 94–5,

99, 103–7, 113–18, 125, 151–2, 185, 188, 230–1, 234, 237–42, 244, 257, 259, 267, 275–6, 278, 283

Preamble ..............................................................................................121, 176 Art 1 ..............................................................................................................195 Art 1(2) .........................................................................................................192 Art 2(1) .............................................................54, 115–17, 123, 125, 151, 164 Art 2(2) ...................................................................................112–13, 202, 221 Art 3 ..............................................................................................................240 Art 6(1) .................................................................................................185, 187 Art 6(2) .........................................................................................................187 Art 7(a)(i) .....................................................................................................240 Art 7(d) .........................................................................................................196 Art 7(1)(i) .....................................................................................................240 Art 8 ..............................................................................................................240 Art 10(3) .......................................................................................................240 Art 11 ..................................................10, 38, 48, 55, 66, 71, 84, 119, 182, 253 Art 11(1) ...................................... 41, 45–7, 56, 64, 81, 98, 116, 119, 124, 159,

169, 175, 181–3, 241, 275, 277 Art 11(2) ..................................................................... 45–6, 119, 131, 157, 159 Art 12 ............................................................10, 38, 47–8, 62, 66, 98, 119, 253 Art 12(1) .........................................................................................................47 Art 12(2)(b) ....................................................................................................48 Art 12(2)(c) ...................................................................................................197 Art 13(2)(a) ..................................................................................................240 Art 13(3)–(4) ................................................................................................240 Art 15 ........................................................................................................188–9 Art 15(3) .......................................................................................................240 Optional Protocol (2008) .......................231, 237, 241, 257, 265–7, 272, 283 Art 2 ..................................................................................................241, 267 Art 3(1) .....................................................................................................230 Art 9 ..........................................................................................................267 Art 18(1) ...................................................................................................267 see also International Bill of RightsVienna Convention on the Law of Treaties (1969) .......................................38 Art 4 ................................................................................................................38 Art 31 ..............................................................................................................38 Art 31(3) .........................................................................................................44 Art 32 ..............................................................................................................42

Table of Instruments xxxi

REGIONALJURISDICTIONS

AfricanUnionAfrican (Banjul) Charter on Human and Peoples’ Rights

(1981) ...................................................................................103, 115, 201, 268 Art 4 ................................................................................................................53 Art 15 ............................................................................................................186 Art 16 ..............................................................................................56, 200, 268 Art 17(2) .......................................................................................................189 Art 20(1) .......................................................................................................195 Art 24 ............................................................................................199–200, 268 Art 62 ............................................................................................................259African Charter on the Rights and Welfare of the Child (1990) ................56 Art 14(2)(c) .............................................................................................56, 275Banjul Charter see African (Banjul) Charter on Human and Peoples’

RightsProtocol on the Statute of the African Court of Justice and Human

Rights (2008) ...............................................................................................268Protocol to the African Charter on Human and People’s Rights on

the Establishment of an African Court on Human and People’s Rights (1998) ...............................................................................................268

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) .............................................................56

Art 15 ..........................................................................................57, 182, 275–6

ArabStates(Leagueof)Arab Charter on Human Rights (2008) .........................................................57 Art 15 ............................................................................................................189 Art 38 ..............................................................................................................57 Art 39 ..............................................................................................................57 Art 39(e)–(f) .................................................................................................275 Art 39(2)(f) ...................................................................................................173 Art 42(1) .......................................................................................................189 Art 48 ............................................................................................................259

CouncilofEuropeEuropean Convention on Human Rights (1950) ...........................52, 57, 269 Art 2 ................................................................................................................52 Art 2(1) ...........................................................................................................52 Art 6(1) ...................................................................................................269–70 Art 8 ..............................................................................................................269 Art 15(2) .........................................................................................................60European Social Charter (1961) ......................................................................58

xxxii Table of Instruments

Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (1995) ........................................230, 267

Revised European Social Charter (1996 rev) ........................................58, 267 Pt I ..................................................................................................................58 Pt III, Art A ............................................................................................58, 267 Art 1 ..............................................................................................................186 Art 11 ..............................................................................................................58 Art 21 ............................................................................................................259 Art 31 ..............................................................................................................58

OrganisationofAmericanStatesAmerican Convention on Human Rights (1969) ...................................53, 57 Art 4 ..........................................................................................................52, 57 Art 27(2) .........................................................................................................60 Additional Protocol in the Area of Economic, Social and Cultural

Rights (1988) (Protocol of San Salvador) ..................................................57 Art 6 ..........................................................................................................186 Art 11 ..................................................................................57, 173, 182, 199 Art 11(1) .....................................................................................................57 Art 12 ........................................................................................................159 Art 14 ........................................................................................................189 Art 19 ........................................................................................................259 Art 19(6) ...................................................................................................267

NATIONALJURISDICTIONS

Algeria(Republicof)Loi no 05-12 du 28 Joumada Ethania 1426 correspondant au

4 août 2005 relative à l’eau, Art 2 ............................................................145

ArgentinaCódigo de Aguas para la Provincia de Córdoba, Ley 5589, Art 100 .......146Constitution, Art 25 .......................................................................................253Social Covenant, Arts 11–12 ..........................................................................253

Armenia(Republicof)Water Code, 2002, Art 31 ...............................................................................145

AustraliaWater Act 2000 (Queensland), s 360ZD .......................................................146

BelgiumCommunauté Flamande, Art 1er bis S3 de la loi du 14 août 1933

concernant la protection des eaux de boisson .......................................132

Table of Instruments xxxiii

Décret contenant diverses mesures d’accompagnement du budget 1997 de 20 Decembre 1996, Art 34 ...........................................................132

Benin(Republicof)Loi No 87-016 du 21 Septembre 1987 portant Code de l’Eau en

République Bénin, Art 54 .........................................................................145BoliviaConstitution Art 16 ............................................................................................................242 Art 16(1) .........................................................................................................91 Art 20 ............................................................................................................173BurkinaFaso(Republicof)Décret no 2005-191/PRES/PM/MAHRH du 4 Avril 2005 portant

utilisations prioritaires et pouvoir gouvernemental de contrôle et de répartition de l’eau en cas de pénurie, Art 2 ................................146

Burundi(Republicof)Decret-Loi No 1/41 du 26 Novembre 1992 portant institution et

organisation du domaine public hydraulique, Art 14 .........................145Chad(Republicof)Loi No 016/PR/99 portant Code de l’Eau, 1999, Art 149 ........................145China(People’sRepublicof)Water Law, Order of the President of the People’s Republic of China

No 74, 2002, Art 21 ....................................................................................145ColombiaConstitution ......................................................................................................92

Congo(DemocraticRepublicofthe)Constitution (2006), Art 48 ......................................................................91, 242

Costa RicaConstitution ......................................................................................................92Ley general de salud, Ley No 5395, Art 264 ...............................................145

Dominican RepublicLey General sobre Medio Ambiente y Recursos Naturales (64-00) 2000,

Art 13 ...........................................................................................................145

EcuadorConstitution (2008) Art 12 ......................................................................................................91, 242 Art 66(2) .......................................................................................................173Constitution (1998) (no longer in force) Art 23 ..............................................................................................................91 Art 42 ..............................................................................................................91

xxxiv Table of Instruments

ElSalvadorConstitution ......................................................................................................92Ethiopia(FederalDemocraticRepublicof)Constitution (1994), Art 90(1) .........................................................................91Water Resources Management Proclamation, Proclamation

No 197/2000, Art 7 ....................................................................................145

France(Republicof)Loi no 2006-1772 sur l’eau et les milieux aquatiques 2006, Art 1 ..............98

Gambia(The)Constitution (1996), Art 216(4) .......................................................................91

GermanyConstitution Art 19(2) .......................................................................................................120 Art 25 ............................................................................................................239 Art 32 ............................................................................................................239 Art 59 ............................................................................................................239

Guinea(Republicof)Loi portant Code de l’Eau, 14 February, 1994, Art 6 ...................................98Water and Sewerage Act, 2002, Art 25 ........................................................145

IndiaConstitution ..............................................................................92, 109, 238, 246 Art 21 ..........................................................................92, 106, 234, 243, 245–6 Art 37 ......................................................................................92, 106, 234, 243 Art 39(a) .........................................................................................92, 106, 243 Art 39(b) .........................................................................................................92 Art 47 ..............................................................................................................92 Art 48A .................................................................................................106, 243National Rural Employment Guarantee Act ..............................................166

Indonesia(Republicof)Law No 7/2004 on Water Resources, Art 26 ..............................................146Regulation No 23/2006, Art 3(2) ..................................................................138

IvoryCoast(Republicof)Loi no 98-755 du 23 décembre 1998 portant Code de l’Eau, Art 70 ........145

KenyaConstitution (2010) Art 43(1)(b) ..................................................................................................173 Art 43(1)(d) ............................................................................................91, 242

Kyrgyz RepublicWater Code, Law No 8 of 12 January 2005, Art 24 ....................................145

Table of Instruments xxxv

Maldives(Republicof)Constitution (2008) Art 23(a) .................................................................................................91, 242 Art 23(f) ........................................................................................................174

Mauretania(IslamicRepublicof)Loi no 2005-030 portant Code de l’eau, 2005, Art 5 ...................................145

NicaraguaConstitution (2003), Art 105 ....................................................................91, 242Ley general de aguas nacionales, Ley no 620, Art 66 ................................145

PanamaConstitution (1972) Art 110(4) .......................................................................................................91 Art 118 ............................................................................................................91

SenegalLoi no 81-13 du 4 mars 1981 portant Code de l’Eau, Art 75 ....................145

SolomonIslandsFederal Constitution (2004) (draft), Art 46 ...................................................92

SouthAfrica(Republicof)Constitution 1996 .......................................................122, 231, 234–5, 244, 264 Art 27(1)(b) ............................................................................................91, 244 Art 26(2) .......................................................................................................123 Art 27 ............................................................................................................242 Art 27(2) .......................................................................................................123 Art 39(1)(b) ..........................................................................................238, 244 Bill of Rights ................................................................................................244National Water Act 1998 ....................................................................146–7, 201 Pt 3 ................................................................................................................147 s 1(iii) ............................................................................................................147 s 1(1)(xviii)(a) ..............................................................................................147 s 1(1)(xviii)(b) ..............................................................................................201 s 16 ........................................................................................................147, 201Regulations relating to compulsory national standards and

measures to conserve water (20 April 2001) ..................................147, 251 Reg 3 .............................................................................................................147Water Services Act ..................................................................................235, 251 Preamble ......................................................................................................251 s 1(iii) ............................................................................................................251

SpainReal Decreto Legislativo 1/2001, de 20 de julio, por el que se aprueba el

texto refundido de la Ley de Aguas, Art 60.3 ........................................145

xxxvi Table of Instruments

Tajikistan(Republicof)Water Code, 29 March 2000, Art 30 .............................................................145

Tunisia(Republicof)Code des Eaux, Loi no 75-16 du 31 mars 1975, Art 86 ..............................146

TurkeyConstitution ....................................................................................................120

Uruguay(Republicof)Constitution (1967), Art 47 ..............................................................91, 174, 242

UnitedStatesofAmericaConstitution ......................................................................................................81

Uzbekistan(Republicof)Law on Water and Water Use, Law No 837-XII of 6 March 1993,

Art 25 ...........................................................................................................145

Zimbabwe(Republicof)Water Act 2000, Art 2 .....................................................................................146

1

Introduction

TODAY, AS IN the 1970s1, nearly one billion people2 are deprived on a daily basis of the most fundamental requirement for survival, health and dignity: water. While figures have declined on a relative

scale3, the extent of the crisis remains enormous. Basic human needs go unrealised each and every day. The crisis is a silent one that gets less atten-tion than, for instance, wars and natural disasters. It has proven to be a persistent crisis.

The global water crisis not only relates to access to water for household uses, but is multifaceted. It becomes manifest in the shrinking and drying up of major rivers and lakes, the Aral Sea, the Colorado and the Jordan only being some of the most prominent examples4. The dramatic state of many water bodies shows in their diminution as well as their pollution. All of India’s 14 major rivers are heavily polluted. For instance, 200 mil-lion litres of sewage and 20 million litres of waste are discharged into the Yamuna in Delhi every single day5. Both phenomena, shrinking water bodies as well as water pollution, not only relate to public health and the reduction of water available for human usage, but also have an ecological dimension6.

Water is a multi-purpose resource that is used not only in households, but to a much greater extent in the agricultural and industrial sectors. Water is thus also essential for food security, economic development and

1 For 1977, a figure of 1.2 billion people without access to drinking water can be assumed, as cited in P Alston, ‘Human Rights and Basic Needs: A Critical Assessment’ (1979) 12 Revue des Droits de l’Homme 19, 23.

2 World Health Organization and United Nations Children’s Fund, Progress on Sanitation and Drinking-Water, 2010 Update (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2010) 7. See section I. below on the shortcomings and inac-curacies of these estimates.

3 When population growth is taken into account, the percentage of people without access to water has decreased. With about 4 billion people, the world population in the mid-1970s was significantly lower than today, see United Nations, World Population Prospects, 2004 Revision (New York, United Nations, 2005) ‘Highlights’, vi.

4 United Nations Development Programme, Human Development Report 2006, Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, Palgrave Macmillan, 2006) 141; F Kürschner-Pelkmann, Das Wasser-Buch, Kultur, Religion, Gesellschaft, Wirtschaft (Frankfurt am Main, Lembeck, 2005) 34 et seq, 239 et seq.

5 United Nations Development Programme, above n 4, 143.6 Ibid.

2 Introduction

livelihood security. It relates to all these and many more policy areas. The water crisis is therefore a crisis of many dimensions. While some of these issues will be touched upon throughout the book, its focus is specifically on the human dimension of the water crisis – in particular the neglect of basic human needs in the allocation of water resources – seeking to address this issue from a human rights perspective.

I. LACK OF ACCESS TO WATER

Water is an extraordinary resource with unique characteristics. All life depends on water. Access to water is a precondition for survival7. Water cannot be substituted by any other resource. It is fundamental for sustain-ing health and leading a life in dignity8. Yet, as mentioned above, accord-ing to the latest official figures published by the Joint Monitoring Programme of the World Health Organization (WHO) and the United Nations Children‘s Fund (UNICEF), close to a billion people lack access to water9. The actual figures can be assumed to be even higher, as these num-bers are based on several assumptions: the indicator used for these official figures is access to an improved drinking water source10, but criteria such as affordability and safety are not explicitly taken into account11. Water services may be unaffordable for indigent people; others may face pro-hibitive waiting times at the point of collection; some improved drinking water sources may not supply water regularly12; water provided by improved sources such as boreholes or protected wells may be contamin-ated – when these factors are taken into consideration, the extent of the crisis in the lack of access to water is likely to be much greater.

7 J Boesen and PE Lauridsen, ‘(Fresh) Water as a Human Right and a Global Public Good’ in EA Andersen and B Lindsnaes (eds), Towards New Global Strategies: Public Goods and Human Rights (Leiden, Martinus Nijhoff, 2007) 393, 394 et seq; United Nations Development Programme, above n 4, 2; GJ Young, JCI Dooge and JC Rodda, Global Water Resource Issues (Cambridge, Cambridge University Press, 1994) 10.

8 United Nations Development Programme, above n 4, 2.9 World Health Organization and United Nations Children’s Fund, above n 2, 7.

10 World Health Organization and United Nations Children’s Fund, Global Water Supply and Sanitation Assessment 2000 Report (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2000) 77 et seq.

11 See Office of the United Nations High Commissioner for Human Rights, Claiming the Millennium Development Goals (MDGs): A Human Rights Approach (Geneva, 2008) 39; General Assembly, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 6 August 2010, A/65/254, paras 22 et seq.

12 Centre on Housing Rights and Evictions, American Association for the Advancement of Science, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Manual on the Right to Water and Sanitation (Geneva, 2007) 3.

Lack of Access to Water 3

A. Inequalities in Access

Access to water is characterised by huge inequalities. On a global scale, consumption differs greatly between countries of the Global North and the Global South. Whereas a German citizen uses an average 129 litres per day13 and a US citizen even up to 300 litres per day14, many people in developing countries do not have access even to 20 litres per capita per day (l/c/d) to satisfy their most basic needs. But inequality in access also exists within countries, even within the same cities. Whereas well-off neighbourhoods in many cities of the Global South are often provided with unlimited amounts of water – at low prices – people living in infor-mal settlements and other disadvantaged neighbourhoods often have access to less than 20 l/c/d15. According to the Human Development Report 2006, on average 85 per cent of the wealthiest 20 per cent of the population have access to piped water in the household, whereas only 25 per cent of the poorest 20 per cent of the population enjoy such access16.

It has been found that the point of access to water has a strong impact on the quantity of water used. Whereas people with a household connec-tion have unhindered physical access to often unlimited amounts of water, the average quantity collected from a point of access 100 metres from the house is around 20 l/c/d. This amount decreases to about 5 l/c/d when the point of access is at a distance of more than 1,000 metres17. The physical proximity to access to water is therefore an important factor in determining inequalities in access to water.

People living in informal settlements and other low-income urban areas are particularly disadvantaged regarding access to water. It is estimated that informal settlements may account for as much as 30 to 60 per cent of the global urban population. For example, about half of Mumbai’s popu-lation lives in squatter areas18. The improvement of living conditions in these areas is often a low priority in urban policies. In many cases, munic-ipal governments avoid improving water and sanitation services because

13 U Scheele and S Malz, ‘Wasserbedarf und Wasserverbrauch privater Haushalte und der Industrie nach Ländern’ in J L Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 91, 93.

14 Kürschner-Pelkmann, above n 4, 14; Scheele and Malz, above n 13, 93; R Engelmann, B Dye and P LeRoy, Mensch, Wasser, Report über die Entwicklung der Weltbevölkerung und die Zukunft der Wasservorräte (Hannover, Balance, 2000) 20, even assume an average of 650 litres per day.

15 United Nations Development Programme, above n 4, 2.16 Ibid, 7.17 G Howard and J Bartram, Domestic Water Quantity, Service Level and Health (Geneva,

World Health Organization, 2003) 22.18 AK Biswas, ‘Water Management for Major Urban Centres’ (2006) 22 International Journal

of Water Resources Development 183, 190 et seq.

4 Introduction

they do not want to encourage or legitimise informal settlements19. Not being supplied with water through the public water network, inhabitants of informal settlements are often forced to buy water from private water vendors, or to use water from unsecure sources that is often contamin-ated20. While the middle- and upper-class areas of cities receive piped water into their homes, it is estimated that 20 to 30 per cent of all urban inhabitants of developing countries are dependent on private water vendors21. Their prices are often significantly higher than those for water supplied through the network22. For example, people living in the infor-mal settlements of Jakarta and Nairobi pay 5 to 10 times more per water unit than those living in high-income areas of the same cities23. In excep-tional cases, water bought from water vendors may be priced as much as 100 times the official tariff24. The amount people spend on drinking water then often represents a significant proportion of their income, for example up to 25 per cent in Mexico City25. As with physical access to water, this aspect of economic accessibility also has an enormous impact on the quan-tity of water consumed and illustrates the extent of inequalities in urban water supply.

Similarly to people living in poverty in urban areas, poor rural settle-ments are often given low priority in terms of development and resource allocation. In the framework of the Millennium Development Goals (MDGs)26, the proportion of population with access to improved water sources is assessed. According to 2010 figures, 87 per cent of the world’s total population has such access, but only 76 per cent of the rural popula-tion in developing regions compared to 94 per cent of the urban popula-tion, ie 84 per cent of the population without access to an improved

19 M Falkenmark and C Widstrand, ‘Population and Water Resources: A Delicate Balance’ (1992) 47 Population Bulletin No 3, 22.

20 O Varis, ‘Megacities, Development and Water’ (2006) 22 International Journal of Water Resources Development 199, 214; C Tortajada, ‘Water Management in Mexico City Metropolitan Area’ (2006) 22 International Journal of Water Resources Development 353, 361; Falkenmark and Widstrand, above n 19, 22.

21 Varis, above n 20, 214.22 Falkenmark and Widstrand, above n 19, 22.23 United Nations Development Programme, above n 4, 7.24 Varis, above n 20, 214.25 Tortajada, above n 20, 361.26 The MDGs aim at the eradication of extreme poverty. MDG target 7.C pledges to halve,

by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation. It is inexplicable why Target 7.C figures under the goal of environmental sustainability instead of under Goal 1 together with the target to halve the number of people suffering from hunger. These two – hunger and lack of access to water supply – are manifes-tations of poverty that are closely linked together, see F Nuscheler, ‘Sinnentleerung des Prinzips Nachhaltigkeit, Die Millennium-Entwicklungsziele haben eine ökologische Lücke’ in F Nuscheler and M Roth (eds), Die Millennium-Entwicklungsziele, Entwicklungspolitischer Königsweg oder ein Irrweg? (Bonn, Dietz, 2006) 155, 165. In the Millennium Declaration the tar-get on water supply still appears within the first bullet point next to the goal related to reducing hunger, see General Assembly, United Nations Millennium Declaration, 18 September 2000, A/Res/55/2, para 19.

Lack of Access to Water 5

drinking water source is estimated to live in rural areas27. In Sub-Saharan Africa, only 47 per cent of the rural population has access to an improved water source28. The symbolic picture of women and girls walking for miles to collect water from a waterhole or well has been shown, described and reiterated many times. Yet it remains a meaningful illustration of the mar-ginalisation of people living in poverty in rural areas. Not only do women have to walk long distances to collect water, they often also have to wait for a long time, because water availability is low and many people rely on the same points of access. Furthermore, the collected water is in many cases unsafe and contaminated.

B. Impact on Health and Human Development

The lack of access to water has an enormous impact on human health. Water-related diseases are a leading cause of death in the developing world, in particular among children29. Such diseases are associated with the lack of access to safe drinking water, poor hygiene and inadequate sanitation. Nearly 4,000 children die of the consequences every day30.

So-called water-borne diseases, such as diarrhoea, cholera and typhoid, are caused by drinking unsafe water31. Water can be contaminated by human, animal or chemical waste due to inadequate sanitation, agricul-tural or industrial run-off. Also, some naturally occurring elements such as arsenic pose a major threat to human health, resulting in a significant risk of skin lesions and cancer. The high concentration of arsenic in groundwater in Bangladesh, for example, is a major concern32. The most common water-borne disease is diarrhoea. According to estimates, each child in a developing country under the age of 5 suffers on average from three episodes of diarrhoea per year33. Diarrhoeal diseases sound harm-less, but are the leading cause of death among children from water-related diseases. While outbreaks of cholera – as recently occurred in Zimbabwe34 – draw major attention, the day-to-day diarrhoea of small children is responsible for the great majority of deaths35. Overall, diarrhoea accounts for 21 per cent of all deaths of children under the age of 5 in developing

27 World Health Organization and United Nations Children’s Fund, above n 2, 18.28 Ibid.29 World Water Assessment Programme, United Nations World Water Development Report 2:

Water, a Shared Responsibility (Paris, 2006) 204.30 Ibid.31 J Eyles and R Sharma, ‘Infectious Diseases and Global Change: Threats to Human

Health and Security’ (2001) 8 AVISO 1, 8 et seq.32 World Water Assessment Programme, above n 29, 219.33 Ibid, 210.34 See eg B Peta, ‘3,000 dead from cholera in Zimbabwe’, Independent, 26 November 2008.35 World Water Assessment Programme, above n 29, 211.

6 Introduction

countries36, resulting in 1.5 million deaths of children under 5 each year37. It claims the lives of five times as many children as HIV/AIDS38. Other water-related diseases are so-called water-washed diseases39, among them eye infections such as trachoma, that relate to the lack of sufficient water for personal hygiene40. Altogether, more people die of water-related diseases than in wars41. The former UN Secretary General, Kofi Annan, summed up the dependence of good health on access to water and sanita-tion, stating that ‘[w]e shall not finally defeat AIDS, tuberculosis, malaria, or any of the other infectious diseases that plague the developing world until we have also won the battle for safe drinking water, sanitation and basic health care’42.

Lastly, the broader impact of the lack of access to water on human development is enormous: children are unable to attend school because they suffer from water-related diseases or because they are responsible for collecting water, a time-consuming task. Water-related illness results in 443 million school days lost each year43. Similarly, the millions of women who spend several hours each day collecting water cannot engage in any gainful activity44. Addressing the lack of access to water would thus not only have direct benefits, it would also play a catalytic role for progress in public health, education and poverty reduction.

II. THE QUESTION OF PRIORITISATION

Addressing the crisis in the lack of access to water requires, of course, water resources. These resources have to be made accessible through infrastructure, which in turn depends on adequate financing as well as sound legal and institutional frameworks. Yet above all, it requires the

36 Ibid, 210.37 United Nations Children’s Fund and World Health Organization, Diarrhoea: Why

Children Are Still Dying and What Can Be Done (New York and Geneva, 2009) 1.38 United Nations Development Programme, above n 4, 42.39 Apart from water-borne diseases and water-washed diseases, vector-borne diseases,

such as malaria and schistosomiasis, are also associated with water. Yet they are not directly linked to the lack of access to safe water and sanitation. Such diseases are transmitted by insects or animals (vectors) breeding in aquatic ecosystems. Malaria, for example, is trans-mitted by mosquitoes. In this regard, they show a link to dam construction, irrigation devel-opment and water management, as human settlements are often situated close to man-made reservoirs and irrigation sites. See World Water Assessment Programme, above n 29, 205, 213 et seq.

40 Ibid, 212.41 United Nations Development Programme, above n 4, 1.42 United Nations Secretary General, ‘Poverty Biggest Enemy of Health in Developing

World, Secretary-General Tells World Health Assembly’, Press Release SG/SM/7808, 7 May 2001, available at <www.un.org/News/Press/docs/2001/sgsm7808.doc.htm> (accessed 1 October 2011).

43 United Nations Development Programme, above n 4, 6.44 Ibid.

The Question of Prioritisation 7

political will to use these resources in a way to prioritise basic human needs. The question of who gets how much water is not only a manage-ment issue, but also a political issue. As Bielefeldt puts it, the ‘seemingly technical questions of water supply, water management or water quality actually reflect societal power relations’45.

The lack of access is not a question of water availability. When speaking of water scarcity, it has to be kept in mind that only a small percentage – around 5 to 10 per cent – of the total consumption occurs in households46, including non-essential household uses such as car-washing, filling swim-ming pools or watering lawns. Other sectors, in particular agriculture and industry, are much larger water users. There is sufficient water to meet all people’s basic household needs, even in countries with very low water availability. The Human Development Report 2006 sums this up, stating that ‘the scarcity at the heart of the global water crisis is rooted in power, poverty and inequality, not in physical availability’47.

While there is sufficient water to satisfy the basic household require-ments of all people, the entire societal demand for water often exceeds availability. Therefore, competition for water arises. To meet basic human needs requires setting priorities in the allocation of water for that pur-pose. This is often not the case, for example, when golf courses are watered while neighbouring areas of a city are not supplied with water in the dry season48. Current priorities in the allocation of water tend to benefit the well-off and the powerful. A saying originating in the American West goes: ‘Water flows uphill . . . toward money.’49 Accordingly, addressing the question of prioritisation and allocation is essential.

Realising access to water evidently requires not only water resources, but also building, expanding and investing in infrastructure, as access to water cannot be achieved without provision of services. Yet if political priorities were aligned towards the fulfilment of basic human rights, it seems plausible that financing would be found. There are unprecedented resources and technologies available to solve the crisis in lack of access to water50. It has been estimated that an additional $10 billion per year are necessary to achieve the MDG targets on water and sanitation on the basis

45 H Bielefeldt, ‘Access to Water, Justice and Human Rights’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 49, 50.

46 United Nations Development Programme, above n 4, 2.47 Ibid.48 See the example of Delhi, J Schweikle, ‘Stadt der Verschwender’ (2007) No 3 Zeit Wissen

26, 30.49 See A Markels, ‘Sin City’s Continuous Flow’, US News, 27 May 2007; see also LA Swatuk,

Mainstreaming Politics: the bottom line on transboundary benefit sharing, Paper presented at the World Water Week, Stockholm, 22 August 2006, 3; and more generally RP Hiskes, ‘Missing the Green: Golf Course Ecology, Environmental Justice, and Local “Fulfillment” of the Human Right to Water’ (2010) 32 Human Rights Quarterly 326.

50 United Nations Development Programme, above n 4, 5.

8 Introduction

of low-cost sustainable technology51. This seems an enormous sum. Put in perspective, however, this is less than global military spending over five days, and less than half of what people in rich countries spend on mineral water each year52. Moreover, the long-term benefits of investing in water and sanitation must be considered: fewer child deaths, fewer health-care requirements and increased school attendance. Recent estimates by the WHO assume that there is a $4 return for each dollar invested in water in costs averted and productivity gained53. The Human Development Report 2006 assumes overall economic benefits of about $38 billion per year, the benefits thus far outweighing the costs54.

This book will therefore address the underlying question of prior-itisation in resource allocation, focusing on setting priorities in the alloca-tion of water resources. These underlying decisions on allocation and prioritisation often drive the subsequent decisions on the expansion of infrastructure and services. When priorities in water allocation are set for the realisation of basic human needs, they may be expected to influence decisions about water services.

III. THE EMERGENCE OF THE HUMAN RIGHT TO WATER

The human right to water has significant implications for the allocation of resources and can play a decisive role in addressing this crisis. It guaran-tees access to safe and affordable water in sufficient quantities without discrimination, and it obliges States to act upon the lack of access. The human right to water has the potential to empower people. It transforms the basic need for water into a rightful claim and gives rise to correspond-ing obligations on the State. As such, individuals can hold the State to account to live up to its human rights obligations. The fact that human rights are legally binding lends legitimacy and authority to such claims. Human rights can provide a compelling and coherent framework on which to base claims to improve access to water55.

51 Ibid, 8. Estimates of the WHO are slightly higher, with $18 billion per year, see G Hutton and J Bartram, ‘Global Costs of Attaining the Millennium Development Goal for Water Supply and Sanitation’ (2008) 86 Bulletin of the World Health Organization 13, 13. See also the comparative study by Toubkiss stating that global estimates range from $9 billion to $30 bil-lion per year, J Toubkiss, Costing MDG Target 10 on Water Supply and Sanitation, Comparative Analysis, Obstacles and Recommendations (Marseille, World Water Council, 2006) VI.

52 United Nations Development Programme, above n 4, 8.53 G Hutton, L Haller and J Bartram, Economic and Health Effects of Increasing Coverage of

Low Cost Household Drinking-Water Supply and Sanitation Interventions to Countries Off-Track to Meet MDG Target 10 (Geneva, World Health Organization, 2007) 20.

54 United Nations Development Programme, above n 4, 8.55 See generally, eg, B Hamm, ‘A Human Rights Approach to Development’ (2001) 23 Human

Rights Quarterly 1005; M Darrow and A Tomas, ‘Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation’ (2005) 27 Human Rights Quarterly 471; E Filmer-Wilson, ‘The Human Rights-Based Approach to Development: The Right to Water’ (2005) 23 Netherlands Quarterly of Human Rights 213; see further ch 6, section I.

The Emergence of the Human Right to Water 9

Compared to other human rights, dealing with the human right to water is complicated by the fact that it is not explicitly recognised either in the Universal Declaration of Human Rights (UDHR) or in the International Covenant on Economic, Social and Cultural Rights56 (Social Covenant/ICESCR). It has been warned that a proliferation of human rights bears the danger of undermining the cause of recognised human rights. Alston stated that

[t]he challenge is to achieve an appropriate balance between, on the one hand, the need to maintain the integrity and credibility of the human rights tradition, and on the other hand, the need to adopt a dynamic approach that fully reflects changing needs and perspectives and responds to the new threats to human dignity and well-being.57

Does recognising water as a human right undermine the cause of other human rights? Is water a ‘new’ human right in that sense?

In contrast to other issues recently discussed from a human rights per-spective, such as access to information technologies58, the need for access to water has little to do with changing living standards and circumstances. Water has always been essential to life, human health and dignity. Yet it has only recently started to be dealt with from a human rights perspec-tive. Whereas this cannot be attributed to changing needs, threats to access to water only now become more obvious or are only now understood. Several aspects are relevant in that regard: Water is increasingly perceived as a scarce resource59. Water pollution and its impact on human health have become more and more evident. Moreover, many actors see a danger in the increasing commodification of water services and aim to link this to the issue of water as a human right60.

56 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, entered into force 3 January 1976, 160 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 993, 3.

57 P Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607, 609.

58 See S Tully, ‘A Human Right to Access Water? – A Critique of General Comment No 15’ (2005) 23 Netherlands Quarterly of Human Rights 35, 37; M Langford, ‘Ambition that Overleaps Itself? A Response to Stephen Tully’s Critique of the General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433, 437; S Tully, ‘Flighty Purposes and Deeds: A Rejoinder to Malcolm Langford’ (2006) 24 Netherlands Quarterly of Human Rights 461, 463; M Langford, ‘Expectation of Plenty: Response to Stephen Tully’ (2006) 24 Netherlands Quarterly of Human Rights 473, 474.

59 The statement of Ismail Serageldin, the former Vice President of the World Bank, that ‘many of the wars of this century were about oil, but wars of the next century will be about water’ (in B Crossette, ‘Severe Water Crisis Ahead for Poorest Nations in Next 2 Decades’, New York Times, 10 August 1995, A13) has often been cited in this context; see also JR Starr, ‘Water Wars’ (1991) 82 Foreign Policy 17; J Bulloch and A Darwish, Water Wars: Coming Conflicts in the Middle East (London, Gollancz, 1993).

60 See generally K Moosdorf, Das Recht auf Wasser, Die Entstehung eines neuen Menschenrechts (Marburg, Tectum, 2007) 79 et seq.

10 Introduction

When the Social Covenant was drafted in the 1950s and 1960s, water was simply not considered a pressing issue. It was seen as freely available as the air to breathe61, its availability taken for granted by the drafters of the Covenant62. The issue was therefore most likely overlooked when drafting the Social Covenant63. Yet water has always been fundamental to human survival. It is as important for humans as other well-established human rights such as the human right to food64. The Committee on Economic, Social and Cultural Rights (CESCR) points out in that regard that ‘[t]he right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’65. Considering water from a human rights perspective therefore cannot be thought of as undermining the cause of human rights, but rather fills a gap in the human rights framework that has become more obvious than ever over recent years with the increasing awareness of the crisis in the lack of access to water.

While the question of a human right to water has already been dealt with in some seminal work from the 1990s66, it has only recently received increas-ing attention. The significance of General Comment No 15 of the CESCR from 2002 cannot be overestimated, as it has proven to be a catalyst for the discussion of the right to water and has triggered its further recognition67. Subsequently, many developments have taken place in the UN context. The

61 E Riedel, ‘The Human Right to Water and General Comment No 15 of the Committee on Economic, Social and Cultural Rights’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin) Berliner Wissenschafts-Verlag, 2006) 19, 24, fn 19.

62 E Riedel, ‘The Human Right to Water’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 585, 589; T Kiefer, The Human Right to Water: Domestic and International Implications, LLM Thesis (Amsterdam, Universiteit van Amsterdam, 2003) 32, fn 130; Moosdorf, above n 60, 59; see also B Rudolf, ‘Menschenrecht Wasser – Herleitung, Inhalt, Bedeutung, Probleme’ in B Rudolf (ed), Menschenrecht Wasser? (Frankfurt am Main, Peter Lang, 2007) 15, 22.

63 A Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 International Journal of Human Rights 389, 390; A Hardberger, ‘Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates’ (2005) 4 Northwestern Journal of International Human Rights 331, 345; see also M Craven, ‘Some Thoughts on the Emergent Right to Water’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 37, 40.

64 Langford, above n 58, 437 et seq.65 Committee on Economic, Social and Cultural Rights, General Comment No 15, The right

to water (Arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11, para 3.

66 SC McCaffrey, ‘A Human Right to Water: Domestic and International Implications’ (1992) 5 Georgetown International Environmental Law Review 1; P Gleick, ‘The Human Right to Water’ (1998) 1 Water Policy 487. Moreover, it has to be noted that the Sub-Commission on the Promotion and Protection of Human Rights had already started to consider the issue in the late 1990s and appointed a Special Rapporteur, El Hadji Guissé, see further ch 3, section II.C.v.

67 Langford points out that the catalytic role of General Comment No 15 may well have surpassed the expectations of its drafters; see Langford, above n 58, 479.

Scope and Outline of the Book 11

UN High Commissioner for Human Rights presented a report in August 2007 dealing with the ‘scope and content of the relevant human rights obli-gations related to equitable access to safe drinking water and sanitation under international human rights instruments’. It concluded ‘that it is now time to consider access to safe drinking water and sanitation as a human right’68. In March 2008, the Human Rights Council established a Special Procedure on human rights, water and sanitation69. Catarina de Albuquerque took up her mandate in November 2008. Her work contributes to raising awareness of water and sanitation and their perception as human rights, as well as the problems that persist for many people.

A breakthrough occurred in 2010 as regards the recognition of the human right to water. In July 2010, the UN General Assembly adopted a resolution on the right to water and sanitation that explicitly ‘[r]ecognises the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights’70. This was affirmed by the Human Rights Council in September 2010, which stated ‘that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and men-tal health, as well as the right to life and human dignity’71. These resolu-tions are a very significant political step towards the recognition of the right to water, but from a legal perspective many questions remain as to the status of the right, ie whether it is legally binding and has a basis in international human rights law.

IV. SCOPE AND OUTLINE OF THE BOOK

This book seeks to answer these questions through a detailed analysis of the potential legal foundations of the human right to water, including human rights treaties and customary international law. It further examines its legal nature, States’ obligations arising from the right to water and its normative

68 Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, 16 August 2007, A/HRC/6/3, para 66 (hereafter ‘Report of the High Commissioner’).

69 Human Rights Council, Human rights and access to safe drinking water and sanitation, 28 March 2008, A/HRC/Res/7/22. The mandate was initially entitled Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation. After the human right to water and sanitation was recognised, the mandate was extended to that of a Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation; see Human Rights Council, The human right to safe drinking water and sanitation, 8 April 2011, A/HRC/Res/16/2.

70 General Assembly, The human right to water and sanitation, 3 August 2010, A/Res/64/292, para 1.

71 Human Rights Council, Human rights and access to safe drinking water and sanitation, 6 October 2010, A/HRC/Res/15/9, para 3.

12 Introduction

content. Subsequently, it aims to examine the human rights implications for establishing priorities in water use, in particular to what extent precedence for basic human needs follows from human rights. It proposes the human rights framework and an approach based thereon to address the under-lying structural causes of the lack of access to water as rooted in societal and power relations, inequalities and poverty.

The prioritisation between various kinds of uses is one of the issues identified by the above-mentioned Report by the High Commissioner as demanding further attention72. The Report states:

Beyond the clear basic principle that safe drinking water for personal and domestic uses should be given precedence over other water uses, questions remain regarding the prioritization between various kinds of water use, partic-ularly in situations of water scarcity. Once a sufficient amount of safe drinking water to prevent disease has been secured for all, allocation of water among various uses – water for personal and domestic uses beyond this sufficient amount, water to produce food, water to sustain livelihoods, or water to ensure environmental hygiene – remains unclear73.

This focus on questions of allocation and prioritisation at the same time limits the scope of this book. While the question of water services will, of course, be touched upon, the book places stronger emphasis on the more fundamental underlying question of priorities in water allocation. To a certain extent, the priorities that will be established for water allocation can be transferred to other areas of resource allocation. As a consequence of the emphasis on questions of water allocation, the book does not address the question of private sector participation in the provision of water services74 that has often been the focus of the debate75. Furthermore,

72 Human Rights Council, Report of the High Commissioner, above n 68, paras 44 et seq, 67 et seq.

73 Ibid, para 62.74 See in this regard M Fitzmaurice, ‘The Human Right to Water’ (2007) 18 Fordham

Environmental Law Review 537, 557 et seq; W Vandenhole and T Wielders, ‘Water as a Human Right – Water as an Essential Service: Does it Matter?’ (2008) 26 Netherlands Quarterly of Human Rights 391; M Williams, ‘Privatization and the Human Right to Water: Challenges for the New Century’ (2007) 28 Michigan Journal of International Law 469; V Petrova, ‘At the Frontiers of the Rush for Blue Gold: Water Privatization and the Human Right to Water’ (2006) 31 Brooklyn Journal of International Law 577; A Kok, ‘Privatisation and the Right to Access to Water’ in K Feyter and F Gómez Isa (eds), Privatisation and Human Rights in the Age of Globalisation (Antwerp, Intersentia, 2005) 259; C de Albuquerque and IT Winkler, ‘Neither Friend nor Foe – Why the Commercialization of Water and Sanitation Services Is Not the Main Issue for the Realization of Human Rights’ (2010) 17 Brown Journal of World Affairs 167; Human Rights Council, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 29 June 2010, A/HRC/15/31; K Nowrot and Y Wardin, Liberalisierung der Wasserversorgung in der WTO-Rechtsordnung, Die Verwirklichung des Menschenrechts auf Wasser als Aufgabe einer transnation-alen Verantwortungsgemeinschaft, Beiträge zum Transnationalen Wirtschaftsrecht, Heft 14 (Halle, 2003); P Dobner, ‘Des Menschen Recht auf Wasser’ (2007) Blätter für deutsche und internationale Politik 9.

75 United Nations Development Programme, above n 4, 10.

Scope and Outline of the Book 13

the study puts its focus on the State as the primary duty-bearer and its human rights obligations. It does not deal with responsibilities of third parties, other actors and their accountability76.

While the book is concerned with water allocation, it focuses on estab-lishing priorities in water allocation in substantive terms. How to imple-ment these priorities is to a great extent left to the discretion of States and falls outside the scope of this work. It is thus not concerned with the pro-cesses and instruments of how to achieve water allocation. Different instruments exist and may be used to implement the established prioriti-sation in water uses. There is a great variety of legal configurations for allocation mechanisms that States can use to regulate and control water use and demand. These include water rights, water licences, regulated water markets, other regulatory mechanisms, pricing mechanisms and subsidies77. Such national allocation mechanisms can impede or facilitate the realisation of the right to water. By focusing on the substantive ques-tion of priorities, it will be examined to what extent human rights provide parameters or restrictions for decisions on allocation78.

To address these questions, the book starts by providing some back-ground on water availability and competing demands from different sec-tors, before turning to the human right to water. It analyses its legal foundations, its legal nature, the State’s obligations arising from the right and its normative content. Subsequently, it turns to the implications for water allocation, balancing personal and domestic uses guaranteed by the human right to water with other water uses that link to other human rights. The book concludes with an analysis of the benefits of understand-ing water as a human right.

76 See in this regard Human Rights Council, Report of the independent expert, A/HRC/15/31, above n 74; and more generally Human Rights Council, Protect, Respect and Remedy: a Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 7 April 2008, A/HRC/8/5; Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corpora-tions and other business enterprises, John Ruggie, 21 March 2011, A/HRC/17/31, N Jägers, Corporate Human Rights Obligations: in Search of Accountability (Antwerp, Intersentia, 2002); A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006); on international organisations, see AFS Russell, ‘International Organizations and Human Rights: Realizing, Resisting or Repackaging the Right to Water?’ (2010) 9 Journal of Human Rights 1.

77 See United Nations Development Programme, above n 4, 17 et seq; A Dinar, MW Rosegrant and R Meinzen-Dick, Water Allocation Mechanisms – Principles and Examples, Policy Research Working Paper 1779 (Washington DC, World Bank, 1997).

78 Similarly, environmental laws or ecological minimum flow requirements can be seen as restrictions on governments’ allocative authority, see S Burchi, Balancing Development and Environmental Conservation and Protection of the Water Resource Base – The ‘Greening’ of Water Laws, Paper Presented at the Workshop ‘Legal Aspects of Water Sector Reforms’, 20–21 April 2007 (Geneva, International Environmental Law Research Centre, 2007), available at <www.ielrc.org/activities/workshop_0704/content/d0706.pdf> (accessed 1 October 2011).

14 Introduction

Following this introduction, chapter two will show that there is sufficient water to meet all people’s basic personal and domestic needs. However, as many other sectors rely on water, there are competing demands. Basic human needs are often neglected in the allocation of water. Due to con-stantly increasing demands, urbanisation and other factors, such competi-tion is bound to increase. The question of allocation and prioritisation therefore is increasingly important.

Chapter three turns to water as a human right. While the human right to water was formally recognised in 2010, the resolutions of the General Assembly and the Human Rights Council by themselves leave many questions unanswered. The chapter seeks to determine the legal status of the right to water – whether it is legally binding and has a basis in inter-national human rights law – by examining its potential legal foundations. Chapter four then turns to its legal nature, the obligations associated with it and its normative content.

Having determined that the right to water has a legal basis in inter-national law, the book aims to establish its implications for water alloca-tion in chapter five. It identifies other sectors that use water to a greater extent than households, and assesses their demand in order to balance competing uses and set priorities in water allocation. It establishes to what extent other water uses relate to human rights and aims to prioritise water uses in accordance with a rights-based analysis. Instead of prioritis-ing any single water use, a framework is developed that builds upon dif-ferent levels of realisation of human rights: the survival level, the core level and the level of full realisation of human rights. These levels provide the basis for setting priorities. The second component of the framework takes account of the fact that some human rights relate to water but do not rely on it exclusively in their realisation. Accordingly, alternatives for the realisation will be considered. The overall aim is the realisation of all human rights to the greatest extent possible.

Lastly, chapter six aims to determine why it is beneficial to consider the issue of access to water and the prioritisation of water for basic human needs from a human rights perspective. Their recognition as a human right transforms basic needs into legitimate claims. These rights corre-spond with obligations borne by the State, which allows people to hold the State to account. The benefits of an approach based on human rights will first be considered in general and then in more detail regarding the possibilities of judicially enforcing the right to water and the resulting pri-ority for basic human needs. In this regard, national case law as well as international enforcement mechanisms will be analysed.

Chapter seven presents the conclusion and an outlook.This book is situated in international human rights law. It is primarily

concerned with international guarantees of the human right to water. Yet it has to be taken into account that human rights law is different from

Scope and Outline of the Book 15

other areas of international law. It is not characterised by a horizontal structure, but primarily concerned with the relation of the State and the individual. States are the primary duty-bearers in the realisation of human rights. International human rights law sets up international standards for this relationship, thus reaching from the international sphere into the national sphere. The implementation of human rights always takes place at the national level. The book does not stop at normative considerations, but looks at implementation at the national level, more specifically the implications of the human right to water for water allocation.

Moreover, the enforcement of human rights guarantees primarily takes place at the national level. Due to the rule of exhaustion of local remedies, international enforcement mechanisms are only subsidiary to national remedies. The CESCR points outs that

[t]he rule requiring the exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. The existence and further development of inter-national procedures for the pursuit of individual claims is important, but such procedures are ultimately only supplementary to effective national remedies79.

National courts often rely on national guarantees of the right to water, but use international standards in the interpretation of these guarantees. Such case law reinforces the linkages between international and national human rights law.

While international human rights law and national (constitutional) guarantees are two distinct bodies of law, they are interlinked and inter-twined with a significant degree of overlap. In particular, the question of implications for water allocation – at the national level – cannot be exam-ined without considering national implementation. Therefore, despite being well aware that the human right to water in international law is not tantamount to national guarantees, the book draws on national experi-ences and examples of legislation and case law.

79 Committee on Economic, Social and Cultural Rights, General Comment No 9, The domestic application of the Covenant, 3 December 1998, E/C12/1998/24, para 4.

2

Background: Water Availability and Competing Demands

WATER IS A unique resource. It is a renewable resource, but its supplies are finite1. All different uses of water depend on these limited supplies. Water is a multi-purpose resource being used

in all sectors of society, in agriculture and industry, as well as for everyday use in households. All life relies on water and it is absolutely essential for human survival. In this regard, water cannot be substituted.

Its character as a multi-purpose but at the same time finite resource results in competition for water, as there are not sufficient fresh water resources to satisfy every possible demand. While the absolute amount of water on the planet stays the same, the demand for water has increased over the last few centuries due to factors such as population growth, industrial development and changing diets2. Furthermore, water pollu-tion causes ever-greater quantities of fresh water to be contaminated and thus no longer suitable for most purposes, especially not for the fulfilment of basic human needs. The competition for water between different inter-ests and user groups is therefore expected to increase.

The characteristic common to all natural resources is that they are not infinite, and therefore a method of equitable distribution has to be found. Due to its specific characteristic of being absolutely essential for human sur-vival and other basic human needs, water has to be distinguished from other resources such as timber, oil, gas or diamonds. Not only must a sys-tem of equitable distribution be found, but special regard has to be given to these basic human needs. The question arises how these needs can be ensured while competing with other uses of water, such as agriculture and industry, which seem more advantageous from an economic perspective.

1 United Nations Development Programme, Human Development Report 2006, Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, Palgrave Macmillan, 2006) 134.

2 J Scanlon, A Cassar and N Nemes, Water as a Human Right? Environmental Policy and Law Paper No 51 (Gland, International Union for Conservation of Nature, 2004) 16; SC McCaffrey, ‘Water, Water Everywhere, but Too Few Drops to Drink: The Coming Fresh Water Crisis and International Environmental Law’ (2000) 28 Denver Journal of International Law and Policy 325, 329 et seq; M Barlow and T Clarke, Blaues Gold, Das Globale Geschäft mit dem Wasser (Munich, Kunstmann, 2004), 21 et seq.

Water Availability and Quality 17

In this chapter, some background facts on water availability and com-peting demands will be presented. While based on natural conditions, water availability and quality are largely influenced by humans. The increasing competition for water resources will then be analysed and illustrated by some examples. It will be shown that basic human needs are often neglected in situations of competition.

I. WATER AVAILABILITY AND QUALITY

A. Physical Water Availability

With more than two-thirds of the planet being covered with water, water seems to be available in abundance. However, by far the largest propor-tion is made up by the oceans3, thus consisting of saltwater that is unsuit-able for human consumption. Only 2.5 per cent of the approximate 1,400 million km3 overall of water is freshwater, ie about 35 million cubic km4. Two-thirds of this amount is locked in ice caps and glaciers5. Another large quantity (almost 30 per cent) is found in deep aquifers6. The princi-pal sources of water for human use are rivers, lakes, soil moisture and shallow aquifers, which are easily accessible yet constitute less than 1 per cent of all freshwater and only 0.01 per cent of the overall amount of water7. Still, this is an enormous quantity of water. Furthermore, it has to be taken into account that water is a renewable resource. The water in the hydrological cycle can be used again and again. Therefore, it is advisable to look at the renewable amount instead of the absolute figures. The mean value of renewable global water resources is estimated to be 42,750 km3 per year, though with huge variations in space and time8. Water resources

3 IA Shiklomanov, ‘Appraisal and Assessment of World Water Resources’ (2000) 25 Water International 11, 11; JL Lozán, S Meyer and L Karbe, ‘Wasser als Grundlage des Lebens’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 19, 19.

4 Shiklomanov, above n 3, 11; SL Postel, GC Daily and PR Erlich, ‘Human Appropriation of Renewable Fresh Water’ (1996) 271 Science 785, 785; United Nations Environment Programme, Global Environment Outlook 3, Past, present and future perspectives (London, 2002) 150; World Water Assessment Programme, United Nations World Water Development Report 2, Water, a Shared Responsibility (Paris, 2006) 121; P Reszat, Gemeinsame Naturgüter im Völkerrecht, Eine Studie zur Knappheit natürlicher Ressourcen und den völkerrechtlichen Regeln zur Lösung von Nutzungskonflikten (Munich, Beck, 2004) 17; W Ediger, ‘Wasser als natürlicher Rohstoff’ in J Barandat (ed), Wasser – Konfrontation oder Kooperation: Ökologische Aspekte von Sicherheit am Beispiel eines weltweit begehrten Rohstoffs (Baden-Baden, Nomos, 1997) 27, 27.

5 Shiklomanov, above n 3, 11; Postel et al, above n 4, 785; C Fröhlich, ‘Zur Rolle der Ressource Wasser in Konflikten’ (2006) No 25 Aus Politik und Zeitgeschichte 32, 32.

6 Shiklomanov, above n 3, 11; Fröhlich, above n 5, 32.7 United Nations Environment Programme, above n 4, 150; Postel et al, above n 4, 785.8 Shiklomanov, above n 3, 18; T Oki and S Kanae, ‘Global Hydrological Cycles and World

Water Resources’ (2006) 313 Science 1068, 1068, assume a value of 45,500 km3 per year.

18 Background: Water Availability and Competing Demands

are extremely unevenly distributed geographically9. The distribution of freshwater resources does not coincide with the areas of the highest popu-lation density10. For instance, 60 per cent of the world’s population lives in Asia, whereas only 36 per cent of the available renewable freshwater resources are located on that continent11.

i. Assessing per capita water availability: the TARWR index

To assess the water availability situation in a given country, the Total Actual Renewable Water Resources (TARWR) index has been developed. It reflects the water resources theoretically available from all sources within a country. By taking into account the country’s population it estimates the total available water resources per person12. There are States such as Canada and Brazil with immense water resources (91,420 and 45,570 cubic metres per year per capita (m3/yr/c), respectively13), and other States in arid and semi-arid areas where water availability is comparatively low. In this respect, the TARWR index is used to evaluate per capita water avail-ability. Hydrologists speak of water stress and water scarcity, respectively, when the available amount drops below a certain value14. Water stress refers to an annual amount of less than 1,700 m3/yr/c15. In a situation of water stress there is often not sufficient water to meet the demands of industries, households and agriculture, and to sustain river flows and other ecosystems at the same time16. When the available amount drops

9 UE Simonis, Wasser als Konfliktursache – Plädoyer für eine internationale Wasserstrategie, WZB Discussion Paper FS II 01-406 (Berlin, WZB, 2001) 5; O Lohse, Das Recht auf Wasser als Verpflichtung für Staaten und nichtstaatliche Akteure, Art. 11 Abs. 1, Art. 12 Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte (Hamburg, Kovac, 2005) 18; U Scheele and S Malz, ‘Wasserbedarf und Wasserverbrauch privater Haushalte und der Industrie nach Ländern’ in J L Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 91, 91; S Postel, Die letzte Oase, Der Kampf um das Wasser (Frankfurt am Main, Fischer, 1992) 18.

10 SC McCaffrey, The Law of International Watercourses, Non-Navigational Uses (Oxford, Oxford University Press, 2001) 8.

11 C Kohfahl, G Massmann and A Pekdeger, ‘Fossiles und neues Grundwasser als Teil des Gesamtwassers’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 68, 72; Postel et al, above n 4, 785.

12 World Water Assessment Programme, above n 4, 131.13 World Water Assessment Programme, above n 4, 132. Using a slightly different method-

ology Shiklomanov, above n 3, 21, estimates Canada’s and Brazil’s water resources to be 120,000 and 45,200 m3/yr/c, respectively.

14 R Engelmann, B Dye and P LeRoy, Mensch, Wasser, Report über die Entwicklung der Weltbevölkerung und die Zukunft der Wasservorräte (Hannover, Balance, 2000) 10.

15 M Falkenmark and C Widstrand, ‘Population and Water Resources: A Delicate Balance’ (1992) 47 Population Bulletin No 3, 19; Reszat, above n 4, 19; Lohse, above n 9, 19 et seq; W Sager, Wasser (Hamburg, Rotbuch, 2001) 20; Ediger, above n 4, 31.

16 S Postel, Pillar of Sand, Can the Irrigation Miracle Last? (New York, Worldwatch Institute/ Norton & Company, 1999) 129; United Nations Development Programme, above n 1, 135.

Water Availability and Quality 19

even below the value of 1,000 m3, this is described as water scarcity17. This indicates that the available amount is not sufficient to satisfy the entire demand for water18 and imposes serious restrictions on food production, economic development and the protection of ecosystems19. Extreme water scarcity is assumed when the available amount is less than 500 m3/yr/c20. Northern Africa and the Arabian Peninsula are the regions with the low-est water availability in the world. On the Arabian Peninsula, only 326 m3/yr/c are available21. Altogether, 28 countries were classified as water scarce in 2005, ie had a water availability of less than 1,000 m3/yr/c22.

ii. Shortcomings of the TARWR index

The TARWR index has several shortcomings. It represents average figures that vary over time and space. Annual precipitation is, in many cases, not evenly distributed over the year, in particular in arid regions23. For exam-ple, in India 90 per cent of the annual rainfall occurs between June and September, the monsoon season24, leaving the rest of the year significantly drier. At the global level, such seasonal variability means that an average of 45 to 55 per cent of river runoff occurs during periods of flooding25. The actual water availability over the course of the year therefore also depends on storage capacity26. Precipitation is unevenly distributed not only over a year, but also over several years. Countries in tropical and sub-tropical areas especially often suffer from recurring drought years27, during which they have to cope with much fewer water resources than the average expressed in the TARWR index.

Furthermore, water availability is assessed on a national basis, not tak-ing into consideration that many countries have several climatic and geo-graphic settings. Water resources are not evenly distributed among these regions, and therefore water availability in some regions is lower than in others28. For example, only 350 m3/yr/c are available in the Indian state of

17 Falkenmark and Widstrand, above n 15, 19; Scheele and Malz, above n 9, 95; Reszat, above n 4, 19; Lohse, above n 9, 19 et seq; Sager, above n 15, 20; Postel, above n 9, 18; Ediger, above n 4, 31.

18 Lozán et al, above n 3, 24; Engelmann et al, above n 14, 25.19 Postel, above n 9, 18.20 Falkenmark and Widstrand, above n 15, 19; Engelmann et al, above n 14, 25.21 United Nations Environment Programme, above n 4, 173.22 World Water Assessment Programme, above n 4, 132 et seq.23 Falkenmark and Widstrand, above n 15, 21; Simonis, above n 9, 5; Engelmann et al,

above n 14, 28.24 Falkenmark and Widstrand, above n 15, 9.25 Shiklomanov, above n 3, 18.26 United Nations Development Programme, above n 1, 135.27 Falkenmark and Widstrand, above n 15, 9.28 Engelmann et al, above n 14, 12; Oki and Kanae, above n 8, 1068.

20 Background: Water Availability and Competing Demands

Rajasthan, whereas the mean value for India is 1,750 m3/yr/c29. As water in bulk quantities is not as easily transferable as other resources, the local availability is decisive30.

iii. Water availability for basic personal and domestic needs

Despite its shortcomings, the TARWR index provides an estimate of water resource availability. It clearly shows that water resources are sufficient to meet the basic requirements for personal and domestic uses of all people, even in regions with very low water availability. Some figures illustrate this point. It may be assumed that basic needs can be satisfied with about 100 l/c/d31. This amounts to 36,500 litres or 36.5 m3 per year. This is only a fraction of the per capita water availability, even in regions where avail-ability is very low, such as the Arabian Peninsula with 326 m3/yr/c32. It becomes clear that even the most water-scarce countries have by far enough resources to satisfy the basic household needs of all people33.

B. Human Impacts

Water resource availability is sufficient to meet all people’s basic human needs. Yet water availability is not only determined by environmental, geographic and climatic preconditions; human activities also have an enormous bearing on its temporal and local availability. There are a num-ber of factors that are likely to have a negative influence on freshwater resources available for human usage in a given region. Population growth, urbanisation, the increasing demand for water, water pollution and the impact of climate change will now be considered in more detail.

i. Population growth

Population growth is the aspect that first comes to mind when thinking of factors influencing per capita availability of water resources. The overall

29 Engelmann et al, above n 14, 37. Similar disparities in regional distribution may be found in China: whereas three-fourths of the water resources may be found in the South, most of the Chinese population lives in the Northern part; see Wuppertal Institut für Klima, Umwelt, Energie, Fair Future, Begrenzte Ressourcen und globale Gerechtigkeit (Bonn, Bundeszentrale für politische Bildung, 2005) 109 et seq.

30 United Nations Development Programme, above n 1, 135.31 G Howard and J Bartram, Domestic Water Quantity, Service Level and Health (Geneva,

World Health Organization, 2003) 22. On the normative content of the right to water, includ-ing quantitative requirements, see below ch 4, section III.A.

32 United Nations Environment Programme, above n 4, 173.33 See E Filmer-Wilson, ‘The Human Rights-Based Approach to Development: The Right

to Water’ (2005) 23 Netherlands Quarterly of Human Rights 213, 229; P Gleick, ‘The Human Right to Water’ (1998) 1 Water Policy 487, 495.

Water Availability and Quality 21

amount of available freshwater stays about the same34; it has not changed compared to 2,000 years ago, when the world’s population was less than 3 per cent of today’s more than 7 billion people35. Currently, the world’s population grows by about 76 million people per year36. According to the UN World Population Prospects, the world population is expected to reach 9.1 billion by 2050 in the medium variant37. Thus, the available water resources have to be distributed among a larger number of people, result-ing in less water available per person.

The growth will concentrate on the developing world, in particular the least developed countries38. Northern Africa and the Arabian Peninsula, the regions of the world with the lowest water availability, are part of the developing world. In some of the countries of that region, the population will double or more than double from 2005 to 2050, including Saudi Arabia, the United Arab Emirates, Western Sahara, Yemen and the Occupied Palestinian Territories39. Other countries in the region are also expected to show an enormous population growth, eg Egypt from 74 mil-lion in 2005 to 126 million in 205040. In these regions, lower per capita water availability will be particularly perceptible.

ii. Urbanisation

In 1900, only 14 per cent of the population was living in urban areas, increasing to 30 per cent in 195041. Since 2008, more than half of the world’s population lives in urban areas. This number is expected to rise to nearly 60 per cent over the next two decades42. Urbanisation takes place most rapidly in the developing world43. The rapid growth of big and mega cit-ies illustrates this development. Today, there are 16 cities with more than 10 million inhabitants. According to predictions, this number will increase to 21 by 201544. Population growth will almost entirely occur in urban

34 Reszat, above n 4, 17; Sager, above n 15, 14; Simonis, above n 9, 7; Engelmann et al, above n 14, 10.

35 Engelmann et al, above n 14, 10.36 United Nations, World Population Prospects, 2004 Revision (New York, United Nations,

2005) ‘Analytical Report’, xiv; O Varis, ‘Megacities, Development and Water’ (2006) 22 International Journal of Water Resources Development 199, 200; Engelmann et al, above n 14, 24.

37 United Nations, above n 36, ‘Analytical Report’, xiv. The projections in the low and high variants are 7.7 and 10.7 billion, respectively.

38 Ibid, xv.39 United Nations, above n 36, ‘Highlights’, 34 et seq.40 Ibid, 35; see also Falkenmark and Widstrand, above n 15, 29.41 AK Biswas, ‘Water Management for Major Urban Centres’ (2006) 22 International Journal

of Water Resources Development 183, 185.42 United Nations Human Settlements Programme, State of the World’s Cities 2008/2009,

Harmonious Cities (London, Earthscan, 2008) iv.43 Ibid.44 Biswas, above n 41, 186; The numbers stated by Varis are slightly higher, with 19 cities

of more than 10 million in 2000, and 24 such cities expected in 2015; see Varis, above n 36, 204 et seq.

22 Background: Water Availability and Competing Demands

areas, not because of higher fertility rates in urban areas but due to migra-tion from rural areas to the urban centres45.

This phenomenon of urbanisation leads to a concentration of popula-tion in urban centres, which also results in a highly localised increase in demand for water46. These centres do not necessarily correspond to regions with high water availability. It is estimated that 63 per cent of the inhabitants of cities with more than 5 million inhabitants live in areas with a water availability of less than 1000 m3/year, ie in areas of water scarcity. Ten per cent even inhabit desert cities such as Riyadh, Baghdad and Lima47. Beijing is a prominent example of a city having to deal with low water availability48. Other cities that do not dispose of sufficient local water resources include Istanbul, Johannesburg, Jakarta and Mexico City49. To a certain degree it lies in the nature of urban centres to depend on water transferred from their surroundings. Yet, as local resources become depleted or polluted, many cities have to draw freshwater from increasingly distant areas50, thus negatively impacting on water availabil-ity in the surrounding regions.

iii. Increasing demand

Changing consumption patterns, growing economies and industrial devel-opment lead to an increasing demand for water having a much higher impact on water availability than other factors. While the population has doubled over the last 50 years, the demand for water has quadrupled51. One of the causes accounting for this increase is changing diets. Not only food consumption in general, but in particular the consumption of meat and dairy products has risen. This leads to an increasing demand for water, as the production of such a diet is much more water-intensive than the pro-duction of food for a vegetarian diet52. A US-style meat-based diet requires more than 5,000 litres of water daily for producing the necessary food-stuffs53. The amount for a vegetarian diet is only about half as much54. The same holds true for the increasing demand for consumer goods. For instance, the production of a single T-shirt requires an average 2,720 litres of

45 Varis, above n 36, 199, 220.46 See McCaffrey, above n 10, 7.47 Varis, above n 36, 211.48 World Water Assessment Programme, above n 4, 106; Engelmann et al, above n 14, 43.49 Biswas, above n 41, 192.50 World Water Assessment Programme, above n 4, 90.51 Scheele and Malz, above n 9, 91; Engelmann et al, above n 14, 14.52 H Lotze-Campen and M Welp, ‘Mehr Nahrungsmittel mit weniger Wasser erzeugen:

Effizienzgewinne, Lebensstile, Handel’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 306.

53 Ibid.54 Ibid; Postel, above n 16, 260.

Water Availability and Quality 23

water55. As such, changing lifestyle and eating habits lead to an increasing demand for agricultural water use. Linked to this is industrial development in many developing countries. Whereas industrial water use has declined or at least levelled off in many wealthier countries, it is increasing rapidly in many developing countries and is expected to increase further56.

The increasing demand results in many cases in non-sustainable uses of water sources. Many surface waters, as well as aquifers, are overused. Prominent examples where this has become evident include Lake Chad57, the Aral Sea58, the Colorado River59 and the Jordan River60, which now cover only a fraction of their original area or carry very little water in their downstream part. Due to intensive irrigation agriculture (cotton, rice, wheat and vegetables) in Central Asia, the Aral Sea has lost 80 per cent of its volume and 70 per cent of its size since 1960, one of the greatest human-induced environmental disasters caused by redistributing regional water resources61.

Groundwater over-extraction is similar to the over-abstraction of sur-face waters, but its effects are less obvious. Referring to groundwater, a non-sustainable use is one that extracts more groundwater than the natu-ral recharge rate, and thus leads to a significant and permanent decline in water levels62. To extract more water, wells then have to be sunk deeper and deeper, until water resources have been completely depleted. A fur-ther problem in this context is saltwater intrusion: as the equilibrium between freshwater and saltwater becomes disturbed in coastal aquifers, the pressure of saltwater rises, which leads to such intrusion and results

55 AK Chapagain, AY Hoekstra, HHG Savenije and R Gautam, ‘The Water Footprint of Cotton Consumption: An Assessment of the Impact of Worldwide Consumption of Cotton Products on the Water Resources in Cotton Producing Countries’ (2006) 60 Ecological Economics 186, 193.

56 Postel et al, above n 4, 786; Postel, above n 9, 8.57 H Hoff and ZW Kundzewicz, ‘Süßwasservorräte und Klimawandel’ (2006) No 25 Aus

Politik und Zeitgeschichte 14, 17. In the case of Lake Chad it is assumed that about half of the decrease is due to over-usage, whereas the other half is attributed to climate change. Regarding the impact of climate change on the availability of water resources, see further below section I.B.v.

58 F Kürschner-Pelkmann, Das Wasser-Buch, Kultur, Religion, Gesellschaft, Wirtschaft (Frankfurt am Main, Lembeck, 2005) 34 et seq; Postel, above n 9, 44 et seq; International Crisis Group, The Curse of Cotton: Central Asia’s Destructive Monoculture, Asia Report No 93 (Brussels, 2005) 28; McCaffrey, above n 10, 260 et seq.

59 McCaffrey, above n 10, 286; Sager, above n 15, 71 et seq; Postel, above n 16, 162.60 B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories,

Thirsty for a Solution, The Water Crisis in the Occupied Territories and its Resolution in the Final-Status Agreement (Jerusalem, 2000), 21; R Plushnick-Masti, ‘Jordan River – Some Are Baptised in It, Others Pollute It’, Environmental News Network (11 September 2006).

61 SW Breckle and W Wucherer, ‘Hat der Aralsee eine Zukunft?’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 131, 131 et seq; International Crisis Group, above n 58, 28.

62 Kohfahl et al, above n 11, 71; Postel, above n 9, 20; Falkenmark and Widstrand, above n 15, 13.

24 Background: Water Availability and Competing Demands

in groundwater that is no longer usable for human purposes63. For exam-ple, the Coastal Aquifer in Israel and the Gaza Strip is threatened by saltwater intrusion64.

Due to the huge water demand of urban centres, groundwater levels in many cities have been falling dramatically, for instance in Mexico City65. Similarly, in some parts of India, water tables have been lowered and resources been entirely depleted in some areas after shallow groundwater resources have been overused for irrigation66. Libya is another prime example of over-usage. The country uses more than 100 per cent of its renewable water resources by mining groundwater from the Nubian Aquifer67. All such cases of non-sustainable water use provide a tempor-ary solution to satisfy current water demand. However, once these resources have been depleted, water availability will be even lower.

iv. Water pollution

For many water uses, in particular personal and domestic uses, water quality is as essential as the available quantity. When water is polluted, it becomes unfit for human consumption. Therefore, it is necessary to look not only at water quantity, but also at water quality aspects.

Water pollution has many different facets and may be caused in many different ways, ie by industrial, agricultural or household use68. In many cases wastewater purification of industrial and municipal wastewater dis-charges does not take place. Whereas many Western and Northern States have made enormous improvements in sanitation and wastewater purifi-cation in the course of the twentieth century69, many countries have not set up any or only inadequate effluent treatment plants. This poses a par-ticular problem in densely populated urban areas70. For instance, less than

63 Kohfahl et al, above n 11, 71; S Vassolo, ‘Grundwasser und Klimaänderung’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 171, 172; Ediger, above n 4, 39.

64 Hoff and Kundzewicz, above n 57, 15.65 World Water Assessment Programme, above n 4, 143; Sager, above n 15, 24; J Müller-

Bauseneik, ‘Metropolis sitzt auf dem Trockenen’, Freitag – Die Ost-West Wochenzeitung, 18 November 2005; C Tortajada, ‘Water Management in Mexico City Metropolitan Area’ (2006) 22 International Journal of Water Resources Development 353, 361.

66 World Water Assessment Programme, above n 4, 143; Postel, above n 9, 25, 39; Falkenmark and Widstrand, above n 15, 13.

67 Falkenmark and Widstrand, above n 15, 27; Engelmann et al, above n 14, 39; see also Postel, above n 9, 21 et seq; Ediger, above n 4, 39.

68 Simonis, above n 9, 8 et seq. For an overview of different sources of freshwater pollution and the effects they cause, see World Water Assessment Programme, above n 4, 141; Simonis, above n 9, 9.

69 JR McNeill, Blue Planet, Die Geschichte der Umwelt im 20. Jahrhundert (Bonn, Bundeszentrale für politische Bildung, 2005) 144; Ediger, above n 4, 36.

70 Simonis, above n 9, 9; Lohse, above n 9, 14.

Water Availability and Quality 25

10 per cent of collected sewage in major cities of Latin America is treated properly71. The same holds true for industrial discharges that contaminate watercourses with heavy metals, chemicals, toxic substances and other pollutants. On average, every m3 of contaminated wastewater makes 8–10 m3 of pure water unsuitable as drinking water72, while millions of m3 of untreated sewage are discharged daily. Therefore, water pollution spreads rapidly.

Regarded only as a local problem in previous centuries, affecting only the immediate surroundings of businesses such as tanneries, the prob-lems arising from water pollution became national and even transnational in scope in the course of the twentieth century73. A common example for water pollution through agriculture stems from the overuse of nitrogen-rich fertilisers. The surplus nitrate is dissolved and is carried into the groundwater as well as into rivers and lakes. There, it generates rapid growth of algae (a process called eutrophication), depleting water of oxy-gen and harming aquatic life74. The pollution of rivers exceeds the recom-mended critical values more than a thousand-fold in many countries due, inter alia, to untreated sewage75. The Ganges is one example of a heavily polluted river76, of which there are hundreds all over the world. Accordingly, water pollution has an enormous bearing on the available quantity of water for (safe) human use.

v. Climate change

The impact of climate change on the availability of water resources is very complex and still needs to be explored in full77. This section aims to allude only to some aspects related to water availability.

Climate change undoubtedly has an influence on water availability, which will negatively affect some regions78. Several aspects have to be taken in consideration. First, global warming leads to an intensification of the hydrological cycle, resulting in higher evaporation and higher pre-cipitation at the global level79. However, this increased precipitation will not be distributed equally. Rather, some regions will receive even less rain

71 Biswas, above n 41, 189.72 Shiklomanov, above n 3, 30.73 McNeill, above n 69, 164.74 Falkenmark and Widstrand, above n 15, 12.75 Engelmann et al, above n 14, 46.76 See McNeill, above n 69, 145 et seq.77 For an overview of current research, see R Compagnucci, L da Cunha, K Hanaki,

C Howe, G Mailu et al, ‘Hydrology and Water Resources’ in JJ McCarthy, OF Canziani, NA Leary, DJ Dokken, KS White (eds), Climate Change 2001: Impacts, Adaptation, and Vulnerability – Contribution of the Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, Cambridge University Press, 2001).

78 Hoff and Kundzewicz, above n 57, 14.79 Ibid, 15; Postel, above n 9, 69.

26 Background: Water Availability and Competing Demands

and will become even drier, for example Sub-Saharan Africa and the area around the Mediterranean Sea80. Secondly, with the intensification of the hydrological cycle, the probability of extreme events, both droughts and floods, increases81. In both cases, water supplies are threatened: droughts have an obvious impact on water availability, while floods are a major threat to the safety of water used for human consumption. Thirdly, the expected increase in atmospheric temperature leads to the shrinking of glaciers82. This results in decreasing water availability in warm and dry periods in basins that rely on being fed by glacier melt, affecting regions where currently more than one-sixth of the world’s population lives.83 Fourthly, global warming and the resulting melting of the polar ice caps lead to rising sea levels. This again can intensify saltwater intrusion into groundwater in coastal areas that are already threatened in many cases due to over-abstraction of groundwater84. Accordingly, the negative influ-ence on the availability of water resources85 in some parts of the world is among the many negative impacts of climate change.

C. Conclusion

The above considerations illustrate the basic wisdom that water is a finite resource. Water availability is, of course, determined by natural condi-tions, but also greatly influenced by human impacts. Such impacts have a great bearing on per capita water availability. Not yet taking into account

80 BC Bates, ZW Kundzewicz, S Wu and JP Palutikof (eds), Climate Change and Water, Technical Paper of the Intergovernmental Panel on Climate Change (Geneva, Intergovernmental Panel on Climate Change Secretariat, 2008) 3; Hoff and Kundzewicz, above n 57, 15 et seq; Frankfurter Rundschau, ‘Afrika leidet am stärksten unter der globalen Erwärmung’, 11 January 2006, 5.

81 Bates et al (eds), above n 80, 3; D Kasang and F Kaspar, ‘Veränderung regionaler Extreme’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 202 et seq; World Water Assessment Programme, above n 4, 144; Hoff and Kundzewicz, above n 57, 15 et seq.

82 Bates et al (eds), above n 80, 3.83 Ibid; Human Rights Council, Report of the Office of the United Nations High Commissioner

for Human Rights on the relationship between climate change and human rights, 15 January 2009, A/HRC/10/61, para 29.

84 Bates et al (eds), above n 80, 3; Vassolo, above n 63, 172; Compagnucci et al, above n 77, 199; United Nations, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, A/Conf.151/26/Rev.1 (Vol I), Annex II, Agenda 21, Chapter 18.82; Oki and Kanae, above n 8, 1071.

85 For an analysis from a human rights perspective, see M Darrow, ‘Climate Change and the Right to Water’ in M Langford and A Russell (eds), The Right to Water: Theory, Practice and Prospects (Cambridge, Cambridge University Press, forthcoming 2012); Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanita-tion, Climate Change and the Human Rights to Water and Sanitation, Position Paper, available at <www2.ohchr.org/english/issues/water/iexpert/docs/Climate_Change_Right_Water_Sanitation.pdf> (accessed 1 October 2011).

Competing Water Demands – A Challenge for Allocation 27

the impact of climate change, it is assumed that by 2025, 30 to 35 per cent of the world’s population will live under conditions of water scarcity, with less than 1,000 m3/yr/c of water available86. These problems are amplified by water pollution, resulting in less water being available for human con-sumption and other purposes that have high requirements in terms of water quality.

Yet even considering these impacts and the resulting negative effects of increasing water scarcity, water availability under such conditions is clearly sufficient to meet the personal and domestic basic needs of all peo-ple. However, the available resources do not appear sufficient to satisfy the seemingly unlimited and ever-growing total demand for water. Competition over water resources is therefore expected to increase.

The lack of access to water and neglect of basic human needs does not result from physical constraints. Rather, the question is one of distribu-tion, allocation and prioritisation in the use of water resources. When basic human needs are neglected, one of the reasons may be found in the allocation of water resources for other purposes. In any decisions on water allocation, all different water uses have to be identified and their demands have to be assessed. This chapter therefore now deals with different sectors of water uses and the competing demands in more detail.

II. COMPETING WATER DEMANDS – A CHALLENGE FOR ALLOCATION

A. Water Uses by Sector

Water is a multi-purpose resource and thus by definition gives rise to competing interests. The three large areas of human water use are agricul-ture, industry and households. More specifically, water is used in mining, for power generation, navigation and transportation, for recreational pur-poses and tourism. Moreover, ecosystems rely on water resources, a fact that is often neglected when allocating water for human purposes.

At global level, currently approximately 70 per cent of water use is for agricultural purposes. Around 20 per cent is used in the industrial sector, and private households account for about 10 per cent of the overall use87. However, this distribution differs significantly between States of the Global South and the Global North. Whereas irrigated agriculture accounts for

86 Shiklomanov, above n 3, 28.87 World Water Assessment Programme, United Nations World Water Development Report 3:

Water in a Changing World (London and Paris, Earthscan and United Nations Educational, Scientific and Cultural Organization, 2009) 99; FM Chmielewski, ‘Wasserbedarf in der Landwirtschaft’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 96, 96; Engelmann et al, above n 14, 18.

28 Background: Water Availability and Competing Demands

only 32 per cent of water use in Europe and 39 per cent in North America88, up to 90 per cent of water resources are used for agricultural purposes in some countries of the developing world89. In many developed countries, industry is the largest water user, accounting for 53 and 48 per cent of water use in Europe and North America, respectively90.

i. Agricultural water use

Large amounts of water are used for agricultural purposes, ie for irriga-tion. In 1995, an overall 255 million hectares were irrigated land91. About 20 per cent of the global cultivated area is irrigated92. It yields about 45 per cent of the gross value of crop production as the yields of irrigated land are typically higher, and two or three crops can be grown each year93. Water is thus of enormous significance for global food security. To give some examples, 13 litres of water are necessary to produce a single tomato94, an average 1,000 litres of water are used to produce one kilo-gram of bread95, and more than 14,000 litres are needed to produce a kilo-gram of beef96. All in all, up to 5,000 litres of water are used for an average daily diet in industrialised countries97. And whereas all of humankind drinks some 4.4 km3 annually, it consumes through its food intake some 10,000 km3 of water per year98. These figures can be determined by the concept of virtual water, which refers to the amount of water used in the production of a commodity99.

88 World Water Assessment Programme, above n 87, 99.89 Engelmann et al, above n 14, 19; GJ Young, JCI Dooge and JC Rodda, Global Water

Resource Issues (Cambridge, Cambridge University Press, 1994) 99.90 World Water Assessment Programme, above n 87, 99; see also A Klaphake and

W Scheumann, ‘Politische Antworten auf die globale Wasserkrise: Trends und Konflikte’ (2001) No B 48-49 Aus Politik und Zeitgeschichte 3, 3.

91 Engelmann et al, above n 14, 19.92 Chmielewski, above n 87, 96; Postel, above n 16, 41 et seq.93 Comprehensive Assessment of Water Management in Agriculture, Water for Food, Water

for Life, a Comprehensive Assessment of Water Management in Agriculture, International Water Management Institute (London, Earthscan, 2007), 58.

94 F Kürschner-Pelkmann, ‘Der Wasser-Fußabdruck: 140 Liter für eine Tasse Kaffee’, Süddeutsche Zeitung (21 August 2006).

95 Chmielewski, above n 87, 96.96 Kürschner-Pelkmann, above n 94; Wuppertal Institut für Klima, Umwelt, Energie,

above n 29, 110.97 Chmielewski, above n 87, 96.98 Varis, above n 36, 216.99 The concept of virtual water emerged in the 1990s, first being proposed by Allan; see

JA Allan, ‘Virtual Water’: A Long Term Solution for Water Short Middle Eastern Economies? Paper Presented at the 1997 British Association Festival of Science (Leeds, University of Leeds, 1997). The main debate around the concept is related to virtual water trade; it is discussed whether it is advisable for countries with low water availability to import virtual water, in particular in the form of agricultural products, as this would relieve pressure on scarce domestic water resources and would free water for purposes other than agriculture. However, by importing food, countries would become dependent on global food trade. For a balanced discussion of the concept, see World Water Assessment Programme, above n 4,

Competing Water Demands – A Challenge for Allocation 29

Agriculture is not one, homogeneous sector. Agriculture may be found in the form of subsistence farming or small-scale agriculture aiming at local food production. There are also huge industrialised farms mainly producing cash crops, whose portion of the cultivated area is growing100. This export-oriented agricultural production, eg of citrus fruits, flowers or cotton, is often linked to extremely intensive irrigation101. Consequently, water from arid regions is imported into the Global North. Flower pro-duction in Kenya is an example of agricultural goods containing a great amount of virtual water that are produced in regions with low water availability with the aim of exporting them to the North. In 2001, Kenya exported 52 million tons of flowers to Europe, Japan and North America102. Water used for agricultural purposes in many regions with low water availability in the Global South is thus in many cases consumed in European and North American countries103.

Moreover, the growth of crops for bio-fuel production such as ethanol and biodiesel is currently increasing. As of 2007, Brazil accounts for 50 per cent of global ethanol exports104, but a great number of other countries around the world are already employing or exploring the potential of bio-fuels as well105. In the European Union, about 10 per cent of the cultivated area is already used for the cultivation of crops for bio-fuels106. As the cul-tivation of such non-food crops is augmenting, increasing strain is put on water resources.

ii. Industrial water use

A large and increasing amount of water is used in the industrial sector, due to the interest in economic development and industrial growth. For instance, the production of one car requires an amount of about 140,000 litres of water107. In many wealthier countries industrial water use has

421 et seq; L Horlemann and S Neubert, ‘Virtueller Wasserhandel zur Überwindung der Wasserkrise?’ (2006) No 25 Aus Politik und Zeitgeschichte 26.

100 Wuppertal Institut für Klima, Umwelt, Energie, above n 29, 99.101 Kürschner-Pelkmann, above n 58, 284.102 Wuppertal Institut für Klima, Umwelt, Energie, above n 29, 111; see also Food & Water

Watch, Lake Naivasha – Withering Under the Assault of International Flower Vendors, 2008, avail-able at <documents.foodandwaterwatch.org/NaivashaReport.pdf> (accessed 1 October 2011).

103 Wuppertal Institut für Klima, Umwelt, Energie, above n 29, 108.104 S Hughes, L Partzsch and J Gaskell, ‘The Development of Biofuels within the Context

of the Global Water Crisis’ (2007) 7(3) Sustainable Development Law and Policy 58, 60.105 Ibid, 58.106 F Nuscheler, Entwicklungspolitik, Lern- und Arbeitsbuch, 5th edn (Bonn, Bundeszentrale

für politische Bildung, 2004), 256.107 P Gleick (ed), Water in Crisis: A Guide to the World’s Fresh Water Resources (Oxford,

Oxford University Press, 1993) 405; Wuppertal Institut für Klima, Umwelt, Energie, above n 29, 110, states a figure of up to 400,000 litres.

30 Background: Water Availability and Competing Demands

levelled off due to the development of modern water-saving technologies, but it is increasing rapidly in many developing countries108.

The principal industrial water use is in thermal and atomic power gen-eration, which requires great amounts of cooling water. Furthermore, water is used for transportation, as a solvent, for cooling in other branches of industry and as an ingredient of finished products109. Apart from power generation, the most water-intensive industries are chemistry and petro-leum chemistry, metallurgy, machine building, as well as the wood pulp and paper industry110. However, in contrast to agricultural use, industrial water use is in many cases non-consumptive, ie the water is returned to the natural cycle after having been used for cleaning or cooling purposes. Therefore, the primary concerns resulting from industrial use are water pollution and temperature changes111.

iii. Domestic water use

To a lesser extent, water is used in households. Everyone needs water to fulfil basic needs, such as drinking, food preparation and dish-washing, personal hygiene and sanitation, washing and cleaning. Apart from these basic needs, water is used in many households for watering plants, wash-ing cars, filling swimming pools and many other purposes. Compared to the overall water usage, household use accounts for only a rather small proportion of about 10 per cent112. However, it has especially high require-ments in terms of water quality.

iv. Ecosystems’ reliance on water

When speaking of the 70–20–10 per cent division of water use between the agricultural, industrial and household sectors, water for ecosystems is not taken into account at all. Yet the preservation of rivers, lakes and wetlands evidently relies on sufficient water resources. While it is difficult to deter-mine minimum environmental flows, some estimates can be made. For instance, it is estimated that maintaining the environment of the Yellow River in Northern China would require 25 per cent of its flow, more than is currently left after human withdrawals. Similarly, the environmental

108 Postel et al, above n 4, 786; Postel, above n 9, 8.109 Shiklomanov, above n 3, 15; Falkenmark and Widstrand, above n 15, 14; Engelmann et

al, above n 14, 20.110 Shiklomanov, above n 3, 15; Postel, above n 9, 7; Falkenmark and Widstrand, above

n 15, 14; Simonis, above n 9, 10.111 S Libiszewski, ‘International Conflicts over Freshwater Resources’ in M Suliman (ed),

Ecology, Politics and Violent Conflict (London, Zed Books, 1999) 115, 116.112 Scheele and Malz, above n 9, 93; Engelmann et al, above n 14, 18.

Competing Water Demands – A Challenge for Allocation 31

requirements of the Australian Murray-Darling are estimated to be about 30 per cent of its flow113.

B. Competing Demands

The fact that water is used for so many different purposes results in its character as a contested resource114. Water management and allocation is therefore per se based on competing and conflicting interests. The above-mentioned factors, such as population growth and economic develop-ment, lead to an increasing demand for finite water resources, thereby intensifying competition among different user groups115. Furthermore, continuing water pollution decreases the amount of water suitable for personal uses.

Competition over water resources may become manifest in numerous ways, for instance when new deep wells lead to the drying up of more shallow wells, when water availability in a given region is too low to meet the entire demand, when downstream water – on which others depend – is polluted by factories or untreated sewage, or when water is diverted from the natural river bed. In the following paragraphs some examples will be given.

i. Competition between cities and agriculture

While there is no direct competition in urban areas with agricultural water use (except in cases of urban agriculture), cities cannot meet their demand with local water resources. Water has to be brought into the cities from increasingly long distances. Consequently, neighbouring rural regions have less water at their disposal.

Conflicts between such competing demands are reported from many areas. Farmers in Mexico are protesting because the water they used to irri-gate their fields is transferred to Mexico City to satisfy the rising demand of

113 United Nations Development Programme, above n 1, 140.114 In the course of the last few decades, a debate has evolved about the question whether

water scarcity, or environmental scarcity in a broader sense, will lead to violent conflicts. Some of the most influential works of this concept of environmental security include TF Homer-Dixon, ‘On the Threshold: Environmental Changes as Causes of Acute Conflict’ (1991) 16 International Security 76; TF Homer-Dixon, ‘Environmental Scarcity and Violent Conflict: Evidence from Cases’ (1994) 19 International Security 5; G Bächler, V Böge, S Klötzli, S Libiszewski and KR Spillman, Kriegsursache Umweltzerstörung, Ökologische Konflikte in der Dritten Welt und Wege ihrer friedlichen Bearbeitung (Zürich, Rüegger, 1996), but cf also the critique of this concept by NL Peluso and M Watts, ‘Violent Environments’ in NL Peluso and M Watts (eds), Violent Environments (Ithaca, NY, Cornell University Press, 2001) 3, 18 et seq, and other contributions in that volume.

115 Engelmann et al, above n 14, 18.

32 Background: Water Availability and Competing Demands

the growing capital116. The diversion of water resources from provinces sur-rounding Beijing to the capital is another example of such a reallocation, aiming at satisfying the demand of the increasing population and for urban development. In the context of the 2008 Olympic Games, the project was accelerated. Farmers in regions from which water is diverted, such as the province of Hebei, bear the disadvantages of the project. The availability of water for agriculture decreases significantly117. The situation in California and the South West of the United States is similar: the urban demand is rising and conflicting with the demand for water for irrigation118. Many farmers have already sold their land – and the water rights linked to it – to the growing cities, so that these are able to satisfy their demand for water119. Due to urbanisation and economic development in urban centres, com-petition between the growing demand of cities on the one hand and the agricultural demand on the other hand is likely to increase.

ii. Large-scale industrial use

Competition over water also becomes manifest when large-scale industrial users dominate water use in a given region. Several cases of excessive groundwater exploitation have, for example, been reported from India. Factories producing non-alcoholic beverages have extracted enormous amounts of groundwater in manufacturing their products120. Communities across India living around such bottling plants are experiencing severe water shortages. Wells and other water sources have dried up due to a sig-nificant depletion of the water table121. Furthermore, the companies have discharged their waste to surrounding fields and rivers, resulting in surface and groundwater pollution. As a result, the water from those wells which have not yet dried up has become unfit for human consumption122.

116 Sager, above n 15, 27.117 J Watts, ‘Provinces pay price for green Olympics, Millions of gallons of water are being

diverted to Beijing from areas hit by drought’, Guardian, 1 March 2008.118 World Water Assessment Programme, above n 4, 105.119 Engelmann et al, above n 14, 19.120 Such groundwater exploitation has to be seen in the context of customary groundwater

rights in India that are linked to land ownership. In principle, there is no limitation to the amount of water a landowner may draw: see C Singh, ‘Water Rights in India’ in C Singh (ed), Water Law in India (New Delhi, Indian Law Institute, 1992) 8, 18; Postel, above n 16, 251. This view has also been expressed by the companies in order to justify their groundwater exploitation. On litigation and the relevant judgments dealing with these issues, see below ch 6, section II B.ii.2.

121 The Hindu, ‘Water Board disputes Coca-Cola’s claim on ground water’, 17 June 2004; Wuppertal Institut für Klima, Umwelt, Energie, above n 29, 114; Kürschner-Pelkmann, above n 58, 146 et seq, 266; India Resource Center, Campaign to Hold Coca-Cola Accountable, available at <www.indiaresource.org/campaigns/coke/index.html> (accessed 1 October 2011).

122 Wuppertal Institut für Klima, Umwelt, Energie, above n 29, 114; India Resource Center, above n 121.

Competing Water Demands – A Challenge for Allocation 33

iii. Impact of water pollution

Water quality aspects, too, have to be considered in the competition over water resources. Water pollution makes water unfit for many purposes, in particular human consumption. Many examples illustrate this point. The Bhopal disaster in India in 1984 was one of the worst industrial disasters ever witnessed. Due to a leak from a pesticide factory, toxic gas was released, resulting in several thousand deaths and serious damage to human health123. The now-abandoned site continues to pollute groundwater, which is the only source of water in the Bhopal area, with substances extremely harmful to human health124. In 1997, the hand-pumps around the Bhopal site were specifically marked, declaring that the water is unfit for human consump-tion. Yet many people continued to drink the water, as no other sources were made available125.

Another example is the operations of Texaco in Ecuador’s Oriente Region. The oil extraction had drastic environmental consequences: streams and rivers have been contaminated by toxic waste, effluents and oil leaks. This has caused many health problems among the local indigen-ous people living in the region, who relied on these water sources for drinking and other personal uses126. Similarly, the operations of Shell in Nigeria had disastrous effects on the Ogoni people, causing the contamin-ation of water by disposal of toxic wastes into the environment127.

These cases provide extreme examples of environmental disasters, the resulting water pollution and the negative impact on human health. Yet examples of water pollution that make it impossible for people to access water suitable for human consumption may be found all over the world128. In all such cases, the interest and need for clean and safe water of the people living in the surrounding area is not adequately taken into account.

123 For a detailed report on the Bhopal disaster, see Amnesty International, Clouds of Injustice, Bhopal Disaster 20 Years On (Oxford, Alden Press, 2004).

124 Ibid, 22. For a recent update see <www.amnesty.org/en/library/asset/ASA20/002/ 2009/en/79a5264e-2dd2-44f1-8c92-b2f0cd8f5c72/asa200022009en.pdf> (accessed 1 October 2011).

125 Amnesty International, above n 123, 26.126 W Sachs, Environment and Human Rights, Wuppertal Papers No 137 (Wuppertal,

Wuppertal Institute for Climate, Environment, Energy, 2003) 12 et seq; see also J Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Journal of Environmental Law 283, 286, fn 8.

127 Lee, above n 126, 286, fn 7. See also the case decided by the African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, Communication 155/96, decision taken at 30th Ordinary Session, Banjul, The Gambia, from 13 to 27 October 2001, ACHPR/COMM/A044/1659, briefly discussed below ch 5, section III.K and ch 6, section II.C.ii.2.

128 See eg Frankfurter Rundschau, ‘Trinkwasser in China vergiftet’, 11 September 2006, 16.

34 Background: Water Availability and Competing Demands

iv. Neglect of ecosystems

Not only people but ecosystems too are negatively affected by water pollution. Moreover, ecosystems also compete with human usage in the allocation of water resources. Their preservation requires at least certain minimum environmental flows. Yet all too often, human withdrawals are accorded priority129. Already, before Australia experienced a serious drought, close to 80 per cent of the annual flow of the Murray-Darling Basin was withdrawn by farms, cities and industries, thus leaving little water for the ecosystem itself and in-stream needs such as fish, in particu-lar in dry seasons130. In recent years, virtually no water from the Murray River has reached the sea131. In spite of the drought, this is mainly a result of human impacts. Put differently: ‘The problem in the Murray-Darling Basin is not that there is too little water. It is that there is too much cotton and rice and too many cattle.’132 The situation is similar in many other river basins, be it the Yellow River in China133 or the Colorado in the US and Mexico134.

v. Neglect of basic human needs

Access to water is characterised by great disparities, globally, within countries and even within cities between different groups of the popula-tion. Water consumption patterns and inequalities tend to reflect society in general: those stakeholders and groups that are marginalised in society at large also become marginalised in water management, and are particu-larly disadvantaged as far as access to water is concerned. People living in informal settlements and low-income areas, as well as in poor rural areas, are particularly aggrieved. In general, governments (national as well as local) attribute low priority to informal settlements in terms of develop-ment. Compared to rich and middle-class areas, they are often neglected as far as resource allocation is concerned135. As a result, slum dwellers may only have 5 to 10 litres per day at their disposal. Other households in the same city, however, may enjoy Western water supply standards and have a consumption of 50 to 150 l/c/d, if not more136.

129 United Nations Development Programme, above n 1, 139.130 Postel, above n 16, 126.131 United Nations Development Programme, above n 1, 140.132 Ibid, 141.133 Ibid, 140.134 Ibid, 14.135 Biswas, above n 41, 191.136 World Water Assessment Programme, United Nations World Water Development Report 2:

Water, a Shared Responsibility (Paris, 2006), ‘Facts and Figures’, available at <www.unesco.org/water/wwap/wwdr2/facts_figures/index.shtml> (accessed 1 October 2011); Müller-Bauseneik, above n 65; see also Lohse, above n 9, 90; Tortajada, above n 65, 361 et seq.

Conclusion: A Question of Prioritisation 35

Such marginalisation is a question of priorities in building, expanding and investing in infrastructure for access to water. And it is also a ques-tion of priorities in water allocation. It has been found that the consump-tion patterns of households with a high level of water services may directly affect water services in other areas. This has been the case in Ghana, where the volume of water available for users relying on public taps has been reduced as a direct consequence of over-consumption by more well-off households137. In particular in the dry season, low-income neighbourhoods are often the first to be put at a disadvantage. Often a higher burden of water rationing is imposed in these areas, or they are no longer served at all. For example, in the dry season, water is no longer supplied by pipes in many disadvantaged neighbourhoods of Mexico City, even though the water supply network exists. People living in these areas have to buy water from tankers, while the water is allocated to other neighbourhoods where the well-off are supplied with it in abundance138. The situation in Delhi is similar. In the summer season, many neighbour-hoods do not have water for days. Yet this affects only low-income neigh-bourhoods, while other more affluent areas are continuously supplied with water139. Likewise, water is made available for the irrigation of the golf course at the Delhi Golf Club, an amount of 2 million litres per day140. Maintaining golf courses, swimming pools and other luxuries thus often proves to be at the expense of people living in poverty and their access to water for basic human needs141.

III. CONCLUSION: A QUESTION OF PRIORITISATION

Water is used not only in households but for many different purposes. The entire demand for agricultural, industrial and luxury uses often exceeds water availability. In the words of Mahatma Gandhi: ‘Earth provides enough to satisfy every man’s need, but not every man’s

137 Howard and Bartram, above n 31, 21; C Stephens, ‘Healthy Cities or Unhealthy Islands? The Health and Social Implications of Urban Inequality’ (1996) 8 Environment and Urbanization 9, 25.

138 Sager, above n 15, 25; see also K Ehringfeld, ‘Bis auf den letzten Tropfen’, Frankfurter Rundschau, 24 June 2008. For a case study of Mexico City, see JE Castro, ‘Urban Conflicts over Water in Mexico: A Theoretical and Empirical Exploration’ in United Nations Educational, Scientific and Cultural Organization (ed), Urban Water Conflicts (Paris, 2006) 71.

139 C Möllhoff, ‘Das schöne tägliche Chaos’, Frankfurter Rundschau, 4 April 2007, 25; see also S Janakarajan, M Llorente and MH Zérah, ‘Urban Water Conflicts in Indian Cities: Man-made Scarcity as a Critical Factor’ in United Nations Educational, Scientific and Cultural Organization (ed), Urban Water Conflicts (Paris, United Nations Educational, Scientific and Cultural Organization, 2006) 91, 94.

140 J Schweikle, ‘Stadt der Verschwender’ (2007) No 3 Zeit Wissen 26, 30; see generally RP Hiskes, ‘Missing the Green: Golf Course Ecology, Environmental Justice, and Local “Fulfillment” of the Human Right to Water’ (2010) 32 Human Rights Quarterly 326.

141 Stephens, above n 137, 17.

36 Background: Water Availability and Competing Demands

greed.’142 Therefore, competition for water arises and priorities have to be set in its allocation. Due to the ever-increasing demand, non-sustainable uses, the impact of climate change and other factors, competition over water is likely to increase.

Political and economic considerations often play an important role in decisions on water allocation143. Powerful interest groups using water for industrial or agricultural purposes often have the means to claim a large share of a country’s water resources144. Interestingly, the discussion about the reallocation of water resources often focuses on how to maximise eco-nomic benefits145. The aim then is to achieve optimal usage and to allocate water to the uses which yield the highest economic return. Often, indus-trial uses are regarded as such high-value uses. In general, industrial and large-scale agricultural users have the means to exert enough influence to secure sufficient water resources for their interests. As far as water quality aspects are concerned, companies are in many cases not required to treat their wastewater, but rather discharge it untreated. People relying on these water sources then end up using contaminated water, which poses severe health risks.

Essential domestic water use thus competes with other water uses, in particular agricultural and industrial uses that seem to have economic advantages146 and often enjoy greater political priority147. When identify-ing the interests that are not met, it becomes obvious that ecosystems as well as basic human needs often lose out. While there are clearly sufficient water resources to satisfy the basic needs of all people, these needs are often neglected when competing demands arise. This neglect cannot be attributed to physical constraints, but rather is the result of decisions on the allocation of resources.

Against this background, this book now turns to examine the human right to water, to assess its potential to achieve a more equitable allocation of water. Human rights can be instrumental in empowering people, and as such more adequately address the needs of disadvantaged and margin-alised people in water allocation.

142 Quoted in R Meinzen-Dick and L Nkonya, ‘Understanding Legal Pluralism in Water and Land Rights: Lessons from Africa and Asia’ in B van Koppen, M Giordano and J Butterworth (eds), Community-Based Water Law and Resource Management Reform in Developing Countries (Colombo, International Water Management Institute, 2008) 12, 24.

143 M El-Fadel and K El-Fadl, ‘Water in the Middle East Revisited: Conflict Management Alternatives’ (2005) 7 Water Policy 385, 386.

144 Engelmann et al, above n 14, 17 et seq.145 See eg F Molle and J Berkoff, Cities versus Agriculture: Revisiting Intersectoral Water

Transfers, Potential Gains and Conflicts, Comprehensive Assessment Research Report 10 (Colombo, International Water Management Institute, 2006) 4.

146 Centre on Housing Rights and Evictions, American Association for the Advancement of Science, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Manual on the Right to Water and Sanitation (Geneva, 2007) 36.

147 Ibid, 81.

3

Legal Foundations of the Human Right to Water

ACCESS TO WATER is a basic human need. This alone does not imply that water is a recognised human right1. However, at a political level, 2010 brought enormous developments for the

human right to water: both the United Nations General Assembly and the Human Rights Council adopted resolutions recognising the human right to water. This chapter will consider this recognition and evaluate it from a legal perspective. By itself, though, the formal recognition leaves many questions unanswered: What is the legal status of that right? Is it legally binding? Does it have a basis in international human rights law? In order to answer these questions, a detailed analysis is required of the possible legal foundations of a human right to water. Treaties, customary inter­national law and the general principles of law will be considered.

Starting with the two comprehensive global human rights treaties, the International Covenant on Economic, Social and Cultural Rights (Social Covenant/ICESCR) and the International Covenant on Civil and Political Rights (Civil Covenant/ICCPR)2, it must be noted that the human right to water is not explicitly recognised in either of them. It therefore needs to be analysed whether the right to water is implicitly recognised in other pro­visions of these universal human rights instruments. Apart from provi­sions of the Social and Civil Covenants, other human rights treaties that are limited ratione personae and/or ratione loci will be considered and inter­preted as to whether they cover a right to water. In that context, a number

1 B Rudolf, ‘Menschenrecht Wasser – Herleitung, Inhalt, Bedeutung, Probleme’ in B Rudolf (ed), Menschenrecht Wasser? (Frankfurt am Main, Peter Lang, 2007) 15, 15; S Tully, ‘A Human Right to Access Water? – A Critique of General Comment No 15’ (2005) 23 Netherlands Quarterly of Human Rights 35, 46. In this regard, the oft-cited phrase by Kofi Annan, ‘Access to water is a fundamental human need and, therefore, a basic human right’, seems rather premature; see United Nations, Access to Safe Water Fundamental Human Need, Basic Human Right, Says Secretary General in Message on World Water Day, 13 March 2001, SG/SM/7738 OBV/200, available at <www.unis.unvienna.org/unis/en/pressrels/2001/sgsm7738.html> (accessed 1 October 2011).

2 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, entered into force 3 January 1976, 160 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 993, 3; International Covenant on Civil and Political Rights, 16 December 1966, entered into force 23 March 1976, 167 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 999, 171.

38 Legal Foundations of the Human Right to Water

of relevant provisions in the realm of humanitarian law will also be referred to, ie the Geneva Conventions. According to Article 31 of the Vienna Convention on the Law of Treaties3, the ordinary meaning, the context, and the object and purpose of these provisions have to be taken into account in the interpretation.

Apart from treaty provisions, the question whether the right to water is part of customary international law or of the general principles of interna­tional law will also be examined. In that context, the Universal Declaration of Human Rights (UDHR) and a number of other declarations, resolutions and statements will become relevant.

I. HUMAN RIGHTS TREATIES

A. Provisions of the Social Covenant

The provisions most obviously relating to water may be found in the Social Covenant, including the right to an adequate standard of living and its components, as well as the right to health guaranteed in Articles 11 and 12 ICESCR.

i.  Significance of General Comment No 15 issued by the Committee on Economic, Social and Cultural Rights

Before these potential legal foundations are considered in detail, the significance of General  Comment No  15 of the Committee on Economic, Social and Cultural Rights (CESCR) on the right to water4 will be dis­cussed. Its issuance has been a milestone in the emergence of the human right to water and has triggered many later developments. This justifies the question whether its issuance is tantamount to the right to water becoming a legally­binding human right. In order to answer that question it is necessary to understand the Committee’s function and its origin.

3 Vienna Convention on the Law of Treaties, 23 May 1969, entered into force 27 January 1980, 111 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 1155, 331. Although Art 4 stipulates that the Vienna Convention only applies to treaties concluded after the Vienna Convention has entered into force (in 1980), it may be assumed that Art 31 reflects customary law and can therefore also be applied to the interpretation of the Civil and Social Covenants that entered into force in 1976; see HF Köck, Vertragsinterpretation und Vertragsrechtskonvention, Zur Bedeutung der Artikel 31 und 32 der Wiener Vertragsrechtskonvention 1969 (Berlin, Duncker & Humblot, 1976), 79, fn 4, 95; as well the detailed analysis by K Schollendorf, Die Auslegung völkerrechtlicher Verträge in der Spruchpraxis des Appellate Body der Welthandelsorganisation (WTO) (Berlin, Duncker & Humblot, 2005), 79 et seq; International Court of Justice, Case  concerning Oil  Platforms (Republic  of  Iran  v United  States  of America), Preliminary Objection, 12 December 1996, [1996] ICJ Reports 803, para 23.

4 Committee on Economic, Social and Cultural Rights, General Comment No 15, The right to water  (arts  11  and  12  of  the  International  Covenant  on  Economic,  Social  and  Cultural  Rights), 20 January 2003, E/C.12/2002/11.

Human Rights Treaties 39

The CESCR is the treaty body that monitors the implementation of the Social Covenant. In contrast to the Human Rights Committee and other treaty bodies, the CESCR was not established in the Social Covenant itself but by a resolution of the Economic and Social Council (ECOSOC) in 19855. As part of its task to monitor the implementation of the Social Covenant, the CESCR is authorised to make suggestions and recommen­dations of a general nature on the basis of its consideration of State reports6. A further ECOSOC resolution ‘invited the Committee to consider . . . a compilation of recommendations in the summary records . . . paying particular regard to the practices followed by other treaty bodies, includ­ing the preparation of general comments by the Human Rights Committee’7. Subsequently, this invitation was endorsed by the General Assembly8.

The CESCR followed this invitation and started to prepare General Comments in its third session, thus far issuing 21 General Comments (as of 3 October 2011), one of them on the right to water9. The purpose of these General Comments is ‘to make the experience gained so far . . . avail­able to the benefit of all States parties in order to assist and promote their further implementation of the Covenant; to draw the attention of the States parties to insufficiencies disclosed by a large number of reports’10, as a means of urging them to pay specific attention to these issues. The Committee thus uses the issues that have come up repeatedly in the examination of States reports as an opportunity for the issuance of General

5 Economic and Social Council, Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 28 May 1985, E/Res/1985/17. The CESCR’s predecessor, the Working Group, was established in 1978 by an earlier ECOSOC Decision; see Economic and Social Council, Composition  of  the  sessional  working group on the implementation of the International Covenant on Economic, Social and Cultural Rights, 3 May 1978, E/Dec/1978/10. However, it faced a number of difficulties, partly due to its composition being of government representatives and experts, which led to the establish­ment of the CESCR consisting of independent experts. For a detailed account of the process, see P Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332, 335 et seq; MCR Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on Its Development (Oxford, Oxford University Press, 1995) 35 et seq; SMA Salman and S McInerney­Lankford, The Human Right to Water, Legal and Policy Dimensions, Law, Justice and Development Series (Washington DC, World Bank, 2004) 35 et seq.

6 Economic and Social Council, E/Res/1985/17, above n 5, para (f).7 Economic and Social Council, International  Covenant  on  Economic,  Social  and  Cultural 

Rights, 26 May 1987, E/Res/1987/5, para 9.8 General Assembly, Indivisibility and interdependence of economic, social, cultural, civil and 

political rights, 7 December 1987, A/Res/42/102, para 5.9 On the drafting process of the General Comment on the right to water, see K Moosdorf,

Das Recht auf Wasser, Die Entstehung eines neuen Menschenrechts (Marburg, Tectum, 2007) 63 et seq; O Lohse, Das Recht auf Wasser als Verpflichtung für Staaten und nichtstaatliche Akteure, Art. 11 Abs. 1, Art. 12 Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte (Hamburg, Kovac, 2005) 64 et seq.

10 Committee on Economic, Social and Cultural Rights, Report on the Third Session, 6–24 February 1989, E/C.12/1989/5, Annex III, para 3.

40 Legal Foundations of the Human Right to Water

Comments in order to put the provisions of the Covenant, that are – as most human rights instruments – formulated in a rather vague and abstract manner, in more concrete terms11. Consequently, it does not have the authority to create new obligations12, but rather interprets and clarifies the provisions of the ICESCR. Its General Comments are not legally bind­ing13 but carry significant legal weight, as the CESCR is the only body officially authorised to interpret the Covenant14. This is underlined by the fact that General Comments are rarely questioned by States Parties in practice; rather, they enjoy wide acceptance15. Moreover, the CESCR is made up by leading experts in the field of socio-economic rights16, which adds to the weight of their opinion in the human rights discourse17.

11 E Riedel, ‘Die Allgemeinen Bemerkungen des Ausschusses für Wirtschaftliche, Soziale und Kulturelle Rechte’ in Deutsches Institut für Menschenrechte (ed), Die ‘General Comments’ zu  den  VN-Menschenrechtsverträgen,  Deutsche  Übersetzungen  und  Kurzeinführungen (Baden­Baden, Nomos, 2005) 160, 164.

12 Salman and McInerney­Lankford, above n 5, 49; A Hardberger, ‘Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates’ (2005) 4 Northwestern Journal of International Human Rights 331, 348.

13 E Filmer­Wilson, ‘The Human Rights­Based Approach to Development: The Right to Water’ (2005) 23 Netherlands Quarterly of Human Rights 213, 228; E Klein, ‘General Comments: Zu einem eher unbekannten Instrument des Menschenrechtsschutzes’ in J Ipsen and E Schmidt­Jortzig (eds), Recht – Staat – Gemeinwohl, Festschrift für Dietrich Rauschning (Köln, Carl Heymanns, 2001) 301, 307; E Riedel, ‘The Human Right to Water’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 585, 592 et seq; Lohse, above n 9, 73; Craven, above n 5, 91. Simma expects that General Comments will be of such importance in the interpretation and application of the Covenant that they will eventually be deemed to be legally binding them­selves; see B Simma, ‘Die internationale Kontrolle des VN­Paktes über wirtschaftliche, sozi­ale und kulturelle Rechte: neue Entwicklungen’ in U Beyerlin, M Bothe and R Hofmann (eds), Recht zwischen Umbruch und Bewahrung: Völkerrecht – Europarecht – Staatsrecht: Festschrift für Rudolf Bernhardt (Berlin, Springer, 1995) 579, 585.

14 Craven, above n 5, 91; Salman and McInerney­Lankford, above n 5, 49; see generally on the ‘legitimacy’ of the CESCR’s interpretations M Sepúlveda, The Nature of  the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp, Intersentia, 2003), 87 et seq.

15 Riedel, above n 11, 165; M Langford, ‘Ambition that Overleaps Itself? A Response to Stephen Tully’s Critique of the General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433, 436; see also SC McCaffrey, ‘The Human Right to Water’ in E Brown Weiss, L Boisson de Chazournes and N Bernasconi­Osterwalder (eds), Fresh Water and International Economic Law (Oxford, Oxford University Press, 2005) 93, 94. For a critical perspective on General Comment No 15 cf Tully, above n 1, but also the just­mentioned rejoin­der by Langford as well as the subsequent exchange S Tully, ‘Flighty Purposes and Deeds: A Rejoinder to Malcolm Langford’ (2006) 24 Netherlands Quarterly of Human Rights 461; M Langford, ‘Expectation of Plenty: Response to Stephen Tully’ (2006) 24 Netherlands Quarterly of Human Rights 473; for critical remarks cf also M Craven, ‘Some Thoughts on the Emergent Right to Water’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts­Verlag, 2006) 37, 43 et seq; Moosdorf, above n 9, 99 et seq; Lohse, above n 9, 74.

16 The book uses the term ‘economic, social and cultural rights’ interchangeably with ‘socio­economic rights’ as a shortform.

17 E Klein, ‘Die Allgemeinen Bemerkungen und Empfehlungen der VN­Vertragsorgane – Einführung’ in Deutsches Institut für Menschenrechte (ed), Die  ‘General Comments’  zu den VN-Menschenrechtsverträgen,  Deutsche  Übersetzungen  und  Kurzeinführungen (Baden­Baden, Nomos, 2005) 19, 29; Klein, above n 13, 307; Rudolf, above n 1, 23.

Human Rights Treaties 41

Furthermore, the Committee aims to take into account a large number of views expressed by other UN bodies and organisations, civil society organisations and individual experts while drafting a General Comment18. It then aims to reach a consensus not only among its members, but also among other stakeholders in order to ensure that the General Comment enjoys the widest possible acceptance and support19. Any interpretation of the ICESCR differing from the one of the Committee therefore has to be supported by well­founded arguments20. Due to this legal weight, some commentators regard General Comments as soft law21. In any case, they have to be seen as authoritative statements on the interpretation of the rights set forth in the ICESCR22. It can therefore be stipulated that the General Comment on the human right to water is not legally binding; its issuance is not tantamount to the general recognition of water as a human right, but it nevertheless carries significant legal and political weight. The General Comment will therefore be consulted for the interpretation of the different aspects of the right to water throughout the book.

ii. Deriving the right to water from other rights acknowledged in the Social Covenant

The crucial question remains whether the right to water is implicitly included in other rights stipulated in the Social Covenant, or if it can be derived from these. In this regard, the rights to an adequate standard of living, to housing, to food and to health will be considered below.

1. Right to an adequate standard of living – Article 11(1) of the Social Covenant

Article 11(1) of the Social Covenant guarantees the right to an adequate standard of living that consists of several components. It is striking that water is not explicitly mentioned as an element of an adequate standard of living alongside the rights to food, clothing and housing.

18 See Committee on Economic, Social and Cultural Rights, 29th Session, Summary Record of the  46th  Meeting,  Preliminary  discussion  of  a  draft  general  comment  on  the  right  to  water, 27 November 2002, E/C12/2002/SR.46; on the different actors participating in the drafting pro­cess of General Comment No 15 see Moosdorf, above n 9, 71 et seq; Lohse, above n 9, 65 et seq.

19 Rudolf, above n 1, 23.20 Klein, above n 17, 29; Rudolf, above n 1, 23.21 B Simma and S Bennigsen, ‘Wirtschaftliche, soziale und kulturelle Rechte im Völkerrecht

– Der Internationale Pakt von 1966 und sein Kontrollverfahren’ in JF Baur, KJ Hopt and KP Mailänder (eds), Festschrift für Ernst Steindorff zum 70. Geburtstag am 13. März 1990 (Berlin, De Gruyter, 1990) 1477, 1497; see also Klein, above n 13, 307 et seq; K Nowrot and 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, 2003) 12 et seq.

22 Salman and McInerney­Lankford, above n 5, 40; Filmer­Wilson, above n 13, 228; Riedel, above n 13, 592; Tully, above n 1, 43.

42 Legal Foundations of the Human Right to Water

This leads to the question why water was not included in the process of drafting and elaborating the Covenant. Actually, it was very briefly con­sidered to include the right to water, but this proposal was unsuccessful23. The reason can most likely be seen in the fact that water was not perceived to be as scarce as a resource as it is today; its availability was taken for granted24 – water was considered to be available as freely as is the air to breathe25. This perception, however, does not take into account that access to water requires not only the availability of water resources, but also access to water services and the necessary infrastructure. A very signific-ant number of people did not have access to water supply in the 1960s26. Nevertheless, it seems likely that the importance of the issue was over­looked rather than deliberately left out27. This assessment is supported by the fact that the discussion about the right to an adequate standard of living during the drafting process focused on other issues and broader questions, including the general understanding of the concept and the question whether the right was to be included at all28.

In the drafting process, there was reluctance to define the term ‘ade­quate standard of living’ in more specific terms. Rather, it was argued that the concept was generally well understood and had clear implications29, and that it had a broad and general meaning30. Food, housing and cloth­ing were seen as illustrative components of an adequate standard of liv­ing31, providing an indication of its more general meaning, but were not meant to be an exhaustive listing of the scope of the right to an adequate standard of living.

Moreover, even if the travaux préparatoires suggested that water was not to be included, this would be of only limited significance for the inter-pretation of the provision. Article 32 of the Vienna Convention on the Law of Treaties allows the travaux préparatoires to be considered as supplemen­

23 Craven, above n 5, 25; Riedel, above n 13, 595, fn 34.24 Riedel, above n 13, 589; T Kiefer, The Human Right to Water: Domestic and International 

Implications, LLM Thesis (Amsterdam, Universiteit van Amsterdam, 2003) 32, fn 130; Moosdorf, above n 9, 59; United Nations Development Programme, Human Development Report 2006, Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, Palgrave Macmillan, 2006) 133; see also Rudolf, above n 1, 22.

25 E Riedel, ‘The Human Right to Water and General Comment No 15 of the Committee on Economic, Social and Cultural Rights’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts­Verlag, 2006) 19, 24, fn 19.

26 Exact figures for the past are difficult to access. For 1977, a figure of 1.2 billion people without access to drinking water can be assumed, as cited in P Alston, ‘Human Rights and Basic Needs: A Critical Assessment’ (1979) 12 Revue des Droits de l’Homme 19, 23.

27 A Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 International Journal of Human Rights 389, 390; Hardberger, above n 12, 345; see also Craven, above n 15, 40.

28 See Craven, above n 5, 292 et seq; Langford, ‘Ambition that Overleaps Itself?’, above n 15, 440.

29 Craven, above n 5, 291 et seq, 302.30 Ibid, 301.31 Ibid, 289.

Human Rights Treaties 43

tary means, but this becomes relevant only if the interpretation using the ordinary meaning, the context, and the object and purpose of the provi­sion leaves the meaning ambiguous32.

To interpret the term ‘adequate standard of living’, one has to start from the assumption that it must be understood in a broad sense33. As already understood in the drafting process, it may be inferred from the formula­tion ‘including adequate food, clothing and housing’ that this enumera­tion is not exhaustive34. The more difficult issue is to determine what other components are covered by the right to an adequate standard of living. As might already be seen in the discussion of the travaux préparatoires, the term ‘adequate standard of living’ is extremely difficult to define. So far, no generally accepted definition has crystallised in human rights jurispru­dence or scholarship. Engbruch assumes that an adequate standard of liv­ing is met when individuals live in an environment and under conditions that allow them to participate in social life while maintaining their dignity and to realise their rights by their own means35.

Water is one of the most essential inputs for survival as such. Access to water is necessary for ensuring human health, and a minimum of per­sonal and household hygiene is a precondition for interaction with others. Lack of access to water impedes people from carrying out a range of activ­ities, from work and education to cultural activities, which are the basis for active participation in social life as well as for the realisation of other human rights. Pursuant to the definition put forward by Engbruch, water is undoubtedly a component of an adequate standard of living.

To determine other components of the right to an adequate standard of living, one may also draw parallels to the ones that are explicitly men­tioned. It seems reasonable to assume that the right encompasses other

32 Also noted by Langford, ‘Ambition that Overleaps Itself?’, above n 15, 435; but cf as well Tully, ‘Flighty Purposes and Deeds’, above n 15, 462.

33 Craven, above n 5, 301.34 CESCR, General Comment No 15, above n 4, para 3; P Gleick, ‘The Human Right to Water’

(1998) 1 Water Policy 487, 490; Nowrot and Wardin, above n 21, 14; Riedel, above n 13, 596; Riedel, above n 25, 25; Kiefer, above n 24, 31; T Kiefer and C Brölmann, ‘Beyond State Sovereignty: The Human Right to Water’ (2005) 5 Non-State Actors and International Law 183, 195; EB Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31 Ecology Law Quarterly 957, 969; IJ Alvarez, ‘The Right to Water as a Human Right’ in R Picolotti and JD Taillant (eds), Linking Human Rights and the Environment (Tucson, University of Arizona Press, 2003) 71, 73; M Langford, ‘The United Nations Concept of Water as a Human Right: A New Paradigm for Old Problems?’ (2005) 21 International  Journal  of Water Resources Development 273, 275; but cf as well the critique by Tully, above n 1, 37; Tully, ‘Flighty Purposes and Deeds’, above n 15, 461 et seq.

35 K Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard, Ernährung, Wasser, Bekleidung, Unterbringung und Energie als Elemente des Art. 11(1) IPWSKR (Frankfurt am Main, Peter Lang, 2008) 102 et seq. German original: ‘Ein angemessener Lebensstandard ist gege­ben, wenn Individueen in einer Umgebung und unter Bedingungen leben, die es ihnen ermöglichen, unter Bewahrung ihrer Würde am sozialen Leben teilzunehmen und ihre Rechte selbständig zu verwirklichen.’ See also her discussion of various other attempts to define an adequate standard of living in other contexts, ibid, 35 et seq.

44 Legal Foundations of the Human Right to Water

basic needs of the individual36. Just like food and housing, an adequate supply of water is absolutely essential for an adequate standard of living, as it is necessary for the sustenance of life itself37 and for ensuring a life with dignity38. Accordingly, the necessary parallel to the explicit compon­ents is present.

Moreover – taking into account subsequent agreements as stipulated by Article 31(3) of the Vienna Convention on the Law of Treaties – water sup­ply is mentioned in the context of an adequate standard of living in more recent conventions, namely in Article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination against Women39 (CEDAW). Thus, it contains an expansion of the notion of an adequate standard of living40 and shows that water is understood to be a component of this right. This interpretation is supported by other treaties and their interpre­tation. Article 28(2)(a) of the Convention on the Rights of Persons with Disabilities41 (CRPD) refers both to the right to an adequate standard of living and to the right to social protection, and mentions water explicitly in the paragraph dealing with the latter right. Social protection and an adequate standard of living are inextricably linked and cannot be clearly separated, as demonstrated by their inclusion in a single article. Therefore, the inclusion of water in this context again highlights its close link to the right to an adequate standard of living. Moreover, while Article 27 of the Convention on the Rights of the Child42 (CRC) – which guarantees an adequate standard of living – does not mention water explicitly, it may be inferred from the Concluding Observations of the Committee on the Rights of the Child that it considers water to be a part of that right. The Committee generally uses the formulation ‘right to an adequate standard of living, including access to food, clean drinking water, adequate housing and latrines’43. While the understandings of the term ‘adequate

36 Craven, above n 5, 305.37 CESCR, General Comment No 15, above n 4, para 3; Kiefer, above n 24, 31; Kiefer and

Brölmann, above n 34, 195.38 Rudolf, above n 1, 24.39 Convention on the Elimination of All Forms of Discrimination against Women, 18

December 1979, entered into force 3 September 1981, 187 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 1249, 13.

40 Moosdorf, above n 9, 60; Lohse, above n 9, 55.41 Convention on the Rights of Persons with Disabilities, 13 December 2006, entered into

force 3 May 2008, 105 States Parties (as of 3 October 2011), see General Assembly, Convention on the Rights of Persons with Disabilities, 24 January 2007, A/Res/61/106.

42 Convention on the Rights of the Child, 20 November 1989, entered into force 2 September 1990, 193 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 1577, 3.

43 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Niger, 13 June 2002, CRC/C/15/Add.179, para 56; Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Zambia, 2 July 2003, CRC/C/15/Add.206, para 54; Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the

Human Rights Treaties 45

standard of living’ in these conventions cannot be transferred one by one, they provide an indication of other elements commonly assumed to be covered by the term.

Likewise, a number of non­binding instruments support the under­standing of water as an implicit component of the right to an adequate standard of living in Article 11(1) of the Social Covenant. Most recently, the resolution by the Human Rights Council explicitly affirmed ‘that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living’44. Earlier, the Cairo Programme of Action and the Istanbul Habitat Agenda explicitly referred to water as a component of the right to an adequate standard of living45. Along the same lines, a recommendation by the Committee of Ministers of the Council of Europe elaborates that

[i]nternational human rights instruments recognise the . . . right of all human beings . . . to an adequate standard of living for themselves and their families. It is quite clear that [this requirement includes] the right to a minimum quantity of water of satisfactory quality from the point of view of health and hygiene.46

In summary, it can therefore be held that the right to water is included in the right to an adequate standard of living47. As an unmentioned compon­ent, it has the same status as the rights to food and housing that are also encompassed under the heading of the ‘right to an adequate standard of living’.

2. Right to food – Article 11(1) and (2) of the Social Covenant

The right to food is also enshrined in Article 11(1) of the Social Covenant as part of the right to an adequate standard of living, and Article 11(2)

Convention, Concluding Observations: Uganda, 23 November 2005, CRC/C/UGA/CO/2, para 57; Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Ethiopia, 1 November 2006, CRC/C/ETH/CO/3, para 61; Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Kenya, 19 June 2007, CRC/C/KEN/CO/2, para 55.

44 Human Rights Council, Human rights and access to safe drinking water and sanitation, 6 October 2010, A/HRC/Res/15/9, para 3.

45 United Nations, Report  of  the  International  Conference  on  Population  and  Development, Cairo, 5–13 September 1994, A/Conf.171/13/Rev.1, Annex, Programme of Action, Principle 2; United Nations, Report  of  the  United  Nations  Conference  on Human  Settlements  (Habitat  II), Istanbul, 3–14 June 1996, A/Conf.165/14, Annex II, Habitat Agenda, para 11.

46 Council of Europe, Recommendation of the Committee of Ministers to member states on the European Charter on Water Resources, 17 October 2001, Rec (2001) 14E, para 5 (footnotes omit­ted).

47 M Fitzmaurice, ‘The Human Right to Water’ (2007) 18 Fordham Environmental Law Review 537, 541; Gleick, above n 34, 492; SC McCaffrey, ‘A Human Right to Water: Domestic and International Implications’ (1992) 5 Georgetown International Environmental Law Review 1, 11; Riedel, above n 13, 596; Kiefer, above n 24, 32; Kiefer and Brölmann, above n 34, 195; Bluemel, above n 34, 969 et seq; critical, Tully, above n 1, 37 et seq.

46 Legal Foundations of the Human Right to Water

acknowledges the fundamental right to be free from hunger. Some authors suggest regarding water as liquid food, and extending the guarantee of Article 11(1) and (2) of the Social Covenant to include all life­sustaining nourishment48. Moreover, the former Commission on Human Rights requested the Special Rapporteur on the Right to Food to pay attention to the issue of drinking water, taking into account its interdependence with the right to food49. The former Special Rapporteur, Jean Ziegler, did so, arguing that ‘the right to food includes not only the right to solid food, but also the right to liquid nourishment and to drinking water’50. According to this reasoning, the guarantee would only encompass water for drink­ing purposes (‘liquid food’), and perhaps for cooking and cleaning food and dishes51. This seems too restrictive52, as other basic human water needs, such as personal hygiene, are also essential53.

Moreover, there are several concerns regarding this interpretation of the human right to food. In everyday language, one speaks of food and water, eating and drinking, bread and water, hunger and thirst. Water is thus not regarded as part of food but as a seperate component necessary for human sustenance. This perception of two different components is also reflected in legal instruments such as the Geneva Conventions54.

There are fundamental differences between access to food and access to water, for instance in regard to protection from pollution. Water quality standards are different from food safety standards. Also, the supplies of water and food require a substantially different infrastructure; and whereas water cannot be substituted, the right to food may be met by a large variety of foodstuffs that, however, must not only ensure the prevention of starva­tion and freedom from hunger, but also provide a balanced diet containing a mix of nutrients55. Due to these reasons, it seems preferable to regard the right to water as being separate from the right to food56.

48 W Kälin and J Künzli, Universeller Menschenrechtsschutz (Basel, Helbing & Lichtenhahn, 2005) 305; Alvarez, above n 34, 72; Rudolf, above n 1, 24; A Hildering, ‘The Right to Access to Freshwater Resources’ in N Schrijver and F Weiss (eds), International  Law  and  Sustainable Development: Principles and Practice (Leiden, Martinus Nijhof, 2004) 405, 414; Tully, above n 1, 41.

49 Commission on Human Rights, The right to food, 20 April 2001, E/CN.4/Res/2001/25, para 9.

50 Commission on Human Rights, The right to food, Report by the Special Rapporteur on the right to food, Mr Jean Ziegler, submitted in accordance with Commission on Human Rights resolu-tion 2000/10, 7 February 2001, E/CN.4/2001/53, para 32.

51 E Brown Weiss, The Evolution of International Water Law, Recueil des Cours 2007­VI, vol 331 (la Haye, Académie de Droit International de la Haye, 2007) 326.

52 K Bourquain, Freshwater  Access  from  a  Human  Rights  Perspective,  A  Challenge  to International Water Law and Human Rights Law (Leiden, Martinus Nijhoff, 2008) 119.

53 On the normative content of the right to water, see below ch 4, section III. 54 Also noted by Langford,‘Ambition that Overleaps Itself?’, above n 15, 442.55 Committee on Economic, Social and Cultural Rights, General Comment No 12, The right to 

adequate food (Art 11), 12 May 1999, E/C.12/1999/5, para 9.56 Likewise Kiefer, above n 24, 34; Kiefer and Brölmann, above n 34, 197; Cahill, above

n 27, 397.

Human Rights Treaties 47

Lastly, it has to be kept in mind that the use of water for agricultural purposes is one of the water uses specifically competing with water for basic human household needs as outlined in chapter two. In order to find a balance between these competing uses57, it seems advisable to keep the two rights distinguished.

3. Right to housing – Article 11(1) of the Social Covenant

As part of the right to an adequate standard of living, Article 11(1) of the Social Covenant also ensures the right to housing. This right is not inter­preted narrowly in the sense that it merely provides for a roof over one’s head58; rather, it has to be understood as the right to a place to live ‘in security, peace and dignity’59. Such a place includes adequate basic infra­structure and basic facilities, such as water and sanitation facilities60. This reinforces the conclusion that the right to water is included in the right to an adequate standard of living. Yet access to water is not to be considered only as part of the right to housing, which would relate to only certain aspects61. For instance, water for drinking purposes seems difficult to relate to housing which focuses on a place to live. Rather, due to its funda­mental importance for life and dignity, water is to be considered a separ­ate component of an adequate standard of living.

4. Right to health – Article 12 of the Social Covenant

Article 12(1) of the Social Covenant recognises the right to the enjoyment of the highest attainable standard of physical and mental health. This wording already indicates that the Covenant does not guarantee the right to be healthy62, which would be impossible; rather, it must be understood ‘as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health’63. This not only refers to immediate healthcare, but ‘embraces a wide range of socio­economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants

57 See in this regard ch 5, section III.B.58 Committee on Economic, Social and Cultural Rights, General Comment No 4, The right to 

adequate  housing  (Art  11(1)  of  the  Covenant), 13 December 1991, contained in E/1992/23, Annex III, para 7.

59 Ibid, para 7.60 Ibid, para 8(b); see also Kiefer and Brölmann, above n 34, 196; Kiefer, above n 24, 33;

Lohse, above n 9, 63.61 Langford, ‘Ambition that Overleaps Itself?’, above n 15, 443.62 Committee on Economic, Social and Cultural Rights, General Comment No 14, The right to 

the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 11 August 2000, E/C.12/2000/4, para 8; Kälin and Künzli, above n 48, 314.

63 CESCR, General Comment No 14, above n 62, para 9.

48 Legal Foundations of the Human Right to Water

of health’64. Only then can the purpose of the right to the highest attain­able standard of health be reached. Access to safe and sufficient water is one of the main underlying determinants as its lack is a serious threat to human health65. Diarrhoea, trachoma, cholera and other diseases are caused by the lack of access to safe water, resulting in close to 4,000 children dying of the consequences every day66. Diarrhoeal disease by itself is the sixth highest burden of disease at a global level67. Access to safe and potable water as well as adequate sanitation are therefore neces­sary factors for the realisation of the right to health68. In this regard, Article 12(2)(b) of the Social Covenant refers specifically to the improvement of all aspects of environmental and industrial hygiene69. General Comment No 14 of the CESCR even regards access to an adequate supply of safe and potable water as one of the core obligations related to the right to health70, water thus being necessary to ensure its minimum essential level. The significance of access to water as an underlying determinant of health is further underlined by its inclusion in Article 24(2)(c) CRC in the context of health71.

It may be concluded that access to clean and safe water is a precondi­tion for the realisation of the right to health. Some go as far as to deduce that the right to water can be derived from the right to health72. While the CESCR in its General Comment No 15 explicitly states only that the right to water is inextricably linked to the right to health73, it also bases the entire Comment on Articles 11 and 12 of the Social Covenant74, implying that the right to water may be derived from the right to health75. Yet, strictly speak­ing, the fact that water is necessary for the realisation of the right to health does not mean that water is a distinct human right76. However, the right to health itself guarantees access to water as far as it is necessary for achiev­

64 Ibid, para 4; see also BCA Toebes, The Right to Health as a Human Right in International Law (Antwerp, Intersentia, 1999) 122; Kälin and Künzli, above n 48, 316.

65 Kiefer, above n 24, 33; Kiefer and Brölmann, above n 34, 196.66 World Water Assessment Programme, United Nations World Water Development Report 2: 

Water, a Shared Responsibility (Paris, 2006) 204.67 G Howard and J Bartram, Domestic Water Quantity, Service Level and Health (Geneva,

World Health Organization, 2003) 1; see also Toebes, above n 64, 255 et seq.68 CESCR, General Comment No 14, above n 62, paras 4, 11, 36; Kälin and Künzli, above

n 48, 321; Toebes, above n 64, 255; McCaffrey, above n 15, 95.69 According to Toebes this term may be understood to include as a minimum access to

safe drinking water and sanitation; see Toebes, above n 64, 254.70 CESCR, General Comment No 14, above n 62, para 43(c); likewise Toebes, above n 64, 284.

For more details on the concept of core obligations, see ch 4, section II.C.ii.71 Hildering, above n 48, 412.72 Kiefer, above n 24, 33; Gleick, above n 34, 492; Bluemel, above n 34, 969; Kiefer and

Brölmann, above n 34, 196; Cahill, above n 27, 395 et seq; Lohse, above n 9, 69, 90.73 CESCR, General Comment No 15, above n 4, para 3.74 See the title of CESCR, General Comment No 15, above n 4.75 See Langford, ‘Expectation of Plenty’, above n 15, 473; Engbruch, above n 35, 189;

McCaffrey, above n 15, 106; Lohse, above n 9, 69, 90.76 See McCaffrey, above n 15, 107.

Human Rights Treaties 49

ing the highest attainable standard of health. Accordingly, this guarantee does not reach as far as the one derived from the right to an adequate standard of living as it covers only health­related aspects.

B. Provisions of the Civil Covenant

Since at least a minimum amount of water is indispensable to ensure sur­vival, access to water could also be covered by the right to life under Article 6 of the Civil Covenant. In order to examine the right to life as a legal foundation, several general considerations are examined concerning the relationship between civil and political rights on the one hand and economic, social and cultural rights on the other, before the right to life is considered in more detail.

i. General considerations

The human rights considered so far are guaranteed in the Social Covenant, whereas the right to life is included in the Civil Covenant. The division between civil and political rights on the one hand and economic, social and cultural rights on the other hand has found its expression in these two separate Covenants.

The traditional view suggests that there are fundamental differences between the two sets of rights in regard to the obligations arising from them. Civil and political rights are seen as being guaranteed as soon as the State refrains from interfering with them, whereas social, economic and cultural rights are said to require substantive positive action by the State in order to fulfil them. However, a more modern view has laid down that the realisation of human rights requires three components: the State is obliged to respect, to protect and to fulfil human rights77. All of these com­ponents are relevant for all types of rights even though, of course, the focus might differ. For example, in order to realise the right to have access to justice, the State has to undertake positive measures such as the estab­lishment of a judicial system78. Accordingly, the right to life as a right guaranteed in the Civil Covenant is not necessarily limited to refraining from interfering with the right to life, but can also give rise to positive obligations.

It might also be argued that deriving a guarantee of access to water (understood as a socio­economic right) from the right to life involves the risk of blending the two sets of rights, as such an interpretation of the

77 ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, reprinted in (1998) 20 Human Rights Quarterly 691, para 6.

78 See in detail on questions of the legal nature and the obligations arising from the differ­ent human rights, ch 4, sections I. and II.

50 Legal Foundations of the Human Right to Water

right to life could extend its scope to the sphere of socio­economic rights. However, there is no watertight division between the civil and political rights on the one hand and socio­economic rights on the other79; and there is no need for it. The division as expressed in the two Covenants is arti­ficial and has to be understood in the historical context of the time in which the Covenants were drafted. More recently, it has become accepted that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’80. Thus, the perceived danger of blending the two sets of rights does not exist.

ii.  The right to life – Article 6 of the Civil Covenant

Following these general considerations, it is now necessary to analyse more specifically whether access to water is guaranteed under the right to life. This relates to the question whether it is possible to derive positive State obligations aiming to ensure survival requirements from the right to life. The wording of Article 6(1) of the Civil Covenant is not unambigu­ous. It provides that every human being has the inherent right to life, that this right shall be protected by law and that no one shall arbitrarily be deprived of his life.

According to the traditional view, the right to life only encompasses a guarantee not to be deprived of one’s life81, ie to be safeguarded against arbitrary killing82. The right is not seen as covering any positive aspects; rather, these are wholly attributed to socio­economic rights such as the right to an adequate standard of living. The right to life is understood not to protect against death resulting from the lack of the minimum survival requirements83; it is argued that it ‘does not guarantee any person against death from famine or cold or lack of medical attention’84. Accordingly, the mere toleration of malnutrition by a State is not regarded as a violation of the right to life85. Apart from the obligation not to interfere with the right

79 F Menghistu, ‘The Satisfaction of Survival Requirements’ in BG Ramcharan (ed), The Right to Life in International Law (Dordrecht, Martinus Nijhoff, 1985) 63, 66.

80 United Nations, World  Conference  on  Human  Rights,  Vienna,  14–25  June  1993,  Vienna Declaration and Programme of Action, A/Conf.157/23, para 5.

81 F Przetacznik, ‘The Right to Life as a Basic Human Right’ (1976) 9 Revue des Droits de l’Homme 585, 587.

82 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) 114, 115; see also Kiefer and Brölmann, above n 34, 190.

83 Dinstein, above n 82, 115. However, these authors also acknowledge that the purposeful denial of food, say to a prisoner, is an infringement of the right to life; see Dinstein, above n 82, 116.

84 N Robinson, The Universal Declaration of Human Rights: Its Origin, Significance, Application, and Interpretation (New York, Institute of Jewish Affairs and World Jewish Congress, 1958), 106.

85 Dinstein, above n 82, 116.

Human Rights Treaties 51

to life, it is argued that the State is obligated to adopt certain measures in order to protect individuals from being killed by others86.

This interpretation of the right to life would limit the guarantee of Article 6(1) ICCPR to its last sentence. There are no convincing arguments for such a restrictive interpretation that would disregard the first two sen­tences of the provision87. Such a narrow reading would correspond to the traditional view regarding the kinds of obligations arising from human rights, according to which civil and political rights give rise to negative obligations only. However, a more modern interpretation of human rights obligations would apply the above­mentioned tripartite distinction of obligations to respect, to protect and to fulfil to the right to life. The right to be protected against arbitrary killing by the State is therefore only one component of the right to life – relating to the obligation to respect that right. Apart from that, the State is required to protect and to fulfil the right to life88. This encompasses the duty to ensure the minimum survival requirements – including access to drinking water. This is not contentious as far as individuals who are held in State custody are concerned; States have to provide what is necessary to sustain the life of individuals held in their custody, as these individuals are not in a position to ensure these requirements through their own means89. Yet as far as all other individu­als under the jurisdiction of the State are concerned, this obligation is not generally accepted90. If the duty to fulfil the right to life is taken seriously, one has to take into account that there are situations other than being held in State custody in which people do not have the means to ensure survival requirements for themselves for reasons beyond their control (eg people with disabilities). Therefore, States also bear the positive obligation to ful­fil the right to life and to ensure survival requirements for all people in need.

It has often been stated that the right to life is the most important human right, as the realisation of all other rights depends on it and that these would become meaningless without the right to life91. This holds true for the realisation of civil and political rights as well as of economic, social and cultural rights, underlining the interdependence of both sets of rights. The fundamental importance of the right to life for the realisation of all

86 Ibid, 119.87 Bourquain, above n 52, 128.88 For a detailed analysis of the different State obligations in regard to the right to life, see

Sepúlveda, above n 14, 138 et seq. In regard to the right to water, see ch 4, section II.A.89 Sepúlveda, above n 14, 147 et seq; see also C Tomuschat, ‘An Optional Protocol for the

International Covenant on Economic, Social and Cultural Rights?’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 815, 822 et seq.

90 See Sepúlveda, above n 14, 149 et seq.91 Dinstein, above n 82, 114; HA Kabaalioglu, ‘The Obligations to “Respect” and to “Ensure”

the Right to Life’ in BG Ramcharan (ed), The  Right  to  Life  in  International  Law (Dordrecht, Martinus Nijhoff, 1985) 160, 160; Menghistu, above n 79, 63; Przetacznik, above n 81, 589.

52 Legal Foundations of the Human Right to Water

other human rights is endangered not only when the State does not respect the right to life by killing someone, but also when survival require­ments are not met. If an individual dies due to famine, lack of medical attention or lack of access to safe drinking water, he or she cannot realise any of his or her other human rights. Accordingly, positive obligations aiming to ensure survival requirements are equally important for the real­isation of the right to life.

This more progressive interpretation is supported by Article 2(1) ICCPR, which obliges States not only to respect the rights recognised in the Covenant, but also to ensure them, which is a substantially broader obligation92. It implies an affirmative obligation of the State to adopt the measures necessary to enable individuals to enjoy and exercise the rights guaranteed in the Covenant93. The Human Rights Committee also stresses the fact that States’ obligations are not confined to the obligation to respect human rights but also encompass the obligation to ensure all such rights, which calls for specific activities to enable individuals to enjoy their rights94. The Human Rights Committee also asserts that the legal obliga­tion under Article 2 ICCPR is both negative and positive in nature95.

By adopting a comparative perspective and considering the interpreta­tions of other human rights conventions, this view may be underlined. Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms96 (ECHR), which is different in wording97 but just as ambiguous as Article 6 ICCPR, is also interpreted broadly. According to the case law of the European Commission of Human Rights and the European Court of Human Rights (ECtHR), States are obliged not only not to interfere with life, but also to take appropriate steps to safe­guard it98. The wording of Article 4 of the American Convention on

92 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 (New York, Columbia University Press, 1981) 72, 77; Kabaalioglu, above n 91, 165.

93 Buergenthal, above n 92, 77; Kabaalioglu, above n 91, 165; Sepúlveda, above n 14, 135; see also BG Ramcharan, ‘The Concept and Dimensions of the Right to Life’, in BG Ramcharan (ed), The Right to Life in International Law (Dordrecht, Martinus Nijhoff, 1985) 1, 17.

94 Human Rights Committee, General Comment No 3, Implementation at the national level (Art 2), 29 July 1981, contained in HRI/GEN/1/Rev.1, at 4, para 1.

95 Human Rights Committee, General Comment No 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para 6.

96 European Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No 005, 4 November 1950, entered into force 3 September 1953, 47 States Parties (as of 3 October 2011), available at <conventions.coe.int/Treaty/en/Treaties/Html/005.htm> (accessed 3 October 2011).

97 Art 2(1) ECHR reads: ‘Everyone’s right to life shall be protected by law . . .’.98 See the reviews by AR Mowbray, The  Development  of  Positive  Obligations  under  the 

European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004) 7 et seq; D O’Sullivan, ‘The Allocation of Scarce Resources and the Right to Life under the European Convention on Human Rights’ (1998) Public Law 389; M O’Boyle, ‘The Development of the Right to Life’ in DP Björgvinsson, G Jörundsson, SM Stefánsson

Human Rights Treaties 53

Human Rights99 (ACHR) (as well as of Article 4 of the African (Banjul) Charter on Human and Peoples‘ Rights100 (‘Banjul Charter’)) is not as broad in this regard, only using the term ‘respect’. Nevertheless the Inter­American Court of Human Rights has ruled that ‘restrictive approaches to [the right to life] are inadmissible’101. According to the Court, the right to life also includes the right ‘not [to] be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that viola­tions of this basic right do not occur . . .’102 The interpretations of the right to life in the context of the European as well as the American Convention thus support a more progressive, broader interpretation of the right to life.

This progressive view is shared by the Human Rights Committee. The Committee states that the right to life has too often been interpreted nar­rowly. It holds that the right must not be understood restrictively but rather requires States to adopt positive measures. The Committee goes on to call for certain measures, eg to reduce infant mortality and to eliminate malnutrition103. It has been pointed out that the Committee uses the term ‘desirable’ when referring to such measures, and that it is thus doubtful whether the Committee would regard it as a violation of the right to life when a State fails to ensure survival requirements104. However, the Committee speaks of desirable measures in regard to the specific examples it lists, but holds that States are required to adopt positive measures105, thus framing this in terms of an obligation. States are consequently required to ensure survival requirements, but the specific measures to be taken in order to achieve that aim are left to the discretion of States.

and T Gunnarsson (eds), Afmælisrit pór Vilhjálmsson (Reykjavik, Bókaútgáfa Orators, 2000) 65; SE Hendin, ‘The Evolution of the Right to Life by the European Court of Human Rights’ (2004) 4 Baltic Yearbook of International Law 75.

99 American Convention on Human Rights, ‘Pact of San José’, 22 November 1969, entered into force 18 July 1978, 25 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 1144 (1979), no 17955, 143.

100 African (Banjul) Charter on Human and Peoples’ Rights, 27 June 1981, entered into force 21 October 1986, 53 States Parties (as of 2 August 2011), United Nations Treaty Series, vol 1520 (1988), no 26363, 217.

101 Inter­American Court of Human Rights, Villagran Morales et al v Guatemala (The ‘Street Children’ Case), 19 November 1999, Annual  Report  of  the  Inter-American  Court  of  Human Rights 1999, 665, para 144. See also Inter­American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc 10 rev 1, Chapter 8, 24 April 1997, available at <www.cidh.org/countryrep/ecuador­eng/chaper­8.htm> (accessed 1 October 2011), that considers the contamination of water supplies under the right to life.

102 Inter­American Court of Human Rights, Villagran Morales et al v Guatemala, above n 101, para 144.

103 Human Rights Committee, General Comment No 6, The right to life (art 6), 30 April 1982, contained in HRI/GEN/1/Rev.1 at 6, para 5; see also Hardberger, above n 12, 332.

104 Kiefer and Brölmann, above n 34, 189.105 Human Rights Committee, General Comment No 6, above n 103, para 5.

54 Legal Foundations of the Human Right to Water

Accordingly, it is submitted that the right to life has to be interpreted in broad terms, entailing negative as well as positive dimensions. The guar­antee in Article 6 ICCPR goes beyond protection against arbitrary killing. It obliges the State to ensure the necessary conditions for everyone to have access to means of survival106, which includes access to drinking water.

However – to bring up one last point – it could be argued that such a broad interpretation of the right to life circumvents the principle of pro­gressive realisation contained in the Social Covenant107. Although it has been argued that the distinction between civil and political rights on the one hand and economic, social and cultural rights on the other hand is artificial, it has to be kept in mind that the Covenants set up different requirements for their realisation. Whereas Article 2(1) ICCPR obliges States to undertake to respect and to ensure the rights recognised in the Covenant, Article 2(1) ICESCR requires States to undertake to take steps to the maximum of their available resources in order to achieve progres­sively the full realisation of the rights recognised in the Covenant. Being covered under the right to life, States would be required to respect and to ensure access to water immediately, which would seem to contradict its character as a socio­economic right and the progressive realisation of these rights.

Yet the guarantee of water as covered under the right to life is much narrower in scope than the guarantees derived from the provisions of the Social Covenant. The right to life is tantamount neither to the right to an adequate standard of living nor to the highest attainable standard of health. Accordingly, the guarantee of water as derived from the right to life does not aim to attain an adequate standard of living108. Rather, it cov­ers mere survival requirements, ie safe water for drinking purposes in an amount sufficient to prevent death caused by dehydration109. Keeping this in mind, it seems logical that this guarantee is not subject to progressive realisation but has to be ensured immediately. Moreover, as will be shown below110, socio­economic rights not only are subject to progressive realisa­tion, but also set up core obligations that have to be fulfilled immediately. The guarantee of the minimum amount of water necessary for sustaining

106 Ramcharan, above n 93, 6, 8 et seq; Cahill, above n 27, 397; Bluemel, above n 34, 968; Gleick, above n 34, 492; M Pieterse, ‘A Different Shade of Red: Socio­Economic Dimensions of the Right to Life in South Africa’ (1999) 15 South African Journal on Human Rights 372, 373; see also McCaffrey, above n 47, 9 et seq; R Pejan, ‘The Right to Water: The Road to Justiciability’ (2004) 36 George Washington  International  Law Review 1181, 1191; Bourquain, above n 52, 130.

107 Cf Lohse, above n 9, 54.108 The normative content of the right to water will be subject of a detailed analysis in ch 4,

section III.109 Menghistu, above n 79, 67; Bluemel, above n 34, 968 et seq; C Breining­Kaufmann,

Hunger als Rechtsproblem, Völkerrechtliche Aspekte eines Rechts auf Nahrung (Zürich, Schulthess, 1991) 94.

110 See ch 4, section II.C.ii.

Human Rights Treaties 55

life as covered under the right to life can be regarded as being part of this core content111. In this regard, there is no contradiction to the principle of progressive realisation.

To sum up, access to water is guaranteed under the right to life encom­passing the minimum survival requirements. Similar to the right to health examined above, it covers certain – rather restrictive – aspects of access to water, while the guarantee under the right to an adequate standard of liv­ing is much more comprehensive and far­reaching.

C. Other Provisions

Apart from these Covenants, which together with the UDHR comprise the International Bill of Rights, the right to water is recognised in a number of other legal instruments that are limited in their scope ratione personae and/or ratione loci.

i.  Conventions with a limited scope ratione personae

1. Convention on the Elimination of All Forms of Discrimination against Women

The drafting process of the CEDAW was completed in 1979, ie 13 years later than that of the Social Covenant. It has been acceded to by 187 States Parties. There are only a few States that have ratified neither the Social Covenant nor the CEDAW, ie the USA, Palau, Qatar and Tonga.

After prohibiting discrimination in general, the CEDAW refers to spe­cific rights. Its aim is to guarantee women the exercise of human rights ‘on a basis of equality with men’ (Article 3 CEDAW). Article 14 of the Convention, which refers specifically to problems encountered by rural women, lists measures to address the challenges they face in this area. Article 14(2)(h) states that the right to adequate living conditions shall be ensured. In contrast to Article 11 of the Social Covenant, it refers specific-ally to water supply as one element of an adequate standard of living.

2. Convention on the Rights of the Child

The CRC112 was adopted in 1989 by the General Assembly and has since been ratified by 193 States Parties, thus achieving almost universal accession, with the United States and Somalia being the only two States that have not ratified it. It confers specific rights upon children that are

111 Likewise Cahill, above n 27, 397.112 For an overview of the Convention, see RA Lorz, ‘Der Schutz von Kindern durch die

UN­Kinderkonvention’ (2000) No 17–18 Aus Politik und Zeitgeschichte 30.

56 Legal Foundations of the Human Right to Water

formulated in much detail113. As far as access to water is concerned, the CRC mentions clean drinking water in the context of the right to the high­est attainable standard of health in Article 24(2)(c), as a means to combat disease and malnutrition. It is thus not a comprehensive guarantee of the right to water, but rather focuses on water quality and other health­related aspects114. Moreover, Article 27(1) CRC guarantees the right to an ade­quate standard of living, which may be interpreted in the same way as Article 11(1) ICESCR to include water as a component115. Lastly, the right to life (Article 6 CRC), which obliges States to ensure to the maximum extent possible the survival and development of the child, is relevant in this context, as survival requirements cannot be met without providing at least access to a minimum amount of safe water.

3. Convention on the Rights of Persons with Disabilities

The CRPD was adopted by the General Assembly in December 2006 and entered into force after receiving its twentieth ratification in May 2008. As outlined above, water is mentioned in the context of the right to social protection in Article 28(2)(a) of the Convention, spelling out that States shall take appropriate steps for the realisation of the right, which includes ensuring ‘equal access by persons with disabilities to clean water services, and [ensuring] access to appropriate and affordable services, devices and other assistance for disability­related needs’.

ii.  Conventions with a limited scope ratione loci

1. African human rights instruments

Whereas the Banjul Charter from 1981 contains only the right to health in its Article 16, which may be interpreted to include a guarantee of access to water as outlined above116, the African Charter on the Rights and Welfare of the Child117 from 1990 refers specifically to safe drinking water in Article 14(2)(c) as one measure to ensure the right to enjoy the best attainable standard of health. Moreover, the Protocol to the Banjul Charter on the

113 Ipsen in K Ipsen, Völkerrecht, 5th edn (Munich, Beck, 2004) § 48, para 53.114 Cahill, above n 27, 391; Bourquain, above n 52, 122.115 As outlined above, the Committee on the Rights of the Child considers water to be a

part of the right to an adequate standard of living, as demonstrated in its Concluding Observations, see above section I.A.ii.1.

116 The ACHPR has interpreted Art 16 of the Banjul Charter in this way, see African Commission on Human and Peoples’ Rights, Free Legal Assistance Group and Others v Zaire, Comm No 25/89, 47/90, 56/91, 100/93 (1995), available at <www1.umn.edu/humanrts/africa/comcases/25­89_47­90_56­91_100­93.html> (accessed 1 October 2011).

117 African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.9/49 (July 1990), entered into force 29 November 1999, 46 States Parties (as of 27 January 2011), available at <www.africa­union.org/child/home.htm> (accessed 1 October 2011).

Human Rights Treaties 57

Rights of Women in Africa118, adopted in 2003, stipulates in the context of Article 15 on the right to food security that women shall be provided with access to clean drinking water. The guarantees in African human rights instruments are thus comparable to those contained in the treaties that are universal in scope.

2. Arab human rights instruments

The Arab Charter on Human Rights of the League of Arab States119, which entered into force on 15 March 2008, provides for the right to an adequate standard of living that ensures well­being and a decent life, including inter alia food, housing, services and the right to a healthy environment, in Article 38. In particular, the reference to ‘services’ can be understood to include water services as part of an adequate standard of living. Moreover, Article 39 explicitly lists the provision of safe drinking water (lit e) and of proper sanitation systems (lit f) as measures necessary to realise the right to the highest attainable standard of health.

3. American human rights instruments

The ACHR itself focuses on civil and political rights, and includes a rele­vant guarantee of the right to life in its Article 4 that is broadly interpreted by the Inter­American Court of Human Rights120. Moreover, the Additional Protocol in the Area of Economic, Social and Cultural Rights121 (Protocol of San Salvador) from 1988 guarantees in Article 11 the right to a healthy environment. According to Article 11(1), this encompasses the right to have access to basic public services, which undoubtedly must be under­stood to include access to water services122.

4. European human rights instruments

Whereas the ECHR from 1950, similar to the ACHR, focuses on the protec­tion of civil and political rights, including the right to life, the Revised

118 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003, entered into force 25 November 2005, 30 States Parties (as of 14 February 2011), available at <www.africa­union.org/root/au/Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf> (accessed 1 October 2011).

119 Arab Charter on Human Rights, 22 May 2004, entered into force 15 March 2008, available at <www1.umn.edu/humanrts/instree/loas2005.html> (accessed 1 October 2011).

120 See Inter­American Court of Human Rights, Villagran Morales et al v Guatemala, above n 101, para 144; briefly discussed in section I.B.ii.

121 Additional Protocol in the Area of Economic, Social and Cultural Rights, ‘Protocol of San Salvador’, OAS Treaty Series No 69, 17 November 1988, entered into force 16 November 1999, 15 States Parties (as of 3 October 2011), available at <www.oas.org/juridico/English/treaties/a­52.html> (accessed 3 October 2011).

122 Rudolf, above n 1, 19.

58 Legal Foundations of the Human Right to Water

European Social Charter123 (Revised ESC) from 1996124 aims to protect eco­nomic, social and cultural rights. However, it has to be noted that the Charter is formulated in terms of policy aims instead of conferring indi­vidual rights125. Moreover, according to Part III, Article A, States are only bound by a certain number of articles or paragraphs that they can select themselves.

Article 11 of the Revised ESC guarantees the right to health, listing the removal of the causes of ill­health as one appropriate measure to be undertaken by States. As outlined above, unsafe water is one of the main causes of ill­health, so that the provision may be understood to include the supply of safe drinking water. Moreover, the right to housing (Article 31) is relevant in this context. Comparable to provisions of the Social Covenant, certain aspects of access to water may thus be regarded as being implicitly guaranteed by the Revised ESC.

iii. Humanitarian law

Apart from provisions that belong to the realm of human rights law, inter­national humanitarian law is also relevant, as it contains a number of refer­ences to water. Humanitarian law seeks to relieve human suffering and to limit the effects of armed conflicts for certain groups of persons. As such, humanitarian law and human rights law have the common aim to protect the individual, to respect his or her dignity and to satisfy basic needs126.

123 Revised European Social Charter, CETS No 163, 3 May 1996, entered into force 1 July 1999, 31 States Parties (as of 3 October 2011), available at <conventions.coe.int/Treaty/en/Treaties/Html/163.htm> (accessed 3 October 2011).

124 The original European Social Charter was adopted in 1961, European Social Charter, CETS No 035, 18 October 1961, entered into force 26 February 1965, 27 States Parties (as of 3 October 2011), available at <conventions.coe.int/Treaty/en/Treaties/Html/035.htm> (accessed 3 October 2011).

125 Part I of the Revised European Social Charter; see also Ipsen in Ipsen, above n 113, § 49, para 14.

126 KJ Partsch, ‘Human Rights and Humanitarian Law’ in R Bernhardt (ed), Encyclopedia of Public International Law, vol II/2 (Amsterdam, Elsevier, 1995) 910, 910; A Eide, ‘The Laws of War and Human Rights – Differences and Convergences’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix­Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 675, 676; J Meurant, ‘Droit humanitaire et droits de l’homme: Spécificités et convergences’ (1993) 75 Revue Internationale de  la  Croix-Rouge 93, 93; AH Robertson, ‘Humanitarian Law and Human Rights’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix­Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 793, 795; A Calogeropoulos-Stratis, ‘Droit humanitaire – Droits de l’Homme et victimes des conflits armés’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix­Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 655, 655; H Gros Espiell, ‘Derechos Humanos, derecho internacional humanitario y derecho internacional de los refugiados’ in C Swinarski (ed), Études et essais sur le droit international humanitaire  et  sur  les  principes  de  la  Croix-Rouge  en  l’honneur  de  Jean  Pictet (The Hague, Martinus Nijhoff, 1984) 699, 704; R Quentin­Baxter, ‘Human Rights and Humanitarian Law – Confluence or Conflict?’ (1980) 9 Australian Yearbook of International Law 94, 105; HJ Heintze, ‘On the Relationship between Human Rights Law Protection and International Humanitarian

Human Rights Treaties 59

They are based on common principles such as non­discrimination127. However, the reference to water in the Geneva conventions is not necessar­ily tantamount to its recognition as a human right.

Nevertheless, humanitarian law includes important guarantees regard­ing access to water which underline the importance of water for human sustenance and well­being. The Third Geneva Convention from 1949, which applies to the treatment of prisoners of war128, refers to water sup­plies and sanitary measures in Articles 20, 26, 29 and 46, guaranteeing sufficient water for drinking purposes and other human needs, while the Fourth Geneva Convention129 from 1949, which aims at the protection of civilian persons in times of war, mentions water and sanitary conveni­ences in Articles 85, 89 and 127. Moreover, the First Additional Protocol130 from 1977 sets forth in Article 54 that it is

prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as . . . drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party . . .

Article 14 of the Second Additional Protocol131 from 1977 contains a simi­lar provision. Furthermore, water is mentioned in Article 5 of Protocol II132. It has to be seen in the context of Articles 4 to 6 (which find their counterpart in Article 75 of Protocol I). These provisions include certain fundamental guarantees that have been heavily influenced and inspired

Law’ (2004) 86 International Review of  the Red Cross (No 856) 789; MR Rwelamira, ‘Human Rights and International Humanitarian Law: The Link or Common Ground Revisited’ (1992) 3 Stellenbosch Law Review 329, 340 et seq.

127 See fundamentally on the common underlying principles of humanitarian law and human rights law, J Pictet, Les principes du droit international humanitaire (Geneva, Comité International de la Croix­Rouge, 1967) 33 et seq; also HB Reimann, ‘Menschenrechtsstandards in bewaffneten Konflikten’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix­Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 771, 775.

128 Third Geneva Convention relative to the treatment of prisoners of war, 12 August 1949, entered into force 21 October 1950, 194 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 75 (1950), no 972, 135.

129 Fourth Geneva Convention relative to the protection of civilian persons in time of war, 12 August 1949, entered into force 21 October 1950, 194 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 75 (1950), no 973, 287.

130 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), 8 June 1977, entered into force 7 December 1978, 171 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 1125 (1979), no 17512, 3.

131 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), 8 June 1977, entered into force 7 December 1978, 166 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 1125 (1979), no 17513, 609.

132 For a detailed analysis of issues related to water in armed conflict, see K Braams, Wasser als völkerrechtlicher Regelungsgegenstand im bewaffneten Konflikt (Aachen, Shaker, 2004).

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by human rights law133. This becomes most obvious in Article 75(2) of Protocol I and Article 4(2) of Protocol II, which correspond in large parts to the non­derogable human rights134. Article 5 of Protocol II contains additional guarantees for persons who have been deprived of their liberty. According to Article 5(1)(b) of Protocol II, they shall inter alia be provided with drinking water.

In summary, the Geneva Conventions and their Protocols include a number of provisions guaranteeing access to water, although it must be kept in mind that such guarantees in humanitarian law are not equivalent to the recognition of access to water as a human right.

D.  Significance of Treaties beyond their Limited Scope?

Some of the human rights treaties just referred to received almost universal accession: the CEDAW by 187 States Parties, the CRC by 193 States Parties, the Geneva Conventions by 194 States, and Protocols I and II by 171 and 166 States, respectively. All of these conventions deal with the situation of a particular part of the population, conferring specific guarantees to these people, protecting their rights and ensuring non­discrimination. In spite of these limitations in scope, it might be possible to derive more extensive con­clusions from these conventions as to the general recognition of the right to water for all people. It will therefore be examined whether the CEDAW, the CRC or the Geneva Conventions are of significance beyond their actual scope.

i.  Convention on the Elimination of All Forms of Discrimination against Women

The CEDAW does not aim to guarantee specific rights for women, but rather – as its title already suggests – addresses discrimination. The Convention thus does not establish new rights, but aims to eliminate dis­crimination in areas that are already guaranteed by pre­existing human rights135. The fact that water supply is mentioned in Article 14(2)(h) shows that it is regarded as a component of one of these already guaranteed

133 Partsch, above n 126, 911; Eide, above n 126, 688; Calogeropoulos­Stratis, above n 126, 658. On the influence of human rights on Protocol II, see specifically S Junod, ‘Les droits de l’homme et le Protocole II’ (1983) No 743 Revue Internationale de la Croix-Rouge 254. However, the influence is more obvious for civil and political rights than for social, economic and cul­tural rights, see Junod, ibid, 254, 257, 259.

134 Meurant, above n 126, 94. For non­derogable rights, see Art 4(2) ICCPR, Art 27(2) ACHR and Art 15(2) ECHR.

135 D König, ‘Die Durchsetzung internationaler Menschenrechte – Neuere Entwicklungen am Beispiel des Übereinkommens der Vereinten Nationen zur Beseitigung jeder Form der Diskriminierung der Frau’ in K Dicke, S Hobe, KU Meyn, A Peters and E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 401, 414.

Human Rights Treaties 61

rights, the right to an adequate standard of living. These rights – includ­ing the right to water – are not only guaranteed to women but apply to all individuals, regardless of their gender.

However, the provision applies explicitly to rural women only136. This casts doubts on the assumption that the general acknowledgement of the right to water can be inferred from this provision. Yet the structure and content of the Convention demonstrate that it does not restate all human rights but focuses on particularly relevant, ie discrimination­prone, areas. After including provisions that aim at eliminating discrimination in general in Part I, it refers to a number of situations and rights in which discrimination against women is particularly clear, such as education (Article 10), labour rights (Article 11) and health (Article 12). Article 14 then turns to the specific situation of women in rural areas as they suffer from particular problems, which also holds true for access to water. As women are usually the ones responsible for providing their families with water, they often have to spend hours collecting water and carrying it over long distances – not only for themselves but for their entire family. During that time, they cannot pursue any other activity such as working or attending school. The lack of access to water thus poses problems for the realisation of other rights, such as the right to education. The special consideration of water supply in Article 14, referring to the situation of rural women, is therefore justified by the fact that the problem is likely to be even greater for such women than for women in urban areas. Their discrimination thus deserves special attention. Yet it does not imply that others do not have a right to water. On the contrary, it can be assumed that mentioning water supply particularly for rural women also implies that the right to water is acknowledged already in a more general context. The inclusion of water as a component of an adequate standard of living in this context indicates that it is understood as a pre­existing human right for all people.

ii.  Convention on the Rights of the Child

The CRC deals with the human rights of children, who are awarded special protection. According to the Convention’s Preamble, children need special safeguards and care, and are therefore entitled to particular assistance. In line with that consideration, it could be argued that the pro­visions of the CRC cannot be generalised to apply to all people, and that it is therefore impossible to draw conclusions from the CRC as to the gen­eral recognition of the human right to water. However, the CRC not only entails guarantees that are of particular relevance in the case of children – such as in the relation to their parents (Article 9 CRC) – it also reiterates

136 Also noted by Fitzmaurice, above n 47, 543.

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human rights guarantees relevant for all individuals that are already included in human rights treaties which are not limited in their scope ratione personae. These include, for instance, the right to life (Article 6(1) CRC), freedom of thought, conscience and religion (Article 15(1) CRC), the right to social security (Article 26(1) CRC) and the right to an adequate standard of living (Article 27(1) CRC). The same applies to the right to the highest attainable standard of health in Article 24 CRC, which is also guaranteed in Article 12 ICESCR. Compared to the last provision, the CRC norm spells out the underlying determinants of health in more detail, and includes ‘clean drinking­water’. Water is of fundamental importance not only for children’s health, but for all individuals. The provision of the CRC can therefore be understood to emphasise the sig­nificance of water as an underlying determinant of the right to health as outlined above137. It demonstrates that this view is almost universally accepted, ie by all 193 States that have ratified the CRC. Accordingly, it may be inferred that access to water as an underlying determinant of health is guaranteed not only to children, but to all individuals.

iii.  Geneva Conventions

As has been shown above, the Geneva Conventions refer to access to water in a number of provisions. One might argue that if these guarantees exist for the duration of armed conflict, they must be even more valid in times of peace as there are no military reasons to restrict human rights138. Similar considerations apply when allowing derogations from human rights law only in times of emergency. Such a view, however, does not take into account that humanitarian law and human rights law have dif­ferent origins, and have developed separately139.

The idea of charity has played a significant role in the creation of humanitarian law, which stands in stark contrast to human rights that are characterised by the notion of rights140. Moreover, the provisions of the Geneva Conventions and their Protocols are not framed in terms of rights of the individual. Rather, they generally lay down States’ obligations for the benefit of the individual141. Furthermore, humanitarian law was devel­

137 See section I.A.ii.4.138 A Bleckmann, ‘Zur originären Entstehung gewohnheitsrechtlicher Menschenrechts­

normen’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts­Verlag, 2003) 29, 53; see also Quentin­Baxter, above n 126, 95.

139 Partsch, above n 126, 911.140 Ibid, 912.141 L Doswald­Beck and S Vité, ‘Le droit international humanitaire et le droit des droits de

l’homme’ (1993) 75 Revue  Internationale  de  la  Croix-Rouge 99, 114; GIAD Draper, ‘The Relationship between the Human Rights Regime and the Law of Armed Conflict’ (1971) 1 Israel Yearbook of Human Rights 191, 194. However, it has to be noted that Art 7 of the Third Geneva Convention and Art 8 of the Fourth Geneva Convention speak of rights secured to the protected persons.

Human Rights Treaties 63

oped at the international level from the outset, while human rights law started to evolve at the national level and was gradually international­ised142. As in classical areas of international law, humanitarian law is based on the reciprocal interests of States143: both States which are parties to a conflict have an interest in ensuring that their nationals are treated humanely by the other party. In its origins, humanitarian law thus applied only to non­nationals144, whereas human rights law aimed from the begin­ning at the protection of people under the State’s own jurisdiction, remov­ing this area from the domaine réservé of States.

Even though humanitarian law has changed and developed over time, these differences from human rights law have to be kept in mind. Humanitarian law has gradually evolved to apply to non­international conflicts too, ie in the domestic sphere145, as demonstrated by the common Article 3 of the Geneva Conventions and Additional Protocol II. In par­ticular, this Protocol constitutes a remarkable development: it includes provisions aiming at the humane treatment of all persons (in times of armed conflict), non-nationals as well as nationals146. Thus, it goes far beyond the original Geneva laws, which aimed at the protection of specific groups of persons. This development may be regarded as a rapprochement of human rights law and humanitarian law147. There is an increasing convergence between the two subjects which most scholars regard as complementing each other148. The overlap in terms of the scope of protection is significant149. Moreover, it has been pointed out that the Red Cross has increasingly expanded its activities to other areas closely related to human rights, such as the protection of detainees and political

142 Eide, above n 126, 678 et seq; Meurant, above n 126, 93.143 Eide, above n 126, 676 et seq.144 Doswald­Beck and Vité, above n 141, 119.145 Partsch, above n 126, 910; Eide, above n 126, 678; Meurant, above n 126, 93.146 Reimann, above n 127, 774; Calogeropoulos­Stratis, above n 126, 657 et seq; Bleckmann,

above n 138, 53; Junod, above n 133, 257.147 Eide, above n 126, 678; Meurant, above n 126, 93; Rwelamira, above n 126, 341; Junod,

above n 133, 254.148 Doswald­Beck and Vité, above n 141, 119; Calogeropoulos­Stratis, above n 126, 661;

Gros Espiell, above n 126, 706; Meurant, above n 126, 95; Eide, above n 126, 695; Quentin­Baxter, above n 126, 94; Rwelamira, above n 126, 330, 346; Draper, above n 141, 196. However, other views are also advanced. One may be described as ‘integrationist’, favouring the merging of the two subjects, the other as ‘separatist’, arguing that the two areas of law are completely different and should be kept separate to avoid confusion; see Robertson, above n 126, 800 et seq; Calogeropoulos-Stratis, above n 126, 661. On the first view, see Pictet, above n 127; Robertson, above n 126, 797. Heintze also seems to be tending towards this view, speaking of ‘one unified complex of human rights beneath different institutional umbrellas’; see Heintze, above n 126, 794. On the second view, see H Meyrowitz, ‘Le droit de la guerre et les droits de l’homme’ (1972) Revue  de Droit  Public  et  de  la  Science  Politique  en  France  et  à l’Etranger 1059, 1095 et seq. On the relationship of the two bodies of law, see also International Court of Justice, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, [2004] ICJ Reports 136, paras 102 et seq. The ICJ regards humanitarian law as lex specialis to the branch of human rights law (ibid, para 106).

149 Heintze, above n 126, 793.

64 Legal Foundations of the Human Right to Water

prisoners,150 as well as activities in the health sector151, on the basis of humanitarian principles but without an explicit mandate in the Geneva Conventions152.

However, the common Article 3, as well as Protocol II, is framed as an exception. Likewise, the expanding area of work of the Red Cross is to be viewed as an exception to the general scope of application of humanitarian law. The origin of humanitarian law, being concerned with the humane treatment of non­nationals, must not be overlooked. Being framed as an exception, the gradual expansion of the scope of application to approach that of human rights law can be generalised only to a limited extent. While humanitarian law is developing to approach human rights law, it is not (yet) possible to stipulate that the guarantees of the Geneva Conventions applicable in times of armed conflict must also be valid in times of peace. Moreover, their framing as State obligations for the benefit of individuals makes it difficult to derive individual rights from these provisions. Accordingly, a general rule as to the recognition of the human right to water cannot be deduced from the guarantees contained in humanitarian law.

E.  Conclusion in Regard to Human Rights Treaties

Access to water is explicitly or implicitly guaranteed in a broad range of human rights treaties. Water is essential for the realisation of a number of other human rights guaranteed in the Social Covenant and the Civil Covenant. It is an underlying determinant of the right to health, and cer­tain aspects of access to water are also covered under the right to housing. To a more limited degree, access to water is also covered under the right to life, as far as it is necessary to ensure survival.

Most importantly though, as recently affirmed by the resolution of the Human Rights Council, the right to water is guaranteed under the right to an adequate standard of living in Article 11(1) of the Social Covenant, amounting to the most comprehensive guarantee of access to water. It is an implicit component of this right that has the same status as other com­ponents of the right to an adequate standard of living, ie the rights to food, housing and clothing. Thus, the human right to water may be con­sidered a distinct human right. However, these guarantees relate only to those States that are parties to the respective Covenant.

Moreover, a number of human rights treaties that are limited in their personal and/or territorial scope include relevant guarantees of access to

150 Gros Espiell, above n 126, 707; Quentin­Baxter, above n 126, 105.151 Meurant, above n 126, 98. He even raises the question if it were pertinent for the Red

Cross to start working on the promotion of other economic, social and cultural rights, such as the right to an adequate standard of living and the right to education.

152 Gros Espiell, above n 126, 707.

Customary International Law 65

water. Some of these treaties have been almost universally acceded to. They have therefore been examined to see whether they mirror a more general recognition of the right to water beyond their actual scope. Such general conclusions can, in particular, be drawn from the CEDAW, which explicitly mentions water as a component of the right to an adequate standard of living. The inclusion of the right to water in that context allows for the conclusion that the right has to be considered as pre­ existing and as being guaranteed in a more general context to all people. Taken together, the Social Covenant and the CEDAW achieve almost universal coverage, as only a few States have not ratified one or other of these human rights treaties.

II. CUSTOMARY INTERNATIONAL LAW

Apart from the treaty provisions discussed in the preceding section, the question is now examined whether the human right to water is part of customary international law according to Article 38(1)(b) of the Statute of the International Court of Justice.

A.  The Significance of Customary Human Rights Law

The question whether the right to water is part of customary international law is of special interest because States that have not ratified the respec­tive human rights treaties could nonetheless be bound by a customary human right to water153. More than 30 States have not ratified the Social Covenant. The majority of those belong to the group of Small Island Developing States (SIDS)154, such as Kiribati, Vanuatu and Haiti. Many of them suffer from acute freshwater problems as they have limited resources155. In fact, recent projections presume that due to climate change, water resources on many small islands in the Caribbean will be reduced to the point where they become insufficient to meet the entire demand for

153 Rudolf, above n 1, 34; see generally on the significance of customary human rights law in spite of the great number of existing human rights treaties, T Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon Press, 1989) 3 et seq, 80; E Klein, ‘Bedeutung des Gewohnheitsrechts für den Menschenrechtsschutz’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts­Verlag, 2003) 11, 12 et seq; Bleckmann, above n 138, 29 et seq.

154 List of SIDS available at <www.un.org/special­rep/ohrlls/sid/list.htm> (accessed 1 October 2011).

155 United Nations Economic and Social Commission for Asia and the Pacific, Ministerial Conference on Environment and Development in Asia and the Pacific, Current and critical environ-ment and development concerns of the small island developing states of Asia and the Pacific, 16 June 2000, E/ESCAP/SO/MCED(00)/4, para 13; Frankfurter Rundschau, ‘Überfischung der Meere raubt Inselstaaten Lebensgrundlage’, 14 January 2005, 6.

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water during periods of low rainfall156. Some other States that have not ratified the Social Covenant are situated on the Arabian Peninsula (Oman, Qatar, Saudi Arabia and the United Arab Emirates). The remain­ing countries include the USA, South Africa and Singapore. As water availability is very low and equitable allocation can be difficult to achieve in some of these countries, it is of particular interest whether the right to water applies as a customary human right in these States.

Furthermore, customary human rights law can be relevant even for States that actually have ratified the respective human rights treaties, as this has implications in terms of reservations to a treaty and the possibil­ity of denouncing or withdrawing from a treaty. Because no reservations are possible in regard to customary law, in certain circumstances it can be more far­reaching than treaty law, the scope of which States often restrict by putting down reservations157. Even though current reservations to the Social Covenant are of no significance in regard to the right to water158, this aspect could become relevant in the case of future accessions to the Covenant. Such customary law would apply to all States, regardless of their being parties to human rights treaties, unless they act as persistent objectors in the process of formation159. For these reasons, going beyond deriving the right to water from treaty provisions and examining its cus­tomary law nature is a matter of great significance160.

B.  State Practice and Opinio Iuris

Two elements are necessary for customary international law to evolve: State practice (consuetudo) and the conviction to be legally obliged to act in

156 BC Bates, ZW Kundzewicz, S Wu and JP Palutikof (eds), Climate Change  and Water, Technical Paper of the Intergovernmental Panel on Climate Change (Geneva, Intergovernmental Panel on Climate Change Secretariat, 2008) 110.

157 Meron, above n 153, 6 et seq; Klein, above n 153, 12. See generally on reservations to human rights treaties, Human Rights Committee, General Comment No 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in  relation  to  declarations  under  article  41  of  the  Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6; B Kempen and C Hillgruber, Völkerrecht (Munich, Beck, 2007) § 54, paras 60 et seq; S Hobe and O Kimminich, Einführung in das Völkerrecht, 8th edn (Tübingen, A Francke/UTB, 2004) 214.

158 There are hardly any reservations concerning Arts 11 and 12 ICESCR; see Status of Treaties, available at <treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV­3&chapter=4&lang=en> (accessed 1 October 2011).

159 I Brownlie, Principles  of Public  International Law, 6th edn (Oxford, Oxford University Press, 2003) 11.

160 For an examination whether the right to an adequate standard of living is part of custom­ary international law, see Engbruch, above n 35, 273 et seq; for an analysis regarding the right to food and the right to freedom from hunger, see S Narula, ‘The Right to Food: Holding Global Actors Accountable under International Law’ (2006) 44 Columbia Journal of Transnational Law 691, 771 et seq.

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this way (opinio iuris sive necessitatis)161. The State practice must be uni­form, consistent, general162 and of a certain duration163. To be regarded as consistent, the behaviour of States must be almost identical. However, if there are only a small number of divergences, these are not relevant in terms of consistency; rather they have to be seen as violations of the gen­eral rule164. The practice is general if all States whose interests are affected are involved165. In the case of human rights, this implies that virtually all States should be involved.

A special feature of human rights law that distinguishes it from other areas of international law has to be taken into account. While international law in general traditionally deals with the relations between States and is governed by the principle of reciprocity166, human rights law refers to the relationship between the State and the individual167, an area of law that was traditionally regarded as falling within the domaine réservé of States168. This has implications for the ways in which State practice can evolve. In contrast to other areas of international law, States do not interact physi­cally in the field of human rights169. This lack of interaction is linked to the

161 International Court of Justice, North  Sea  Continental  Shelf  Cases  (Federal  Republic  of Germany v Denmark/Federal Republic of Germany v Netherlands), 20 February 1969, [1969] ICJ Reports 3, para 77; Hobe and Kimminich, above n 157, 184; Heintschel von Heinegg in Ipsen, above n 113, § 16, para 2.

162 B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988­89) 12 Australian  Yearbook  of  International  Law 82, 88; Brownlie, above n 159, 7 et seq; IR Gunning, ‘Modernizing Customary International Law: The Challenge of Human Rights’ (1991) 31 Virginia Journal of International Law 211, 214; see gener­ally M Akehurst, ‘Custom as a Source of International Law’ (1974/75) 47 British Yearbook of International Law 1, 12 et seq.

163 Heintschel von Heinegg in Ipsen, above n 113, § 16, para 7; see also A Verdross and B Simma, Universelles Völkerrecht, Theorie und Praxis, 3rd edn (Berlin, Duncker & Humblot, 1984), para 571. The element of duration is contentious, see PR Ghandhi, ‘The Universal Declaration of Human Rights at Fifty Years’ (1998) 41 German Yearbook of International Law 206, 245; on the theory of ‘instant custom’, see B Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Indian Journal of International Law 23, 36 et seq.

164 International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, 27 June 1986, [1986] ICJ Reports 14, para 186; Heintschel von Heinegg in Ipsen, above n 113, § 16, para 10.

165 Heintschel von Heinegg in Ipsen, above n 113, § 16, para 11; Akehurst, above n 162, 16.166 See Verdross and Simma, above n 163, paras 64 et seq; A Cassese, International Law in a 

Divided World (Oxford, Clarendon Press, 1986) 288; E Strauß, ‘Die Entstehungsgeschichte der Allgemeinen Erklärung der Menschenrechte – Grundlage ihrer aktuellen Bedeutung’, MenschenRechtsMagazin Themenheft ‘50 Jahre AEMR’ (December 2007) 13, 15.

167 Heintschel von Heinegg in Ipsen, above n 113, Introduction to ch 11, paras 1 et seq; O Schachter, International Law in Theory and Practice: General Course in Public International Law, Receuil des Cours 1982­V, vol 178 (The Hague, Académie de Droit International, 1982), 327; Meron, above n 153, 100.

168 Bleckmann, above n 138, 33; Ghandhi, above n 163, 209, with further references.169 Simma and Alston, above n 162, 99; C Richter, Aspekte der universellen Geltung der

Menschenrechte und der Herausbildung von Völkergewohnheitsrecht (Munich, Utz, 2007) 110; see also C Tomuschat, Human Rights, Between Idealism and Realism (Oxford, Oxford University Press, 2003) 34.

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question of what is to be regarded as State practice in relation to human rights law. Three positions may be identified: some argue that the decisive element is the actual behaviour of States170, whereas others put the focus on verbal and legal statements as they are expressed in declarations, resolutions and other documents171. A third opinion takes account of both elements, arguing that the particularities of human rights law must be considered when determining the relevant State practice172. All three positions are examined further below.

i.  Focus on actual behaviour

The first opinion focuses on the actual physical behaviour of States. It does not completely disregard statements on human rights as contained in declarations and other documents, but argues that these are a variant of opinio iuris stating ‘what the law ought to be’173 but not per se constituting a reflection of the law as it is. To establish the law as it is (de lege lata), the actual behaviour of States is regarded as a necessary component of State practice.

Some examples may be drawn upon to illustrate this actual behaviour regarding the realisation of the right to water. Many States could go fur­ther in the realisation of the right to water within their available resources. At the same time, disconnections from water services are wide­spread where people are unable to afford payment, and often leave them without access to a minimum essential level of water. Many States fail to regulate the discharge by industrial water users efficiently, leading to the pollution of water resources on which others rely for their supply of drinking water. Further, there are great disparities in access to water, for instance between deprived urban areas and other parts of a city, which often amount to discrimination174.

170 GJH van Hoof, Rethinking the Sources of International Law (Antwerp, Kluwer, 1983) 108; JS Watson, ‘Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law’ (1979) University of Illinois Law Forum 609, 611 et seq. Watson explicitly states that ‘[t]he inconvenient facts are state practice’, see ibid, 641; see also AA D’Amato, The Concept  of Custom  in  International  Law (Ithaca, NY, Cornell University Press, 1971) 88 (yet without specific reference to human rights); AM Weisburd, ‘Customary International Law: The Problem of Treaties’ (1988) 21 Vanderbilt Journal of Transnational Law 1.

171 Bleckmann, above n 138, 32, 45; JP Humphrey, ‘The Universal Declaration of Human Rights: Its History, Impact and Judicial Character’ in BG Ramcharan (ed), Human Rights: Thirty  Years  after  the  Universal  Declaration,  Commemorative  Volume  on  the  Occasion  of  the Thirtieth Anniversary of the Universal Declaration of Human Rights (The Hague, Martinus Nijhoff, 1979) 21, 32; see also Ghandhi, above n 163, 244; Akehurst, above n 162, 1 et seq. For a general overview of authors who stress either the element of State practice or the element of opinio iuris without specific regard to human rights, see van Hoof, above n 170, 85 et seq.

172 Schachter, above n 167, 335. 173 Watson, above n 170, 633.174 On State obligations for the realisation of the right to water, see below ch 4, section II.

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These facts do not show consistent State practice in the form of actual physical State behaviour towards upholding a human right to water. Thus, if one follows this view in taking the actual behaviour of States as the decisive component of State practice, a consistent State practice in favour of the right to water cannot be observed. Accordingly, the emer­gence of a customary human right to water would have to be denied.

ii.  Focus on official statements

Others argue that States have to honour their commitments, and that the focus must therefore be on declarations, resolutions and other documents in determining the relevant State practice175. Evidence ranges from diplo­matic correspondence and policy statements to treaty provisions and the practice of international organisations176. These official statements and commitments are regarded as constituting State practice and the related opinio iuris in one act177. The respective authors acknowledge that the actual behaviour of States does often not live up to the human rights standards, but they do not regard this behaviour as decisive State practice but rather as a violation of human rights178. As violations of a norm they do not establish the contrary.

iii.  Combination of both elements

A third opinion aiming to reconcile both views argues that the particulari­ties of human rights have to be taken into account in determining State practice, but that actual State behaviour must not be completely dis­regarded179. Statements and declarations on human rights have to find confirmation in practice to a certain degree180. The aim is to determine

175 Bleckmann, above n 138, 32, 45; Humphrey, above n 171, 32; see also Ghandhi, above n 163, 244; Akehurst, above n 162, 1 et seq.

176 Gunning, above n 162, 215. See also the listing of possibly relevant State practice by Brownlie, above n 159, 6.

177 Bleckmann, above n 138, 32, 45; B Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’ (1987) 58 British Yearbook of  International Law 39, 75; OY Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (The Hague, Martinus Nijhoff, 1966) 46; Simma and Alston speak of the ‘tendency to “count” the articula­tion of a rule twice, so to speak, not only as an expression of opinio iuris but also as State practice itself’, and regard this as the ‘identity crisis’ of customary law, see Simma and Alston, above n 162, 96.

178 A Kiss, ‘The Role of the Universal Declaration of Human Rights in the Development of International Law’ (1988) Bulletin of Human Rights, Special  Issue: Fortieth Anniversary of  the Universal Declaration of Human Rights 47, 48.

179 Schachter, above n 167, 335. For an extensive list of types of evidence of State practice that also includes action taken by States, see American Law Institute, Restatement of the Law Third, The Foreign Relations Law of the United States, vol 2, 1987, § 701 Reporters’ Note 2; see also International Court of Justice, Nicaragua v United States of America, above n 164, para 184.

180 Schachter, above n 167, 335.

70 Legal Foundations of the Human Right to Water

whether States regard their acts as legally justified and legitimate State policy, or whether they consider them human rights violations. In the lat­ter case, a State often seeks to conceal its conduct, or denies it instead of justifying it181. Whereas in the former case customary law to the contrary cannot be established, the existence of a customary human rights norm that has been violated by the State’s acts can be assumed in the latter case182. An act that is condemned as unlawful cannot be regarded as con­stituting State practice183. As such, it may be determined whether the act is merely to be regarded as a violation of a norm that is principally accepted as customary law184. In particular, when State conduct ‘has been univer­sally condemned as violative of the basic concept of human dignity’ and acts are ‘regarded as atrocities that cannot be justified on any grounds’185, such behaviour must be seen as a violation of existing customary law.

To summarise, whether customary human rights law can be established depends on whether an act is considered as legally-justified State practice or as a violation of an existing human rights norm.

iv.  Conclusion

The first view, focusing on actual behaviour, fails to take into account the particularities of human rights law. Following this opinion, it would be impossible to establish customary human rights law. What might be con­sidered a violation of human rights according to other opinions would prevent the emergence of customary law according to this view. This seems too restrictive. In contrast, the second opinion is very far­reaching as it completely disregards the traditional element of actual State practice. It would result in non­binding declarations becoming binding as custom­ary law. Only the third opinion helps to achieve a balance. On the one hand, it takes into account that many States tend to pay only lip service to human rights, being ready to commit to human rights in statements and declarations as they are aware that these are non­binding186. Therefore, actual State conduct is included in the determination of State practice. On

181 Tomuschat, above n 169, 34 et seq.182 Schachter, above n 167, 335 et seq; Richter, above n 169, 114 et seq; AA D’Amato,

‘Custom and Treaty: A Response to Professor Weisburd’ (1988) 21 Vanderbilt  Journal  of Transnational Law 459, 466; Tomuschat, above n 169, 34 et seq; Rudolf takes a similar approach, arguing that State practice can be seen as given when there are some failures, but not when human rights are completely disregarded and their protection is reduced to zero: see W Rudolf, ‘Gewohnheitsrechtsbildung aus Menschenrechtsverträgen – Kommentar’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September  2002,  Potsdam (Berlin, Berliner Wissenschafts­Verlag, 2003) 84, 86; see also International Court of Justice, Nicaragua v United States of America, above n 164, para 186.

183 Schachter, above n 167, 381, fn 712.184 Richter, above n 169, 116.185 Schachter, above n 167, 336.186 See Meron, above n 153, 87; Richter, above n 169, 112.

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the other hand, it acknowledges that State conduct may also amount to a violation of an existing human rights norm and thus not constitute State practice that is relevant for the evolution of customary international law. As regards the human right to water, this requires an analysis of whether water is consistently considered a human rights issue through close exam­ination of declarations, statements, resolutions and other international documents on the right to water.

C.  Analysis of Statements on the Right to Water

In the following paragraphs, a number of documents that implicitly or explicitly refer to the right to water will be analysed. These include the UDHR, other resolutions by the General Assembly, and resolutions by the Commission on Human Rights and the Human Rights Council, with the 2010 resolutions by the General Assembly and the Human Rights Council explicitly recognising the right to water deserving particular attention. Moreover, political declarations adopted at international con­ferences, statements by individual States and documents issued by other UN bodies will be taken into account, as well as provisions in national constitutions. Lastly, the significance of treaty provisions for the evolution of customary human rights law and of the Berlin Rules of the International Law Association will be considered. It will be examined whether and to what extent these human rights instruments support the emergence of the right to water as a customary human right.

i. Universal Declaration of Human Rights

The UDHR is the document most often cited in the context of customary human rights law. It contains some provisions that are very similar to those of the Social Covenant. In the context of the right to water, Articles 22 and 25 are of particular interest. Article 25 goes along with Article 11 of the Social Covenant, providing for an adequate standard of living187, whereas Article 22 as an umbrella article refers to economic, social and cultural rights necessary for human dignity and the development of one’s personality188.

In contrast to the Social Covenant, the UDHR is not a legally­binding document. It is a declaration adopted by General Assembly Resolution

187 See McCaffrey, above n 47, 8. For a commentary on Art 25, see Eide and Eide in G Alfredsson and A Eide (eds), The  Universal  Declaration  of  Human  Rights  –  A  Common Standard of Achievement (The Hague, Martinus Nijhoff, 1999) 523 et seq.

188 For a commentary on Art 22, see Andreassen in Alfredsson and Eide (eds), above n 187, 453 et seq.

72 Legal Foundations of the Human Right to Water

217 A (III) in 1948189, and is therefore in principle a non­binding recom­mendation. However, the view has been advanced that the UDHR has become legally binding by achieving the status of customary law. Positions range from regarding the entire UDHR as customary international law, to assuming that status for some of its provisions, to completely denying the status of customary law.

1. The Universal Declaration of Human Rights as a reflection of customary human rights law?

A number of authors have put forward the opinion that the entire UDHR must be seen as customary international law190. The intention of the Declaration was to provide an interpretation of the term ‘human rights and fundamental freedoms’ as used in Article 55 of the UN Charter191. It is thus an authoritative interpretation and concretisation of the Charter, a fact that adds to its legal weight192. Therefore, it is argued that the UDHR itself has acquired the binding character of the Charter193. Moreover, it is put forward that the UDHR has been adopted without a dissenting vote194. In the course of the last 60 years the UDHR has become a document of central importance for international human rights protection. To under­line this view, it is stressed that the Declaration has been invoked fre­quently and has been reinforced in many later documents195. The UDHR has been used as an instrument to measure compliance with international human rights196. As early as 1949, the General Assembly invoked the arti­

189 General Assembly, Universal Declaration of Human Rights, 10 December 1948, A/810 Res 217 (III).

190 Verdross and Simma, above n 163, para 1234; LC Chen, ‘Protection of Persons (Natural and Juridical)’ (1989) 14 Yale Journal of International Law 542, 547, 552; KMG Nayar, ‘Human Rights: the UN and US Foreign Policy’ (1978) 19 Harvard  International Law  Journal 813, 817; LB Sohn, ‘The Human Rights Law of the Charter’ (1977) 12 Texas International Law Journal 129, 133; Kiss, above n 178, 48; Ghandhi, above n 163, 242; Sloan, above n 177, 70 et seq; JP Humphrey, ‘International Bill of Rights: Scope and Implementation’ (1976) 17 William and Mary Law Review 527, 529. In a different essay, however, Humphrey seems to consider exclud­ing economic, social and cultural rights from this view, see Humphrey, above n 171, 29. McDougal et al even suggest that the rights contained in the UDHR have acquired the status of ius cogens, see MS McDougal, HD Lasswell and LC Chen, Human Rights and World Public Order, The Basic Policies of an International Law of Human Dignity (New Haven, Yale University Press, 1980) 274. For the opposing view stating that the UDHR is not legally­binding, see eg Cassese, above n 166, 299; Asamoah, above n 177, 189. Critical in regard to economic, social and cultural rights, Craven, above n 5, 28; Rudolf, above n 1, 34; McCaffrey, above n 15, 96.

191 On other references to human rights in the UN Charter, see Ghandhi, above n 163, 224 et seq.

192 Nayar, above n 190, 815 et seq; Chen, above n 190, 547, 552.193 Nayar, above n 190, 817; Bleckmann, above n 138, 47.194 Nayar, above n 190, 816; Humphrey, above n 171, 27; see also Sohn, above n 190, 135,

fn 32.195 McDougal et al, above n 190, 274; Chen, above n 190, 547; Humphrey, above n 190, 529;

Humphrey, above n 171, 29; see also Gunning, above n 162, 222 et seq.196 E Schwelb, Human Rights and the International Community: The Roots and Growth of the 

Universal Declaration of Human Rights, 1948–1963 (Chicago, Ill, Quadrange Books, 1964) 38.

Customary International Law 73

cles of the Declaration providing for the right to leave one’s country and the right to marriage in the Russian Wives Case197. Countless such invoca­tions followed198. Moreover, the UDHR has been referred to in a huge number of declarations, proclamations and statements199. For instance, the International Conference on Human Rights in Teheran in 1968 proclaimed that the UDHR ‘states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for all members of the international community’200.

However, other General Assembly resolutions and the Declaration of Teheran are themselves non­binding. Such repeated declarations and invocations can therefore show a strong political commitment, but invok­ing a non­binding declaration in a great number of other non­binding declarations and resolutions does not confer legally­binding status upon it201. Moreover, it is questionable whether the entire UDHR can be regarded as reflecting customary international law taking into account the specific rights included in it. Some authors raise serious doubts whether all the rights enumerated in the UDHR have become customary law, referring in particular to economic, social and cultural rights included therein202. This shows how contentious the issue is, and that there is no general global consensus which would be necessary for the emergence of customary law. Even if one accepted the UDHR as reflecting customary human rights law, this is problematic for the right to water, as it is not even explicitly men­tioned in the UDHR but can only be inferred from the right to an adequate standard of living in Article 25203.

197 The Soviet Union had prevented Soviet wives of citizens from other States from leav­ing the country in order to live abroad with their husbands; see General Assembly, Violation by the Union of Soviet Socialist Republics of Fundamental Human Rights, Traditional Diplomatic Practices and Other Principles of the Charter, 25 April 1949, A/900 Res 285 (III).

198 See Schwelb, above n 196, 38 et seq; Ghandhi, above n 163, 242.199 For references in the first 25 years, see Schwelb, above n 196, 46 et seq; see also

McDougal et al, above n 190, 328 et seq.200 United Nations, Final  Act  of  the  International  Conference  on  Human  Rights,  Teheran, 

22 April–13 May 1968, A/Conf.32/41, Proclamation of Teheran, para 2.201 Weisburd, above n 170, 43; A Haratsch, ‘Die Allgemeine Erklärung der Menschenrechte

– ein Ideal für alle Völker und Nationen’ (December 2007) MenschenRechtsMagazin, Themenheft ‘50 Jahre AEMR’  23, 29.

202 Narula, above n 160, 781 (focusing on the right to food); for sceptical views as to the customary law nature of the right to own property, cf DT Murphy, ‘The Restatement (Third)’s Human Rights Provisions: Nothing New, but Very Welcome’ (1990) 24 The  International Lawyer 917, 925; Tomuschat, above n 169, 35; Bleckmann, above n 138, 50; but cf as well K Doehring, ‘Gewohnheitsrechtsbildung aus Menschenrechtsverträgen’ in E Klein and C Menke (eds), Menschenrechtsschutz  durch  Gewohnheitsrecht,  Kolloquium,  26–28  September 2002, Potsdam (Berlin, Berliner Wissenschafts­Verlag, 2003) 67, 73 et seq.

203 McCaffrey, above n 47, 8.

74 Legal Foundations of the Human Right to Water

2. Selected human rights as customary law?

Others take a more differentiated view and argue that certain provisions of the UDHR have achieved the status of customary law,204 requiring this sta­tus to be proven for every single right205. There are several attempts to list the human rights that have achieved the status of customary law206. The judgment of the International Court of Justice in the Barcelona Traction Case explicitly refers to rights to protection from genocide, slavery and racial discrimination as general international law in the context of obligations erga omnes207. Schachter regards slavery, genocide, torture, mass murders, prolonged arbitrary imprisonment and systematic racial discrimination as violations of customary human rights208. The Third Restatement of the Law of the American Law Institute contains a similar list209. In addition to the viola­tions listed by Schachter, the Restatement includes ‘a consistent pattern of gross violations of internationally recognized human rights’210. This phrase does not include all human rights violations, especially not when commit­ted in a single case, but only extreme cases211. It is the most interesting aspect in the context of the human right to water, and will therefore be referred to again below212. Meron adds further to this list of customary human rights law by also including core due process guarantees, such as the presumption of innocence, the right of self­determination, the right to humane treatment of detainees and the prohibition of retroactive penal measures213. Apart from the prohibition of gross violations of all internationally recognised

204 Haratsch, above n 201, 30; Hobe and Kimminich, above n 157, 396 et seq; Kempen and Hillgruber, above n 157, § 52, para 49; McCaffrey, above n 47, 8.

205 Haratsch, above n 201, 30.206 See Richter, above n 169, 144 et seq.207 International Court of Justice, Barcelona Traction Case (Belgium v Spain), 5 February 1970,

[1970] ICJ Reports 3, para 34. The terms customary law, ius cogens and erga omnes obligations must not be confused. Customary international law simply refers to one of the sources of international law. Ius cogens refers to peremptory norms of international law from which no deviation is permissible. Ius cogens norms are always part of customary law, but only a small part of customary law has the status of ius cogens. Lastly, the classification erga omnes refers to the effect of norms. Erga omnes obligations are the concern of all States, all States have a legal interest in their protection; see Barcelona Traction Case (Belgium v Spain), para 33. While the ICJ does not explicitly speak of ius cogens and not all norms that have an erga omnes effect necessarily have the status of ius cogens, it can be assumed that the ICJ regards the norms mentioned as ius cogens and in any case as customary international law; see Heintschel von Heinegg in Ipsen, above n 113, § 15, para 57. Generally see as well Hobe and Kimminich, above n 157, 173 et seq.

208 Schachter, above n 167, 336.209 It includes genocide, slavery or slave trade, murder or causing the disappearance of

individuals, torture or other cruel, inhuman or degrading treatment or punishment, pro­longed arbitrary detention and systematic discrimination. This congruence is no coincidence but can largely be attributed to Schachter’s contribution to the Restatement, see American Law Institute, Restatement of the Law Third, above n 179, § 702.

210 Ibid, § 702(g).211 Ibid, § 702, Comment m.212 See section II.C.i.3.213 Meron, above n 153, 95 et seq.

Customary International Law 75

human rights, none of these more specific guarantees that are attributed the status of customary human rights relates to access to water.

However, in this context it should be considered whether the guarantee of access to water covered under the right to life can be attributed the sta­tus of customary international law. Some authors state that the right to life is to be considered customary law214, while others such as Schachter assume that only certain especially grave violations of the right to life, in particular genocide, constitute violations of customary law. Even if one does not adopt such a restrictive view, there is definitely no consensus on the question of deriving positive obligations to ensure survival require­ments such as access to water from the right to life215. Accordingly, the right to life in this broad scope – including a guarantee of access to water – cannot be regarded as customary law.

3. Economic, social and cultural rights as customary law?

There is no focus on economic, social and cultural rights in the listings of human rights that have attained the status of customary international law. However, § 702(g) of the Restatement dealing with ‘gross violations’ deserves further consideration. The comment on § 702 of the Restatement refers to all human rights proclaimed in the UDHR and all those guaranteed in inter­national covenants, thus also the economic, social and cultural rights in Articles 22–27 of the UDHR and the rights acknowledged in the Social Covenant. This is in line with ECOSOC Resolution 1503216 from which the wording is taken217. The Resolution is applicable to violations of all types of human rights. The comment does not, however, list any examples of socio­economic rights as gross violations. Socio­economic rights are only brought up in the Reporters’ Notes. It is stated that the phrase generally refers to violations of civil and political rights, and that it is unlikely to find a consist­ent pattern of gross violations of socio­economic rights due to the principle of progressive realisation. Yet such a violation might occur if a State ‘purposefully starved or denied other basic human needs’ to its people218.

214 Ramcharan, above n 93, 3.215 See the discussion above, section I.B.ii.216 Economic and Social Council, Procedure for dealing with communications relating to viola-

tions of human rights and fundamental freedoms, 27 May 1970, Res 1503 (XLVIII). See further below, ch 6, section II.C.ii.4.

217 American Law Institute, Restatement of the Law Third, above n 179, § 702, Reporters’ Notes 10.

218 Ibid. Interestingly, Schachter also considers adding the right to subsistence or at least the right to food to the list of customary human rights law, see Schachter, above n 167, 337, while Meron briefly makes reference to international labour standards as far as economic rights are concerned, see Meron, above n 153, 97 et seq. Moreover, Tomuschat speaks of core rights that are directly related to human existence being classified as ius cogens; however, he does not refer to socio­economic subsistence rights in the following, but only mentions the prohibition of torture and certain forms of interference with the right to life, see Tomuschat, above n 169, 35.

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In any case, a gross violation is one that is ‘particularly shocking because of the importance of the right or the gravity of the violation’219. From all human rights to which § 702(m) applies, the comment singles out those that are ‘fundamental and intrinsic to human dignity’220. In those cases, consistent patterns of violations ‘may be deemed “gross” ipso facto’221. This leads to a proposal made by Alston (adapted from a test suggested by Tomuschat222) to regard any right as being part of customary human rights law that is ‘indispensable to a meaningful notion of human dignity’223. These suggestions stress the importance of the notion of human dignity to determine the customary law nature of human rights. This is interesting in regard to the right to water, as access to a minimum amount of water can be regarded as indispensable for a life in dignity. However, as interest­ing as these suggestions seem and as convincing they may sound, they do not take into account the traditional elements necessary for customary law to evolve: State practice and opinio iuris. Alston himself states that the proposal by Tomuschat (as well as his own) ‘is not so much based on actual stock­taking of the relevant State practice but rather on deductive reasoning’224. Yet the creation of law by custom is practice­based225. It runs counter to the very idea of custom to declare practice – as one of its deci­sive elements – irrelevant and to comprise methods that are not at all based on practice but on normative considerations226. If this traditional element of customary law is to keep its relevance, these propositions cannot be used to determine customary human rights, and consequently cannot result in establishing a customary human right to water.

ii.  Other General Assembly resolutions

Besides the UDHR, other General Assembly resolutions may also be of relevance in determining customary law227. With regard to the right to water, two resolutions in the context of the right to development have to be mentioned. More significantly, the General Assembly recently adopted a resolution specifically on the right to water and sanitation.

219 American Law Institute, Restatement of the Law Third, above n 179, § 702, Comment m.220 Ibid.221 Ibid.222 Tomuschat, above n 169, 35.223 P Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and

Development Debate Seen through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755, 774, cited from Tomuschat, above n 169, 35. As a second requirement Alston puts forward that the fulfilment of the right must be within reach of the government.

224 Alston, above n 223, 772.225 Van Hoof, above n 170, 86.226 Van Hoof, above n 170, 107.227 See generally on General Assembly resolutions as a source of customary law, Sloan,

above n 177, 72 et seq; Asamoah, above n 177, 46 et seq; McDougal et al, above n 190, 273; Verdross and Simma, above n 163, paras 634 et seq with further references.

Customary International Law 77

The Declaration on the Right to Development228 calls in Article 8 for the equality of opportunity for all in their access to basic resources. This may be interpreted to include access to water229. However, there is no explicit reference to the right to water. This is different from a General Assembly resolution dating from 2000, which explicitly mentions the right to water in the context of the right to development230. Yet both of these resolutions were voted upon instead of being unanimously adopted. In the voting on the Declaration on the Right to Development, one State (the USA) voted ‘No’ (with 146 ‘Yes’ votes, eight abstentions and four States non­voting). The voting record for the resolution from 2000 shows 10 States voting ‘No’ (and 119 ‘Yes’ votes, 38 abstentions and 21 non­voting States)231. While the main controversy revolved around the right to development, these resolu­tions hence cannot be understood to show unequivocal support for the right to water.

On 28 July 2010, the UN General Assembly adopted a resolution on the right to water and sanitation. It is the first General Assembly resolution to deal specifically with the issue. It explicitly ‘[r]ecognises the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights’232. The resolution was an initiative of Bolivia and was co­sponsored by 33 States, namely, Antigua and Barbuda, Bahrain, Bangladesh, Benin, Burundi, Central African Republic, Congo, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Fiji, Georgia, Haiti, Madagascar, Mauritius, Nicaragua, Nigeria, Paraguay, Saint Lucia, Saint Vincent and The Grenadines, Samoa, Saudi Arabia, Serbia, Seychelles, Solomon Islands, Sri Lanka, Tuvalu, Uruguay, Vanuatu, Venezuela and Yemen. The USA called for a vote on the resolution. One hundred and twenty­two States voted in favour and none against; 41 States abstained from voting; and 29 States were absent233.

Countries abstained for different reasons. Many States referred to pro­cedural reasons, arguing that the process leading to the adoption of the resolution had lacked transparency, that they did not have sufficient time to consider the implications of the resolution, that the discussion of the issue of water and sanitation as human rights at the Human Rights Council was still ongoing, and that the resolution would pre­judge the

228 General Assembly, Declaration on the Right to Development, 4 December 1986, A/Res/41/128.

229 Gleick, above n 34, 494.230 General Assembly, The right to development, 15 February 2000, A/Res/54/175, para

12(a).231 Voting records available at <unbisnet.un.org> (accessed 1 October 2011).232 General Assembly, The human right to water and sanitation, 3 August 2010, A/Res/64/ 292,

para 1. 233 For the voting record, see United Nations, General  Assembly  Adopts  Resolution 

Recognizing Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favour, None  against,  41  Abstentions, 28 July 2010, available at <www.un.org/News/Press/docs/ 2010/ga10967.doc.htm> (accessed 1 October 2011).

78 Legal Foundations of the Human Right to Water

findings of this process234. Some States specifically stated in their explana­tion of vote that they recognised the right to water but abstained from voting for other reasons235.

The resolution has been labelled as a breakthrough and a landmark236. Its enormous political significance is underlined by the fact that no State voted against the resolution, as well as by the fact that the resolution rec­ognises sanitation as a human right, which until now had received limited significance from a human rights perspective237.

The resolution ‘recognises’ – instead of ‘declares’ – that water and sani­tation is a human right. This demonstrates that the General Assembly is of the view that the right to water and sanitation already existed. The resolu­tion did not create a new right but formally acknowledged its existence under international law238. As outlined above239, such a right exists under the Social Covenant and other human rights treaties, as a component of the right to an adequate standard of living. In their explanations of vote, many States underlined that they consider the right to water and sanita­tion as existing under international law240, some of them referring explic­itly to the right to an adequate standard of living241. In this regard, it is interesting to note that not all States voting in favour of the resolution are States Parties to the Social Covenant, while those that are not are States Parties to the CEDAW242. As outlined above, this treaty explicitly men­tions water as a component of the right to an adequate standard of living, and must also be interpreted as an indication that the right to water is considered a pre­existing human right243.

234 See the explanations of vote contained in United Nations, ibid.235 See the explanation of vote by the delegate of The Netherlands contained in United

Nations, ibid. Similarly, the delegate of the UK explained that her country considers the right to water as an element of the right to an adequate standard of living and recognises it as such, but argued that it is not a freestanding human right, see webcast of the General Assembly 108th Plenary Meeting, 28 July 2010, available at <www.un.org/webcast/ga.html> (accessed 1 October 2011).

236 United Nations Office of the High Commissioner for Human Rights, UN expert welcomes recognition as a human right of access to safe and clean drinking water and sanitation, 30 July 2010, available at <www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10240& LangID=E> (accessed 1 October 2011).

237 On the human right to sanitation, see further ch 5, section III.D.238 United Nations Office of the High Commissioner for Human Rights, above n 236.239 See section I.240 See, for instance, the explanations of vote by Argentina, Egypt, Colombia, Mexico and

Liechtenstein contained in United Nations, above n 233.241 See the explanations of vote by Germany, Spain and Hungary contained in United

Nations, above n 233.242 Andorra, Antigua and Barbuda, Bhutan, Brunei Darussalam, The Comoros, Cuba,

Haiti, Malaysia, Myanmar, Oman, Qatar, Saint Lucia, Samoa, Saudi Arabia, Singapore, South Africa, Tuvalu, the United Arab Emirates and Vanuatu voted in favour of the resolution, while not being States Parties to the Social Covenant but to the CEDAW (as of 31 July 2010).

243 See section I.D.i.

Customary International Law 79

The fact that the resolution recognises the right to water and sanitation as an existing human right strengthens its persuasiveness. Whereas pro­claiming a ‘new’ right would lack a legal basis in international law, the right to an adequate standard of living provides a sound legal basis for the right to water. At the same time, this understanding of the resolution, namely, that it recognises the right to water as an existing human right guaranteed in international human rights treaties, limits the significance of the resolution in the context of customary human rights law. The reso­lution reaffirms existing guarantees under international human rights treaties, but does not necessarily go beyond. However, it shows that States accept their obligations corresponding to the human right to water and sanitation under international human rights treaties, including a number of States that are not Parties to the Social Covenant but to the CEDAW.

In summary, the resolution is of enormous political significance and stresses the importance of water and sanitation as a human right by put­ting an explicit focus on it. While not being adopted unanimously, it received strong support, underlined by the fact that no single State voted against the resolution. However, it cannot go unnoticed that a total of 70 States abstained from voting or were absent. If the resolution had been adopted by consensus, this would have reinforced its implications for the emergence of the right to water as a customary human right.

iii.  Resolutions by the Commission on Human Rights and the Human Rights Council

The former Commission on Human Rights has adopted two resolutions in the context of toxic waste that explicitly mention the right to water and refer to it repeatedly244. However, similar to the General Assembly resolu­tions in the context of the right to development, these resolutions have been voted upon, both times with 13 States voting ‘No’ and two absten­tions. Accordingly, these resolutions do not show unequivocal support for the right to water either.

In the context of the Human Rights Council, the first resolutions dealing with the issues of water and sanitation did not explicitly refer to the human right to water and sanitation but used the language of human rights obliga­tions relating to access to safe drinking water and sanitation245. This changed

244 Commission on Human Rights, Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, 16 April 2004, E/CN4/Res/2004/17, Preamble, paras 4, 9; Commission on Human Rights, Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, 14 April 2005, E/CN4/Res/2005/15, Preamble, paras 4, 9.

245 See the resolution establishing the mandate of the independent expert, Human Rights Council, Human rights and access to safe drinking water and sanitation, 28 March 2008, A/HRC/Res/7/22; and, with a particular focus on sanitation, Human Rights Council, Human rights and access to safe drinking water and sanitation, 12 October 2009, A/HRC/12/8.

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in 2010. Following the 2010 resolution by the General Assembly, the Human Rights Council resolution from 30 September 2010 brought the break­through for the recognition of the right to water246. The resolution was intro­duced by Germany and Spain, and had more than 50 co­sponsors247. These include States such as Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Greece, Latvia, Luxembourg, The Netherlands and Slovakia, that had abstained from voting on the General Assembly res­olution clearly demonstrating that they, in fact, support the recognition of the right to water.

Very significantly, and illustrating major progress compared to the General Assembly resolution from July 2010, the Human Rights Council resolution was adopted by consensus. No State called for a vote on the resolution. A number of those States that abstained in New York joined consensus as members of the Human Rights Council, ie Poland, the Republic of Korea, the Republic of Moldova, Slovakia, Ukraine, Zambia, the United Kingdom and the United States. In its explanation of vote, the UK stated that it did not want to prevent consensus and call for a vote on the resolution, but dissociated itself from consensus. However, the rea­sons provided for doing so do not relate to the recognition of the right to water but to the simultaneous acknowledgement of the right to sanita­tion, for which the UK sees no basis in international law248.

The resolution recalls the General Assembly resolution249 and [a]ffirms that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity250.

Hence, the resolution puts the right to water in the context of legally­ binding human rights instruments and reinforces its understanding as a

246 The resolution also recognised the right to sanitation, which will be further dealt with below, see ch 5, section III.D.

247 The draft tabled by Germany and Spain lists Armenia, Azerbaijan, Andorra, Belgium, Bosnia and Herzegovina, Bulgaria, Chile, Colombia, Croatia, Cyprus, Denmark, Djibouti, Estonia, France, Germany, Greece, Hungary, Italy, Jordan, Latvia, Luxembourg, Morocco, Netherlands, Norway, Panama, Paraguay, Peru, Portugal, Serbia, Slovakia, Slovenia, Spain, Tunisia, Uruguay, Viet Nam, Yemen as sponsors, see Human Rights Council, Human rights and access to safe drinking water and sanitation, Draft resolution, 24 September 2010, A/HRC/15/L.14. Other countries joined as co­sponsors before the resolution was adopted, see HE Ambassador Reinhard Schweppe, Germany, Statement regarding Draft Resolution L.14 on  ‘Human Rights  and  access  to  safe  drinking water  and  sanitation’, available at <www.genf.diplo.de/contentblob/2805076/Daten/897067/2010_09_30_MRRSideEvent_Rede_frz.pdf> (accessed 1 October 2011).

248 See the explanation of vote by the British delegate, webcast of the Human Rights Council session, available at <www.un.org/webcast/unhrc/archive.asp?go=100930> (accessed 1 October 2011).

249 Human Rights Council, A/HRC/Res/15/9, above n 44, para 2.250 Ibid, para 3.

Customary International Law 81

component of the right to an adequate standard of living251. As outlined above, this understanding provides a firm legal basis for the right to water, but simultaneously limits the significance of the resolution for the evolution of a customary human right to water.

The recognition of the human right to water was confirmed by the Human Rights Council at its session in March 2011, and again in September 2011, in resolutions explicitly entitled ‘The human right to safe drinking water and sanitation’ that welcomed the recognition through the General Assembly and the Human Rights Council in 2010252.

iv.  Political declarations and statements of recognition

Apart from the resolutions of the General Assembly, the Commission on Human Rights and the Human Rights Council, political declarations can also substantiate the emergence of the right to water as customary inter­national law253. Such political declarations are important since they directly reflect States’ behaviour and opinions. Therefore, they carry sig­nificant weight in determining the potential customary law nature of the right to water. A number of influential declarations on water and develop­ment policy refer to the right to water.

The Mar del Plata Action Plan254, adopted at the UN Conference on Water in 1977, provides a first comprehensive global water strategy cover­ing water quantity and quality aspects as well as water use in different sectors. It is also the first document referring to a right to water. The Mar del Plata Resolution on Community Water Supply starts by considering that ‘[a]ll 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’255. This introduc­tion is often interpreted as recognising the human right to water256. Yet the passage is not as straightforward as it seems at first sight. Human rights are typically characterised by the individual’s perspective. However, the

251 This understanding may also explain why the US joined consensus. In the explanation of vote, the delegate pointed out that the right to water and sanitation as derived from Art 11(1) ICESCR is relevant to the States Parties of that Covenant, ie not the US. He clarified that the right to water and sanitation is not protected in the US Constitution and not justicia­ble in US courts; see webcast of the Human Rights Council session, available at <www.un.org/webcast/unhrc/archive.asp?go=100930> (accessed 1 October 2011).

252 Human Rights Council, The human right to safe drinking water and sanitation, 8 April 2011, A/HRC/Res/16/2, para 1; Human Rights Council, The human right to safe drinking water and sanitation, 12 October 2011, A/HRC/Res/18/1, para 1.

253 See Hobe and Kimminich, above n 157, 187.254 United Nations, Report  of  the United Nations Conference  on Water, Mar  del Plata,  1977,

E/Conf.70/29, ch I.255 Ibid, Resolution II(a) (p 66).256 Salman and McInerney­Lankford, above n 5, 9; Hardberger, above n 12, 346; Langford,

above n 34, 275.

82 Legal Foundations of the Human Right to Water

clause refers to ‘peoples’ instead of ‘people’. Nevertheless, the fact that the passage refers to ‘basic needs’ implies that it relates to individuals. Moreover, the following sentence explicitly refers to the individual, stat­ing that ‘the availability to man of that resource is essential both for life and his full development, both as an individual and as an integral part of society’257. It does not, however, state explicitly that the individual has a human right to water.

Further relevant conferences and declarations followed in the 1990s. The International Conference on Water and the Environment258, held in Dublin in 1992, served as a basis and preparation for the Rio Earth Summit259. The Conference adopted four guiding principles260. Although the Conference was not attended by State officials, but rather by around 500 experts designated by States261, these principles have gained wide influence262. They are often considered to be the most comprehensive and far­reaching political statement on water management263. Principle No 4 acknowledges that water has an economic value in all its competing uses, and states that it should be recognised as an economic good. At the same time, it provides for the recognition of ‘the basic right of all human beings to have access to clean water and sanitation at an affordable price’264. The Principle thus acknowledges water as a basic right.

The Earth Summit (United Nations Conference on Environment and Development) took place in Rio in 1992 a few months after the Dublin

257 United Nations, Mar del Plata Action Plan, above n 254, Resolution II(b) (p 67).258 For a detailed account of its preparation and proceedings, see GJ Young, JCI Dooge and

JC Rodda, Global Water Resource Issues (Cambridge, Cambridge University Press, 1994) 31 et seq.

259 W Scheumann and A Klaphake, Freshwater Resources  and Transboundary Rivers  on  the International Agenda: from UNCED to Rio+10, Gutachten im Auftrag des Bundesministeriums für wirtschaftliche  Zusammenarbeit  und  Entwicklung (Bonn, Deutsches Institut für Entwicklungspolitik, 2001) 9; Salman and McInerney­Lankford, above n 5, 9; B Pilardeaux, ‘Entwicklungslinien der internationalen Süßwasserpolitik’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal  Klima:  Genug Wasser  für  alle?,  Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 316, 316; Young et al, above n 258, 1.

260 International Conference on Water and the Environment, Development issues for the 21st century, 26–31 January 1992, Dublin, Ireland, The Dublin Statement, 1992, 2 (hereafter ‘Dublin Statement’). The principles read: ‘Principle No 1 – Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment. Principle No 2 – Water development and management should be based on a participatory approach, involving users, planners and policy­makers at all levels. Principle No 3 – Women play a central part in the provision, management and safeguarding of water. Principle No 4 – Water has an eco­nomic value in all its competing uses and should be recognized as an economic good.’

261 K Conca, Governing  Water:  Contentious  Transnational  Politics  and  Global  Institution Building (Cambridge, Mass, MIT Press, 2006) 140; Scheumann and Klaphake, above n 259, 9; Young et al, above n 258, 32.

262 Scheumann and Klaphake, above n 259, 4; Pilardeaux, above n 259, 316.263 Scheumann and Klaphake, above n 259, 12.264 Dublin Statement, above n 260, 2.

Customary International Law 83

Conference265. Apart from the Rio Declaration on Environment and Development containing a set of principles266, the much more detailed and action­oriented Agenda 21267 was adopted at the Conference. In the section on ‘Drinking water supply and sanitation’, Chapter 18 of Agenda 21 endorses the Resolution from the Mar del Plata Action Plan that ‘[a]ll peoples . . . have the right to have access to drinking water in quantities and of a quality equal to their basic needs’268, regarding it as ‘the com­monly agreed premise’269.

The International Conference on Population and Development held in Cairo from 5–13 September 1994 was another in the series of World Conferences in the 1990s. Principle 2 of the Cairo Programme of Action adopted at the Conference assures that all people have the right to an ade­quate standard of living, including water and sanitation270. Likewise, the Habitat Agenda adopted at the United Nations Conference on Human Settlements, which took place in Istanbul in 1996, confirms that ‘[e]very­one has the right to an adequate standard of living for themselves and their families, including . . . water and sanitation’271.

These statements show that there seemed to be an emerging consensus on the right to water in the 1990s. However, that consensus was not main­tained, the recognition of water as a human right seeming to be become contentious once again. In 2001, the International Conference on Freshwater was held in Bonn as a preparatory conference for the World Summit on Sustainable Development (WSSD) in Johannesburg. The Bonn Recommendations for Action adopted at the Conference note that ‘many people regard access to drinking water and sanitation to be a human right’272, but they do not take a stand on this issue. This shows that there was some awareness and discussion of the issue in the lead­up to the WSSD held in 2002 in Johannesburg, but the Johannesburg Plan of

265 For an overview of the preparatory process, see AO Adede, ‘The Road to Rio: The Development of Negotiations’ in L Campiglio, L Pineschi, D Siniscalco and T Treves (eds), The  Environment  after  Rio:  International  Law  and  Economics (London, Graham & Trotman/Martinus Nijhoff, 1994) 3; Scheumann and Klaphake, above n 259, 8 et seq.

266 United Nations, Report of the United Nations Conference on Environment and Development, Rio  de  Janeiro,  3–14  June  1992, A/Conf.151/26/Rev.1 (Vol I), Annex I, Rio Declaration on Environment and Development.

267 Ibid, Annex II, Agenda 21.268 Ibid, ch 18.47.269 Ibid, ch 18.47. For a general assessment of Agenda 21 and human rights with a focus on

the right to participation, see R Picolotti, ‘Agenda 21 and Human Rights – The Right to Participate’ in R Picolotti and JD Taillant (eds), Linking Human Rights and the Environment (Tucson, University of Arizona Press, 2003) 47.

270 United Nations, Cairo Programme of Action, above n 45, Principle 2.271 United Nations, Habitat Agenda, above n 45, para 11.272 International Conference on Freshwater, Bonn Recommendations for Action, Bonn,

2001, Introduction.

84 Legal Foundations of the Human Right to Water

Implementation adopted at the Summit does not mention the right to water273.

Water as a human right has also been an issue for discussion at a num­ber of World Water Fora. Five World Water Fora have been held thus far every three years since 1997, the first in Marrakech, in 2000 in The Hague, in 2003 in Japan (Kyoto, Osaka and Shiga), in 2006 in Mexico City and in 2009 in Istanbul. These Fora are organised by the World Water Council, a non­governmental organisation274 founded in 1996 which fills a gap in the water sector275. Different from issues such as biodiversity and climate change, no multilateral agreement on water exists, and consequently there are no periodic meetings of the States Parties. A Ministerial Conference has become part of the World Water Fora since the Forum in The Hague.

The Marrakech Declaration and the Ministerial Declaration of The Hague only call for recognition that water is a basic human need276. During the Fourth World Water Forum in Mexico there were a number of sessions and events dealing with the human right to water277. It was an important topic of discussion and controversy during the entire Forum278. However, again its recognition was not included in the Ministerial Declaration; it was not even mentioned. The Declaration merely reaffirms the goals agreed upon in Agenda 21, the Johannesburg Plan of Implementation and the MDGs279. The European Union issued a separate statement, which affirms that discussions of the human right to water took place during the

273 Interestingly, the target from the Millennium Declaration on halving hunger repeated in the Johannesburg Plan of Implementation is linked to the right to a standard of living adequate for health and well­being including the right to food. Obligations arising from Art 11 of the Social Covenant are explicitly mentioned, see United Nations, Report of the World Summit on Sustainable Development, Johannesburg, 26 August–4 September 2002, A/Conf.199/20, Chapter I) 2), Johannesburg Plan of Implementation (hereafter ‘JPoI’), para 40(a).

274 The World Water Council may be characterised as Quasi­NGO (‘QUANGO’) being not only made up by civil society, but also counting international organisations, private compa­nies and government authorities as its members; see L Partzsch, Global  Governance  in Partnerschaft, Die EU-Initiative ‘Water for Life’ (Baden­Baden, Nomos, 2007) 64.

275 AK Biswas, ‘The Water Crisis – Current Perceptions and Future Reality’ (2000) Development + Cooperation 16, 16.

276 Declaration of Marrakech, First World Water Forum, World Water Council, 1997, avail­able at <www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/Marrakech_Declaration.pdf> (accessed 1 October 2011); Ministerial Declaration of The Hague, Water Security in the 21st Century, 2nd World Water Forum, 2000, para 3, available at <www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/The_Hague_Declaration.pdf> (accessed 1 October 2011).

277 In the list of sessions, three events on the right to water may be found, see <www.worldwaterforum4.org.mx/files/Diffusion.pdf> (accessed 1 October 2011).

278 F Schwarz, ‘Viertes Weltwasserforum in Mexiko’ (2006) Umwelt 282, 284; see also the detailed account of H Smets, The Right to Water at the 4th World Water Forum in Mexico, 13 April 2006, available at <www.academie-eau.org/admin/fichier_article/20-The_right_to_water_at_Mexico-1266502787fichier01.pdf> (accessed 1 October 2011); as well Tully, ‘Flighty Purposes and Deeds’, above n 15, 466 et seq.

279 Ministerial Declaration, Fourth World Water Forum, 2006, para 2, available at <www.worldwatercouncil.org/fileadmin/wwc/World_Water_Forum/WWF4/declarations/Ministerial_Declaration_english.pdf> (accessed 1 October 2011).

Customary International Law 85

Forum. Yet in its statement, it does not recognise the human right to water but only states that water is a primary human need, and that water supply and sanitation are basic social services280. Moreover, there is a complemen­tary declaration by Bolivia, Cuba, Uruguay and Venezuela in which these States acknowledge that access to water with quality, quantity and equity constitutes a fundamental human right281.

The Fifth World Water Forum in Istanbul had a similar outcome. The human right to water was an important topic of discussion during the Forum, but once again the Ministerial Statement does not recognise water as a human right. It only acknowledges ‘the discussions within the UN system regarding human rights and access to safe drinking water and sanitation’282, and recognises ‘that access to safe drinking water and sani­tation is a basic human need’283. Moreover, an unofficial supplementary declaration acknowledging the human right to water was signed by approximately 20 States284. This highlights again that there was no consen­sus about the recognition of the human right to water.

However, the Ministerial Declarations adopted at the World Water Fora should not be given too much legal weight. Although the Fora are quite influential and major events in the water sector, they remain events organised and held by the World Water Council, a private organisation. Moreover, Ministerial Declarations adopted at the Fora are usually not open to negotiation in a transparent process. They are prepared by the host state and only allow for limited involvement in the drafting process of states and other actors285. Still, the statements underline the lack of con­sistency in treating water as a human right.

More recently, though, an interesting development might be observed. The right to water has been acknowledged in a number of declarations, not at global conferences but in particular at a regional level or at meet­ings of specific groups of States. Notable in this regard is the Final Document of the 14th Summit Conference of the Non­Aligned Movement that took place in Havana from 11–16 September 2006286. It recalls General

280 European Union, Statement, World Water Forum, Mexico, 22 March 2006, available at <www.worldwatercouncil.org/fileadmin/wwc/World_Water_Forum/WWF4/declara­tions/statement_UE.pdf> (accessed 1 October 2011).

281 Bolivia, Venezuela, Cuba, and Uruguay, Declaración complementaria en el marco del IV Foro Mundial del Agua, Ciudad de México, 22 March 2006, available at <www.worldwatercouncil. org/fileadmin/wwc/Library/Official_Declarations/Declaraci_n_Bolivia__Cuba__Uruguay_y_Venezuela_IVFMA1.pdf> (accessed 1 October 2011).

282 Istanbul Ministerial Statement, Fifth World Water Forum, Ministerial Process, 22 March 2009, para 15, available at <content.worldwaterforum5.org/files/PoliticalProcess/Ministerial_ Statement_22_3_09.pdf> (accessed 1 October 2011).

283 Ibid, para 15.284 Declaration of Governments for the Human Right to Water, Fifth World Water Forum,

Istanbul, March 2009 (on file with the author).285 Langford, ‘Expectation of Plenty’, above n 15, 476.286 Non­Aligned Movement, Final Document of the 14th Summit Conference, 11–16 September 

2006, Havana, NAM 2006/Doc.1/Rev.3, para 226, reprinted in Internationale Politik 11/2006.

86 Legal Foundations of the Human Right to Water

Comment No  15 and recognises ‘the importance of water as a vital and finite natural resource, which has an economic, social and environmental function’, and acknowledges ‘the right to water for all’287. Moreover, the Declaration adopted at the Africa–South America Summit in November 2006 recognised right to have access to clean and safe water288. Furthermore, the ‘Message from Beppu’, adopted at the 1st Asia–Pacific Water Summit in December 2007, deserves mention. The countries and regions attending agreed to ‘recognise the people’s right to safe drinking water and basic sanitation as a basic human right and a fundamental aspect of human security’289.

At the European level, the right to water has been recognised in some statements. The European Parliament reaffirmed in a resolution ‘that access to drinking water in a sufficient quantity and of adequate quality is a basic human right’290. Also at the European level, but in the context of the Council of Europe, the European Charter on Water Resources was adopted as a Recommendation by the Committee of Ministers on 17 October 2001291, proclaiming that ‘[e]veryone has the right to a sufficient quantity of water for his or her basic needs’292. The Committee derives this right from the right to food and the right to an adequate standard of living as contained in international human rights instruments. More recently, on World Water Day 2010, the Council of the European Union issued a state­ment on water and human rights. It recognises that ‘access to safe drink­ing water is a component element of the right to an adequate standard of living and is closely related to human dignity’293.

These are important achievements, reflecting widespread support for the human right to water, as the Council of Europe consists of 47 Member States, the Non­Aligned Movement of 116 countries, while the 1st Asia­Pacific Water Summit was attended by representatives from 36 countries and regions. Their statements thus convey a strong message.

287 Ibid, para 226.288 First Africa–South America Summit, Declaration, November 2006, para 18, available at

<www.africa­union.org/root/AU/Conferences/Past/2006/November/SummitASA/summit. htm> (accessed 1 October 2011).

289 First Asia–Pacific Water Summit, Message from Beppu, Beppu, Japan, 3–4 December 2007, available at <www.apwf.org/archive/documents/summit/Message_from_Beppu_071204.pdf> (accessed 1 October 2011).

290 European Parliament, Resolution on the Commission communication on water management in  developing  countries  and  priorities  for  EU  development  cooperation,  4  September  2003, COM(2002) 132 – C5­0335/2002 – 2002/2179(COS), Official Journal C 076 E, 25 March 2004, 430, 432.

291 Council of Europe, Recommendation on the European Charter on Water Resources, above n 46.

292 Ibid, para 5.293 Council of the European Union, Declaration by the High Representative, Catherine Ashton, 

on behalf of the EU to commemorate the World Water Day, 22nd March, Brussels, 22 March 2010, 7810/10 (Presse 72), P 12/10, available at <www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/cfsp/113472.pdf> (accessed 1 October 2011).

Customary International Law 87

Furthermore, a number of individual States, including the United Kingdom294 and The Netherlands295, have issued statements in which they explicitly acknowledge the right to water. Moreover, the initiative for the report of the High Commissioner, as well as for the establishment of the mandate of the Independent Expert and its extension as Special Rapporteur, was mainly driven by Spain and Germany296. Such statements underline the active support for the right by a number of European States.

In summary, while there are many auspicious developments, a consist­ent practice emerging from political declarations and statements without contradictions cannot be observed. For example, the European Union seems ambivalent in its recognition of the right to water. Despite the European Parliament resolution dating from 2003, the European Union issued a statement at the Fourth World Water Forum in 2006, in which it referred to the discussions concerning the right to water but did not rec­ognise it as such. Instead it only stated that it considers water a primary human need297. In its statement on World Water Day 2010298, the European Union links water to the right to an adequate standard of living, but care­fully avoids language that would explicitly declare water a distinct human right. Yet, having recognised that it is a component of the right to an ade­quate standard of living, it seems a small step to acknowledge that water has the same status as the rights to food, to housing and to clothing, as explicit component rights of an adequate standard of living.

In conclusion, while recent developments are very promising, state­ments concerning the right to water are not yet consistent and consolid­ated. Current political declarations provide only limited support for the emergence of the human right to water as customary international law due to lack of consistency.

294 Department for International Development, Press Release, ‘UK recognises the right to water as Hilary Benn launches call for Global Action Plan to solve water crisis’, 9 November 2006, available at <www.dfid.gov.uk:80/news/files/pressreleases/human-dev-report06.asp> (accessed 1 October 2011).

295 Dutch Ministry of Foreign Affairs, Press Release, ‘Association of Water Boards starts international projects’, 19 March 2007, available at <www.minbuza.nl/en/News/Press_Releases/2007/03/Association_of_Water_Boards_starts_international_projects> (accessed 1 October 2011).

296 Langford, ‘Expectation of Plenty’, above n 15, 477.297 European Union, above n 280. 298 Council of the European Union, Declaration on World Water Day 2010, above n 293. In its

Declaration on World Water Day 2011, the EU states that ‘[a]ll countries bear the responsibility to realize that people enjoy their full human rights, and that they have equal access to health care, education, safe drinking water and sanitation, social and other basis services. The EU acknowledges the recent recognition of the human right to water and sanitation by the UN General Assembly, and the Human Rights Council’s specification that this right is part of the human right to an adequate standard of living.’ Again, this falls short of an explicit recogni­tion by the EU itself. See High Representative for Foreign Affairs and Security Policy, Catherine Ashton, Declaration on behalf of the European Union on the occasion of the World and European Water Day, available at <www.eu­un.europa.eu/articles/en/article_10856_en.htm> (accessed 1 October 2011).

88 Legal Foundations of the Human Right to Water

v.  Documents issued by other UN bodies

There are a number of documents on the right to water issued by UN bod­ies other than the General Assembly, the Commission on Human Rights and the Human Rights Council. Above all, the previously­mentioned General  Comment  No  15 by the CESCR must be noted, as it explicitly acknowledges the right to water299. It has provided a powerful impetus for many later developments on the right to water. However, being a treaty body document, the General Comment is consequently only relevant for the States Parties to the Social Covenant.

There are, however, other documents issued by UN bodies that are of direct relevance for countries that have not ratified the Social Covenant, as they are not treaty­based300. The reports by several Special Procedures are noteworthy: above all the reports on the right to water, but also reports on the rights to food, health and housing. These Special Procedures have been mandated by the Commission on Human Rights and the Human Rights Council, respectively. As such, they are not treaty­ but Charter­based. Their reports are therefore not limited to States Parties of the Social Covenant.

Above all, the mandate on water and sanitation is relevant in the pre­sent context. The mandate was established by the Human Rights Council as that of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation in March 2008301. Catarina de Albuquerque took up her mandate in November 2008. In March 2011, the Human Rights Council extended the mandate for a period of another three years and simultaneously changed the title to that of Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, to reflect the recognition of the right to water and sanitation302. After submitting her first preliminary report in March 2009303, Catarina de Albuquerque has issued a number of thematic reports on the human rights obligations related to sanitation304, on the obligations of States and responsibilities of other actors in the context of non­States

299 CESCR, General Comment No 15, above n 4.300 See HJ Steiner, P Alston and R Goodman, International Human Rights in Context, Law, 

Politics, Morals – Text and Materials, 3rd edn (New York, Oxford University Press, 2008) 741.301 Established by Human Rights Council, A/HRC/Res/7/22, above n 245.302 Human Rights Council, A/HRC/Res/16/2, above n 252.303 Human Rights Council, Report of the independent expert on the issue of human rights obliga-

tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, 25 February 2009, A/HRC/10/6. The report does not yet include any substantive part, but mainly retraces the process of establishing the mandate and indicates the Independent Expert’s pri­orities during the first year of her mandate.

304 Human Rights Council, Report of the independent expert on the issue of human rights obliga-tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, 1 July 2009, A/HRC/12/24.

Customary International Law 89

service provision305, on the MDGs relating to water and sanitation and recommendations from a human rights perspective306, on national and local planning for the implementation of the rights to water and sanita­tion307, and on financing their realisation308. She also issued a compendium of good practices, highlighting how the rights to water and sanitation can be implemented309.

A few years earlier, the former Sub­Commission on the Promotion and Protection of Human Rights, a subsidiary body of the former Commission on Human Rights, had already established a Special Procedure in this context. The Special Rapporteur on the right to water, El Hadji Guissé, explored the legal basis of the right to water, as well as the rights and obli­gations regarding this right and its implementation in his final report310. Moreover, he developed a set of draft guidelines for the realisation of the right to drinking water supply and sanitation311.

Apart from this, the reports by the former Special Rapporteur on the Right to Food, Jean Ziegler, also mention the right to water in the sense of liquid food312; the reports by the former Special Rapporteur on the Right to Health, Paul Hunt, do so as an underlying determinant of health313;

305 Human Rights Council, Report of the independent expert on the issue of human rights obliga-tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, 29 June 2010, A/HRC/15/31.

306 General Assembly, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 6 August 2010, A/65/254.

307 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 4 July 2011, A/HRC/18/33.

308 General Assembly, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 3 August 2011, A/66/255.

309 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Addendum, Compilation of good practices, 29 June 2011, A/HRC/18/33/Add.1.

310 Sub­Commission on the Promotion and Protection of Human Rights, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation, Final Report of the Special Rapporteur, El Hadji Guissé, 14 July 2004, E/CN.4/Sub.2/2004/20.

311 Sub­Commission on the Promotion and Protection of Human Rights, Realization of the right to drinking water and sanitation, Report of the Special Rapporteur, El Hadji Guissé, Draft Guidelines for the Realization of the Right to Drinking Water and Sanitation, 11 July 2005, E/CN.4/Sub.2/2005/25 (hereafter ‘Draft Guidelines’).

312 General Assembly, Preliminary  report  of  the  Special  Rapporteur  of  the  Commission  on Human  Rights  on  the  right  to  food,  Jean  Ziegler, 23 July 2001, A/56/210, paras 58 et seq; Commission on Human Rights, The right to food, Report submitted by the Special Rapporteur on the right to food, Jean Ziegler, in accordance with Commission on Human Rights resolution 2002/25, 10 January 2003, E/CN.4/2003/54, paras 36 et seq; Commission on Human Rights, The right to food, Report submitted by the Special Rapporteur on the right to food, Jean Ziegler, in accordance with  Commission  on  Human  Rights  resolution  2003/25, 9 February 2004, E/CN.4/2004/10, paras 35 et seq.

313 See in particular Commission on Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report of the Special Rapporteur, Paul Hunt,  submitted  in  accordance  with  Commission  resolution  2002/31, 13 February 2003, E/CN.4/2003/58, paras 23, 25; Commission on Human Rights, Report of the Special Rapporteur

90 Legal Foundations of the Human Right to Water

while the reports by the former Special Rapporteur on the Right to Housing, Miloon Kothari, refer to it as an ‘important element of adequate housing’314.

Moreover, the Human Rights Council requested the High Commissioner for Human Rights ‘to conduct a detailed study on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instru­ments’315. After consulting with States and other stakeholders, the High Commissioner submitted this study in August 2007316. It concluded that ‘it is now time to consider access to safe drinking water and sanitation as a human right’317. As these instruments belong to the realm of the Human Rights Council, they are not treaty­ but Charter­based, and are as such rel­evant for all Member States of the UN.

However, the Special Procedures are independent experts who serve in their personal capacity. The same holds true for the members of the CESCR. This independent status excludes the possibility of their reports being directly attributed to States. Similarly, States have not directly par­ticipated in the drafting process of the study by the High Commissioner, which rather reflects the High Commissioner’s perspective on the issue. Thus, while these are important views, they cannot be regarded as directly reflecting State practice.

vi.  Provisions in national constitutions

It is arguable whether provisions in national constitutions can contribute to the formation of customary international law318. If accepted, such domestic acts need to show a relevance for international law319. In this

on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, 3 March 2006, E/CN.4/2006/48, paras 5, 9.

314 Commission on Human Rights, Report of the Special Rapporteur on adequate housing as a  component  of  the  right  to  an  adequate  standard  of  living, Mr Miloon Kothari, 1 March 2002, E/CN.4/ 2002/59, para 55; see also Commission on Human Rights, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr  Miloon  Kothari,  submitted  pursuant  to  Commission  resolution  2000/9, 25 January 2001, E/CN.4/2001/51, para 62.

315 Human Rights Council, Human Rights and Access to Water, 4 October 2006, A/HRC/Dec/2/104.

316 Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, 16 August 2007, A/HRC/6/3 (hereafter ‘Report of the High Commissioner’).

317 Ibid, para 66.318 Pro: Heintschel von Heinegg in Ipsen, above n 113, § 16, para 18; Doehring, above

n 202, 74; Akehurst, above n 162, 8; J Scanlon, A Cassar and N Nemes, Water as a Human Right? Environmental Policy and Law Paper No 51 (Gland, International Union for Conservation of Nature, 2004) 9; contra: Hobe and Kimminich, above n 157, 187.

319 Heintschel von Heinegg in Ipsen, above n 113, § 16, para 18; Bleckmann, above n 138, 43; van Hoof, above n 170, 110.

Customary International Law 91

regard, the particularities of human rights law that distinguish it from other areas of international law have to be recalled: human rights in national constitutions pertain to the same relationship between the State and the individual as human rights in international law; both refer to the same subject matter. Human rights guarantees in national constitutions can therefore be regarded as relevant for the formation of customary inter­national law320.

A growing number of States have constitutional provisions on the right to water. South Africa’s incorporation of the right to water in its 1996 Constitution321 has received considerable attention. But other countries have also included this right in their constitutions, including Nicaragua322, Ecuador323, Uruguay after a successful referendum in October 2004324, Bolivia325, the Democratic Republic of the Congo326, The Maldives327 and Kenya328. Moreover, there are efforts to include the human right to water

320 M Kotzur, ‘Zur originären Entstehung gewohnheitsrechtlicher Menschenrechtsnormen – Kommentar’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts­Verlag, 2003) 57, 59; Bleckmann, above n 138, 43; Narula, above n 160, 779.

321 Republic of South Africa, Constitution, 1996, entered into force 4 February 1997, Art 27(1)(b), available at <www.info.gov.za/documents/constitution/1996/index.htm> (accessed 1 October 2011).

322 República de Nicaragua, Constitución Política, 2003, Art 105, available at <www.latin­reporters.com/nicaraguaConstitucion.pdf> (accessed 1 October 2011).

323 República de Ecuador, Constitución, 2008, Art 12, available at <www.asambleanacional.gov.ec/documentos/Constitucion­2008.pdf> (accessed 1 October 2011); see also República de Ecuador, Constitución Política, 5 June 1998, no longer in force, Arts 23, 42, available at <www.ecuanex.net.ec/constitucion/indice.html> (accessed 1 October 2011).

324 Republíca de Uruguay, Constitución, 1967, last amended 31 October 2004, Art 47, avail­able at <sip.parlamento.gub.uy/constituciones/const004.htm> (accessed 1 October 2011); see also M Rabuffetti, ‘When Water becomes a Political Challenge’, UNESCO Courier, March 2006: To the Last Drop, available at <unesdoc.unesco.org/images/0019/001915/191576e.pdf#144879> (accessed 1 October 2011); G Weber, ‘Wasser bleibt in Staatshand’, Frankfurter Rundschau, 2 November 2004, 9.

325 República de Bolivia, Constitución Política del Estado, aprobado en Referendum de 25 de enero de 2009, Art 16(1), available at <www.bolivia.de/es/noticias_imagenes/ constitucion.pdf> (accessed 1 October 2011).

326 République Démocratique du Congo, Constitution, 18 February 2006, Art 48, available at <www.presidentrdc.cd/constitution.html> (accessed 1 October 2011).

327 Republic of Maldives, Constitution, 2008, Art 23(a), available at <www.maldivesinfo.gov.mv/home/upload/downloads/Compilation.pdf> (accessed 1 October 2011).

328 Republic of Kenya, Constitution, 2010, Art 43(1)(d), available at <www.parliament.go.ke/index.php?option=com_content&view=article&id=83&Itemid=79> (accessed 1 October 2011). Apart from these countries that explicitly guarantee the right to water in their constitu­tions, a number of countries have included policies in their constitutions that aim at providing access to water for all, see eg, Federal Democratic Republic of Ethiopia, Constitution, 8 December 1994, Art 90(1), available at <www.servat.unibe.ch/icl/et__indx.html> (accessed 1 October 2011); Republic of the Gambia, Constitution, adopted on 8 August 1996, entered into force in January 1997, last amended in 2001, Art 216(4), available at <www.chr.up.ac.za/images/files/documents/ahrdd/thegambia/thegambia_constitution_extracts.pdf> (accessed 1 October 2011); Republíca de Panamá, Constitución Política, 1972, Arts 110(4), 118, available at <www.asamblea.gob.pa/asamblea/constitucion/25176_2004.pdf> (accessed 1 October 2011).

92 Legal Foundations of the Human Right to Water

in the constitutions of Mexico329, Belgium330, Colombia331, Costa Rica332, El Salvador333 and the Solomon Islands334.

Apart from these explicit constitutional provisions, the Indian model is also to be mentioned. The Indian Constitution does not explicitly recog­nise the human right to water335. However, Article 21 of the Indian Constitution, which ensures the right to life, has been interpreted and developed in wide terms by the Indian Supreme Court and High Courts to guarantee the right to a healthy environment, including the right to water336. Courts in Pakistan337, Bangladesh338 and Nepal339 have applied similar interpretations, often by making reference to Indian case law. Moreover, courts in other States, for instance Argentina, use the right to a healthy environment to derive the right to water340.

329 CNN Mexico, El Senado mexicano eleva a rango constitucional el derecho al agua, 29 September 2011, available at <mexico.cnn.com/nacional/2011/09/29/el­senado­mexicano­eleva­a­rango­constitucional­el­derecho­al­agua> (accessed 1 October 2011).

330 Sénat de Belgique, Révision de la Constitution, Révision de l’article 23, alinéa 3, de la Constitution, en vue de le compléter par un 6˚ garantissant le droit à l’eau, Proposition de M Mahoux, 26 January 2004, available at <www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=50332290> (accessed 1 October 2011).

331 Food and Water Watch, Colombia’s Movement  for Water  Democracy  and  Constitutional Reform, June 2009, available at <www.waterjustice.org/uploads/attachments/Colombias­Constitutional­Reform.pdf> (accessed 1 October 2011).

332 See Bourquain, above n 52, 191, fn 247.333 Latin American Herald Tribune, ‘Salvadorans Demand Constitutional Right to Water’,

October 2008, available at <www.laht.com/article.asp?ArticleId=328350&CategoryId=23558> (accessed 1 October 2011).

334 Solomon Islands, Draft Federal Constitution, 2004, Art 46, available at <www.sicr.gov.sb/DRAFT FED CONSTITUTION.pdf> (accessed 1 October 2011).

335 Art 39(a) of the Indian Constitution, however, includes the right to an adequate means of livelihood as a directive principle of State policy which is not enforceable by the courts accord­ing to Art 37. See also Art 39(b) and Art 47. See Republic of India, Constitution, 6 November 1949, available at <lawmin.nic.in/coi/coiason29july08.pdf> (accessed 1 October 2011).

336 See eg Supreme Court of India, Charan Lal Sahu v Union of  India, 22 December 1989, [1990] All  India Reporter 1480; Supreme Court of India, Subhash Kumar v State  of Bihar and Others, 9 January 1991, [1991] All India Reporter 420 at 424. For an analysis of this case law, see R Pant, From Communities’ Hands  to MNCs BOOTs: A Case Study  from  India  on  the Right  to Water (Majkhali, Ecoserve, 2003), 13 et seq, available at <www.righttowater.info/ wp­ content/uploads/india_cs.pdf> (accessed 1 October 2011); ‘What Price for the Priceless?: Implementing the Justiciability of the Right to Water’ (without author), (2007) 120 Harvard Law Review 1067, 1080 et seq.

337 See eg Supreme Court of Pakistan, General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore, Human Rights Case No 120 of 1993, 12 July 1994, [1994] Supreme Court Monthly Review 2061.

338 See eg Supreme Court of Bangladesh, Dr Mohiuddin Farooque v Bangladesh, Writ Petition 998 of 1994, CA 24 of 1995, Appellate Division (Civil), 25 July 1996, available at <www.elaw.org/node/1300> (accessed 1 October 2011).

339 See eg Supreme Court of Nepal, Suray  Prasad  Sharma  Dhungel  v  Godavari  Marble Industries and others, Writ Petition 35/1992, 31 October 1995, available at <www.elaw.org/node/1849> (accessed 1 October 2011).

340 IT Winkler, ‘Judicial Enforcement of the Human Right to Water – Case Law from South Africa, Argentina and India’ (2008) 11 Law, Social Justice & Global Development Journal, avail­able at <www.go.warwick.ac.uk/elj/lgd/2008_1/winkler> (accessed 1 October 2011).

Customary International Law 93

However, despite the increasing number of constitutional provisions on the right to water – especially in recent years – the number of States incor­porating such provisions is relatively small compared to the total number of States. Thus, it is impossible to speak of a general practice in this regard that would support a customary human right to water.

vii. Recognition in treaties

As outlined above341, the right to water is explicitly or implicitly recog­nised in a number of human rights treaties. It is argued that such treaty provisions can also be an indication of the evolution of customary inter­national law342. If the content of these human rights treaties becomes customary law, it would then also bind States that are not parties to the treaties. However, in order to have any legal effects on non­parties, it is necessary that there is an opinio iuris that all States are bound, and espe­cially that non­party States consider themselves to be bound in this way343. In this regard, it cannot be without significance that States are not willing to ratify the respective treaties344. Therefore, this conviction cannot be based on the treaty alone but rather has to be detected separately345, eg by analysing other statements and declarations, as already done above. Moreover, even for States that are bound by human rights treaties, it can­not automatically be assumed that they are bound by way of customary law, as this has implications in terms of reservations to human rights trea­ties and the possibility of denunciation346. Thus, human rights treaties give no further impetus to the emergence of the customary right to water.

viii.  Significance of the Berlin Rules of the International Law Association

In 2004, the International Law Association (ILA) issued its Berlin Rules on Water Resources Law347, which are meant to provide a comprehensive revision of the Helsinki Rules on the Uses of the Waters of International Rivers from 1966. The Helsinki Rules348 are still widely referred to today

341 See section I.342 See fundamentally D’Amato, above n 170, 104 et seq; D‘Amato, above n 182, 462;

Doehring, above n 202, 71; Verdross and Simma, above n 163, paras 556, 581; McDougal et al, above n 190, 266 et seq; see also International Court of Justice, North Sea Continental Shelf Cases, above n 161, paras 70 et seq.

343 Doehring, above n 202, 72.344 Van Hoof, above n 170, 109.345 Kempen and Hillgruber, above n 157, § 52, para 50; Engbruch, above n 35, 276; see also

Akehurst, above n 162, 44, who requires that treaties are accompanied by opinio iuris.346 Kempen and Hillgruber, above n 157, § 52, para 50.347 International Law Association, ‘Berlin Rules on Water Resources Law’ in Report of the

71st  Conference (London, International Law Association, 2004) 334, 336 (hereafter ‘Berlin Rules’).

348 International Law Association, ‘Helsinki Rules on the Uses of International Rivers’ in Report of the 52nd Conference (London, International Law Association, 1966) 484.

94 Legal Foundations of the Human Right to Water

as a comprehensive codification of the customary law of international watercourses349. With the revision, the ILA takes note of the development of and profound changes in international law, as well as the factual situa­tion since 1966350.

In several regards, the Berlin Rules differ from the Helsinki Rules, as well as from developments in international water law up to their issuance. First, it is important to note that the Berlin Rules are broader in scope than the Helsinki Rules. According to Article 1(1) of the Berlin Rules, they apply to all waters, not only to transboundary waters. They aim at ‘integrating the traditional rules regarding transboundary waters with rules derived from the customary international environmental law and international human rights law that apply to all waters, national as well as international’351. This comprehensive approach makes them rele­vant in the present context. Secondly, the Berlin Rules not only aim to reflect customary international law applying to water resources352, but also ‘undertake the progressive development of the law needed to cope with emerging problems of international or global water management’353.

The Berlin Rules include the right of access to water in Article 17. In Article 17(3), the Rules list the obligations borne by States that may be related to the common tripartite distinction of obligations to respect, to protect and to fulfil354. The commentary to Article 17 demonstrates that the Article is deemed to be a reflection of customary international law355, not part of the progressive development of the law. It refers to several documents already mentioned in the course of this section, and states that ‘[a]ny doubt about the existence of a right to water should be set to rest by General Comment 15’356. However, this overrates the role that may be attributed to the General Comment. Moreover, the sources used to establish Article 17 of the Berlin Rules357 indicate that it is primarily based on human rights instruments such as the Social Covenant. As mentioned previously, this gives too much weight to human rights treaties in the

349 SMA Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law’ (2007) 23 International  Journal  of  Water Resources Development 625, 630.

350 International Law Association, ‘Berlin Rules’, above n 347, 337 et seq.351 Ibid, 337. Note that the Berlin Rules use different terminology to distinguish whether

they refer to transboundary waters only or all water bodies. Rules that apply to all waters are expressed in terms of ‘States’, while Rules that specifically apply to the waters of interna­tional drainage basins are expressed in terms of ‘basin States’; see ibid, 339 et seq.

352 Ibid, 338.353 Ibid.354 See further below, ch 4, section II.A.355 International Law Association, ‘Berlin Rules’, above n 347, 366 et seq; similarly Bourquain,

above n 52, 181.356 International Law Association, Berlin Rules, above n 347, 366.357 International Law Association, Sources of the International Law Association Rules on Water 

Resources (London, International Law Association, 2004) 55 et seq, available at <www.ila­hq.org/en/committees/index.cfm/cid/32> (accessed 1 October 2011).

Customary International Law 95

establishment of customary human rights law. Therefore, Article 17 of the Berlin Rules seems too far-reaching. It cannot be regarded as a reflection of customary law de lege lata358.

D.  Conclusion in Regard to Customary Law

A great number of documents are relevant in determining the customary law nature of the right to water. While it is not convincing to assume that the UDHR as a whole – including an implicit right to water – has attained the status of customary international law, more recently a strong trend towards the recognition of the right to water may be detected.

At least partially, this auspicious development has been triggered by the issuance of General Comment No  15 by the CESCR, which explicitly recognises the right to water under the Social Covenant. Even though the General Comment is not legally binding and, as an interpretation of treaty law, does not carry much legal weight in determining customary law, it may be attributed a catalytic role, having initiated a broad discussion on the right to water. Other international documents of influence, such as the Draft Guidelines by the Sub­Commission and the Report of the High Commissioner, have followed. The Report  of  the High Commissioner man­dated by the Human Rights Council calls for the recognition of the right to water as a human right. Furthermore, the reports by several Special Rapporteurs also explicitly recognise the right to water. However, the sig­nificance of these documents in determining State practice is limited, as States are not directly involved in their preparation, and the General Comment is furthermore relevant only for the States Parties to the Social Covenant. Yet together with a strong civil society movement that sup­ports the right to water, these developments have put pressure on States to acknowledge the right to water359.

As far as the recognition by States is concerned, a number of political declarations are important. The Mar del Plata Action Plan, the Dublin Principles, Agenda 21, the Cairo Programme of Action and the Istanbul Habitat Agenda stand out as early statements of recognition in this regard.

358 Doubts whether the Berlin Rules can be regarded as codifying existing customary law are also raised by a dissenting opinion deploring that the Berlin Rules fail to distinguish rules of existing law (lex lata) from rules of emerging law (de lege ferenda), cf International Law Association, Berlin Conference  2004  – Water  Resources  Committee  Report, Dissenting Opinion, 9 August 2004 (London, International Law Association, 2004), available at <internationalwaterlaw.org/ documents/intldocs/ila_berlin_rules_dissent.html> (accessed 1 October 2011); cf as well the cri­tique of Salman, above n 349, 635 et seq.

359 See IT Winkler and L Partzsch, Wasser für alle – Wie zivilgesellschaftliche Kampagnen ‘neu-artige’ Menschenrechte  vorantreiben, Paper Presented at the Conference ‘Menschenrechte in der Weltgesellschaft’, 27–28 June 2008 (Bielefeld, University of Bielefeld, 2008); as well O Al Jayyousi, ‘Water as a Human Right: Towards Civil Society Globalization’ (2007) 23 International Journal of Water Resources Development 329.

96 Legal Foundations of the Human Right to Water

Nevertheless, other declarations, in which one would expect the right to water to be mentioned, such as the Johannesburg Plan of Implementation, do not recognise it360. During the International Conference on Freshwater in Bonn (2001), as well as the World Water Fora in Mexico (2006) and in Istanbul (2009), only reference to the debate was made, implying that no consensus could be achieved on explicitly recognising water as a human right. In this regard, there is no consistency such as would be necessary for the emergence of a customary human right to water.

More recently, though, the right to water has been acknowledged in a series of declarations. This trend culminated in the adoption of a resolu­tion by the General Assembly as the highest UN body on 28 July 2010, which explicitly recognises the right to water and sanitation, and the adoption of a resolution by the Human Rights Council re-affirming this recognition. While earlier relevant resolutions of the General Assembly and the Commission on Human Rights mentioned the right to water in passing, these resolutions explicitly focus on the issue. Moreover, whereas a significant number of States voted against the earlier resolutions of the General Assembly and the Commission on Human Rights, no States voted against the recent General Assembly resolution, and the resolution by the Human Rights Council was even adopted by consensus, which further underlines its political significance.

While demonstrating a strong political commitment, these resolutions do not create a customary human right to water by themselves. In this regard, it is important to note that the General Assembly resolution uses the language of ‘recognising’ the right to water and is best understood as reaffirming pre-existing guarantees included in human rights treaties. The Human Rights Council resolution is even clearer in deriving the right to water from the right to an adequate standard of living guaranteed in a number of human rights treaties. While providing a sound legal basis for these resolutions in treaty law, this simultaneously limits the resolutions’ significance for the evolution of customary law.

To summarise, there are certainly promising developments, so that one may expect this trend to be corroborated. All in all, the right to water has been recognised by virtually all States in at least one statement or declara­tion361. Still, it would be premature to speak of a general and consistent practice. There are a number of States – including the US and Canada – that argue that there is no right to water in an international legal sense362,

360 Rudolf, above n 1, 18; McCaffrey, above n 15, 98.361 Langford, ‘Expectation of Plenty’, above n 15, 475 (noting that the greatest number of

States was involved in Agenda 21 and the Cairo Programme of Action).362 For the United States, see United States Mission to the United Nations, Explanation of

Vote by John F Sammis, US Deputy Representative to the Economic and Social Council, on Resolution A/64/L.63/Rev.1, ‘The Human Right to Water’, 28 July 2010, available at <usun.state.gov/briefing/statements/2010/145279.htm> (accessed 1 October 2011); for Canada, see Canada, Explanation of Position, Germany/Spain resolution A/HRC/7/L.17 ‘Human

General Principles 97

despite having it recognised, for example, in the Istanbul Habitat Agenda in 1996. Interestingly, however, even these States did not vote against the General Assembly resolution but merely abstained from voting. Moreover, these States are so few in number that they find themselves more and more in the role of persistent objectors.

According to the view outlined at the beginning of this section that a combination of both elements – statements and declarations, as well as actual behaviour – has to be taken into account in the evolution of cus­tomary human rights law, it is decisive that there is not yet consistency in regarding access to water as a human right. Still, it may be observed that water issues are increasingly perceived from a human rights angle. The formal recognition of the human right to water through the UN General Assembly and the Human Rights Council constitutes a great stride for­ward in this regard. This changing perception has important implications for the evolution of a customary human right to water, as States failing to meet their human rights obligations would then be violating this human right. Yet this perception needs time to mature. It would thus be prema­ture to state that the human right to water has attained the status of cus­tomary international law363. However, over the past few years there have been very promising developments. As Kunz stated, ‘in the field of human rights . . . it is necessary to avoid the Scylla of a pessimistic cynicism and the Charybdis of mere wishful thinking and superficial optimism’364. In this regard, it is not too optimistic to assume that the right to water can be regarded as a customary human right in statu nascendi365. If the develop­ments on the right to water continue at their current rate, its recognition may be expected to reach fruition.

III. GENERAL PRINCIPLES

Lastly, the human right to water might be considered as part of the gen­eral principles of law under Article 38(1)(c) of the Statute of the International Court of Justice. Traditionally, in particular private law prin­ciples such as the principle of good faith have been counted as general

Rights and access to safe drinking water and sanitation’, March 2008, available on the OHCHR Extranet.

363 Even if one follows the opinion that focuses on official statements and declarations only, there is no consistency in regard to the right to water as outlined above. In order to facilitate the emergence of a customary human right to water a consolidation and unequivo­cal support would be needed.

364 JL Kunz, ‘The United Nations Declaration of Human Rights’ (1949) 43 American Journal of International Law 316, 320.

365 Likewise Rudolf, above n 1, 35; see also Hildering, above n 48, 411; also McCaffrey, above n 15, 115, who concludes that ‘it should be treated by the international community as a living and growing, but still somewhat fragile, newborn thing, in need of nurture and care­ful development’.

98 Legal Foundations of the Human Right to Water

principles366. Yet this source of international law is also considered in con­nection with human rights367.

In contrast to the evolution of customary law, general principles are not based on State practice. In any case, for the human right to water to be accepted as a general principle, convincing evidence of general accept­ance and recognition is required368. In this regard, the same considerations are relevant as apply in the analysis of statements, which show no consist­ency in regard to the recognition of water as a human right.

In particular, the right to water is recognised only in a rather small number of national constitutions. However, apart from constitutional pro­visions, there are an increasing number of States which have recognised the right to water in their national legislation. For example, France has guaranteed the right to water for alimentary and hygienic purposes in a law from 2006 on water and the aquatic environments369. A similar provi­sion may be found in Guinean law370, among many others. Nevertheless, even if the right to water is legally guaranteed in an increasing number of States, it is not (yet) possible to observe a consistent trend in this regard371. Therefore, the right to water cannot be considered a ‘general principle of law recognized by civilized nations’.

IV. CONCLUSION

Water is a human right, as recently affirmed by the UN General Assembly and Human Rights Council resolutions. It has a sound legal foundation in international law. It is an implicit component of the right to an adequate standard of living guaranteed in Article 11(1) of the Social Covenant. To a more limited extent, access to water is also guaranteed under the right to health in Article 12 of the Social Covenant, as far as it relates to health aspects, and under the right to life in Article 6 of the Civil Covenant, as far as survival requirements are concerned. Moreover, a significant number of conventions that are limited in their scope either ratione personae or ratione loci explicitly refer to access to water, such as Article 14(2)(h) CEDAW and Article 24(2)(c) CRC. To a certain extent, the provisions in the CEDAW and the CRC may be generalised, thus reaching beyond their limited personal scope. It can be assumed that the CEDAW and the CRC

366 Brownlie, above n 159, 17 et seq.367 Simma and Alston, above n 162, 102 et seq; Rudolf, above n 182, 87; see also Brownlie,

above n 159, 18; Richter, above n 169, 107 et seq.368 Simma and Alston, above n 162, 105; Meron, above n 153, 88 et seq.369 République Française, Art 1 du Loi no 2006­1772 sur l’eau et les milieux aquatiques, 30

December 2006, available at <www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000649171&dateTexte=> (accessed 1 October 2011).

370 République de Guinée, Art 6 du Loi portant Code de l’Eau, 14 February 1994, available at <faolex.fao.org/docs/texts/gui4825.doc> (accessed 1 October 2011).

371 Likewise Bourquain, above n 52, 191.

Conclusion 99

not only aim to guarantee access to water specifically to women and chil­dren, respectively, but that they consider access to water as a relevant human rights guarantee more broadly. In particular, the provision in CEDAW underlines that water is to be considered a component of the right to an adequate standard of living. It indicates that the right to water is considered pre­existing as a right that is already guaranteed to all peo­ple. These treaty provisions apply only to States which have ratified the respective human rights treaties, while the Social Covenant and the CEDAW achieve almost universal coverage when considered together, as there are only a few States that have not ratified either of these two trea­ties.

As far as customary international law is concerned, the right to water has not yet become part of it de lege lata. There is too great a vacillation in statements and declarations that do not consistently consider access to water as a human right. However, an increasing recognition of the right to water can be witnessed – inter alia through the recent General Assembly and Human Rights Council resolutions – which allows the assumption that it is a customary human right in statu nascendi.

4

Legal Characteristics of the Human Right to Water

THE PREVIOUS CHAPTER having concluded that the right to water has a legal foundation in international law, in particular as a component of the right to an adequate standard of living, this

chapter will consider the legal characteristics of the human right to water by examining its legal nature, States’ obligations arising from it and its normative content.

I. LEGAL NATURE OF THE RIGHT TO WATER

The first question to be addressed is the legal nature of the right to water. Only if the right to water is legally binding can it give rise to State obligations.

It has been argued that economic, social and cultural rights do not impose legally-binding obligations upon States but are mere program-matic clauses, aspirations or goals1. For example, Brownlie holds that ‘the type of obligation [of the provisions of the Social Covenant] is program-

1 See eg EW Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69 (whose work can be regarded as being representative of this position, see GJH van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views’ in P Alston and K Tomaševski (eds), The Right to Food (Utrecht, Martinus Nijhoff, 1984) 97, 98); M Cranston, ‘Human Rights, Real and Supposed’ in DD Raphael (ed), Political Theory and the Rights of Man (London, Macmillan, 1967) 43; RA Lorz, Modernes Grund- und Menschenrechtsverständnis und die Philosophie der Freiheit Kants, Eine staatstheoretische Untersuchung an Maßstäben des Grundgesetzes für die Bundesrepublik Deutschland (Stuttgart, Boorberg, 1993) 334, 341; K Lüthke, ‘Normen und Verfahren im inter-nationalen Menschenrechtsschutz – ein Überblick’ in H Bielefeldt, V Deile and B Thomsen (eds), Menschenrechte vor der Jahrtausendwende (Frankfurt am Main, Fischer, 1993) 53, 55; T Schaber, Internationale Verrechtlichung der Menschenrechte, Eine reflexive institutionstheore-tische Analyse des Menschenrechtsregimes der Vereinten Nationen (Baden-Baden, Nomos, 1996) 161 (‘wünschenswerte Standards’); A Verdross and B Simma, Universelles Völkerrecht, Theorie und Praxis, 3rd edn (Berlin, Duncker & Humblot, 1984) para 1247; but cf as well the later writings of Simma, eg B Simma, ‘“Die vergessenen Rechte”: Bemühungen zur Stärkung des VN-Sozialpaktes’ in F Ruland, B Baron von Maydell and HJ Papier (eds), Verfassung, Theorie und Praxis des Sozialstaates, Festschrift für Hans F Zacher zum 70. Geburtstag (Heidelberg, CF Müller, 1998) 867.

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matic and promotional’2. According to this perspective, socio-economic rights are regarded as entailing resource-intensive positive obligations requiring resource allocations that are political rather than legal in nature3. Moreover, some have argued that they are not sufficiently precise to be legally binding and that they cannot be judicially enforced4. According to this view, States would be more or less free to decide if, when and to what extent they guarantee the human right to water, instead of being legally bound to do so. It would be sufficient to adopt programmes that aim at the realisation of the right to water. Others argue that socio-economic rights give rise to legally-binding obligations like any other human rights. This controversy is examined in more detail in this section by referring to the three arguments brought forward to dispute the legally-binding nature of socio-economic rights such as the right to water: the argument that socio-economic rights require resource-intensive positive inter-ventions, their alleged lack of precision and the argument that they can-not be judicially enforced.

2 I Brownlie, Principles of Public International Law, 6th edn (Oxford, Oxford University Press, 2003) 539. The term ‘programmatic’ is not further defined. According to Scott it can be understood as being composed of a positive and a progressive element, see C Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal 769, 835, fn 217.

3 The legal nature of socio-economic rights is a very complex topic full consideration of which is outside the scope of this book. This section will therefore only allude to the most important points of the discussion. For a detailed analysis of the alleged differences, see M Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp, Intersentia, 2003) 122 et seq; for an overview, see Scott, above n 2, 833. For a detailed discussion of the underlying philosophical foundations, see MCR Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on Its Development (Oxford, Oxford University Press, 1995) 10 et seq. On the alleged lack of univer-sality, see also Cranston, above n 1, 51; K Klee, Die progressive Verwirklichung wirtschaftlicher, sozialer und kultureller Menschenrechte, Eine Interpretation von Art. 2 Abs. 1 des Internationalen Pakts für wirtschaftliche, soziale und kulturelle Rechte (Stuttgart, Boorberg, 2000) 85 et seq; MCR Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on Its Development (Oxford, Oxford University Press, 1995) 13 et seq. The focus of the authors stressing the fundamental differences between civil and political rights on the one hand and economic, social and cultural rights on the other hand differs: while Bossuyt regards the necessary financial contribution of the State as decisive for the distinction (see M Bossuyt, ‘La distinction juridique entre les droits civils et politiques et les droits économiques, sociaux et culturels’ (1975) 8 Revue des Droits de l’Homme 783, 790), Vierdag stresses the lack of enforceability (see Vierdag, above n 1, 82 et seq). For a detailed analysis and rejoinder to the positions of different authors, see K Arambulo, Strengthening the Implementation of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Antwerp, Intersentia, 1998) 58 et seq.

4 The issue of the legal nature is closely linked to that of justiciability, the former being concerned with the question whether socio-economic rights are legally-binding, the latter referring to the question whether they are justiciable and can be enforced in court. This latter issue will be considered in more depth at a later stage, see ch 6, section II.A.

102 Legal Characteristics of the Human Right to Water

A. Alleged Focus on Positive Interventions

The reason why socio-economic rights are regarded by some as not being ‘real’ legal rights is seen as lying in their nature, which is defined in contrast to civil and political rights. Whereas the latter are regarded as simply requiring non-interference by the State, the former are said to require positive interventions. Put differently, it is submitted that the two sets of rights relate to negative and positive obligations, respectively5.

However, the alleged dichotomy of civil and political rights requiring nothing but non-interference by the State and socio-economic rights always requiring State intervention is illusory. Rather, all types of human rights entail different types of State obligations6. On the one hand, civil and political rights require positive State action in many cases7. For instance, the right to fair trial inevitably requires the establishment of a judicial system8, the right to vote requires considerable expenditure to hold periodic, universal, equal and secret elections9, and in order to guar-antee the freedom of expression and assembly police protection may be necessary10. On the other hand, socio-economic rights can often be real-ised when the State simply does not interfere11. The right to form trade

5 Bossuyt, above n 3, 790; Cranston, above n 1, 50 et seq; C Tomuschat, ‘An Optional Protocol for the International Covenant on Economic, Social and Cultural Rights?’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 815, 818, but cf as well 820 et seq.

6 H Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton, NJ, Princeton University Press, 1980) 37 et seq, 51 et seq; Sepúlveda, above n 3, 124, 127; C Courtis, ‘The Right to Food as a Justiciable Right: Challenges and Strategies’ (2007) 11 Max Planck Yearbook of United Nations Law 317, 325. This is also acknowledged by the Human Rights Committee, stating that ‘[t]he legal obligation under article 2, paragraph 1, is both negative and positive in nature’, see Human Rights Committee, General Comment No 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para 6. In an earlier General Comment the Committee stated that ‘the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdic-tion. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights’, see Human Rights Committee, General Comment No 3, Implementation at the national level (Art 2), 29 July 1981, contained in HRI/GEN/1/Rev.1 at 4, para 1.

7 P Alston and G Quinn, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156, 172; Simma, above n 1, 871; A Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 9, 24 et seq; S Moller Okin, ‘Liberty and Welfare: Some Issues in Human Rights Theory’ in JR Pennock and JW Chapman (eds), Human Rights, Nomos XXIII (New York, New York University Press, 1981) 230, 240, 246; see Sepúlveda, above n 3, 124 et seq, 134 et seq for an analysis of the phrase ‘respect and ensure’ in Art 2(1) of the Civil Covenant.

8 Craven, above n 3, 15; van Hoof, above n 1, 103; Sepúlveda, above n 3, 120; Moller Okin, above n 7, 240; Shue, above n 6, 37 et seq; Tomuschat, above n 5, 820 et seq.

9 Van Hoof, above n 1, 103. This is also seen by Vierdag, above n 1, 82.10 Van Hoof, above n 1, 107.11 Simma, above n 1, 871; Eide, above n 7, 25; Craven, above n 3, 15; Sepúlveda, above n 3,

125; see also Shue, above n 6, 40.

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unions is a classic example12. Moreover, the right to housing can be real-ised for many people by refraining from forced evictions13, the right to water by refraining from arbitrary disconnections, the right to food by not depriving people of the land they use to cultivate their food.

The mere fact of having two separate human rights Covenants would seem to reinforce the idea of the two sets of rights being distinct. Yet the existence of two separate Covenants reflects the time in which they were drafted, ie during the East/West conflict14. The influence of historical and political reasons becomes even more obvious by comparing the Covenants with earlier and later human rights instruments. In the UDHR as well as in later human rights treaties such as the CRC, the Banjul Charter and most recently the CRPD15, civil and political rights are included side by side with economic, social and cultural rights16. Also, the Vienna Declaration and Programme of Action of 1993 stresses that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’17.

The argument that socio-economic rights require positive State inter-ventions is closely linked to the view that the realisation of socio-economic rights (in contrast to that of civil and political rights) is very resource-intensive. The decisions about the necessary resource allocations are regarded as being of a political nature rather than a legal one. According to this reasoning, they should be reserved to the legislative branch instead of being dealt with by courts18. This aspect relates closely to the justiciabil-ity of socio-economic rights and will be discussed in more detail in that context19.

12 Van Hoof, above n 1, 103; Craven, above n 3, 15.13 See van Hoof, above n 1, 107; Sepúlveda, above n 3, 125 (who also gives further exam-

ples).14 During the drafting process of the legally-binding Covenants a decision was taken to

separate the rights contained in the UDHR into two Covenants, see General Assembly, Preparation of two Draft International Covenants on Human Rights, 5 February 1952, Res 543 (VI); see also A Eide and A Rosas, ‘Economic, Social and Cultural Rights: A Universal Challenge’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 3, 3; Sepúlveda, above n 3, 116; Craven, above n 3, 8 et seq, 16; Scott, above n 2, 795; A An-Na’im, ‘To Affirm the Full Human Rights Standing of Economic, Social & Cultural Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 7, 12; Lüthke, above n 1, 53. For a detailed account of the drafting process and the underlying political reasons, see Scott, above n 2, 792 et seq; Craven, above n 3, 16 et seq.

15 On the contribution of the Convention towards a more holistic concept of human rights and overcoming the negative/positive rights dichotomy, see F Mégret, ‘The Disabilities Convention: Towards a Holistic Concept of Rights’ (2008) 12 International Journal of Human Rights 261, 264 et seq.

16 Eide, above n 7, 11; An-Na‘im, above n 14, 13.17 United Nations, World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna

Declaration and Programme of Action, A/Conf.157/23, para 5.18 Vierdag, above n 1, 93; Bossuyt, above n 3, 790, 806; see also Klee, above n 3, 98, 107.19 See below ch 6, section II.A.

104 Legal Characteristics of the Human Right to Water

Admittedly, the focus of the two sets of rights does differ to a certain extent. The realisation of socio-economic rights requires the State to take positive measures more often than in the realisation of civil and political rights20. Nevertheless, even if their emphasis is different, there is no fun-damental distinction in State obligations arising from human rights. Rather, the difference is gradual21. The claim that socio-economic rights including the right to water are of a completely different – non-binding – nature is therefore not justified. In order to gain a better understanding of State obligations arising from human rights, a typology has been devel-oped relating to these different aspects. It will be outlined and applied to the right to water in the next section22.

B. Alleged Lack of Precision

Some also claim that socio-economic rights are not legally binding because they lack precision or the provisions are not sufficiently detailed. It is contended that these rights cannot be defined in terms of law and that their content remains unclear23.

Certainly, most of the provisions of the Social Covenant are formulated in relatively vague terms. However, the same holds true for the formula-tion of many civil and political rights. These rights have become only more concrete over the years, which is owed to enormous amounts of literature dedicated to them and case law applying the rights24. Such work to concretise economic, social and cultural rights is undoubtedly necessary. The General Comments of the CESCR are very valuable instru-ments in this regard25. Over the last 20 years, the Committee has issued detailed General Comments on most substantive provisions of the Social Covenant, in particular since 1999. Moreover, there is an increasing amount of literature on specific socio-economic rights, which helps to delineate their content. The content of socio-economic rights has become much clearer than it was 20 years ago26. Accordingly, arguments that the

20 Simma, above n 1, 872; Sepúlveda, above n 3, 127.21 Simma, above n 1, 872; Sepúlveda, above n 3, 127; J Schneider, Die Justiziabilität wirtschaftli-

cher, sozialer und kultureller Menschenrechte (Berlin, Deutsches Institut für Menschenrechte, 2004) 33.

22 See section II.A. 23 Cranston, above n 1, 47; Vierdag, above n 1, 93. However, Vierdag does not want to

exclude the possibility that legal definitions for the rights included in the Social Covenant will be elaborated, see ibid, 94.

24 Sepúlveda, above n 3, 132.25 F 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’ (2002) 35 Verfassung und Recht in Übersee 182, 194.

26 Klee, above n 3, 97. When one compares the current debate on socio-economic rights with the difficulties described by Eide in 1989, it becomes obvious that there has been an

Legal Nature of the Right to Water 105

content of economic, social and cultural rights is completely unclear are no longer valid.

Moreover, it is important to distinguish two questions: whether norms are legally-binding is not the same as the question whether they are directly applicable. Only for the latter question is their degree of precision decisive27. To be legally-binding, a norm must merely be susceptible to any legal assessment28.

In contrast to other socio-economic rights, the right to water not only lacks precision; it is not even explicitly mentioned in the Social Covenant. However, as outlined in chapter three, access to water may be based on a number of rights, most prominently the right to an adequate standard of living. Making use of the concept of this right and the recent pronounce-ments on the right to water, such as General Comment No 15 and the Report of the High Commissioner, it is possible to delineate the normative content of the right to water as well as the specific obligations deriving from this right. As such, the right to water becomes more precise. The alleged lack of precision therefore cannot be used to dispute the legally-binding nature of the right to water. Its normative content will be explored in detail at the end of this chapter.

C. Alleged Lack of Judicial Enforceability

Closely linked to the alleged lack of precision is the argument that socio-economic rights are not judicially enforceable. The possibility of judicial or quasi-judicial enforcement is seen as a prerequisite for status as a ‘real’ legal right, the enforceability of a right as an essential element of it29.

Yet such a view does not seem to be compatible with the fundamental features of international law, which is in principle horizontally structured and where enforcement mechanisms comparable to national courts are the exception rather than the rule30. The lack of enforcement mechanisms is generally not used as an argument to dispute the legally-binding nature of rules of international law accepted by States31. The two questions must not be confounded. Whether a right has become a justiciable right has to be distinguished from the question whether a right exists under interna-tional law32. Thus, the possibility of judicial enforcement cannot be seen as

enormous development, see A Eide, ‘Realization of Social and Economic Rights and the Minimum Threshold Approach’ (1989) 10 Human Rights Law Journal 35, 48 et seq.

27 Van Hoof, above n 1, 101; Klee, above n 3, 91. See in this regard ch 6, section II.B.i.2.28 Klee, above n 3, 91.29 Vierdag, above n 1, 73, 76 et seq; see also An-Na‘im, above n 14, 7, 13.30 Van Hoof, above n 1, 100 et seq; Craven, above n 3, 16; Arambulo, above n 3, 56; see also

Eide, above n 26, 36.31 Van Hoof, above n 1, 101; Craven, above n 3, 16; see also Klee, above n 3, 90.32 Eide, above n 26, 36, 38.

106 Legal Characteristics of the Human Right to Water

a precondition for the legally-binding status of the provisions of the Social Covenant33, though it would obviously be desirable to have the necessary means to enforce these provisions34. The questions whether the provisions are directly applicable and to what extent they can be enforced will there-fore be considered at a later stage35.

Moreover, from a factual point of view, as will be outlined further below36, the judicial enforcement of the human right to water and other socio-economic rights increasingly takes place. To give just one example, the Indian Constitution includes a provision in Article 37 that the direc-tive principles of State policy, including, for example, the right to ade-quate means of livelihood, and the protection and improvement of the environment (Article 39(a), Article 48A respectively), shall not be enforce-able in court37. However, since the 1980s the Indian High Courts and the Supreme Court have developed sophisticated case law on the right to a healthy environment, including air and water. They derive this right from the right to life as enshrined in Article 21 of the Constitution, interpreting it extensively. In this way, these rights have become enforceable in court.

D. Conclusion

One may discuss the precise content of socio-economic rights and the spe-cific nature of State obligations – and there needs to be further discussion – but the legally-binding nature of the human right to water is beyond question. The very fact that socio-economic rights are included in interna-tional human rights treaties such as the Social Covenant shows that the guarantees are not merely of a political nature but are legally-binding38. By acceding to human rights treaties, States Parties have expressed their intention to be legally bound by their provisions. In general, the legally-binding nature of (human rights) treaties cannot be refuted. Moreover, if the Social Covenant – rather than being a human rights treaty – were to entail a mere declaration of intention, it would not reach any further than the UDHR. But going beyond the non-binding character of the Declaration is precisely the purpose of the Covenant39.

33 P Uvin, Human Rights and Development (Bloomfield, Kumarian Press, 2004) 132.34 Vierdag also states that there ought to be remedies when there are rights (see Vierdag,

above n 1, 74), which is obviously not the same as regarding the existence of such remedies as a precondition to the legally-binding nature of human rights.

35 See ch 6, section II.B.i.2.36 See ch 6, section II.B.ii; also Eide, above n 26, 36.37 Pointed out by Vierdag, above n 1, 91.38 Van Hoof, above n 1, 99; K Bourquain, Freshwater Access from a Human Rights Perspective,

A Challenge to International Water Law and Human Rights Law (Leiden, Martinus Nijhoff, 2008) 99; see also Alston and Quinn, above n 7, 158; Klee, above n 3, 77.

39 See Craven, above n 3, 7.

Obligations Arising From the Right to Water 107

There are no fundamental differences between civil and political rights on the one hand and economic, social and cultural rights on the other. Rather, these rights simply relate to different spheres of human behaviour – the civil, cultural, economic, political and social spheres. Accordingly, the provisions of the Social Covenant do not simply ‘purport’40 to grant human rights but actually do so. Like other human rights, economic, social and cultural rights, including the right to water, are of a legally-binding nature.

II. OBLIGATIONS ARISING FROM THE RIGHT TO WATER

In the following discussion, States’ obligations corresponding to the human right to water will be outlined. This section starts by introducing the tripartite typology of obligations to respect, to protect and to fulfil the human right to water. This will be followed by a discussion of obligations regarding non-discrimination. The section concludes by delineating the general obligation to realise the right to water progressively, and the min-imum core obligations that have to be realised immediately.

A. The Tripartite Typology

All human rights entail different State obligations that relate inter alia to non-interference and positive interventions. A first attempt to categorise these obligations was undertaken by Shue from a philosophical perspec-tive. He proposed the typology of obligations ‘to avoid depriving’, ‘to protect from deprivation’ and ‘to aid the deprived’41. These categories have been further developed by Eide42, who adopted a stronger legal per-spective, applied the different duties to the role of the State and termed them ‘respect, protect, fulfil’, in which form they have become well known. These categories are now well established and widely used, both in scholarly literature and by the CESCR43. In the following paragraphs these obligations will be explained in general and specifically applied to the right to water.

In order to apply these obligations, the availability of water resources should be distinguished from access to water services. The aspect of avail-ability of water resources refers to the actual amount of water necessary to realise the right to water and questions of allocation, while the aspect of

40 Vierdag, above n 1, 80.41 Shue, above n 6, 52, see also 55 et seq.42 Eg Eide, above n 26, 37. For an overview of the evolution and other proposals being

made that build on the typology, see Sepúlveda, above n 3, 157 et seq.43 See Sepúlveda, above n 3, 157 et seq.

108 Legal Characteristics of the Human Right to Water

water services is concerned with the necessary infrastructure to supply people with water. In the context of this book, the former is of greater importance. The focus will therefore be on the analysis of obligations States bear in regard to the allocation of water resources.

i. Obligation to respect

The obligation to respect requires States to abstain from interfering with the enjoyment of human rights. They must not infringe rights that have already been realised44. States must refrain from any conduct resulting in a depriva-tion of access to the rights. In regard to the right to water, States must respect any existing water supply in line with human rights standards. They must not engage in any activity that limits access to safe water, eg by polluting drinking water resources45. States must also respect the right to water in the allocation of water resources. When sufficient resources are already set aside to satisfy all people’s basic needs for water, the State must respect this allocation and must not reallocate these resources for other purposes such as industrial uses. In this regard, the above-mentioned examples of Mexico City and Delhi need to be recalled46. When public water providers do not supply water to low-income areas in times of low water availability, while other areas continue to be served and are able to use water to excess, this constitutes a violation of the obligation to respect the human right to water. With regard to water services, States must not arbitrarily disconnect water services where people are unable to pay47. They must adopt appropriate measures to ensure that no one is deprived of a minimum essential level of water in any circumstances48.

ii. Obligation to protect

The obligation to protect requires States to prevent third parties from interfering with the enjoyment of human rights49. States have the duty to

44 Craven, above n 3, 109; Eide, above n 7, 23.45 Committee on Economic, Social and Cultural Rights, General Comment No 15, The right to

water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11, para 21; Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obliga-tions related to equitable access to safe drinking water and sanitation under international human rights instruments, 16 August 2007, A/HRC/6/3 (hereafter ‘Report of the High Commissioner’), para 36.

46 See ch 2, section II.B.v. 47 CESCR, General Comment No 15, above n 45, para 44(a); M Langford, ‘The United

Nations Concept of Water as a Human Right: A New Paradigm for Old Problems?’ (2005) 21 International Journal of Water Resources Development 273, 277 et seq.

48 CESCR, General Comment No 15, above n 45, para 56.49 Craven, above n 3, 109; Eide, above n 7, 24. A different question often discussed under

the term ‘horizontal application’ is whether human rights obligations or responsibilities are extended to the private parties themselves. In this regard see Human Rights Council, Protect,

Obligations Arising From the Right to Water 109

take the necessary legislative and other measures that prevent private parties from undermining the rights of others.

With regard to water allocation, States have to adopt the necessary measures to prevent third parties from extracting unreasonable amounts from water resources that would hinder an equitable allocation of water allowing for sufficient resources for all people’s needs50. In the judgment of the High Court of Kerala in the Plachimada groundwater exploitation case already mentioned above51, the Court held that the State must protect its water resources for the benefit of the present and future generations. If it failed in this protection, this would be tantamount to a violation of the right to water as derived from the right to life guaranteed in the Indian Constitution52.

The obligation to protect is particularly relevant in the context of water pollution. People have to be protected from water pollution committed by third parties that could hinder the realisation of their right to water53. The Bhopal disaster cited above54 is an extreme example of environmental pol-lution that resulted in an infringement of the right to water of a great number of people.

With regard to water supply, the obligation to protect requires the State to take measures to ensure equal access to the enjoyment of rights in the case of provision by third parties, in particular aimed at protecting vul-nerable and marginalised groups55. The State thus remains responsible if it chooses to involve the private sector in the provision of water services – only the nature of its obligation shifts, from the obligation to respect to a

Respect and Remedy: a Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 7 April 2008, A/HRC/8/5; Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 21 March 2011, A/HRC/17/31; as well as eg N Jägers, Corporate Human Rights Obligations: in Search of Accountability (Antwerp, Intersentia, 2002); A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006); and more recently JH Knox, ‘Horizontal Human Rights Law’ (2008) 102 American Journal of International Law 1. Moreover, the question is discussed in many national legal orders.

50 CESCR, General Comment No 15, above n 45, para 23.51 See above ch 2, section II.B.ii; on the judgment, see below ch 6, section II.B.ii.2. 52 High Court of Kerala, India, Perumatty Grama Panchayat v State of Kerala, 16 December

2003, available at <www.elaw.org/node/1410> (accessed 1 October 2011). See also the Pakistani case High Court of Sindh at Karachi, Pakistan, Sindh Institution of Urology and Transplantation and Others v Nestlé Milkpak Limited & Others, Original Civil Jurisdiction, Suit No 567 of 2004, 30 November 2004, available at <www.shehri.org/subpages/nestle.pdf> (accessed 1 October 2011).

53 Langford, above n 47, 278; K Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard, Ernährung, Wasser, Bekleidung, Unterbringung und Energie als Elemente des Art. 11(1) IPWSKR (Frankfurt am Main, Peter Lang, 2008) 199.

54 See ch 2, section II.B.iii.55 Sepúlveda, above n 3, 198.

110 Legal Characteristics of the Human Right to Water

stronger focus on the obligation to protect56. The State then does not act as the supplier itself but as regulator, while other tasks and responsibilities maintain their relevance. In the case of private sector participation, the State inter alia has to put into place the necessary regulatory framework that ensures that no one’s right to water is infringed57.

iii. Obligation to fulfil

Lastly, the obligation to fulfil58 requires States to adopt the measures nec-essary to ensure that each person has the opportunity to realise his or her rights59. States must take positive measures in order to enable and assist individuals to enjoy the right to water60, and to ensure direct provision as a last resort61.

56 E Riedel, ‘The Human Right to Water’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 585, 593; Bourquain, above n 38, 148.

57 CESCR, General Comment No 15, above n 45, para 24; Human Rights Council, Report of the High Commissioner, above n 45, para 38; Sub-Commission on the Promotion and Protection of Human Rights, Realization of the right to drinking water and sanitation, Report of the Special Rapporteur, El Hadji Guissé, Draft Guidelines for the Realization of the Right to Drinking Water and Sanitation, 11 July 2005, E/CN.4/Sub.2/2005/25, para 2(3)(e) (hereafter ‘Draft Guidelines’); Human Rights Council, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 29 June 2010, A/HRC/15/31; Langford, above n 47, 278 et seq; Engbruch, above n 53, 199; W Vandenhole and T Wielders, ‘Water as a Human Right – Water as an Essential Service: Does it Matter?’ (2008) 26 Netherlands Quarterly of Human Rights 391, 400; see also Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Nepal, 24 September 2001, E/C.12/1/Add.66, para 60.

58 Sometimes, the obligation to fulfil is further disaggregated in the obligations to facili-tate, to promote and to provide, see eg CESCR, General Comment No 15, above n 45, para 25. However, a number of other proposals have been made on how to include these different aspects in the typology of obligations, eg to add the obligation to facilitate as a fourth com-ponent; see Sepúlveda, above n 3, 161 et seq, 207 et seq. In particular, it seems difficult to draw an exact line between the obligations to facilitate and to provide. It seems more impor-tant to delineate the content of the obligation to fulfil rather than to discuss whether a certain aspect belongs to the obligations to facilitate or to provide. Interestingly, the Committee itself does not assign all obligations it lists to the different categories, see CESCR, General Comment No 15, above n 45, paras 26 et seq. As far as the obligation to promote is concerned, it is of no particular importance in the context of water allocation. It refers to bringing about changes in the perception and understanding of human rights; see Sepúlveda, above n 3, 164. It requires States to undertake a variety of measures that have the common aim of pro-moting human rights, including the provision of information and training as well as research. In the context of water, different educational measures, such as appropriate educa-tion concerning water hygiene, about methods to prevent wasting water, but also about the human right to water itself as part of human rights education, are in place; see CESCR, General Comment No 15, above n 45, para 25; Human Rights Council, Report of the High Commissioner, above n 45, para 41. Therefore, it does not seem necessary to break down the obligation to fulfil further.

59 Eide, above n 7, 24; Craven, above n 3, 109.60 CESCR, General Comment No 15, above n 45, para 25; Human Rights Council, Report of

the High Commissioner, above n 45, para 41.61 Eide, above n 7, 24; Craven, above n 3, 109.

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In order to ensure access to water for all, States first have to allocate suf-ficient water resources to satisfy everyone’s basic needs. In order to do so, they need to develop a national water strategy62. The exact implications of the right to water for the allocation of water resources and how water nec-essary to satisfy basic human needs has to be balanced with other water uses will be analysed further below in chapter five.

As a second step, States have to ensure that people gain access to water for personal and domestic use which relates to the provision of water ser-vices. This includes, for example, the development of infrastructure in areas that are currently not served, particularly in rural or deprived urban areas such as informal settlements63.

The obligation actually to provide water becomes relevant when people cannot – for reasons beyond their control – realise their right to water by their own means64. The individual is the active subject of all economic and social development. Everyone is expected to ensure the satisfaction of basic needs through his or her own efforts and resources whenever pos-sible65. Generally, the State is required to create an enabling environment and to foster conditions that are conducive to the realisation of the human right to water. Only when people do not have the means to attain water services for themselves is the State required to provide water in order to ensure the fulfilment of the basic needs of those who are unable to pro-vide for themselves66. This obligation is relevant as a form of emergency relief, eg after a natural disaster, but also in regard to people who live in such extreme poverty that they do not have sufficient means to pay for water services. The South African Free Basic Water Policy may be regarded as an instrument to meet this obligation67.

62 CESCR, General Comment No 15, above n 45, para 26; Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 4 July 2011, A/HRC/18/33.

63 See Langford, above n 47, 278; also Committee on Economic, Social and Cultural Rights, Report on the 16th and 17th Session, 1 January 1998, E/1998/22, Concluding Observations: Dominican Republic, para 239; Committee on Economic, Social and Cultural Rights, Report on the 14th and 15th Session, 1 January 1997, E/1997/22, Concluding Observations: El Salvador, para 179.

64 CESCR, General Comment No 15, above n 45, para 25; Human Rights Council, Report of the High Commissioner, above n 45, para 41; Engbruch, above n 53, 200.

65 Eide, above n 7, 23.66 Shue, above n 6, 57.67 For details also on the challenges to its implementation, see IT Winkler, ‘ Respect, Protect,

Fulfill: The Implementation of the Human Right to Water in South Africa’ in P Cullet, A Gowlland-Gualtieri, R Madhav and U Ramanathan (eds), Water Governance in Motion, Towards Socially and Environmentally Sustainable Water Laws (New Delhi, Cambridge University Press, 2010) 415.

112 Legal Characteristics of the Human Right to Water

B. Non-discrimination

The principle of non-discrimination is laid down in Article 2(2) of the Social Covenant. Similar provisions are included in Articles 2(1) and 26 ICCPR, as well as Article 2(1) CRC. Moreover, a number of conventions, such as the CEDAW, the CRPD and the International Convention on the Elimination of All Forms of Racial Discrimination68 (ICERD), aim specific-ally at non-discrimination against certain groups and individuals.

Article 2(2) ICESCR reads: ‘The States Parties to the present Covenant undertake 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.’

The CESCR generally understands discrimination as constituting any distinction, exclusion, restriction or preference or other differential treat-ment that is directly or indirectly based on the prohibited grounds of discrim-ination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights69.

In regard to the prohibited grounds, the ones listed in Article 2(2) of the Social Covenant are not exhaustive but merely illustrative. This is indi-cated by the last term ‘other status’ which has an open meaning70. In this regard, inter alia disabilities and health conditions are noteworthy as additional grounds, including in the Committee’s practice71. Moreover, it has to be stressed that de iure and de facto discrimination are covered72, as well as direct and indirect discrimination, ie not only measures that pur-posefully discriminate against certain individuals or groups are covered

68 International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, entered into force 12 March 1969, 175 States Parties (as of 3 October 2011), United Nations Treaty Series, vol 660, 195.

69 Committee on Economic, Social and Cultural Rights, General Comment No 20, Non-Discrimination in Economic, Social and Cultural Rights (art 2, para 2), 10 June 2009, E/C.12/GC/20, para 7. For similar definitions see Art 1(1) ICERD, Art 1 CEDAW and Human Rights Committee, General Comment No 18, Non-discrimination, 10 November 1989, contained in HRI/GEN/1/Rev.1 at 26, para 7; see also Sepúlveda, above n 3, 383.

70 CESCR, General Comment No 20, above n 69, para 15; Sepúlveda, above n 3, 391; Craven, above n 3, 168 et seq; Commission on Human Rights, Note verbale dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights, 8 January 1987, E/CN.4/1987/17, Annex, ‘The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’, para 36 (hereafter ‘Limburg Principles’).

71 CESCR, General Comment No 20, above n 69, paras 28, 33; see also Committee on Economic, Social and Cultural Rights, General Comment No 5, Persons with disabilities, 9 December 1994, contained in E/C.12/1994/20, Annex IV. Also, the General Comment on the right to water mentions these grounds explicitly, see CESCR, General Comment No 15, above n 45, para 13.

72 In that regard, the CESCR speaks of formal and substantive discrimination, CESCR, General Comment No 20, above n 69, para 8.

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under Article 2(2) of the Social Covenant, but also measures that simply have this effect without intending it73.

States are not only obliged to ensure non-discrimination in current and future measures, they also have to address existing de facto discrimination and pay specific attention to disadvantaged, marginalised and vulnerable groups74. In this regard, the human rights framework mandates the reduc-tion of disparity 75. In certain circumstances this calls for preferential treat-ment necessary to remedy inequalities and conditions that perpetuate discrimination76. Such measures aim to improve the situation of targeted groups and individuals, to allow for their equal enjoyment of human rights77. In particular, addressing and eliminating systemic discrimination and compensating for structural inequalities requires a proactive approach, often necessitating greater resources for groups and individu-als who have been traditionally neglected78. It is well established in inter-national human rights law that such distinctions do not constitute prohibited discrimination79. In this respect the Human Rights Committee stated that

the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to per-petuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant80.

General Comment No 15 on the right to water stresses the issue of non- discrimination81 and states that

73 Ibid, para 10; Sepúlveda, above n 3, 388.74 Centre on Housing Rights and Evictions, American Association for the Advancement of

Science, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Manual on the Right to Water and Sanitation (Geneva, 2007) xxv.

75 M Darrow and A Tomas, ‘Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation’ (2005) 27 Human Rights Quarterly 471, 495.

76 Sepúlveda, above n 3, 385; ‘Limburg Principles’, above n 70, para 39.77 Sepúlveda, above n 3, 400 et seq; M Langford, ‘Judging Resource Availability’ in J Squires,

M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 89, 94.

78 CESCR, General Comment No 20, above n 69, para 39.79 Sepúlveda, above n 3, 383; ‘Limburg Principles’, above n 70, para 39.80 Human Rights Committee, General Comment No 18, above n 69, para 10; similarly

CESCR, General Comment No 20, above n 69, para 9.81 The General Comment devotes a number of paragraphs to this aspect, see CESCR,

General Comment No 15, above n 45, paras 13 et seq.

114 Legal Characteristics of the Human Right to Water

States parties should take steps to remove de facto discrimination on prohibited grounds, where individuals and groups are deprived of the means or entitle-ments necessary for achieving the right to water. States parties should ensure that the allocation of water resources, and investments in water, facilitate access to water for all members of society.82

General Comment No 15 has identified groups and individuals often facing difficulties in exercising their right to water who therefore require special attention. These include women, children, and people living in rural and deprived urban areas including informal settlements. Moreover, indigen-ousm peoples, nomadic and traveller communities, refugees, asylum seekers and internally displaced persons often face difficulties. Also, the special requirements of certain groups such as the elderly, or people living with disabilities or with HIV/AIDS demand special attention83.

While the general obligation of non-discrimination is not dependent on the availability of resources and must therefore be regarded as being of immediate effect84, it has to be recognised that it takes time to address and remedy the existing inequalities and discriminatory conditions85, in par-ticular as far as the underlying structural causes are concerned. In this regard, the Limburg Principles, a set of principles elaborated by a group of experts in 1986 that constituted a significant step in determining the nature and scope of obligations under the Social Covenant86, point out that ‘[d]e facto discrimination occurring as a result of the unequal enjoy-ment of economic, social and cultural rights, on account of a lack of resources or otherwise, should be brought to an end as speedily as possi-ble’87. The CESCR demands measures in that regard to be adopted as a matter of priority, and indicates that

failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority88.

82 Ibid, para 14.83 Ibid, para 16; see also E Filmer-Wilson, ‘The Human Rights-Based Approach to

Development: The Right to Water’ (2005) 23 Netherlands Quarterly of Human Rights 213, 221.84 Sepúlveda, above n 3, 395 et seq; ‘Limburg Principles’, above n 70, para 35.85 Sepúlveda, above n 3, 396.86 Ibid, 19.87 ‘Limburg Principles’, above n 70, para 38.88 CESCR, General Comment No 20, above n 69, para 13. Note the similarity of the language

to the language employed in the context of the minimum core approach, see Committee on Economic, Social and Cultural Rights, General Comment No 3, The nature of States parties obli-gations (Art 2 para 1), 12 December 1990, contained in E/1991/23 Annex III, para 10; and further section II.C.ii.

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C. Obligations to Progressive Realisation and Core Obligations

Apart from the tripartite distinction between obligations to respect, to protect and to fulfil, another important classification of human rights obli-gations relates to the immediacy or urgency of their realisation. Obligations to progressive realisation may be distinguished from core obligations that have to be realised immediately89. Accordingly, this distinction has a dif-ferent focus compared with the tripartite typology outlined above90.

The principle of progressive realisation and the minimum core approach are important concepts in the context of the present book as they will be applied to the right to water in determining its normative content in the next section. They will later serve as a basis for setting up a framework in order to balance basic human needs with other water uses, and to set priorities in the allocation of water resources.

i. Principle of progressive realisation

As outlined above, the right to water as well as all other socio-economic rights reach beyond mere programmatic clauses and entail legally- binding obligations. According to Article 2(1) of the Social Covenant, States are only obliged to realise these rights progressively to the maximum of avail-able resources. Therefore, there is no obligation to realise all socio- economic rights immediately in full, in acknowledgement of the fact that the full realisation of all rights enshrined in the Covenant is often not possible within a short period of time91. However, this does not leave the

89 Apart from core obligations aiming to realise a minimum essential level of the right to water immediately, there are other obligations of immediate effect. These include the obliga-tions ‘to take steps’ as well as not to discriminate. See generally CESCR, General Comment No 3, above n 88, para 2; ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, reprinted in (1998) 20 Human Rights Quarterly 691, para 8; Craven, above n 3, 114 et seq; Klee, above n 3, 180 et seq.

90 When aiming to relate the two classifications to one another, it is most commonly assumed that the obligation to respect and to a certain degree the obligation to protect are of immediate effect as they do not require the availability of resources, whereas the obligation to fulfil most closely relates to the obligation to progressive realisation. Chapman and Russell therefore assign all obligations of immediate effect to the category of core obliga-tions, see AR Chapman and S Russell, ‘Introduction’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 1, 11 et seq; but cf as well Engbruch, above n 53, 142 et seq, who argues that the two classifications should be kept separate.

91 CESCR, General Comment No 3, above n 88, para 9; Sepúlveda, above n 3, 312. Interestingly, the Banjul Charter does not include a clause on the progressive realisation of socio-economic rights. Rather, all rights included in the Charter are of immediate applica-tion; see CA Odinkalu, ‘Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights’ in MD Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge, Cambridge University Press, 2002) 178, 196. Neither does the CRC speak explicitly of progressive realisation. However, Art 4 CRC stipulates with regard to economic, social and

116 Legal Characteristics of the Human Right to Water

realisation of rights to the discretion of States92. Rather, Article 2(1) ‘must be read in the light of the overall objective, indeed the raison d‘être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question’93.

The State obligations can be specified in a number of ways: States are immediately obliged ‘to take steps’, ie steps towards the goal of full realisation have to be taken within a short time as this obligation is not qualified by Article 2(1) ICESCR94. These steps have to be deliberate, con-crete and targeted95, and must be undertaken with a ‘view to achieving progressively the full realization of the rights’. States thus must take steps forward continuously96 toward the full realisation of the human right to water. The emphasis on continuous improvement is reiterated in Article 11(1) ICESCR (‘continuous improvement of living conditions’). The goal to be reached is an adequate standard of living. States have ‘to move as expe-ditiously and effectively as possible towards that goal’97 of full realisation, and have to show progress towards that goal98. Thus, they are obliged to realise all rights as soon as possible99. The speed by which they have to move towards this goal is not left to their discretion but determined by objective standards, such as the availability of resources. Therefore, the specific steps to be taken concerning the progressive realisation of socio-economic rights differ from State to State, depending inter alia on the level of realisation of rights from which States take further progressive steps100. Full realisation may take a long time in some States, while others may have the capacity to accomplish this aim within a relatively short period or have already achieved an adequate standard of living.

The level which States are obliged to attain thus depends on the availa-bility of resources101. Determining this availability is difficult, first as to defining what is covered by the term ‘resources’ as such, and secondly as

cultural rights that States Parties shall undertake measures to the maximum extent of their available resources.

92 Alston and Quinn, above n 7, 178 et seq.93 CESCR, General Comment No 3, above n 88, para 9.94 Ibid, para 2; Sepúlveda, above n 3, 313.95 Committee on Economic, Social and Cultural Rights, Statement, An Evaluation of the

Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant, 10 May 2007, E/C.12/2007/1, para 3.

96 This includes generally to abstain from deliberate retrogressive measures. On this aspect see the detailed analysis by Sepúlveda, above n 3, 323 et seq.

97 CESCR, General Comment No 3, above n 88, para 9; see also ‘Limburg Principles’, above n 70, para 21; Sepúlveda, above n 3, 319.

98 S Leckie, ‘Violations of Economic, Social and Cultural Rights’ in TC van Boven, C Flinterman and I Westendorp (eds), The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Workshop Proceedings (Utrecht, SIM, 1998) 35, 49.

99 Klee, above n 3, 116; Riedel, above n 56, 595; Leckie, above n 98, 50; Craven, above n 3, 131.

100 Craven, above n 3, 115; Riedel, above n 56, 595; Alston and Quinn, above n 7, 177.101 Klee, above n 3, 115.

Obligations Arising From the Right to Water 117

to determining their actual availability102. The wording of Article 2(1) ICESCR is not limited to its financial dimension, and other resources are also required to realise human rights. ‘Resources’ may therefore be under-stood to include all means that are potentially necessary and available for the realisation of the human rights guaranteed in the Covenant103, and include financial, natural, human, organisational, technological, informa-tion and other resources104. In particular because of this broad definition, but even for financial resources, the overall level of availability is extremely difficult to ascertain105. However, in the context of the present book, the focus will be on water as a natural resource; human rights impli-cations for water allocation will be considered in detail in chapter five.

ii. Minimum core approach

In spite of the clause in Article 2(1) of the Social Covenant establishing the principle of progressive realisation and its dependence on the availability of resources, there is a growing consensus about the existence of core obli-gations that need to be fulfilled immediately106. These aim at guaranteeing a minimum standard. The minimum core approach has mainly been developed by the CESCR107. In its General Comment No 3 it stated the view

102 RE Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693, 694 et seq.

103 Klee, above n 3, 126.104 Ibid; see the typology proposed by Robertson, above n 102, 695 et seq.105 See Klee, above n 3, 128 et seq. For an early attempt to develop indicators to assess State

compliance in utilising the maximum available resources, see Robertson, above n 102, 703 et seq. More recently, research on quantitative assessments of the obligation to devote the max-imum available resources is gaining ground, see eg Economic and Social Council, Report of the High Commissioner for Human Rights on the Implementation of Economic, Social and Cultural Rights, 8 June 2009, E/2009/90, paras 39 et seq; E Anderson and M Foresti, ‘Assessing Compliance: The Challenge for Economic and Social Rights’ (2009) 1 Journal of Human Rights Practice 469; S Fukuda-Parr, T Lawson-Remer and S Randolph, ‘An Index of Economic and Social Rights Fulfillment: Concept and Methodology’ (2009) 8 Journal of Human Rights 195; E Felner, ‘A New Frontier in Economic and Social Rights Advocacy? Turning Quantitative Data into a Tool for Human Rights Accountability’ (2008) 5 Sur: International Journal on Human Rights 109; for an attempt to determine the maximum available resources, see R Balakrishnan, D Elson, J Heintz and N Lusiani, Maximum Available Resources and Human Rights, Analytical Report (New Brunswick, Center for Women’s Global Leadership, 2011).

106 CESCR, General Comment No 15, above n 45, para 37(a); Filmer-Wilson, above n 83, 228; Klee, above n 3, 182 et seq; Riedel, above n 56, 601 et seq; O Lohse, Das Recht auf Wasser als Verpflichtung für Staaten und nichtstaatliche Akteure, Art. 11 Abs. 1, Art. 12 Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte (Hamburg, Kovac, 2005) 102 et seq; Maastricht Guidelines, above n 89, para 9; V Dankwa, C Flinterman and S Leckie, ‘Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 705, 717.

107 CESCR, General Comment No 3, above n 88, para 10. See also already P Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332, 352 et seq. For a detailed analysis of the approach see Klee, above n 3, 182 et seq; on the development of the minimum core approach,

118 Legal Characteristics of the Human Right to Water

‘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’108.

There is some confusion as to the terminology and scope of the mini-mum core approach. Sometimes, other immediate obligations, such as the obligation to adopt a national plan of action, are also considered under the term ‘core obligations’109. Such a broader understanding of core obli-gations highlights the importance of these immediate obligations, but is also somewhat confusing as these obligations do not necessarily relate to the minimum essential level (ie the core) of the right in question110. This broader understanding of core obligations will not be pursued further. Instead, core obligations and core content are understood as relating to each other, which is in line with the approach originally taken by the Committee111. What will be discussed here are minimum core obligations that relate to the minimum essential level of the right in question.

1. Rationale of the approach

The question arises how such core obligations can be reconciled with the principle of progressive realisation as they seem to contradict this princi-ple. In order to refute this apparent breach, one has to start from the idea that there are certain minimum needs that are more urgent than others and therefore have to be accorded priority. This is recognised by the mini-mum core approach112. It aims to establish this priority as legally-binding, and to guarantee a minimum essential level of each right113. Without acknowledging such a minimum core content that is to be realised imme-diately for every individual, the Covenant rights would largely be deprived of their raison d’être114. The minimum core approach is based on the assumption that there are fundamental obligations appertaining to

see also D Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford, Oxford University Press, 2007) 186 et seq.

108 CESCR, General Comment No 3, above n 88, para 10.109 See eg CESCR, General Comment No 15, above n 45, para 37.110 See M Langford and JA King, ‘Committee on Economic, Social and Cultural Rights –

Past, Present and Future’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2009) 477, 493 et seq; as well as the detailed analysis of the different approaches by Engbruch, above n 53, 118 et seq.

111 See Engbruch, above n 53, 130, also 121, 133.112 D Bilchitz, ‘Towards a Reasonable Approach to the Minimum Core: Laying the

Foundations for Future Socio-Economic Rights Jurisprudence’ (2003) 19 South African Journal on Human Rights 1, 11.

113 CESCR, General Comment No 3, above n 88, para 10; CESCR, General Comment No 15, above n 45, para 37; Bilchitz, above n 112, 12; S Russell, ‘Minimum State Obligations: International Dimensions’ in D Brand and S Russell (eds), Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (Pretoria, Protea, 2002) 11, 15.

114 CESCR, General Comment No 3, above n 88, para 10; Arambulo, above n 3, 131.

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each right, the immediate fulfilment of which is of such central import-ance for the realisation of the right115 that failure to achieve it would lead to the right losing its significance as a human right116. Arambulo speaks of the right’s ‘nucleus that cannot be breached without loss of the right’s meaning’117.

This approach supports the concept of human rights as rights of the individual118. Human rights are characterised by the individual’s perspective; therefore, the realisation of human rights also has to be characterised by the individual’s perspective. Even though Articles 11 and 12 ICESCR are generally phrased in terms of States’ obligations, they ‘recognize the right of everyone’ to an adequate standard of living and the highest attainable standard of health, respectively119. This ‘right of everyone’ becomes meaningless if the core content is not realised for every individual immediately120. Progressive realisation is therefore not to be understood on the basis of society as a whole but on the basis of the individual121. Everyone’s human right to water has to be realised progres-sively – starting with its core content.

Moreover, the distinction between the general normative content of a right and its core content, which has to be realised with greater urgency, is not uncommon in human rights law. The right to food as guaranteed in Article 11(1) and (2) ICESCR is noteworthy in this regard. Article 11(1) recognises the right to food as part of the right to an adequate standard of living, while Article 11(2) acknowledges the ‘fundamental right to be free from hunger’. Already, by classifying this latter right as ‘fundamental’ it is given more weight than the broader right to adequate food. As the right to be free from hunger is much narrower in scope and aims to protect the most essential level of the right, it can be regarded as part of the core

115 Lohse, above n 106, 102 et seq.116 Chapman and Russell, above n 90, 9; Russell, above n 113, 15; Coomans, above n 25,

192; Sepúlveda, above n 3, 366; Engbruch, above n 53, 135.117 Arambulo, above n 3, 130.118 See the Amici Curiae’s argument in the TAC case, Constitutional Court of South Africa,

Minister of Health v Treatment Action Campaign (2002) 10 Butterworths Constitutional Law Reports 1033 (CC), 1945.

119 Also noted by Bourquain, above n 38, 101.120 See Sepúlveda, above n 3, 367.121 The minimum threshold approach is similar to the minimum core approach, but differs

from it as it aims to establish national thresholds for the realisation of socio-economic rights; see BA Andreassen, T Skålnes, AG Smith and H Stokke, ‘Assessing Human Rights Performance in Developing Countries: The Case for a Minimal Threshold Approach to the Economic and Social Rights’ (1987/88) 3 Human Rights in Developing Countries: Yearbook on Human Rights in Countries Receiving Aid from Nordic Countries, the Netherlands and Canada 333; also Eide, above n 26, 43 et seq. For an analyis see Klee, above n 3, 182 et seq; Engbruch, above n 53, 124 et seq; Arambulo, above n 3, 136 et seq. The two approaches must not be exclusive but can complement each other; see Arambulo, above n 3, 141 et seq. On the ques-tion whether minimum standards apply to the individual or (as a minimum threshold) to society as a whole, see also Leckie, above n 98, 59.

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content122. A similar concept may, for example, be found in German con-stitutional law with its Wesensgehaltstheorie123. According to Article 19(2) of the German Constitution124, the Wesensgehalt, ie the core constituting the intrinsic essence of the guaranteed rights, must not be infringed. The sub-stance of the right must not be eliminated in any circumstances125. This underlines that the idea of core elements is not unfamiliar to human rights law.

The minimum core may be regarded as the baseline from which the progressive realisation of the right to water has to start. It has therefore been called the ‘floor’ below which the realisation of a human right must not fall126. As such, the notion of a core content does not contradict the principle of progressive realisation. Rather, it merely modifies its starting point. The progressive realisation of human rights does not start from zero but from this minimum core. From that point, the State is required to realise the right to water progressively in order to achieve its full realisa-tion, which may be regarded as the ‘ceiling’127. Progressive realisation con-sequently has to be understood as the improvement of the level of realisation of the rights over time128. Accordingly, the minimum core approach can be reconciled with the principle of progressive realisation.

122 See R Künnemann, ‘The Right to Adequate Food: Violations Related to Its Minimum Core Content’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 161, 171.

123 This is pointed out by a number of – even non-German – authors, see BCA Toebes, The Right to Health as a Human Right in International Law (Antwerp, Intersentia, 1999) 277; KG Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008) 33 Yale Journal of International Law 113, 124; Engbruch, above n 53, 118 et seq. See also (on a similar provision in the former Turkish Constitution) E Örücü, ‘The Core of Rights and Freedoms: the Limit of Limits’ in T Campbell, D Goldberg, S McLean and T Mullen (eds), Human Rights: From Rhetoric to Reality (Oxford, Blackwell, 1986) 37; Arambulo, above n 3, 134.

124 Bundesrepublik Deutschland, Grundgesetz, 23 May 1949 (BGBl S 1), available at <www.bundestag.de/dokumente/rechtsgrundlagen/grundgesetz/gg.html> (accessed 1 October 2011).

125 Lorz, above n 1, 262; see generally Sachs in M Sachs (ed), Grundgesetz, Kommentar, 5th edn (Munich, Beck, 2009) Art 19, paras 33 et seq; P Häberle, Die Wesensgehaltsgarantie des Art. 19 Abs. 2 Grundgesetz, Zugleich ein Beitrag zum institutionellen Verständnis der Grundrechte und zur Lehre vom Gesetzesvorbehalt, 3rd edn (Heidelberg, CF Müller, 1983); H Krüger, ‘Der Wesensgehalt der Grundrechte’ in H Krüger and J Seifert (eds), Die Einschränkung der Grundrechte (Hannover, Niedersächsische Landeszentrale für Politische Bildung, 1976) 35.

126 Chapman and Russell, above n 90, 9.127 Ibid.128 D Bilchitz, ‘Giving Socio-Economic Rights Teeth: The Minimum Core and Its

Importance’ (2002) 119 South African Law Journal 484, 493; S Liebenberg, ‘The Interpretation of Socio-Economic Rights’ in S Woolman, T Roux, J Klaaren, A Stein and M Chaskalson et al (eds), Constitutional Law of South Africa, 2nd edn (Lansdowne, Juta, 2005) ch 33, 41; C Scott and P Alston, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal on Human Rights 206, 250.

Obligations Arising From the Right to Water 121

Among the proponents of the minimum core approach, so far no con-sensus has crystallised on the scope of this minimum essential level129. One of the narrowest suggestions is made by Bilchitz, who focuses on survival interests130, arguing inter alia that without realising human rights as far as necessary to ensure survival, all other human rights become meaningless131. This is certainly true, but merely focusing on survival seems too narrow an understanding of the minimum core132. The human right to water not only guarantees access to water as far as necessary to ensure human survival, but also relates to an adequate standard of living and the protection of human health133, ie it also covers water for other basic human needs such as personal hygiene. These aspects have to be taken into account when determining the scope of the core content of the right to water. Moreover, the approach as developed by the Committee is not restricted to survival interests. It is based on the assumption that all socio-economic rights have a minimum core134 that is related to their rai-son d’être. While this minimum core content is difficult to define, the con-cept of human dignity can be helpful in this regard135. Accordingly, the core content of the human right to water encompasses a minimum stand-ard that is indispensable for human survival and dignity. An attempt to define this minimum standard in more detail will be undertaken in the next section.

To summarise, apart from their obligation to achieve progressively the full realisation of all socio-economic rights, States have core obligations that are much narrower in scope. They aim to guarantee a minimum essential level of each right that has to be realised immediately136.

129 See the analysis by Klee, above n 3, 187 et seq.130 See Bilchitz, above n 112, 11 et seq; see also the analysis by Young, above n 123, 128 et

seq.131 Bilchitz, above n 112, 12; see also Moller Okin, above n 7, 244.132 See Engbruch, above n 53, 148.133 On the legal foundations of the right to water, see above ch 3; on the normative content,

see below section III.134 Attempts have also been made to define the core content of rights that do not directly

relate to survival interests, see eg F Coomans, ‘In Search of the Core Content of the Right to Education’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 217.

135 See Engbruch, above n 53, 148; Bourquain, above n 38, 104 et seq; generally S Liebenberg, ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 South African Journal on Human Rights 1; also the Amici Curiae’s argument in the TAC case, Constitutional Court of South Africa, Minister of Health v TAC, above n 118, 1945; as well as the analysis by Young, above n 123, 133 et seq. The Preamble of the Social Covenant states that the rights guaranteed by it ‘derive from the inherent dignity of the human person’.

136 CESCR, General Comment No 15, above n 45, para 37; Bilchitz, above n 112, 11 et seq; Maastricht Guidelines, above n 89, para 9.

122 Legal Characteristics of the Human Right to Water

2. Inability to realise the minimum core

Even this seemingly absolutist minimum core approach does not call for the impossible. The approach takes account of the fact that it is not only impossible to realise all socio-economic rights in full in a short period of time137, but that even the immediate realisation of the minimum core as a fundamental guarantee of every right for everyone may be impossible for certain States138. In many, if not most, cases a reallocation of resources will allow States to realise the minimum core for a great number of people139, but there may be cases where the State simply lacks the necessary resources to guarantee the minimum core. The minimum core approach takes account of these facts and does not set an absolute standard140. Yet the State is required to realise this minimum essential level whenever and as soon as this is possible141. States are thus assumed to be able to meet these requirements, but they can prove their inability to do so142. In this regard, the minimum core approach brings about a significant change, as the burden of proof then rests upon the State143. It prima facie fails to meet its obligations. The individual does not have to prove that the State fails to meet its human rights obligations; rather, States have to demonstrate that every possible effort has been made and that all available resources have been used to satisfy these minimum needs as a matter of priority144.

3. Criticism of the minimum core approach

The minimum core approach has encountered some criticism. It has been discussed in some depth in the South African context, at least in more detail than at the international level145. The South African Constitution

137 CESCR, General Comment No 3, above n 88, para 9.138 Tomuschat, above n 5, 827; Langford, above n 77, 98.139 Russell, above n 113, 17; Chapman and Russell, above n 90, 11.140 Liebenberg, above n 135, 18. Sometimes, it is stated that the minimum core would have

to be realised regardless of the availability of resources and that States could not justify their failure to do so; see eg Maastricht Guidelines, above n 89, para 9. Yet such a maximalist approach does not seem viable. It has to be acknowledged that severe resource constraints may impede the realisation of the minimum core. To impose obligations that might be impossible to realise would not strengthen the minimum core approach but weaken its per-suasiveness; see also Langford and King, above n 110, 493.

141 Bilchitz, above n 112, 18.142 Russell, above n 113, 16; Chapman and Russell, above n 90, 10; Sepúlveda, above n 3,

367.143 Klee, above n 3, 192, 194; Liebenberg, above n 135, 17; B Rudolf, ‘Menschenrecht Wasser

– Herleitung, Inhalt, Bedeutung, Probleme’ in B Rudolf (ed), Menschenrecht Wasser? (Frankfurt am Main, Peter Lang, 2007) 15, 32; Engbruch, above n 53, 138, 146; see also Young, above n 123, 159.

144 CESCR, General Comment No 3, above n 88, para 10; CESCR, Statement, above n 95, para 6; Scott and Alston, above n 128, 250; Bilchitz, above n 112, 16; Klee, above n 3, 192; Liebenberg, above n 128, ch 33, 31; Russell, above n 113, 16; Liebenberg, above n 135, 18; Engbruch, above n 53, 146.

145 But cf in this regard Young, above n 123.

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includes a number of provisions on socio-economic rights and a clause relating to their realisation that is very similar to Article 2(1) of the Social Covenant146. In the interpretation of this clause, the South African Constitutional Court considered the minimum core approach but rejected its application147. In this context the approach has been criticised, which criticism will briefly be analysed148. Some of the concerns voiced by the Constitutional Court or in South African literature are about the mini-mum core approach as such, while others relate more specifically to its use by the courts as a standard of review and will therefore be considered in the context of the judicial enforcement of the human right to water149.

The South African Constitutional Court held that it is simply impossi-ble to provide everyone immediately even with core services, and all that can possibly be expected from the State is for it to act reasonably150. The minimum core approach takes account of this reservation, as it does not call for the impossible: as far as real resource constraints hinder the reali-sation of the core content of the right to water, the failure can be justified, but not where resources are available but misallocated. Yet it is true that the minimum core approach is a rigid concept to a certain degree. It requires acknowledgement that it is unacceptable for people to live in conditions that are a threat to their bare survival and infringe their dig-nity. Accordingly, the State has to take every possible measure within its power to put an end to such conditions151.

Others put forward an argument to the contrary, observing a danger that the minimum core approach settles for minimum targets and encourages

146 Arts 26(2) and 27(2) of the South African Constitution concurrently read: ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of [each of these] right[s].’

147 Constitutional Court of South Africa, Minister of Health v TAC, above n 118, 1045 et seq; Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, 4 October 2000, (2000) 11 Butterworths Constitutional Law Reports 1169 (CC), 1188. The Court regarded itself as being unable to determine the minimum core due to insufficient information and held that it was in this regard in another situation than the CESCR. In the context of reasonableness review – the concept developed by the South African Constitutional Court, see in this regard below, ch 6, section II.B.ii.3.a. – the Court also considers the urgency of needs. It stipulates that the requirements of those parts of the population that are in most urgent need have to be taken into account and that a significant number of people in desperate need have to be afforded relief, see Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, 1202. Yet the Court does not demand that all people in desperate need are afforded immedi-ate relief stressing that there are no individual rights entitling to a minimum core, see Constitutional Court of South Africa, Minister of Health v TAC, above n 118, 1046.

148 It would be beyond the scope of the book to attempt to deal with criticism in its entirety. Rather, only some particularly relevant arguments will be considered. For a more general, detailed and critical analysis of the minimum core approach, cf Young, above n 123. Critical as well is Klee, above n 3, 195 et seq.

149 See ch 6, section II.B.ii.3.b. 150 Constitutional Court of South Africa, Minister of Health v TAC, above n 118, 1046.151 Bilchitz, above n 112, 15.

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‘minimalism in social provisioning’152. From a strategic point of view, it has to be acknowledged that the minimum core approach may be misused and carries the danger of settling for too little. However, the minimum core is nothing more than a starting point and the first step in progressively realis-ing socio-economic rights153. It is a useful instrument to highlight that it is unacceptable when even this minimum essential level is unrealised, such as in the case of the close to a billion people who do not have access to water. Nevertheless, the obligation of progressive realisation and to achieve the continuous improvement of living conditions (Article 11(1) of the Social Covenant) still applies and is of equal importance. Whenever States are in the position to do so, they are obliged to go beyond the minimum core and must not settle for minimum targets. The minimum core approach is a use-ful tool to guide the allocation and prioritisation of resources. By establish-ing the minimum core as starting point, it highlights that the realisation of the core content for everybody enjoys priority over the further realisation of human rights for some. Thus, the minimum core approach is not as rigid as sometimes assumed. Neither does it prescribe the impossible, nor does it limit States’ obligations to the realisation of this core.

Furthermore, it has been argued that the approach is too prescriptive in determining the minimum core of human rights154, disregarding the diver-sity of needs155. Yet the minimum core of some rights seems to be easier to determine than that of others. With regard to water, it is arguable that all people have similar minimum needs (although recognising the special needs of some groups). Moreover, this is a question of how to formulate the minimum core, which must not be too specific but needs to be formu-lated in more general terms in order to take account of such diverse needs156.

152 S Liebenberg, ‘Socio-Economic Rights: Revisiting the Reasonableness Review/Minimum Core Debate’ in S Woolman and M Bishop (eds), Constitutional Conversations (Pretoria, Pretoria University Press, 2008) 305, 317; similarly B Porter, ‘The Crisis of ESC Rights and Strategies for Addressing It’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 43, 55. Yet Liebenberg’s criticism primarily aims at a very narrow minimum core approach focusing on survival interests as advocated by Bilchitz; see Bilchitz, above n 112, 11 et seq. In this regard, cf as well Young, above n 123, 130 et seq.

153 Engbruch, above n 53, 141.154 Liebenberg, above n 152, 313 et seq; see also Porter, above n 152, 49.155 Constitutional Court of South Africa, Government of the Republic of South Africa and

Others v Grootboom and Others, above n 147, 1188.156 The South African Constitutional Court in Grootboom referred to the diversity of needs

in regard to the right to housing, stating that some people are in need of land, others in need of both land and houses, and yet others in need of financial assistance (see ibid). However, the minimum core of the right to housing may be formulated in more general terms, refer-ring to the minimum essential level of the right to housing. Apart from shelter that as a minimum provides protection from the elements, General Comment No 4 formulates a num-ber of factors that have to be taken into account; see Committee on Economic, Social and Cultural Rights, General Comment No 4, The right to adequate housing (Art 11(1) of the Covenant),

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Accordingly, it does not seem convincing to renounce the minimum core approach in general. Rather, one of the decisive questions is how to determine the minimum core content. An attempt to delineate the norma-tive content of the right to water, including its core, will be undertaken in the next section. Also, the implications of the minimum core approach for water allocation will have to be considered. The framework developed in chapter five to establish priorities in water allocation will build upon the minimum core approach157.

iii. Conclusion

The realisation of socio-economic rights is characterised by the principle of progressive realisation and depends on the availability of resources. States have to accomplish the aim of an adequate standard of living as soon and as quickly as possible, but they do not have to realise all rights immediately in full. Nevertheless, there exist certain minimum core obli-gations that States must realise immediately, as the rights guaranteed in the Social Covenant would otherwise be deprived of their raison d’être. These relate to a minimum essential level of water necessary to ensure human survival and dignity.

III. NORMATIVE CONTENT OF THE RIGHT TO WATER

Thus far, it has been shown that the human right to water forms part of international human rights law, that it is legally binding and that States have certain obligations corresponding to the right to water. Yet the exact content of what is to be realised remains to be determined. In order to be able to balance personal and domestic water needs with other water uses in the following chapter, the exact scope and content of the right to water has to be explored. Thus, its normative content will be analysed in this section.

By outlining the normative content it has to be kept in mind that the main obligation of States is progressively to realise the right to water. This is the underlying principle of the Social Covenant laid down in Article 2(1). In this regard, the aim is to attain an adequate standard of living and the highest attainable standard of health. At the same time, certain ele-ments of the normative content are part of the core content of the right to

13 December 1991, contained in E/1992/23, Annex III, para 6. The specific means to realise this minimum depend on circumstances and individual requirements, and are largely left to the discretion of States. They do not form part of the formulation of the minimum core itself. See also Engbruch, above n 53, 137; Bilchitz, above n 128, 489.

157 Moreover, the minimum core approach will be referred to again in ch 6, section II.B.ii.3.b. in the context of the judicial enforcement of the human right to water.

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water, which is not subject to progressive realisation but has to be realised immediately. The normative content of the right to water can therefore be determined at two levels, which have aptly been described as the ‘floor’ and the ‘ceiling’158 of the realisation, the ‘floor’ symbolising the core con-tent and the ‘ceiling’ referring to the standard which is to be accomplished progressively. Therefore, the normative content of the right to water will be analysed for the different levels of State obligations. It will be pointed out to what extent the content is part of the minimum core of the right to water, and to what extent it is to be realised progressively.

It has been established above159 that the right to water forms part of the right to an adequate standard of living, and that access to water is also guaranteed to a certain degree under the rights to health and life. These legal foundations relate to different features of the normative content and cover it either fully or partially. While the right to life covers only survival requirements and the right to health has a particularly strong link to water quality aspects as well as to personal hygiene, the right to an adequate standard of living relates to all features of the right to water: water quan-tity and quality, as well as physical and economic accessibility. These cri-teria will now be considered in more detail.

A. Availability

First of all, water has to be available in sufficient quantities160. In order to determine what is ‘sufficient’, the water uses encompassed by the right to water must first be determined. The quantities of water necessary to real-ise these uses must then be analysed.

i. Kinds of water uses covered by the right to water

Water is used for numerous different purposes, such as industrial uses, agriculture, power generation, recreation, and personal and domestic uses. Considering these, the uses covered by the human right to water have to be established. This analysis of the content will be based on the legal foundations of the right to water as established above, primarily the right to an adequate standard of living.

First, water has to be guaranteed for the purpose of drinking, as this is necessary to ensure survival. Due to the close link to human dignity and health, water for personal hygiene and other basic human needs is also covered. Depending on the cultural context and personal needs, hygiene

158 Chapman and Russell, above n 90, 9.159 See ch 3, section I.160 CESCR, General Comment No 15, above n 45, para 12(a); Sub-Commission on the

Promotion and Protection of Human Rights, Draft Guidelines, above n 57, para 1(1).

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practices include anal and genital cleansing and menstrual hygiene while hand-washing is always essential. In order to achieve an adequate stand-ard of living, water for domestic uses has to be guaranteed. It is not con-tentious that the right to water covers these uses161. The specific water uses covered as personal and domestic uses, and the quantities of water required for these, will be discussed further below.

1. Water for sanitation?

Water for sanitation is a special case. It is used by individuals in house-holds, and thus shows similarities to other domestic uses. Water and sani-tation are often mentioned in the same breath, and they are in fact closely linked to each other. Still, this does not necessarily imply that the human right to water covers water for sanitation. Instead, it seems preferable to consider sanitation on its own, as a distinct right – also distinct from the right to water162.

To a certain extent, it is true that sanitation is likely to benefit from being linked to water. Some argue that sanitation has ‘piggy-backed’ on the increased attention given to water163. While this linkage is to some degree beneficial in raising awareness of the significance of sanitation, it also con-tributes to the perception of sanitation being attached to water, and to treating as its poor cousin164. If that perception does not change, sanitation will continue to be treated as an add-on, failing to take into account its specificities, and continue to be under-funded, including in comparison with water. Recent estimates show that only a relatively small proportion of combined funding for water and sanitation is allocated to sanitation: 37 per cent of aid funding165 and an average of a mere 20 per cent of gov-ernment spending166.

The perception of sanitation as an add-on to water also limits the extent to which the practical particularities of sanitation services can be addressed. First and foremost, sanitation does not necessarily have to be water-borne. Various alternatives for on-site sanitation exist, referring to systems that do not flush or transport excreta away immediately upon use

161 A Hardberger, ‘Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates’ (2005) 4 Northwestern Journal of International Human Rights 331, 356; Vandenhole and Wielders, above n 57, 397; P Gleick, ‘The Human Right to Water’ (1998) 1 Water Policy 487, 493.

162 The human right to sanitation will be discussed further in ch 5, section III.D. 163 MW Jenkins and S Sugden, Rethinking Sanitation: Lessons and Innovation for Sustainability

and Success in the New Millennium, Occasional Paper (New York, UNDP Human Development Report Office, 2006) 8.

164 M Black and B Fawcett, The Last Taboo, Opening the Door on the Global Sanitation Crisis (London, Earthscan, 2008) 216 et seq.

165 World Health Organization and UN-Water, Global Annual Assessment of Sanitation and Drinking-Water (GLAAS): Targeting Resources for Better Results (Geneva, UN-Water, 2010) 28.

166 Ibid, 29.

128 Legal Characteristics of the Human Right to Water

but store it in a pit or septic tank167. Where on-site sanitation solutions are chosen, these usually require a range of services distinct from those for water supply168, ranging from the construction, maintenance and empty-ing of latrines and septic tanks, to the treatment and disposal of faeces, to the selling of related products such as soap and products for menstrual hygiene.

Moreover, the practical challenges in improving access to sanitation and water are not the same. Looking at remote rural areas, in particular when they are hilly or lack groundwater resources, water supply can be a huge challenge, whereas on-site sanitation solutions may be found more easily. In many instances, pit latrines can be built and simply moved, and a new pit dug once the first one has been filled169. In contrast, sanitation poses an enormous challenge in densely-populated urban slums170, rang-ing from the problems of finding a place where to defecate when no facil-ities exist, to finding the space to build household facilities or public toilet blocks, to the safe disposal of excreta, in particular where sludge removal trucks cannot access pits in narrow lanes171.

Apart from these technical considerations, improving the sanitation situation requires a different type of intervention, with a strong focus on creating or reinforcing demand for sanitation, hygiene education and behaviour change172. Sanitation cannot just be delivered but requires rais-ing awareness of the benefits of safe sanitation and public health educa-tion, as exemplified in the Bangladeshi campaign slogan ‘not latrinization, sanitation!’173. From the perspective of individuals’ increased comfort, convenience, safety, privacy and dignity are often ranked higher as bene-fits of sanitation than public health, developmental and environmental benefits, which should also be taken into account when promoting sanita-tion174. Only when latrines are actually used and maintained, instead of only constructed, can their benefits be realised175. In addition to that, the

167 Black and Fawcett, above n 164, 60 et seq. For an overview of different on-site sanita-tion options, see ibid, 101 et seq.

168 Centre on Housing Rights and Evictions, WaterAid, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Sanitation: A Human Rights Imperative (Geneva, 2008) 6.

169 Ibid, 19.170 IT Winkler, Lebenselixier und letztes Tabu, Die Menschenrechte auf Wasser und

Sanitärversorgung (Berlin, Deutsches Institut für Menschenrechte, 2011) 14.171 On the particular sanitation challenges and potential solutions in urban slums, see

Black and Fawcett, above n 164, 35 et seq, 210 et seq; Jenkins and Sugden, above n 163, 20 et seq.

172 In this regard see Black and Fawcett, above n 164, 135 et seq, 188 et seq.173 International Water and Sanitation Centre, Bangladesh, ‘Not Latrinization, SANITATION’

campaign, 26 November 2007, available at <www.source.irc.nl/page/38020> (accessed 1 October 2011).

174 Black and Fawcett, above n 164, 137 et seq, 160 et seq; Jenkins and Sugden, above n 163, 3, 14.

175 WaterAid, Tackling the Silent Killer, The Case for Sanitation (London, WaterAid, 2008) 1.

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full health benefits can be realised only when entire communities move to safe sanitation practices176, whereas the benefits of water supply can be experienced directly by individual households. This again influences the nature of interventions needed to improve the sanitation situation, which differ significantly from what is needed to improve access to water. All in all, it therefore seems preferable to consider sanitation sep-arately instead of seeing it covered by the right to water.

2. Water for irrigation?

Furthermore, it has been discussed whether irrigation water for food pro-duction, in particular subsistence agriculture, should be guaranteed by the right to water177. This would result in significantly higher quantities of water being covered by the right178. In particular kitchen gardens, live-stock raising and small-scale subsistence agriculture are suggested as potentially being covered. It is argued that these form part of ‘domestic uses’ in many rural settings179.

However, while the same sources of water are sometimes used for a variety of purposes (in particular in rural settings), in other cases there are fundamental differences between access to water for personal and domestic needs on the one hand and access to water for food cultivation on the other hand. For instance, the supply of water for agricultural pur-poses often relies on infrastructure that is different from that necessary for the supply of water to households. Moreover, water quality standards in regard to drinking water differ substantially from those for agricul-tural water use180. Even when the same water sources are used for multi-ple purposes and water uses cannot be separated in practical terms, this does not require situating them under a single human right. The practical

176 COHRE, WaterAid, SDC and UN-Habitat, above n 168, 7.177 See Committee on Economic, Social and Cultural Rights, 29th Session, Summary

Record of the 46th Meeting, Preliminary discussion of a draft general comment on the right to water, 27 November 2002, E/C.12/2002/SR.46, paras 13, 20, 42, 44; Langford, above n 47, 276; Lohse, above n 106, 65 et seq. Cullet argues that the right to water should also cover water for producing food as well as livelihood uses, at least in rural contexts, cf P Cullet, Water Law, Poverty and Development, Water Sector Reforms in India (Oxford, Oxford University Press, 2009) 191, 194. Hellum also seems to assume that the human right to water covers water for agriculture, cf A Hellum, ‘The Indivisibility of Water, Land and Food in Local, National and International Human Rights Law: The Case of Women’s Gardens in Mhondoro, Zimbabwe’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol II, Evolving Issues and Emerging Applications (Antwerp, Intersentia, 2007) 297, 301 et seq, 322; see also Bourquain, above n 38, 139.

178 On agricultural water use, see above ch 2, section II.A.i. 179 Langford in M Woodhouse and M Langford, ‘Crossfire: There is no human right to

water for livelihoods’ (2009) 28 Waterlines 5, 7.180 But cf B van Koppen, P Moriarty and E Boelee, Multiple-Use Water Services to Advance

the Millennium Development Goals, Research Report No 98 (Colombo, International Water Management Institute, 2006) 13 et seq, for strategies of how to adapt to these different stand-ards in practice by using the same source of water for multiple uses.

130 Legal Characteristics of the Human Right to Water

considerations do not necessarily have repercussions at the normative level. Rather, it is perfectly conceivable that one activity relates to the exercise of different human rights181.

If water for producing food for basic consumption were taken to be guaranteed by the right to water, from a normative perspective there would be no reason not to include water for food production more broadly. It would be difficult to draw a line between subsistence farming and agri-culture on a larger scale. The same relates to water used in a range of liveli-hood activities, water used for cultural and religious practices, water for energy production or other water uses that aim at fulfilling basic human requirements. All water uses necessary to realise any human right would be conflated under a single, all-embracing human right to water. As such, the concept of the human right to water would risk being undermined by broadening its scope and letting it become less tangible and focused182.

To determine the scope of the right to water as well as its limits, it is important to look at the purpose of the water use in question. Not the mere fact that water is used, but the purpose of water use is determinative in linking it to the relevant human right. Water used for producing food does not aim at fulfilling water requirements as such but food require-ments. Put differently, it is not an end in itself but only the means to an end. And what is relevant from a human rights perspective is access to food, not access to water used for the production of food.

Not all people need water for producing food for their own consump-tion, only those relying on subsistence agriculture. Many others depend on food that is produced at a distance and transported before it is con-sumed. Realising the right to food does not therefore in all circumstances require the local provision of water183. While the State has to ensure that overall sufficient water resources are available to cultivate agricultural products sufficient to supply its population or else to import foodstuffs, these obligations relate to the right to food, not to the right to water. As water used for irrigation purposes serves to produce food, it aims at the realisation of the right to food and therefore has to be considered in the context of this human right. Water for food production is thus not included in the right to water184. Rather, the human right to water only covers water for personal and domestic uses.

181 For a discussion of water use under the human right to food, see ch 5, section III.B. 182 Lohse, above n 106, 65.183 T Kiefer, The Human Right to Water: Domestic and International Implications, LLM Thesis

(Amsterdam, Universiteit van Amsterdam, 2003) 34; Gleick, above n 161, 491; EB Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31 Ecology Law Quarterly 957, 970; T Kiefer and C Brölmann, ‘Beyond State Sovereignty: The Human Right to Water’ (2005) 5 Non-State Actors and International Law 183, 197.

184 The fact that the right to water does not cover water for food production does not pre-clude considering such water use under other human rights. See, in regard to the right to food, ch 5, section III.B.

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This is in line with General Comment No 15 which recognises that water is required for a range of different purposes, including food production. It stresses the importance of sustainable access to water resources for agri-culture and the realisation of the right to adequate food185, but does not regard the human right to water as covering water for food production. Rather, it considers it under the right to food.

ii. Quantity of water guaranteed

The next question to be considered relates to the amount of water neces-sary to satisfy personal and domestic needs. It is impossible to determine in general terms the precise amount of water that is needed to fulfil the human right to water, as requirements may vary, for example due to dif-fering climatic conditions as well as varying individual requirements186. Pregnant or lactating women often require a larger amount of water than others187. The same holds true for people living with HIV/AIDS188, or suf-fering from chronic diarrhoea. The human right to water requires that the basic needs of every individual are met, while the necessary amount to achieve this may differ. Therefore, a contextualised approach is required that takes into account individual requirements and circumstances.

Nevertheless, the approximate amounts of water usually necessary for meeting personal and domestic needs can be estimated. First and fore-most, water for drinking is covered, which usually amounts to 2 to 4.5 litres per day, depending on climatic conditions, activity level and diet189. As a survival requirement this quantity is already covered by the right to life and forms part of the core content of the right to water190. It may be compared with the right to be free from hunger in Article 11(2) of the Social Covenant, as part of the core content of the right to food.

A larger amount of water is needed for other personal and domestic uses. In order to provide for the highest attainable standard of health and to allow for an adequate standard of living, the guaranteed amount has to exceed the minimum quantity necessary for survival. The fulfilment of all

185 CESCR, General Comment No 15, above n 45, paras 6 et seq.186 Ibid, para 12(a); COHRE, AAAS, SDC and UN-Habitat, above n 74, 82.187 Hardberger, above n 161, 359.188 See eg High Court, Witwatersrand Local Division, South Africa, Lindiwe Mazibuko and

Others v. The City of Johannesburg and Others, 30 April 2008, para 179, available at <web.wits.ac.za/Academic/Centres/CALS/BasicServices/Litigation.htm> (28 March 2009).

189 G Howard and J Bartram, Domestic Water Quantity, Service Level and Health (Geneva, World Health Organization, 2003) 7; Hardberger, above n 161, 359; Gleick assumes 3 to 5 litres per day, see P Gleick, ‘Basic Water Requirements for Human Activities: Meeting Basic Needs’ (1996) 21 Water International 83, 84.

190 A Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 International Journal of Human Rights 389, 400; see also SC McCaffrey, ‘A Human Right to Water: Domestic and International Implications’ (1992) 5 Georgetown International Environmental Law Review 1, 12 et seq.

132 Legal Characteristics of the Human Right to Water

basic human needs has to be ensured. Especially water necessary for personal hygiene is closely linked to the right to health, as water-washed diseases that are often transmitted through the faecal-oral route can be prevented by gaining access to a sufficient quantity of safe water191. Further personal and domestic uses include cooking and food prepara-tion, dish-washing and laundry, house-cleaning and showering192.

It is extremely difficult to convert these requirements into a specific amount of water. However, many international recommendations, eg of the World Health Organization and other organisations, refer to 20193 to 25194 l/c/d as the absolute necessary minimum amount. General Comment No 15 also refers to these studies, thus suggesting that 20 litres may be regarded as the minimum necessary195. At the national level, the South African Free Basic Water Policy is an example of considering 25 litres the minimum that has to be provided to everyone196. The Sphere Standards

191 J Eyles and R Sharma, ‘Infectious Diseases and Global Change: Threats to Human Health and Security’ (2001) 8 AVISO 1, 10.

192 Engbruch, above n 53, 194.193 Howard and Bartram, above n 189, 23; United Nations Development Programme,

Human Development Report 2006, Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, Palgrave Macmillan, 2006) 3; World Bank, World Development Report 2000/2001, Attacking Poverty (Washington DC, World Bank, 2000) 321; World Health Organization and United Nations Children’s Fund, Global Water Supply and Sanitation Assessment 2000 Report (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2000) 77; cf as well Langford, above n 47, 276; Lohse, above n 106, 128; E Brown Weiss, The Evolution of International Water Law, Recueil des Cours 2007-VI, vol 331 (la Haye, Académie de Droit International de la Haye, 2007) 314.

194 Human Rights Council, Report of the High Commissioner, above n 45, para 15. However, Gleick suggests that 50 l/c/d are necessary to meet basic water requirements, including 5 litres for drinking, 20 litres for sanitation, 15 litres for bathing, and 10 litres for cooking and food preparation; see Gleick, above n 189, 88. See also Hardberger, above n 161, 359. In this regard, recommendations as in the WHO study refer to an even more essential level as it is, for example, not assumed that bathing needs can be met with an overall 20 l/c/d; see Howard and Bartram, above n 189, 22.

195 CESCR, General Comment No 15, above n 45, para 12(a).196 See Winkler, above n 67. The sufficiency of this quantity has been challenged in the

Mazibuko case. The Constitutional Court found the Free Basic Water Policy including the stipulated amounts to meet the standard of reasonableness, see Constitutional Court of South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, 8 October 2009, available at <www.constitutionalcourt.org.za/uhtbin/hyperion-image/S-CCT39-09> (accessed 1 October 2011); whereas the lower courts accepted the amount provided for in the regulation as the generally applicable minimum but required larger amounts to be provided in the particular circumstances, see High Court, Witwatersrand Local Division, South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, above n 188; Supreme Court of Appeal, South Africa, The City of Johannesburg and Others v Lindiwe Mazibuko and Others, 25 March 2009, available at <www.wits.ac.za/academic/clm/law/cals/basicservices/11193/mazibuko.html> (accessed 1 October 2011). Other countries also set standards in regard to the quantity of water provided. In the Flemish Region of Belgium, all households are provided with 15m3 per year per person free of charge, which roughly translates to 40 l/c/d; see Communauté Flamande, Art 1er bis § 3 de la loi du 14 août 1933 concernant la protection des eaux de boisson, inséré par Art 34 du Décret contenant diverses mesures d’accompagnement du budget 1997 de 20 Decembre 1996, available at <www.ejustice.just.fgov.be/loi/loi.htm> (accessed 1 October 2011).

Normative Content of the Right to Water 133

refer to only 15 l/c/d197. However, as those standards relate to emergency situations198, they should not be regarded as stipulating general minimum requirements. Rather, it can be assumed that States will often be in a posi-tion to justify not being able to meet even the minimum essential level of the right to water in such emergency situations.

Such a minimum amount of water for personal hygiene is indispensa-ble to human health and dignity. It is necessary to meet the minimum essential level of the right to water and is thus part of its core content199. An amount of 20 to 25 l/c/d can provide only a rough indication. It will not be sufficient to meet even very basic needs in all circumstances, but it is difficult to imagine that a quantity below this amount would be suffi-cient to meet these needs. In any case, what is required is a contextualised approach that takes account of specific needs to ensure that individual requirements are met200.

However, significant health concerns remain even with the provision of such minimum amounts201. A minimum standard has to be fulfilled with priority for everyone, but it must not be assumed that the right to water has been realised as soon as 20 l/c/d are provided. A larger quantity of water is necessary to realise the right to water progressively in full. The World Health Organization regards 50 l/c/d as sufficient to meet most basic consumption and hygiene needs, even though this is still not consid-ered optimal202.

The amount guaranteed by the right to water to be attained progres-sively is not unlimited. From a human rights perspective, water for amen-ity uses such as filling swimming pools or watering flowers is not guaranteed. The use of several hundred l/c/d, as happens in some Western countries203, is well beyond the achievement of an adequate standard of living guaranteed by the right to water. Again, it is difficult to determine an exact amount that allows for such a standard but does not cross the threshold of wastefulness. It should usually be in the range of

197 Sphere Project, Sphere Handbook, Humanitarian Charter and Minimum Standards in Disaster Response, 3rd edn (Bourton on Dunsmore, Practical Action Publishing, 2011) 97.

198 Ibid, 4; on minimum standards in emergency situations, see also L Roberts, ‘Diminishing Standards: How Much Water Do People Need?’, ICRC Forum: Water and War (Geneva, International Committee of the Red Cross, 1998), available at <www.icrc.ch/Web/eng/siteeng0.nsf/htmlall/57JPL6> (accessed 1 October 2011).

199 Cahill, above n 190, 401; M Duttwiler, ‘Das Recht auf Wasser nach dem Internationalen Pakt über wirtschaftliche, soziale und kulturelle Rechte – Ein Umriss seine Normgehalts’, Jusletter No 432 (16 July 2007), para 20.

200 On the significance of contextualisation, see P Parmar, ‘Revisiting the Human Right to Water’ (2008) 28 Australian Feminist Law Journal 77, 88.

201 Howard and Bartram, above n 189, 22.202 Ibid; see also Kiefer and Brölmann, above n 183, 199 et seq.203 The average water use in many European countries is between 200 and 300 litres per

day; 575 litres in the US. Residents of Phoenix, Arizona use more than 1,000 litres per day (average figures for the period 1998–2002); see United Nations Development Programme, above n 193, 34.

134 Legal Characteristics of the Human Right to Water

100 l/c/d. The World Health Organization assumes that a quantity of 100 l/c/d or more allows all household uses to be met and may thus be considered optimal204. The average use in Germany is below 130 l/c/d205, a figure that has constantly decreased since the early 1990s and is lower than the average consumption in many other Western countries, as water saving and conservation is more common in Germany206. There is no doubt that this amount of water usually allows for an adequate standard of living.

Accordingly, it may be concluded that at the very minimum an amount of water has to be supplied to ensure satisfaction of the most basic require-ments relating to the core content of the right to water. The oft-referenced 20 l/c/d provides a very rough indication but cannot replace a contextu-alised analysis considering specific needs. In order to achieve an adequate standard of living, a larger amount in the range of 100 l/c/d has to be supplied.

B. Safety and Acceptability

Water must also be safe and of such quality that it does not pose a threat to human health207. This feature demonstrates a very strong link to the right to health, as contaminated water is an important route of transmis-sion for many infectious diseases such as diarrhoea (so called water-borne diseases)208. Moreover, diseases may also be caused by water containing toxic levels of naturally-occurring chemicals. Arsenic and fluoride are of special significance in this regard. For instance, an enormous arsenic problem due to groundwater contamination has been reported from Bangladesh209.

Provisions on drinking water quality may be found in many national laws210. At the international level, the World Health Organization’s Guidelines for Drinking Water Quality211 constitute a reference point and are

204 Howard and Bartram, above n 189, 22; see also COHRE, AAAS, SDC and UN-Habitat, above n 74, 83.

205 Spiegel Online, ‘Ostdeutsche verbrauchen fast 30 Prozent weniger Wasser’, 4 June 2007, available at <www.spiegel.de/wirtschaft/0,1518,486611,00.html> (accessed 1 October 2011). This includes water for sanitation (flush toilets).

206 Spiegel Online, ‘Deutschland, Land des teuren Trinkwassers’, 29 June 2005, available at <www.spiegel.de/wirtschaft/0,1518,362840,00.html> (accessed 1 October 2011).

207 CESCR, General Comment No 15, above n 45, para 12(b).208 Eyles and Sharma, above n 191, 8.209 WaterAid, Arsenic 2002 – An Overview of Arsenic Issues and Mitigation Initiatives in

Bangladesh (London, WaterAid, 2003).210 For an overview of national provisions relating to water safety, see WASH United,

Freshwater Action Network and WaterLex, The Right to Water and Sanitation in International and National Law (working title), forthcoming 2012.

211 World Health Organization, Guidelines for Drinking-Water Quality, 4th edn (Geneva, World Health Organization, 2011).

Normative Content of the Right to Water 135

widely accepted as standard setting212. General Comment No 15 also refers to these Guidelines213. They define safe drinking water as water that ‘does not represent any significant risk to health over a lifetime of consumption, including different sensitivities that may occur between life stages’214. To avoid such risks, the Guidelines set detailed standards in regard to microbial, chemical and radiological aspects, determining whether such substances have to be eliminated or be reduced to a concentration that does not constitute a hazard to human health. They contain detailed fact sheets concerning pathogens and chemical substances.

Apart from these safety requirements, water for personal and domestic use should also be of an acceptable colour, odour and taste215. These fea-tures are important as they encourage consumption from safe sources instead of from other sources that might pose a hazard to human health216. This latter requirement is necessary to ensure adequacy but does not relate to the core content of the right to water. In contrast, the provision of sufficiently safe water in order to prevent serious threats to human health, in particular those that are easily preventable, such as diarrhoea, relates to the minimum core217.

C. Accessibility

The right to water also entails its physical accessibility218. In this regard, water infrastructure, including distribution networks, individual house-hold connections, public stand-pipes or other means of distribution, is required. Apart from in households, access to water services must also be guaranteed in educational institutions, work places, hospitals and health-care facilities, as well as in public institutions and places219.

It has been found that the distance to the water source has a strong impact on the quantity of water collected. As soon as the time needed to collect water exceeds five minutes (corresponding to a distance of more than 100 metres), the quantity collected is often reduced to less than 20 l/c/d. It usually remains in that range if the distance to the water source is no more than 1,000 metres (or 30 minutes collection time). Beyond this dis-tance the quantity decreases further to often less than 5 l/c/d220.

212 Human Rights Council, Report of the High Commissioner, above n 45, para 17.213 CESCR, General Comment No 15, above n 45, para 12(b), fn 15.214 World Health Organization, above n 211, 1.215 CESCR, General Comment No 15, above n 45, para 12(b); Hardberger, above n 161, 360.216 Duttwiler, above n 199, para 30.217 CESCR, General Comment No 15, above n 45, para 37(a).218 Ibid, para 12(c)(i); Human Rights Council, Report of the High Commissioner, above n 45,

para 25.219 See CESCR, General Comment No 15, above n 45, para 12(c)(i); Draft Guidelines, above

n 57, para 1(3); Lohse, above n 106, 139.220 Howard and Bartram, above n 189, 18, 22; see also Duttwiler, above n 199, para 23.

136 Legal Characteristics of the Human Right to Water

Such estimates have to be taken into account when aiming to specify accessibility, so as to ensure that access to sufficient quantities is factually guaranteed. Water must therefore be provided in the household or its immediate surroundings221. Basic or reasonable access can usually be assumed when water is available at a distance of up to 1,000 metres222. It is important to look not only at the distance but also at the collection time, which must not exceed 30 minutes as unreasonable waiting times at the point of access might otherwise result in less water being collected. However, such estimates can provide only broad guidance. It is important to take account of specific situations, as access to water has to be guaran-teed to every individual. For example, people with disabilities have dif-ferent requirements in terms of accessibility. Again, this stresses the significance of a contextualised approach.

In general, States are not required to ensure that access is provided in every house223. However, to achieve an adequate standard of living and the highest attainable standard of health, the distance to the point of collection must be reduced so as to enable larger quantities of water to be collected. According to the World Health Organization, a single tap in the yard may be regarded as intermediate access, typically allowing for about 50 l/c/d224 and thus relating to the progressive realisation of the right to water.

Apart from the distance, other features are also important for access to water. The regularity of water supply must be sufficiently reliable to allow the collection of an amount sufficient for personal and domestic use225 that can be stored safely. Furthermore, access to water must be physically safe. The security of individuals, in particular of women and girls, must not be threatened while accessing water sources226. Adequacy also has to be seen in relation to other human rights. For example, the right to education can-not be realised if girls spend time collecting water, walking long distances. Therefore, in order to ensure an overall adequate standard of living, water has to be accessible in the immediate vicinity.

221 CESCR, General Comment No 15, above n 45, para 12(c).222 Howard and Bartram, above n 189, 22; World Health Organization and United Nations

Children’s Fund, above n 193, 77 et seq; Lohse, above n 106, 139.223 Human Rights Council, Report of the High Commissioner, above n 45, para 25.224 Howard and Bartram, above n 189, 22.225 CESCR, General Comment No 15, above n 45, para 12(a), fn 12; Draft Guidelines, above

n 57, para 1(3)(c); Lohse, above n 106, 129; Bourquain, above n 38, 139 et seq.226 Human Rights Council, Report of the High Commissioner, above n 45, para 25; CESCR,

General Comment No 15, above n 45, para 12(c)(i); Engbruch, above n 53, 194; Lohse, above n 106, 140.

Normative Content of the Right to Water 137

D. Affordability

Last but not least, water has to be affordable. It is not sufficient to make water physically accessible if it is provided at such high prices that parts of the population cannot afford it. Affordability is therefore often referred to as ‘economic accessibility’227. In this regard, the cost of water services must not prevent anyone from accessing water. This includes direct and indirect costs, as well as connection and delivery costs228.

In order to assess affordability, disposable income has to be related to charges for water services229. Financial means are also necessary to satisfy other basic human needs such as food and housing. As these are guaran-teed by other human rights, realising the right to water must not com-promise these other socio-economic rights230. Affordability cannot be determined in absolute figures but only by taking into account the financial means that have to be reserved for the fulfilment of other basic needs. It can be estimated according to the percentage of household income spent on water services. The available income to be spent on water services also depends on prices for the fulfilment of other basic needs, such as food and housing. It is therefore difficult to determine the exact percentage which exceeds affordability, but international recommendations are in a certain range: the UNDP Human Development Report 2006 assumes that 3 per cent of household income is an appropriate benchmark231; whereas the Camdessus Report speaks of 5 per cent232. In fact, as a rule of thumb, 3 to 5 per cent of the household income seems to have crystallised as a common indicator within the water community233. A value in this range can also be found in national legislation: an Indonesian regulation on drinking water tariffs pro-viding for affordable water services states that expenses for the fulfilment

227 See CESCR, General Comment No 15, above n 45, para 12(c)(ii); High Court, Witwatersrand Local Division, South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, above n 188, para 36; Engbruch, above n 53, 194.

228 Human Rights Council, Report of the High Commissioner, above n 45, para 27.229 Organisation for Economic Co-operation and Development, Social Issues in the Provision

and Pricing of Water Services (Paris, Organisation for Economic Co-operation and Development, 2003) 22.

230 CESCR, General Comment No 15, above n 45, para 12(c)(ii); Kiefer and Brölmann, above n 183, 201; Vandenhole and Wielders, above n 57, 398.

231 United Nations Development Programme, above n 193, 97.232 M Camdessus and J Winpenny, Financing Water for All, Report of the World Panel on

Financing Water Infrastructure (Marseilles, 2003) 19.233 S Klawitter, What Price Water? Sustainable Water Pricing and Tariff Setting for Residential

Water Use (Berlin, Technische Universität, 2006) 81. Nigam and Rasheed cite 5% as an unof-ficial norm in the water sector, see A Nigam and S Rasheed, Financing of Fresh Water for All: A Rights Based Approach, Staff Working Paper, Evaluation, Policy and Planning Series, Number EPP-EVL-98-003 (New York, UNICEF, 1998) 6. An OECD Study also refers to this range as being used by the World Bank for its projects in developing countries, see OECD, above n 229, 43; see also Lohse, above n 106, 162.

138 Legal Characteristics of the Human Right to Water

of basic drinking water needs must not exceed 4 per cent of household income234.

Accordingly, the normative content of the right to water is not tanta-mount to the claim that access to water should be provided for free235. From a human rights perspective, it is decisive that water is affordable, not necessarily free. The maximum cost of basic water services depends on income. However, if people have very little income or no income at all, 3 to 5 per cent does not amount to anything. In the case of people living in extreme poverty, affordability implies that a basic amount of water has to be provided free of charge236. In order to finance water services for people living in extreme poverty different mechanisms may be deployed. Income support measures aim to enhance the individual’s ability to pay through measures such as income assistance or vouchers, while tariff-related measures seek to decrease the amount of water bills. Rising block tariff systems or other cross-subsidisation mechanisms are typical examples of the latter237. For example, South Africa is implementing a ‘lifeline’238 tariff via its Free Basic Water Policy, aiming to provide 25 l/c/d free of charge. Increasingly higher tariffs apply for larger quantities of water239. Such a tariff schedule can finance the provision of a basic amount of free water for those who cannot afford to pay for water services.

Relating to the core content of the right to water, prices must be set in such a way that at least a minimum amount can be accessed without hav-ing to compromise the realisation of the core content of other human rights. States have to ensure that this basic amount is affordable for all people, even if this means that water has to be provided free of charge to those who otherwise could not afford it. Furthermore, States have to take the necessary measures to ensure that larger amounts of water up to approximately 100 l/c/d – and larger amounts in the case of specific needs – become affordable to all people progressively.

234 Republic of Indonesia, Art 3(2) of the Regulation No 23/2006 on technical guidance and procedures for regulating tariff of drinking water in regional administration-owned drinking companies, stipulated on 3 July 2006, available at <faolex.fao.org/docs/pdf/ins67962.pdf> (accessed 1 October 2011).

235 As, eg, called for by the Free Basic Water-Movement in South Africa, see L Partzsch, Global Governance in Partnerschaft, Die EU-Initiative ‘Water for Life’ (Baden-Baden, Nomos, 2007) 61; but cf as well Cullet, above n 177, 197 et seq.

236 CESCR, General Comment No 15, above n 45, para 15; see also Human Rights Council, Report of the High Commissioner, above n 45, para 28; Vandenhole and Wielders, above n 57, 399.

237 OECD, above n 229, 12, 54 et seq; on financing mechanisms see also Nigam and Rasheed, above n 233; N Rosemann, ‘Financing the Human Right to Water as a Millennium Development Goal’ (2005) 9 Law, Social Justice & Global Development Journal, available at <www2.warwick.ac.uk/fac/soc/law/elj/lgd/2005_1/rosemann/> (accessed 1 October 2011).

238 OECD, above n 229, 23.239 See Winkler, above n 67, also on the challenges the system faces.

Normative Content of the Right to Water 139

The debate about private sector participation in water service provision is often brought up in the context of affordability of water services240. Indeed, in many cases a significant increase in prices has occurred after involving the private sector in service provision. Yet not every tariff increase gives rise to a violation of the human right to water. In fact, increases may be necessary to ensure the sustainability of service provision. Only if water services become unaffordable for parts of the population may such price increases constitute a violation of the right to water. It is not private sector participation per se but its consequences that may be incompatible with human rights requirements. Whether such consequences occur depends on the implementation and the regulatory framework of private sector partici-pation. As outlined above241, the State has the obligation to take the neces-sary measures, including legislation that regulates water services providers, in order to protect individuals against violations of their right to water.

E. Summary

The normative content of the right to water relates to water for personal and domestic uses. Water must be provided in sufficient quantity and of such quality that it does not pose a threat to human health. Moreover, water must be physically and economically accessible. For all these fea-tures, the right to water as a component of the right to an adequate stand-ard of living is much larger in scope than the mere survival minimum which is already guaranteed by the right to life. This normative content related to an adequate standard of living is to be achieved progressively, while the core content of the right to water has to be realised immediately.

This core content covers the amount of water necessary for human sur-vival and other absolutely basic human needs. Water has to be of such quality that it does not cause diseases. The distance to the point from which water is collected must not be so great that it would prevent suffi-cient quantities being collected. Water thus has to be accessible in the vicinity of the household. With regard to affordability, charges for water must not compromise the realisation of other basic needs. This implies that a minimum amount of water has to be provided free of charge to peo-ple living in extreme poverty.

The goal to be reached is the level of an adequate standard of living, covering access to approximately 100 l/c/d of water supplied within the

240 See eg Langford, above n 47, 274; Riedel, above n 56, 600; Lohse, above n 106, 151 et seq. For an analysis of private sector participation from a human rights perspective, see C de Albuquerque and IT Winkler, ‘Neither Friend nor Foe – Why the Commercialization of Water and Sanitation Services Is Not the Main Issue for the Realization of Human Rights’ (2010) 17 Brown Journal of World Affairs 167.

241 See section II.A.ii.

140 Legal Characteristics of the Human Right to Water

household or its immediate vicinity. This water has to be safe, ie it must not pose a threat to human health, and it has to be of an acceptable colour, taste and smell. Furthermore, this larger amount of water has to remain affordable to all people.

IV. CONCLUSION

This chapter has outlined the legal characteristics of the human right to water. Starting with its legal nature, the right to water has been shown not to be fundamentally different from civil and political rights. The right to water is legally binding. It gives rise to corresponding State obligations. States have to respect, to protect and to fulfil the human right to water. Moreover, States are obliged to ensure non-discrimination in any measures they take, as well as to address de facto discrimination and pay specific attention to disadvantaged, marginalised and vulnerable groups and indi-viduals. A further distinction relates to core obligations and obligations to progressive realisation. While States are overall obliged to realise the human right to water progressively, to the maximum of their available resources, the core content of the right to water has to be realised immediately. This core content relates to the minimum essential level of the right to water. More broadly, the human right to water guarantees access to a sufficient quantity of safe, accessible and affordable water for everyone for personal and domestic uses.

Chapter five will build upon the distinction between the core content and the full content that has to be realised progressively. The concept of a core already indicates different levels of realisation of the right to water. While the realisation of the core content of human rights has to be accorded priority, the remaining content does not have to be realised with the same urgency. Based upon this concept, a framework will be developed that takes other uses of water into account, in order to establish priorities in the allocation of water resources.

5

Human Rights Implications for Water Allocation

AFTER ELABORATING ON the human right to water in general – establishing its legal foundations, determining its legal nature, laying down the obligations arising from the right to water and

clarifying its normative content – this book now turns to its implications for water allocation. As has been outlined in chapter two, decisions on water allocation often neglect basic human needs. This chapter is con-cerned with the question whether and how a more equitable distribution can be achieved, and discusses the human rights implications for water allocation. Accordingly, the aim is to prioritise water uses from a human rights perspective.

Following some introductory remarks, the chapter will seek to develop a framework with which to balance competing water uses and establish pri-orities in water allocation. It is based on different levels of realisation of human rights. The idea is not to accord priority to any single sector of water use, but to determine priorities through these different levels of reali-sation of human rights. This requires considering all human rights that relate to water. Moreover, the framework takes into account alternatives for the realisation of those human rights that show a link to water but do not rely on it exclusively as a resource in their realisation. After introducing the framework in general terms, the chapter will seek to establish which water uses are linked to human rights apart from water for personal and domestic use, and at which level of the framework they become relevant. Moreover, it will be determined for all human rights in question to what extent these rely on water for their realisation, and what the relevant considerations are in the balancing process. Based on this analysis, the last section of the chap-ter will aim to establish priorities in water allocation.

I. INTRODUCTORY REMARKS

Before the human rights implications for the allocation of water are examined in more detail, this section considers how the question of water allocation and according priority to basic needs is currently

142 Human Rights Implications for Water Allocation

approached. It has often been stated that basic human needs and the requirements of ecosystems must be met first, before water is allocated for other uses such as irrigation, hydropower, industrial uses and navi-gation1, yet without elaborating on and explaining this approach in detail. The section starts by delineating current trends in water alloca-tion; it will then address the question from a human rights perspective.

A. Current Trends in Water Allocation

To determine current trends in water allocation this section will first look at some influential declarations on international water policy and then present some illustrative examples of national water legislation that address the issue of prioritisation.

i.  Influential declarations on water policy

Over the years, a number of influential declarations on water policy have been adopted, many of which address the multisectoral nature of water and the issue of allocation between different uses. The Mar del Plata Action Plan2, adopted at the UN Conference on Water in 1977, refers to all sectors of water use – domestic, agricultural and industrial use – thereby highlighting the importance of community water supply. It recommends that ‘national development policies and plans should give priority to the supplying of drinking water for the entire population’3. The aim is to achieve water that ‘is justly and equitably distributed among the people’4.

The concept of Integrated Water Resource Management (IWRM) has come to play a central role in this regard. The Global Water Partnership has defined IWRM as ‘a process which promotes the co-ordinated devel-opment and management of water, land and related resources, in order to maximize the resultant economic and social welfare in an equitable man-ner without compromising the sustainability of vital ecosystems’5. It is a

1 SL Postel, ‘Securing Water for People, Crops, and Ecosystems: New Mindset and New Priorities’ (2003) 27 Natural Resource Forum 89, 92; Centre on Housing Rights and Evictions, American Association for the Advancement of Science, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Manual on the Right to Water and Sanitation (Geneva, 2007) xxvii.

2 United Nations, Report  of  the United Nations  Conference  on Water, Mar  del  Plata,  14–25 March 1977, E/Conf.70/29, Chapter I.

3 Ibid, Resolution II(a) (p 67).4 Ibid, Resolution II(e) (p 67).5 Global Water Partnership, Technical Advisory Committee, Integrated  Water  Resources 

Management, TAC Background Paper No 4 (Stockholm, Global Water Partnership, 2000) 22. On IWRM, see eg A Al Radif, ‘Integrated Water Resource Management (IWRM): An Approach to Face the Challenges of the Next Century and to Avert Future Crises’ (1999) 124 Desalination 145; MM Rahaman and O Varis, ‘Integrated Water Resources Management: Evolution, Prospects and Future Challenges’ (2005) 1 Sustainability: Science, Practice & Policy

Introductory Remarks 143

broad paradigm that aims at the integration of the natural system and the human system6. It starts from the fact that all water uses are interdepend-ent and therefore have to be considered together in order to achieve an equitable allocation of water resources7. It is a holistic approach aiming at sustainable resource management8. The approach stresses three criteria that have been termed the ‘three Es’: economic efficiency, equity and envir onmental sustainability9. Under its equity criterion, IWRM allows for the prioritisation of basic human needs. Yet equity is a subjective notion. It is not a legal term and there is no agreed definition of what equity means. In fact, the term can be interpreted differently by different actors, and States can use the concept of equity to side-step their human rights obligations. Likewise, since it is not a legal concept, States cannot be held accountable for delivering 'equity'. As a broad and rather elusive concept, equity does not provide clear guidelines on how to achieve the prioritisation of basic human needs.

As expressed in the ‘economic efficiency’ aspect within the IWRM approach, the understanding of water as an economic good is also very influential and seen as a way to achieve the most efficient allocation of water resources. This becomes manifest in Principle No 4 of the Dublin Principles, adopted at the International Conference on Water and the Environment10. This acknowledges that water has an economic value in all its competing uses, and states that it should be recognised as an eco-nomic good. This is regarded as important in order to avoid wasteful and environmentally-damaging uses of the resource, and thus as a ‘way of achieving efficient and equitable use’11. The aim is to achieve an optimal allocation in the sense of yielding the highest economic return, eg by allocating water to industrial uses. Such an economic perspective is not

15; A van Edig and H van Edig, ‘Integriertes Wasserressourcen-Management – Schlüssel zur nachhaltigen Entwicklung’ in S Neubert, W Scheumann, A van Edig and W Huppert (eds), Integriertes Wasserressourcen-Management (IWRM), Ein Konzept in die Praxis überführen (Baden-Baden, Nomos, 2005) 135. For a critical perspective, cf AK Biswas, ‘Integrated Water Resources Management: A Reassessment’ (2004) 29 Water International 248.

6 Global Water Partnership, Technical Advisory Committee, above n 5, 23.7 United Nations Development Programme,  Human  Development  Report  2006,  Beyond 

Scarcity: Power, Poverty and the Global Water Crisis (New York, Palgrave Macmillan, 2006) 154; W Scheumann and A Klaphake, Freshwater Resources and Transboundary Rivers on the International Agenda: from UNCED to Rio+10, Gutachten im Auftrag des Bundesministeriums für wirtschaftliche Zusammenarbeit und Entwicklung (Bonn, Deutsches Institut für Entwicklungspolitik, 2001) 6.

8 Van Edig and van Edig, above n 5, 138.9 Global Water Partnership, Technical Advisory Committee, above n 5, 30; United Nations

Development Programme, above n 7, 153.10 International Conference on Water and the Environment, Development issues for the 21st 

century,  26–31  January  1992, Dublin, Ireland, The  Dublin  Statement, 1992 (hereafter ‘Dublin Statement’). Principle No 4 reads: Water has an economic value in all its competing uses and should be recognized as an economic good.’ For a detailed account of the preparation and proceedings of the conference, see GJ Young, JCI Dooge and JC Rodda, Global Water Resource Issues (Cambridge, Cambridge University Press, 1994) 31 et seq.

11 Dublin Statement, above n 10, 2.

144 Human Rights Implications for Water Allocation

necessarily incompatible with the human right to water. The satisfaction of basic human water needs also seems plausible from an economic per-spective, as access to water has a strong impact on human health and healthy people can contribute to a flourishing economy. Yet stressing the economic efficiency in water use carries the risk of losing out on the human rights of certain groups and individuals. The focus of a human rights approach12 is a different one. It requires the prioritisation of basic human needs regardless of the economic impact. For example, the basic human needs of elderly people have to be fulfilled with the same priority, regardless of their productivity.

The prioritisation of basic human needs is made explicit in a number of documents. Agenda 21 adopted at the Rio Earth Summit acknowledges that water is needed in all aspects of life. Hence, the management of water resources should take account of the multisectoral nature of water and the multiple interests in using it13 through an IWRM approach14. Within this framework, Agenda 21 explicitly states that ‘priority has to be given to the satisfaction of basic needs’15. Similarly, the Johannesburg Plan of Implementation adopted at the World Summit on Sustainable Development (WSSD) in Johannesburg in 200216 endorses the concept of IWRM17. In this context, it explicitly states that the allocation of water resources among competing uses is to be promoted in a way that gives priority to the satisfac-tion of basic human needs18.

ii.  Illustrative examples from domestic legislation

Provisions that prioritise the domestic use of water over other water uses are extremely common in national water laws and policies19. Such provi-

12 See further on the benefits of a human rights approach, ch 6.13 United Nations, Report of the United Nations Conference on Environment and Development, 

Rio de Janeiro, 3–14 June 1992, A/Conf.151/26/Rev.1 (vol I), Annex II, ‘Agenda 21’, ch 18.2 and 18.3.

14 Ibid, ch 18.3.15 Ibid, ch 18.8.16 For a general assessment of the WSSD, see G Pring. ‘The 2002 Johannesburg World Summit

on Sustainable Development: International Environmental Law Collides with Reality, Turning Jo’burg into “Joke’burg”’ (2002) 30 Denver  Journal  of  International  Law  and Policy 410. For an evaluation of the question to what extent the Johannesburg Plan of Implementation promotes the sustainable use of freshwater resources, see A Epiney, ‘Sustainable Use of Freshwater Resources’ (2003) 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 377.

17 United Nations, Report of the World Summit on Sustainable Development, Johannesburg, 26 August–4 September 2002, A/Conf.199/20, ch I) 2), Johannesburg Plan of Implementation (here-after ‘JPoI’), para 26. The JPoI called for IWRM plans to be developed by countries by the end of 2005. However, at the end of 2005, only 20 of the 95 countries surveyed had produced such plans or had them prepared to an advanced stage; see United Nations Development Programme, above n 7, 155.

18 JPoI, above n 17, para 26(c). This priority is stressed again in the section on ‘Sustainable Development for Africa’, see para 66(a).

19 DA Caponera, Principles  of  Water  Law  and  Administration,  National  and  International (Rotterdam, Balkema, 1992) 147 et seq, cf also 86, 91, 111.

Introductory Remarks 145

sions may be found in the relevant laws of countries from all regions of the world. They refer either to domestic or household use, human use or requirements, needs or provision of the population, or drinking or pota-ble water, and accord priority to such uses20. Many of these provisions are framed in very general terms, so that the entire domestic sector is accorded

20 See République Algerienne, Loi no 05-12 du 28 Joumada Ethania 1426 correspondant au 4 août 2005 relative à l’eau, Art 2, available at <www.droit-afrique.com/images/textes/Algerie/algerie_loi_eau.pdf> (accessed 1 October 2011); Republic of Armenia, Water Code, 2002, Art 31, English version available at <www.parliament.am/law_docs/290602HO373eng.pdf?lang=eng> (accessed 1 October 2011); République du Bénin, Loi No 87-016 du 21 Septembre 1987 portant Code de l’Eau en République du Bénin, Art 54, available at <faolex.fao.org/docs/texts/ben1295.doc> (accessed 1 October 2011); République du Burundi, Decret-Loi No 1/41 du 26 Novembre 1992 portant institution et organisation du domaine public hydraulique, Art 14, available at <faolex.fao.org/docs/texts/bur1621.doc> (accessed 1 October 2011); People’s Republic of China, Water Law, Order of the President of the People’s Republic of China No 74, 2002, Art 21 (referring to urban inhabitants’ needs only), English version available at <www.gov.cn/english/laws/2005-10/09/content_75313.htm> (accessed 1 October 2011); República de Costa Rica, Ley general de salud, Ley No 5395, Art 264, available at <www.pgr.go.cr/Scij/Busqueda/Normativa/Normas/nrm_repartidor.asp?param1=NRTC&nValor1=1&nValor2=6581&nValor3=7006&param2=1&strTipM=TC&lResultado=6&strSim=simp> (accessed 1 October 2011); République de Côte d’Ivoire, Loi no 98-755 du 23 décembre 1998 portant Code de l’Eau, Art 70, available at <faolex.fao.org/docs/texts/ivc15630.doc> (accessed 1 October 2011); República Dominicana, Ley General sobre Medio Ambiente y Recursos Naturales (64-00), 2000, Art 13, available at <www. disaster-info.net/PED-Sudamerica/leyes/leyes/mexicocaribe/dominicana/medamb/ley64.pdf> (accessed 1 October 2011); Reino de España, Real Decreto Legislativo 1/2001, de 20 de julio, por el que se aprueba el texto refundido de la Ley de Aguas, Art 60.3, available at <civil.udg.es/normacivil/estatal/reals/LAguas3.htm> (accessed 1 October 2011); Federal Democratic Republic of Ethiopia, Ethiopian Water Resources Management Proclamation, Proclamation No 197/2000, Art 7, available at <faolex.fao.org/docs/pdf/eth44004.pdf> (accessed 1 October 2011); Republic of Guyana, Water and Sewerage Act, 2002, Art 25, avail-able at <www.oas.org/dsd/environmentlaw/waterlaw/documents/Guyana-Water_and_Sewage_Act_(2002).pdf> (accessed 1 October 2011); Kyrgyz Republic, Water Code, Law No 8 of 12 January 2005, Art 24, English version available at <faolex.fao.org/docs/texts/kyr49854E.doc> (accessed 1 October 2011); République Islamique de Mauritanie, Loi no 2005-030 portant Code de l’eau, 2005, Art 5, available at <faolex.fao.org/docs/texts/mau69252.doc> (accessed 1 October 2011); República de Mexico, Ley de Aguas Nacionales, Nueva Ley publicada en el Diario Oficial de la Federación el 1 de diciembre de 1992, Última reforma publicada DOF 20-06-2011, Art 14 bis 5, XXII, available at <www.diputados.gob.mx/LeyesBiblio/pdf/16.pdf> (accessed 1 October 2011); República de Nicargua, Ley gen-eral de aguas nacionales, Ley no 620, Art 66, available at <legislacion.asamblea.gob.ni/Normaweb.nsf/($All)/C0C1931F74480A55062573760075BD4B?OpenDocument> (accessed 1 October 2011); République du Senegal, Code de l’Eau, Loi no 81-13 du 4 mars 1981 portant Code de l’Eau, Art 75, available at <www.droit-afrique.com/images/textes/Senegal/Senegal%20-%20Code%20de%20l%20eau.pdf> (accessed 1 October 2011); Republic of Tajikistan, Water Code, 29 March 2000, as last amended 3 March 2006, Art 30, English ver-sion available at <faolex.fao.org/docs/pdf/taj34375E.pdf> (accessed 1 October 2011); République du Tchad, Loi No 016/PR/99 portant Code de l’Eau, 1999, Art 149, available at <faolex.fao.org/docs/texts/cha18685.doc> (accessed 1 October 2011); Republic of Uzbekistan, Law on Water and Water Use, Law No 837-XII of 6 March 1993, Art 25, English version available at <faolex.fao.org/docs/pdf/uzb5255E.pdf> (accessed 1 October 2011). For further examples of how national laws accord priority to domestic uses, as well as English translations, see WASH United, Freshwater Action Network and WaterLex, The Right  to Water  and Sanitation  in  International  and National Law  (working title), forthcoming 2012.

146 Human Rights Implications for Water Allocation

priority over other kinds of water usage21. This is not required from a human rights perspective, as amenity water uses, such as washing cars, watering flowers or filling swimming pools, are not guaranteed by the human right to water. Moreover, it is questionable if such a general prior-ity is useful when water availability is low, as it leaves less water to be allocated to other sectors, which can have detrimental effects, for instance on agricultural production necessary for the realisation of the right to food and other human rights.

Some States have adopted more nuanced and sophisticated systems of prioritisation. Often, national laws further characterise the amount priori-tised for personal and domestic uses, for instance legislation from Burkina Faso which refers to ‘les besoins en eau correspondant à l’approvisionnement en eau potable des populations et aux conditions élémentaires de la vie et de la dignité humaine’22. Other laws allow for restrictions on domestic uses. For example, Australia, when experiencing a severe drought, has developed a detailed allocation scheme. The Queensland Water Commission imposed restric-tions on domestic water usage based on section 360ZD of the Queensland Water Act23. These include detailed restrictions on watering gardens and lawns, filling pools, washing vehicles and other kinds of uses24. Accordingly, household use does not enjoy unlimited priority over other uses of water.

The South African Reserve is another example. The South African National Water Act25 establishes the Basic Human Needs

21 B van Koppen, P Moriarty and E Boelee,  Multiple-Use Water  Services  to  Advance  the Millennium  Development  Goals,  Research Report No 98 (Colombo, International Water Management Institute, 2006) 15.

22 République de Burkina Faso, Décret no 2005-191/PRES/PM/MAHRH du 4 Avril 2005 portant utilisations prioritaires et pouvoir gouvernemental de contrôle et de répartition de l’eau en cas de pénurie, Art 2, available at <faolex.fao.org/docs/texts/bkf53273.doc> (accessed 1 October 2011), unofficial translation, ‘the water needs of the population for drinking water and for basic conditions of life and human dignity’. Similarly, the Zimbabwean Water Act refers to basic domestic human needs, see Republic of Zimbabwe, Water Act, 2000, Art 2, avail-able at <faolex.fao.org/docs/pdf/zim26168.pdf> (accessed 1 October 2011). The Indonesian Law of Water Resources refers to rudimentary living needs, see Republic of Indonesia, Law No 7/2004 on Water Resources, promulgated 8 March 2004, Art 26, available at <faolex.fao.org/docs/texts/ins48775.doc> (accessed 1 October 2011); whereas the Tunisian Water Code refers to satisfactory provision, see République Tunisienne, Code des Eaux, Loi no 75-16 du 31 mars 1975, Art 86, available at <faolex.fao.org/docs/pdf/tun1309F.pdf> (accessed 1 October 2011).

23 Queensland (Australia), Water Act 2000, available at <www.legislation.qld.gov.au/LEGISLTN/CURRENT/W/WaterA00.pdf> (accessed 1 October 2011).

24 Queensland Water Commission, Water Restrictions, available at <www.qwc.qld.gov.au/restrictions/index.html> (accessed 1 October 2011). Similarly, the Water Code of the Province of Córdoba in Argentina allows for the prohibition of sumptuary uses such as swimming pools and irrigation of gardens in areas where water availability is critical, see Provincia de Córdoba, Argentina, Código de Aguas para la Provincia de Córdoba, Ley 5589, Art 100, available at <www.ambiente.gov.ar/?aplicacion=normativa&IdNorma=800&IdSeccion=0> (accessed 1 October 2011).

25 Republic of South Africa, National Water Act, Act No 36 of 1998, 20 August 1998, available at <www.dwaf.gov.za/Documents/Legislature/nw_act/NWA.pdf> (accessed 1 October 2011).

Introductory Remarks 147

Reserve26, a certain reserved quantity of every single water body. It is defined in section 1(1)(xviii)(a) as referring to the ‘quantity and quality of water required . . . to satisfy basic human needs by securing a basic water supply, as prescribed under the Water Services Act’. This Act, in turn, defines the term ‘basic water supply’ in section 1(iii) as ‘the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, includ-ing informal households, to support life and personal hygiene’. This is further specified by ministerial ‘Regulations relating to compulsory national standards and measures to conserve water’ from 20 April 200127. Regulation 3 refers to the minimum standard for basic water supply as ‘a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household per month’.

The Reserve thus does not aim to prioritise domestic use generally, but only provides for the essential needs of individuals relying upon the water resource in question by setting aside the necessary minimum amount28. The prioritised amount broadly corresponds to the core content of the human right to water. According to section 16 of the National Water Act, the Minister is obliged to determine the Reserve for each water resource, ensuring adequate allowance for its purposes. As such, the Basic Human Needs Reserve is an instrument to ensure that basic human needs are prioritised in the allocation of water resources. Water necessary for these purposes is not subject to competition with other water demands, as the necessary amount for the Reserve is set aside before water is allocated to any other purpose29.

iii.  Conclusion

In declarations on water policy, the call for the prioritisation of basic human needs is very common. Yet the precise meaning and extent of these basic needs remains unclear. How are they defined, and how far do they reach? Do they cover only drinking water supply, water for personal and domestic uses in general, or other water uses as well?

In domestic legislation, household water use is often prioritised. Yet the extent of the prioritised amount of water for personal and domestic uses

26 The other part of the Reserve is referred to as the Ecological Reserve. It refers to the water required to protect the ecosystem; see Part 3 of the South African National Water Act, above n 25.

27 Republic of South Africa, Regulations relating to compulsory national standards and measures to conserve water, 20 April 2001, available at <www.dwaf.gov.za/Documents/Notices/Water%20Services%20Act/SEC9DREG-20%20April%202001.doc> (accessed 1 October 2011).

28 See also Introduction to Part 3 of the South African National Water Act, above n 25.29 S Liebenberg, ‘The National Water Bill – Breathing Life into the Right to Water’ (1998) 1

Economic and Social Rights Review 3, 6.

148 Human Rights Implications for Water Allocation

varies. In many cases, water laws include a general priority for household use. However, the examples from Burkina Faso, Australia and South Africa show that there is not always an unconditional general priority for domestic usage; less far-reaching approaches exist as well. The priority accorded by the South African model of the Reserve is rather limited, cor-responding only to the core content of the human right to water, whereas the example from Australia mainly aims at preventing luxury uses of water that are beyond the amount guaranteed by the human right to water, but still allows for its full realisation. These examples highlight that the extent of the prioritised amount is not uniform.

B. A Human Rights Perspective

Looking at the issue of prioritisation of water uses from a human rights perspective, it has often been stated that a priority for the fulfilment of basic human personal and domestic needs follows from the acknowledge-ment of the human right to water30. This is explicitly regarded as one of the advantages of recognising the right to water31.

i.  The issue of prioritisation in General Comment No 15

Already in the process leading to the adoption of General Comment No 15, the prioritisation between competing claims for water was pointed out as one of the issues requiring attention, in particular between water for per-sonal consumption and water for food production32. Yet General Comment No 15 touches only briefly upon the issue. It states that priority must be given to water for personal and domestic use33, and continues by requir-ing priority also to be accorded to water necessary to prevent starvation and diseases, as well as to ‘water required to meet the core obligations of each of the Covenant rights’34. This brief reference to the question of prior-itisation leaves a number of questions unanswered35.

First, it does not state how far the priority for personal and domestic uses shall reach. Judging from the context of the General  Comment that

30 COHRE, AAAS, SDC and UN-Habitat, above n 1, xxvii.31 J Scanlon, A Cassar and N Nemes, Water as a Human Right? Environmental Policy and

Law Paper No 51 (Gland, International Union for Conservation of Nature, 2004) 24.32 Committee on Economic, Social and Cultural Rights, 29th Session, Summary Record of 

the  46th Meeting,  Preliminary  discussion  of  a  draft  general  comment  on  the  right  to  water,  27 November 2002, E/C.12/2002/SR.46, para 36 (Statement by Chapman).

33 Committee on Economic, Social and Cultural Rights, General Comment No 15, The right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11, para 6.

34 Ibid.35 See J Boesen and PE Lauridsen, ‘(Fresh) Water as a Human Right and a Global Public

Good’ in EA Andersen and B Lindsnaes (eds), Towards New Global Strategies: Public Goods and Human Rights (Leiden, Martinus Nijhoff, 2007) 393, 396.

Introductory Remarks 149

defines the content of the human right to water, the priority for household uses cannot be understood as an unconditional, unlimited priority. If one were to accept such an unconditional priority, water used for car- washing, watering gardens or filling pools would be included, but such amenity uses are clearly not covered by the human right to water. Yet the exact extent of the prioritised amount and the underlying reasoning for establishing it are not elaborated on in the General Comment. Secondly, pri-orities for other water uses are only briefly alluded to so that their extent remains vague. To what extent does water for food production have to be prioritised – only so far as to prevent starvation, or reaching beyond that minimum goal? What are the relevant core obligations of other human rights that are accorded priority as well? How can these different prior-ities be balanced? These questions will require further elucidation.

ii.  The issue of prioritisation in the Report of the High Commissioner

The Report  of  the High Commissioner36 again addresses the issue of water allocation and identifies the prioritisation between various kinds of uses of water as one of the issues that require further elaboration37. With regard to the priority for personal and domestic use, it refers to priority for ‘human consumption’38, for ‘personal and domestic uses’39 and the ‘satisfaction of basic human needs’40, and seems to use these terms interchangeably. Yet human consumption refers to water for drinking only, while personal and domestic uses also include other household uses, and the term ‘basic human needs’ might also refer to water for food production. Accordingly, it remains unclear how far that priority shall reach41. Moreover, the Report of  the  High  Commissioner  explicitly raises the question of prioritisation beyond basic amounts of water for personal and domestic use:

Beyond the clear basic principle that safe drinking water for personal and domestic uses should be given precedence over other water uses, questions remain regarding the prioritization between various kinds of water use, partic-ularly in situations of water scarcity. Once a sufficient amount of safe drinking water to prevent disease has been secured for all, allocation of water among

36 Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking  water  and  sanitation  under  international  human  rights  instruments, 16 August 2007, A/HRC/6/3 (hereafter ‘Report of the High Commissioner’).

37 Ibid, para 62.38 Ibid, paras 60 et seq (referring to national laws, regulations or policies).39 Ibid.40 Ibid, para 61 (referring to the JPoI, above n 17).41 In its conclusion, the Report of the High Commissioner states that ‘States should prioritize

these personal and domestic uses over other water uses’ referring to ‘drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene’ (see Report  of  the High Commissioner, above n 36, para 66). Yet the exact scope of that priority remains unclear.

150 Human Rights Implications for Water Allocation

various uses – water for personal and domestic uses beyond this sufficient amount, water to produce food, water to sustain livelihoods, or water to ensure environmental hygiene – remains unclear42.

Accordingly, it requires consideration how priorities are to be set among water for personal and domestic use beyond a basic amount and other water uses. Moreover, the exact extent of the prioritised basic amount for personal and domestic uses requires further analysis.

iii.  Need for a detailed analysis of human rights implications

Detailed analysis has not yet been undertaken of the implications of the human right to water for the allocation of water resources. Therefore, this chapter re-examines the priority for personal and domestic uses from a human rights perspective. Does the human right to water prescribe a gen-eral and unconditional priority for personal and domestic use? Or does it refer only to a very basic amount necessary to satisfy basic human needs equivalent to the core content of the right to water, such as established by the South African Reserve? Does the priority cover the full content of the human right to water? What is the extent of the prioritised amount for personal and domestic uses?

Establishing priorities is impossible when looking at only one sector of water use in isolation. Therefore, other water uses and their link to human rights must be identified. The following sections aim to establish to what extent other water uses are guaranteed by human rights and therefore must be considered in an allocation of water that conforms to human rights. How can these water uses be balanced? How do human rights influence the question of allocation among these uses? Which priorities can be established relating to the various uses?

II. FRAMEWORK FOR PRIORITISATION

To approach these questions and to establish priorities in water allocation, this book puts forward a framework the first component of which starts from the notion of progressive realisation of human rights, distinguishing different levels of realisation of human rights. This allows the prioritisa-tion of the most basic requirements. The second component of the frame-work puts the question of water allocation into the broader context of using all available resources for the realisation of human rights. Many

42 Ibid, para 62. It becomes evident that the ‘clear basic principle’ of priority for ‘safe drink-ing water for personal and domestic uses’ is not in fact clear, as the Report refers to drinking water, to water for personal and domestic uses, as well as to ‘a sufficient amount of safe drinking water to prevent disease’ in the single paragraph.

Framework for Prioritisation 151

human rights are linked to water but do not exclusively rely on it for their realisation. Instead, alternatives exist. These will have to be taken into account in order to allow for a prioritisation in water allocation that aims at the realisation of all human rights to the greatest extent possible.

A. Levels of Realisation of Human Rights

Generally speaking, States have the freedom to decide on the allocation of resources. Yet by committing to observe human rights (be it by ratification of the Social Covenant, other human rights treaties or national human rights guarantees) States assume obligations43. As outlined above44, States are obliged to realise human rights included in the Social Covenant pro-gressively and ‘move as expeditiously and effectively as possible towards [the] goal’45 of full realisation. As a consequence of this obligation, States have to accord priority to the realisation of human rights, which imposes limits on their freedom in allocation46. As Sepúlveda points out: ‘If a State does not accord some degree of priority to the implementation of the Covenant’s rights, it will hardly comply with the obligation under article 2(1) ICESCR . . .’47 Likewise, the Limburg Principles state that ‘[i]n the use of the available resources due priority shall be given to the realization of rights recognized in the Covenant’48. Hence, States have a duty to accord priority to the realisation of human rights.

This general priority for the realisation of human rights does not yet guide the specific priority-setting in water allocation as far as it relates to different human rights. In order to establish priorities in water allocation, the starting point is the fact that no single human right enjoys preference

43 M Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp, Intersentia, 2003) 332.

44 See ch 4, section II.C.i.45 Committee on Economic, Social and Cultural Rights, General Comment No 3, The nature 

of States parties obligations (Art 2 para 1), 12 December 1990, contained in E/1991/23 Annex III, para 9; see also Commission on Human Rights, Note verbale dated 5 December 1986 from the Permanent Mission  of  the Netherlands  to  the United Nations Office  at  Geneva  addressed  to  the Centre for Human Rights, 8 January 1987, E/CN.4/1987/17, Annex, ‘The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’ (hereafter ‘Limburg Principles’), para 21; Sepúlveda, above n 43, 319.

46 Sepúlveda, above n 43, 315, 332 et seq; P Alston, ‘International Law and the Human Right to Food’ in P Alston and K Tomaševski (eds), The Right  to  Food (Utrecht, Martinus Nijhoff, 1984) 9, 38. An example of a request to accord priority to the realisation of human rights relating to the right to water may be found in the CESCR’s Concluding Observations on Colombia in 1996. The Committee considered that the Colombian Government should ‘allocate resources to provide the entire population with drinking-water and sewerage ser-vices’; see Committee on Economic, Social and Cultural Rights, Report on the 12th and 13th Session, 7 October 1996, E/1996/22, Concluding Observations: Colombia, para 200(c).

47 Sepúlveda, above n 43, 333.48 ‘Limburg Principles’, above n 45, para 28.

152 Human Rights Implications for Water Allocation

over other rights in the allocation of resources49. Rather, all human rights are generally equally significant, and resources have to be allocated among them to realise all of them50. Therefore, all human rights that rely on water in their realisation will have to be taken into account in an inte-grated manner. Accordingly, when considering the allocation of water resources from a human rights perspective, it is impossible to grant prior-ity to any single kind of water use. Rather, the aim must be first to meet the most basic requirements relating to different human rights.

While the principle of progressive realisation applies only to economic, social and cultural rights as stipulated in the Social Covenant, all rights that depend on water in their realisation will be considered comprehen-sively in this analysis. To a large extent, these may be characterised as socio-economic rights, but to a limited extent civil and political rights also become relevant. Where these depend on the allocation of resources to be realised, they will be considered within the same framework, since it would contradict the principles of indivisibility, interdependence and interrelatedness of all human rights to accord an unconditional priority to the realisation of any single human right.

The concept of progressive realisation entails that States have to start the realisation at a certain point, ie the minimum essential level of human rights51. From that minimum they have to move on to realise human rights progressively in order to achieve the full realisation of rights. It has been stressed that the concept of core obligations is useful in guiding resource allocation and setting priorities52. The Limburg Principles put particular emphasis on the ‘need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services’53. As men-tioned above, General Comment No 15 also points out that ‘[p]riority should . . . be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations of each of the Covenant rights’54.

49 K Klee, Die  progressive  Verwirklichung  wirtschaftlicher,  sozialer  und  kultureller Menschenrechte, Eine Interpretation von Art. 2 Abs. 1 des Internationalen Pakts für wirtschaftliche, soziale und kulturelle Rechte (Stuttgart, Boorberg, 2000) 133.

50 Sometimes, this is used as an argument against the usefulness of human rights in guid-ing resource allocation (eg in development cooperation), stating that human rights make it impossible to set priorities. Yet, as will be seen below, the concept of core obligations and progressive realisation of human rights is very useful in guiding priorities.

51 For a discussion of the concept of progressive realisation and the minimum core approach, see above ch 4, section II.C.

52 CESCR, E/C.12/2002/SR.46, above n 32, para 36 (Statement by Chapman); RE Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693, 702.

53 ‘Limburg Principles’, above n 45, para 28.54 CESCR, General Comment No 15, above n 33, para 6 (footnotes omitted); see also CESCR,

E/C.12/2002/SR.46, above n 32, para 50, (Statement by Riedel): ‘In potential conflicts between competing rights, it must be clearly stated that survival rights, or the core matter of

Framework for Prioritisation 153

In order to establish priorities in water allocation more systematically, this book offers a framework that balances the water requirements neces-sary for the realisation of the human right to water with other water requirements at different levels. It builds upon the minimum core approach. Applying the minimum core approach recognises that certain minimum needs are more urgent than others. It aims at guaranteeing a minimum standard that is indispensable for human survival and dig-nity55. Therefore, water requirements that are necessary to realise the core content of the right to water and other human rights have to be prioritised over other uses of water. However, the above statements taken from the Limburg Principles and General Comment No 15 indicate that it is useful not only to distinguish between the level of core obligations and the full realisation of human rights, but also to add a more basic level of survival that relates to the obligation to prevent starvation. Moreover, water uses that reach beyond the guarantees of human rights should be considered too. This leads to a framework that consists of four different levels:

– the survival level; – the core level; – the level of full realisation of human rights; and – the level beyond human rights guarantees.

Most basic for any person are his or her survival requirements, which are considered at the first level. Rights that aim at ensuring mere survival requirements have priority over all other rights56. All other rights would become meaningless if survival were not assured. However, as outlined above57, the core content reaches beyond mere survival requirements. It relates to the respective minimum essential level of all human rights with-out which they would lose their significance as human rights, indeed their raison d’être. With regard to water this also relates to basic human needs that are indispensable for human dignity, ie the amount of water abso-lutely necessary for personal hygiene, washing and cleaning, as outlined above. This wider core content of the human right to water and other human rights beyond mere survival requirements forms the second level in the framework. When progressing further in the realisation of human rights, more and different water uses come into play. These have to be considered at the third level, that of the full realisation of human rights. The fourth and final level refers to water use beyond the requirements of an adequate standard of living or the full realisation of human rights. Such water use is not guaranteed by the human right to water or other

any right, must always take precedence over other rights and that the survival of individu-als, groups and peoples must take precedence over other considerations.’

55 See further above ch 4, section II.C.ii. 56 Klee, above n 49, 201.57 Ch 4, section II.C.ii.1.

154 Human Rights Implications for Water Allocation

human rights, but nevertheless certain human rights principles apply to the allocation of water resources even beyond the full realisation of human rights. As water uses that become relevant at the fourth level cannot be linked to any human rights, they will be considered together briefly at the end of the chapter.

The human rights principle of non-discrimination cuts across all four levels, including the one that reaches beyond water uses guaranteed by human rights. As outlined above58, States must not discriminate in any of their actions, including decisions on water allocation, which may require targeted interventions aimed at vulnerable and marginalised groups and individuals to remedy existing de facto discrimination.

B. The Broader Picture: Realisation of All Human Rights to the Greatest Possible Extent Using All Available Resources

The different levels of realisation of human rights alone will not be suffi-cient to establish priorities in water allocation. They are used as a starting point, but water is only one of the resources upon which the realisation of human rights relies. While many human rights relate to water in their realisation, some of them can also be realised in different ways. Whenever such alternatives exist, it becomes necessary to take into account the broader picture and to determine the availability of other resources neces-sary for the realisation of these rights. This mix of resources considerably widens the State’s policy choices and makes it difficult to establish its maximum available resources59. It also exacerbates the task of establishing priorities in the use of a single resource relevant for the realisation of human rights, in this case water. Priorities in the use of water resources therefore also depend on the availability of other resources that may be used to realise human rights. This varying reliance on water due to alter-natives in the realisation of the rights becomes relevant in the balancing process. It may be broken down into three factors:

– whether alternatives exist; – whether direct access is required; and – what quantity of water is required.

i.  Alternatives for realisation

The first factor refers to alternatives for the realisation of the human right in question, ie the question whether water is essential in the realisation of the respective human right or whether it can be substituted. For instance,

58 See ch 4, section II.B. 59 On that difficulty, see generally above ch 4, section II.C.i; Robertson, above n 52. For

research on quantitative assessments aiming to judge resource availability, see ch 4, n 105.

Different Water Uses and Their Link to Human Rights 155

while productive uses of water may be linked to the right to work, this right can also be realised without access to water. In contrast, water cannot be substituted when used for personal and domestic purposes. When alternatives for the respective human rights exist, priority in water allocation has to be accorded to those human rights that exclusively rely on water for their realisation.

ii.  Direct access required?

In some cases, water is essential for the realisation of human rights but individuals do not necessarily require direct access. For example, while water is absolutely essential in the production of food, it can be produced in areas with high water availability at a distance from the point of con-sumption. For the realisation of their human right to food, individuals only require access to food as such, not necessarily to the water used as a resource in its production.

iii.  Quantity of water required

A third set of factors relates directly to water as one of the resources required in the realisation of human rights, referring to the quantity of water required. Some water uses require only minimal quantities and can therefore almost be neglected in the allocation process. In other cases, the quantity of water actually required for the realisation of human rights may be influenced, as there is an enormous potential for water saving, for instance, in the agricultural sector. In contrast, while large savings are possible in overall water use in households, the rather limited amount required for the realisation of the human right to water does not allow for further water savings but is fixed. Moreover, it has to be considered whether uses are consumptive or non-consumptive. In many cases, water can be re-used after having been used for a non-consumptive purpose, such as hydropower generation.

III. DIFFERENT WATER USES AND THEIR LINK TO HUMAN RIGHTS

Personal and domestic uses as guaranteed by the human right to water are only one area of water use. There are myriad other ways of using water, the two other main sectors of human use being the agricultural and the industrial. Also, the environment itself relies on water, as outlined in chapter two. In the following section, these different water uses will be considered in more detail. It aims to determine which human rights are involved, and to establish to what extent these rely on water in their reali-sation. In some cases, water uses are clearly linked to established human

156 Human Rights Implications for Water Allocation

rights. In other cases, these links are less clear, and it needs to be analysed first to what extent these water uses could be guaranteed by human rights and whether such human rights exist.

The following water uses and links to human rights will be considered:

– water for agricultural production, which relates to the human right to food60;

– water used for the production of clothing, which may be linked to the right to clothing as a component of an adequate standard of living;

– water for sanitation, which relates to the right to sanitation as an implicit component of the right to an adequate standard of living;

– hydropower generated by water, which may be used in households for cooking, lighting and heating, considered under the right to an ade-quate standard of living;

– water used as a means of transport, which might also relate to the right to an adequate standard of living;

– water used for productive and industrial uses, and to secure livelihoods, which is linked to the right to work;

– water used for cultural and religious practices, which may be associ-ated with the human right to take part in cultural life61 and the freedom of religion – in that context, indigenous water uses require particular attention;

– water for recreational purposes; and – water for maintaining ecosystems, which requires some reflection from

a human rights perspective.

Evidently, not the entire amount of water used for any of these purposes evidences a link to human rights. The balancing process will have to take into account the extent to which these water uses are guaranteed by human rights and which water uses reach beyond human rights guaran-tees. First, however, the general link between each water use and the human right in question will be examined in order to determine which water uses will have to be taken into account. Subsequently, it will be established at what level of the framework these water uses become rele-vant. In a third step, the question will be examined to what extent water is actually necessary for the realisation of these rights, and what alternatives exist for their realisation. These alternatives become relevant as factors in the balancing process.

Water for food production will be dealt with in more detail than other water uses. Such emphasis is justified for several reasons. First, agricul-ture is the major user of water and thus has an enormous impact on water allocation. Secondly, the realisation of the right to food depends very

60 COHRE, AAAS, SDC and UN-Habitat, above n 1, 81.61 Ibid, 12.

Different Water Uses and Their Link to Human Rights 157

closely on access to water. Lastly, as will be seen, some of the considera-tions relating to water for food production may be transferred to other water uses.

A. Personal and Domestic Use

i.  Link to the human right to water

The human right to water guaranteeing water for personal and domestic use62 has been explored in depth in chapters three and four. It entails a guarantee of a sufficient quantity of safe, acceptable, accessible and afford-able water.

ii.  Relevance at different levels

The right to water becomes relevant at all levels of the framework. To ensure survival, a minimum amount of drinking water is required each day. As outlined above63, this amounts to less than 5 l/c/d. This right may be called the right to be free from thirst, corresponding to the right to be free from hunger in Article 11(2) of the Social Covenant. Moreover, water to ensure basic health is required at the survival level. The core content of the right to water reaches beyond mere survival requirements. Fulfilling other basic human needs that are necessary to lead a life in dignity, such as personal hygiene, is part of the core content as well. The level of an adequate standard of living concurs with the full content of the human right to water that is to be achieved progressively. As outlined above, the human right to water guarantees water for personal and domestic uses, including washing, cleaning and similar uses; and it can be assumed that approximately 100 l/c/d are needed to meet these needs.

iii.  Considerations in the balancing process

When balancing water for personal and domestic uses with other water uses, it is essential to consider that water for drinking, hygiene and most domestic uses cannot be substituted with any other resource in any cir-cumstances.

62 Water is also used in hospitals and healthcare facilities, educational institutions, work places, and public institutions and places. These will be considered as part of personal and domestic uses since they largely count towards these. For instance, when people drink water while at work or take a shower using school facilities, this forms part of their personal requirements.

63 See ch 4, section III.A.ii.

158 Human Rights Implications for Water Allocation

B. Water for Food Production

The largest sector of water use – agriculture – shows a close link to the right to food, as water is an absolutely essential input in food production. Progress in the realisation of the human right to food is as bleak as it is for the human right to water. The number of undernourished people remains unacceptably high (after rising between 2006 and 2009) at 925 million peo-ple64. The food available to them is not sufficient to meet their basic energy needs65. Every year about 20 million people die from the consequences of undernourishment66. Further, 1 billion people are considered malnour-ished, lacking a balanced diet67. They either do not have sufficient income to buy the necessary foodstuffs, or they do not produce sufficient food for their own consumption. About two-thirds of all malnourished people live in rural areas and depend on agricultural production for employment, income and food68. It is estimated that 50 per cent of undernourished peo-ple are smallholder farmers who directly depend on access to water resources for their own nutrition as well as income generation69. Hunger and malnourishment are thus to a large extent rural phenomena70. Severe poverty is often found where access to water resources is uncertain due to the unpredictability of rainfall and flooding71. After considering the link-ages between agricultural water use and the human right to food in gen-eral terms, the specific situation of people relying on subsistence farming will be considered in more detail below.

64 Food and Agriculture Organization of the United Nations, The State of Food Insecurity in the  World,  Addressing  Food  Insecurity  in  Protracted  Crises  (Rome, Food and Agriculture Organization of the United Nations, 2010) 4.

65 Poverty-Environment Partnership, Linking  Poverty  Reduction  and  Water  Management (New York and Stockholm, Poverty-Environment Partnership, 2006) 13.

66 F Nuscheler, Entwicklungspolitik, Lern- und Arbeitsbuch, 5th edn (Bonn, Bundeszentrale für politische Bildung, 2004) 252.

67 Ibid; Poverty-Environment Partnership, above n 65, 13.68 United Nations Development Programme, above n 7, 173 et seq; Nuscheler, above n 66,

260.69 Comprehensive Assessment of Water Management in Agriculture, Water for Food, Water 

for Life, a Comprehensive Assessment of Water Management in Agriculture, International Water Management Institute (London, Earthscan, 2007) 65; see also U Kracht, ‘Whose Right to Food? Vulnerable Groups and the Hungry Poor’ in WB Eide and U Kracht (eds), Food and Human  Rights  in  Development,  Vol  I,  Legal  and  Institutional  Dimensions  and  Selected  Topics (Antwerp, Intersentia, 2005) 119, 126 et seq, 129; M Windfuhr,  ‘Experiences from Case Related Right to Food Work: Lessons Learned for Implementation’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol II, Evolving Issues and Emerging Applications (Antwerp, Intersentia, 2007) 331, 338.

70 Kracht, above n 69, 125; Windfuhr, above n 69, 337.71 Comprehensive Assessment of Water Management in Agriculture, above n 69, 71. In

fact, research has shown that poverty is often significantly lower in irrigated systems than in areas that are not irrigated, see United Nations Development Programme, above n 7, 175 (indicating 20–30% lower levels).

Different Water Uses and Their Link to Human Rights 159

i.  Link to the human right to food

Article 11(1) of the Social Covenant guarantees the right to food as part of the right to an adequate standard of living. Moreover, Article 11(2) recog-nises the fundamental right of everyone to be free from hunger. Other relevant provisions are, for example, found in Articles 24(2)(c) and (e) and 27(3) CRC, Article 12 CEDAW, Article 28(1)(a) CRPD and Article 12 of the Protocol of San Salvador. According to the CESCR, the realisation of the right to food requires that everyone ‘has physical and economic access at all times to adequate food or means for its procurement’72.

The most basic obligation is referred to in Article 11(2) of the Social Covenant, requiring States to prevent starvation and to guarantee access to the minimum essential nutritionally adequate and safe food in suffi-cient quantity to ensure freedom from hunger73. This may be regarded as the minimum level of realisation of the right to food74. Yet the right to food reaches further than that75, being specified by the term ‘adequacy’. It implies the availability of food in a quantity and quality that is sufficient to satisfy the dietary needs of individuals. It has to be free from adverse substances and acceptable within a given culture76. This is further speci-fied in General Comment No 1277.

The most important features in the present context are availability and accessibility. They may be ensured in two ways: either by having the pos-sibility to feed oneself directly from productive land or other natural resources, or by having the necessary means to procure food via distribu-tion and market systems78, a distinction that will be of further relevance for the analysis below. In any case, in order to fulfil these food require-ments agricultural production is necessary, which in turn is impossible

72 Committee on Economic, Social and Cultural Rights, General Comment No 12, The right to adequate food (Art 11), 12 May 1999, E/C.12/1999/5, para 6.

73 Ibid, para 14.74 C Reimann, Ernährungssicherung  im  Völkerrecht,  Der  Menschenrechtsansatz  und  seine 

Ergänzungsmöglichkeiten angesichts der Welthungerproblematik (Stuttgart, Boorberg, 2000) 170, 172; C Breining-Kaufmann, Hunger als Rechtsproblem, Völkerrechtliche Aspekte eines Rechts auf Nahrung (Zürich, Schulthess, 1991) 164; Alston, above n 46, 33.

75 Alston, above n 46, 32; R Künnemann, ‘The Right to Adequate Food: Violations Related to Its Minimum Core’ in D Brand and S Russell (eds), Exploring  the Core Content  of Socio-Economic Rights: South African and International Perspectives (Pretoria, Protea, 2002) 71, 79.

76 CESCR, General Comment No 12, above n 72, para 8; A Eide, ‘The Right to an Adequate Standard of Living, Including the Right to Food’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 133, 134; Alston, above n 46, 33.

77 CESCR, General  Comment  No  12, above n 72, paras 9 et seq; see also WB Eide and U Kracht, ‘The Right to Adequate Food in Human Rights Instruments: Legal Norms and Interpretations’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol I, Legal and Institutional Dimensions and Selected Topics (Antwerp, Intersentia, 2005) 99, 105 et seq.

78 CESCR, General Comment No 12, above n 72, para 12; Eide, above n 76, 135; Künnemann, above n 75, 79.

160 Human Rights Implications for Water Allocation

without water. In this regard, the Voluntary Guidelines on the Right to Food stress the importance of access to water resources79.

ii.  Relevance at different levels

The agricultural sector is the largest water user, accounting for about 70 per cent of global water use80. Yet it would be misleading to relate this entirely to the production of foodstuffs necessary to realise the right to food. Agriculture is a heterogeneous sector, ranging from large-scale industrial farming to subsistence agriculture. Not all of the water used in agricultural production is required to fulfil the human right to food. The cultivation of a wide range of crops does not aim at fulfilling food require-ments at all, for instance the cultivation of flowers81, cotton or the recently increasing production of biofuels. Evidently, these non-food water uses do not link to the human right to food, but rather reinforce the competi-tion over water resources. Yet large amounts of water used in agriculture are aimed at food production. In the following discussion, it will be estab-lished in more detail to what extent food production relates to the right to food and at which level of realisation of human rights the related water use becomes relevant.

1. Survival level

Humans not only need water for their survival, they also need food, which in turn requires water to be produced. Even though humans can survive for a longer period of time without access to food than without access to water82, food is as important as water, in particular if one takes a long-term perspective. Accordingly, food that is necessary to ensure human survival and the resulting water demands have to be considered at the survival level.

Of the overall amount of water required for the realisation of the right to food, only the smaller part can be attributed to the survival level. It is diffi-

79 Food and Agriculture Organization of the United Nations, Voluntary  Guidelines  to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Adopted at the 127th Session of the FAO Council, November 2004 (Rome, Food and Agriculture Organization of the United Nations, 2005) 18. The General Comment on the right to food (No 12) itself does not mention the essential nature of water for agricultural produc-tion, see CESCR, General Comment No 12, above n 72, noted as well by M Langford, ‘Ambition that Overleaps Itself? A Response to Stephen Tully’s Critique of the General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433, 442.

80 World Water Assessment Programme, United Nations World Water Development Report 2: Water, a Shared Responsibility (Paris, 2006) 245.

81 See the example of flower production in Kenya presented in ch 2, section II.A.i. 82 K Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard, Ernährung, Wasser, 

Bekleidung, Unterbringung und Energie als Elemente des Art. 11(1) IPWSKR (Frankfurt am Main, Peter Lang, 2008) 191.

Different Water Uses and Their Link to Human Rights 161

cult to estimate what amount of water is necessary to produce sufficient food for survival requirements. There are large variations due to geographic and climatic conditions as well as the kind of crops that are cultivated. In order to allow for an approximate estimate, it seems pertinent to look at staple foods. Rice, wheat and other cereals are a major component of any diet; they represent more than half of all food consumed in terms of energy supply83, with rice probably being the most common staple food84. For a suggested intake of 600 grams of rice per day85, approximately 1,600 litres of water are needed in its production86, not yet taking into account the water needed to produce the remaining necessary food intake. Even considering that the cultivation of rice is rather water-intensive when compared with other crops, it can still be estimated that at least 1,500 to 2,000 l/c/d of water are necessary to ensure survival requirements.

2. Core level

The core content of the right to food reaches beyond mere survival require-ments and also sets minimum standards in terms of variation of the diet so as to ensure human health87. While the exact scope of the core content between survival requirements and the full realisation of the right to ade-quate food is difficult to determine, it may be assumed that the realisation of the core content does not entail much larger amounts of water than the survival level, as it primarily requires variation in the diet but not larger amounts of food to be produced.

3. Level of full realisation

The right to adequate food goes beyond ensuring minimum survival and core requirements, and demands satisfaction of the dietary needs of each individual. In order to be adequate, a diet has to be complete in energy terms and balanced in terms of its nutritional value. As for energy require-ments, a value of 2,800 kcal/c/d may be taken as an approximate thresh-old for national food security88, while it is much more complex to determine the prerequisites for a varied and balanced diet. To ensure the necessary agricultural production, water requirements are in the range of 2,000 to 5,000 l/c/d depending on diet, climatic conditions and efficiency

83 World Water Assessment Programme, above n 80, 248.84 G Howard and J Bartram, Domestic Water Quantity,  Service  Level  and Health (Geneva,

World Health Organization, 2003) 9.85 Ibid.86 World Water Assessment Programme, above n 80, 258.87 CESCR, General Comment No 12, above n 72, paras 8 et seq; Künnemann, above n 75, 83.88 World Water Assessment Programme, above n 80, 245 et seq.

162 Human Rights Implications for Water Allocation

of production systems89. Typically, a vegetarian diet can be produced with 2,000 l/c/d, while a Western-style diet that is to a large extent based on meat and dairy products usually requires 5,000 l/c/d90. As a very rough estimate, it can be assumed that on average 1 litre of water is necessary to produce 1 kcal91. These figures represent only very rough estimates and simply provide a basic indication of the amount of water needed for food production.

From a human rights perspective, only water use for food production that aims at the realisation of an adequate standard of living is relevant. The aim is to achieve a complete, balanced and healthy diet. Moreover, the cultural adequacy of food has to be ensured, which may result in a preference for certain food stuffs and/or the exclusion of others. This can often be realised with about 2,000 to 3,500 l/c/d. According to FAO esti-mates, a 3,000 kcal per day diet out of which 20 per cent comprises animal protein, can be produced with about 3,500 l/c/d92. Water use beyond these requirements is not relevant from a human rights perspective, as the right to food does not guarantee the immoderate consumption of certain products. Apart from diets heavily reliant on meat, this, for example, also relates to the consumption of citrus fruits, strawberries and grapes in the winter season by consumers in the Global North. Such products are pro-duced as cash crops in many countries in the Global South in order to be exported to the Global North, where foodstuffs are already available in abundance. Such production does not relate to the right to food but rather reinforces the competition over water resources, similar to the non-food agricultural production outlined above.

This shows that the water requirements to produce sufficient food to achieve an adequate standard of living are not much greater than the requirements for the survival and the core levels of the right to food. Rather, it becomes essential at this level to achieve a more balanced and varied diet that meets all requirements of the adequacy of food.

The figures stating water requirements do not refer to the amount of irrigation water only necessary to produce food. On the contrary, on a global scale most of the water used to produce crops – 80 to 90 per cent – is so-called green water, ie rain water that is stored in the soil93. Only the remaining 10 to 20 per cent of water used is blue water, ie water that is withdrawn from rivers, aquifers, reservoirs or lakes for irrigation

89 Ibid, 247; Comprehensive Assessment of Water Management in Agriculture, above n 69, 78.

90 Comprehensive Assessment of Water Management in Agriculture, above n 69, 78.91 Ibid.92 M Falkenmark and M Lannerstad, ‘Consumptive Water Use to Feed Humanity – Curing

a Blind Spot’ (2005) 9 Hydrology and Earth System Sciences 15, 26; likewise United Nations Development Programme, above n 7, 137.

93 World Water Assessment Programme, above n 80, 247; Comprehensive Assessment of Water Management in Agriculture, above n 69, 58.

Different Water Uses and Their Link to Human Rights 163

purposes94. This amount of irrigation water is referred to when speaking of the 70 per cent of total water withdrawals being used in the agricultural sector95. And only the allocation of blue water can be influenced. However, about 45 per cent of the gross value of crop production is grown on irri-gated land96, highlighting the significance of irrigation for efficient food production. It cannot be determined generally what amount of irrigation water is necessary to produce crops in a given region, as the demand for (supplemental) irrigation varies greatly between countries and regions due to climatic and geographic conditions.

iii.  Considerations in the balancing process

In the process of balancing water for food production with water for per-sonal and domestic uses as well as water for other purposes, a number of factors become relevant.

1. No general reliance on direct access to water for food production

While water is of fundamental importance for agricultural production nec-essary to fulfil the human right to food, there are great variations as to the kind of reliance on access to water. Many people buy ready-made food-stuffs, and the water resources necessary to produce these have therefore often been used a great distance away – often even abroad97. Accordingly, water for the production of food is not necessarily used by the person con-suming the food, not necessarily in the watershed where that person lives, and not even necessarily in his or her country in the case of food imports. Of course, water is used at some location to produce food, and overall suf-ficient water resources have to be allocated for agricultural production, but food can easily be transported from regions with high water availability to those with low water availability – while noting that the feasibility and likeliness of distribution depend on a range of socio-economic and polit-ical factors such as the quest for food sovereignty.

States have a broad margin of discretion in realising the right to food. The CESCR has pointed out in its General Comment on the right to food that

[t]he most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State party to another. Every State will have a margin of discretion in choosing its own approaches, but the Covenant clearly requires that each State party take whatever steps are

94 Comprehensive Assessment of Water Management in Agriculture, above n 69, 58.95 World Water Assessment Programme, above n 80, 247.96 Comprehensive Assessment of Water Management in Agriculture, above n 69, 58.97 Boesen and Lauridsen, above n 35, 397.

164 Human Rights Implications for Water Allocation

necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food.98

Accordingly, the right to food does not prescribe particular measures to States, as long as they comply with the standard of appropriateness as stipulated in Article 2(1) of the Social Covenant99.

Overall, the State has to assure that sufficient food is available for pro-curement at the national level. It may either opt for self-sufficiency, by ensuring that sufficient food is produced domestically and accordingly that sufficient water resources are allocated to cultivate agricultural prod-ucts to supply its entire population (provided that water availability and other natural conditions allow for that), or it may import foodstuffs. In particular, countries with limited water availability could decide to import agricultural products that contain a large amount of virtual water100. A number of countries, eg Egypt and Jordan, do not have the water resources to produce sufficient food domestically101. States are not obliged to fulfil the right to food with domestically-grown foodstuffs that require domes-tic water resources; they can also choose to import food102. Moreover, there are great variations of water availability within many countries, eg in Brazil and China. In such cases as well, food may be produced at distant locations. It can be transported from regions with high water availability to those with lower water availability, so that no local provision of water is required103. The only requirement is for the State to ensure that suffi-cient food is available and accessible to all people. Thus, in general the State has an array of options on how to fulfil the right to food that do not necessarily require the local provision of water.

2. Specific situation of those relying on subsistence agriculture

Nevertheless, while many people buy food produced by others, some produce their own food, relying on subsistence farming and accordingly on sufficient water resources close to their dwelling. In spite of continuing urbanisation, a great number of people, predominantly in rural areas, rely

98 CESCR, General Comment No 12, above n 72, para 21.99 L Cotula, M Djiré and RW Tenga, The Right to Food and Access to Natural Resources, Using 

Human Rights Arguments and Mechanisms to Improve Resource Access for the Rural Poor (Rome, Food and Agriculture Organization of the United Nations, 2009) 16.

100 World Water Assessment Programme, above n 80, 257. The advantages and disadvan-tages of importing food are discussed under the concept of virtual water first proposed by Allan, see JA Allan, ‘Virtual  Water’:  A  Long  Term  Solution  for  Water  Short  Middle  Eastern Economies?, Paper Presented at the 1997 British Association Festival of Science (Leeds, University of Leeds, 1997); for a discussion, see eg S Neubert and L Horlemann, ‘Kann vir-tueller Wasserhandel die Wasserkrise lösen?’ in C Bastian, A Gunkel, H Leistert, T Menniken, R Rhodius et al (eds), Wasser – Konfliktstoff des 21. Jahrhunderts (Heidelberg, Universitätsverlag Winter, 2008) 143.

101 World Water Assessment Programme, above n 80, 252.102 On food sovereignty as a political concept and its relation to human rights, see Cotula

et al, above n 99, 20 et seq.103 P Gleick, ‘The Human Right to Water’ (1998) 1 Water Policy 487, 491.

Different Water Uses and Their Link to Human Rights 165

(at least partially) on subsistence agriculture104. Apart from access to land in general and soil fertility in particular, access to water resources is a crit-ical factor in determining the possibility of agricultural production in a given region, as well as its outcome and success105. The specific situation of people who do not have access to markets for food procurement and rely on subsistence agriculture has to be considered as a special case106, as their situation differs significantly from that of people who buy ready-made food stuffs as far as their reliance on water resources is concerned. To them, access to water for subsistence agriculture to produce sufficient food for survival requirements seems to be just as important as access to water for drinking. Therefore, reliable access to water for subsistence agri-culture, home gardens and livestock is key to improving the food security of those most vulnerable to hunger and malnutrition107.

The State’s options to realise the right to food have to be examined against this background. Providing support to facilitate access to (supplemental) irrigation for subsistence farming can be a suitable measure. When the lack of access to water resources is a decisive factor in impeding sufficient food production, facilitating access to water resources would be a means to allow people to cultivate their own food. Yet the State also has other options in fulfilling the right to food of people who currently rely on subsistence agri-culture. Depending on the circumstances, the provision of supplementary food aid during dry spells may be an appropriate measure. Yet whenever possible, the State should enable and assist people to provide for them-selves by engaging in activities that enable them to gain access to resources. This is in line with the underlying human rights principles, in particular active participation and empowerment108. While enabling people to gain access to resources treats individuals as active subjects, providing food aid turns them into mere passive objects of State policy. The provision of food aid may be a necessary measure, but ideally and in the long-term people should be enabled to provide for themselves109.

104 M Brüntrup and F Heidhues, Subsistence Agriculture in Development: Its Role in Processes of Structural Change, Discussion Paper No 1 (Stuttgart, University of Hohenheim, Center for Tropical Agriculture, 2002) 7.

105 Poverty-Environment Partnership, above n 65, 22.106 A Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status and

Normative Content of the Right to Water’ (2005) 9 International Journal of Human Rights 389, 396 et seq.

107 Poverty-Environment Partnership, above n 65, 23.108 CESCR, General  Comment  No  12, above n 72, para 23; see generally eg B Hamm,

‘A Human Rights Approach to Development’ (2001) 23 Human  Rights  Quarterly 1005; M Darrow and A Tomas, ‘Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation’ (2005) 27 Human Rights Quarterly 471; further below ch 6, section I.

109 See Damman for some of the problems associated with food aid, S Damman, ‘The Right to Food of Indigenous Peoples’ in WB Eide and U Kracht (eds), Food and Human Rights in  Development,  Vol  I,  Legal  and  Institutional  Dimensions  and  Selected  Topics (Antwerp, Intersentia, 2005) 285, 298.

166 Human Rights Implications for Water Allocation

Other measures are commonly discussed under the broad framework of rural development. Measures could aim at enabling people to gain income from alternative sources. For instance, the Indian National Rural Employment Guarantee Act aims to boost the rural economy and enhance economic growth. It guarantees a minimum amount of paid employment on public works in rural areas110. Similarly, in specific food for work pro-grammes, food is provided in return for work aiming at rural development, eg the construction of streets or canals111. Moreover, State policies could aim at the diversification of the rural economy more generally in order to allow for alternative income opportunities112. Even if agriculture continues to be the most important sector in rural areas, this is not tantamount to reliance on subsistence agriculture. States can facilitate access to markets, opening up a source of income generation. Measures might also include the promo-tion of the growth of cash crops in order to earn foreign exchange. In that regard, States have to find a balance between the necessity to earn foreign exchange and the food requirements of their own popu lations. States may also choose to export high-value crops and to import staple foods at the same time. In any case, the aim is to enable people to gain access to resources and make use of them for their realisation of the right to food.

All of these policy options have advantages and disadvantages, and some are more suitable than others in given circumstances. Yet from a human rights perspective, all of these options are viable and the State is not confined to any of them. While ensuring access to water is a key mech-anism for realising the right to food, there is no entitlement to have one’s right to food realised in this way. In general, States are not obliged to ena-ble people to maintain a specific way of life such as subsistence farming, as long as they do not violate cultural rights113. Indigenous peoples’ rights are particularly significant in this regard, as maintaining a particular way of life arguably has to be considered as an element of their cultural rights114. What matters is that people have access to food, whether through direct production or through procurement. There is no panacea for the problems relating to hunger and malnourishment. The best option for the realisation of the right to food cannot be determined in the abstract but requires a contextualised approach115. The specific conditions have to be

110 For more details see D Sjoblom and J Farrington, The Indian National Rural Employment Guarantee  Act:  Will  It  Reduce  Poverty  and  Boost  the  Economy?, ODI Project Briefing No 7 (London, Overseas Development Institute, 2008).

111 Nuscheler, above n 66, 273.112 Cotula et al, above n 99, 23.113 In this regard see below section III.H. 114 See below section III.I. for indigenous rights.115 For a case study of Mhondoro, Zimbabwe, see A Hellum, ‘The Indivisibility of Water,

Land and Food in Local, National and International Human Rights Law: The Case of Women’s Gardens in Mhondoro, Zimbabwe’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol II, Evolving Issues and Emerging Applications (Antwerp, Intersentia, 2007) 297.

Different Water Uses and Their Link to Human Rights 167

considered, such as socio-economic, climatic and geographic conditions, the availability of land as well as the availability of water resources and existing infrastructure, in particular for irrigation116. Water cannot be considered in isolation, as, for instance, land rights often affect access to water.

To summarise, facilitating access to water for food production may be appropriate in many cases, but it is not always the most adequate solution. Accordingly, with regard to people relying on subsistence agri-culture too, the State has a variety of policy options regarding how to real-ise the right to food, and is not constrained to provide direct access to water. While States have core obligations in regard to the right to water as well as to the right to food, the options for realisation are far more numer-ous for the right to food. In contrast, water for personal and domestic use cannot be substituted, and it requires direct supply. These are significant factors in the process of balancing different water uses.

3. Potential for water saving

Another factor to be taken into account in the balancing process is the potential for water saving. Using the broad estimates as stated above, the amount required for producing sufficient food for an adequate standard of living exceeds water for personal and domestic uses by an approximate factor of 30 (100 l/c/d compared to 3,000 l/c/d117). In contrast to water for personal and domestic uses, though, the amount of water necessary for the production of food may be influenced. The comparably large amount of water used in the agricultural sector entails a potential for increasing water productivity through improved cultivation methods and irrigation techniques. Several aspects are relevant in this regard. First, whereas water for drinking purposes cannot be substituted and the necessary amount is fixed, the amount of water necessary for food production depends on the kind of food being cultivated. As there are many different kinds of crops and foodstuffs, it is possible to substitute one kind of food with another. There is not only a great difference between the water requirements of a vegetarian and a meat-based diet, but different crops also have different water requirements118. For example, while 2,650 litres of water are necessary on average to produce one kilogram of rice, ‘only’ 1,150 litres are required for one kilogram of wheat, 450 litres per kilogram of maize and 160 litres per kilogram of potatoes119.

116 See Nuscheler, above n 66, 265.117 However, it is essential to keep in mind that water for food production does not entirely

relate to blue water but can be made up by green water to a significant extent, depending on the geographic and climatic conditions.

118 Postel, above n 1, 96.119 World Water Assessment Programme, above n 80, 258.

168 Human Rights Implications for Water Allocation

Moreover, it can be assumed that there is still enormous potential for water saving in irrigation120. Modern technologies such as drip irrigation allow for a much more efficient use of water than less advanced tech-nologies. As drip irrigation accounted for only 1 per cent of the global irrigated area as of 2003121, its potential is vast. While often very cost-intensive, more recently low-cost models have been developed. For instance, small-scale so-called bucket-and-drip kits can easily be used for vegetable cultivation and kitchen gardens122. Moreover, traditional tech-niques such as rainwater harvesting also have a great potential to enhance water security in rain-fed areas, by increasing soil moisture, replenishing ground water and providing reserves for supplemental irrigation during dry spells123. The question of modern water-saving irrigation technologies is closely linked to agricultural water pricing. If water is highly subsidised or even provided free of charge, farmers have no incentive to save water and to invest in modern technology. Only when irrigation water charges are sufficiently high is water conservation encouraged124.

4. Summary

A number of considerations are relevant in the balancing process. The State has significant leeway in how to realise the human right to food, including for those who presently rely on subsistence farming. While food cannot be produced without water, the point of production can be situ-ated in regions with relatively high water availability, transporting food to the point of consumption. States may also choose to import food from other countries. Moreover, variations in the kind of crops cultivated and modern technologies allow for water savings. In contrast, water for per-sonal and domestic uses cannot be substituted, the necessary amount can hardly be reduced and direct access is essential.

C. Water for Production of Clothing

Some of the non-food agricultural uses of water previously mentioned relate to the production of clothing125, in particular the cultivation of cot-

120 FM Chmielewski, ‘Wasserbedarf in der Landwirtschaft’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal  Klima:  Genug Wasser  für  alle?,  Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 96, 100; L Partzsch, Öko-faire Preise im Welthandelsregime, Wasser – natürliche Ressource, Handelsware und Menschenrecht (Wuppertal, Wuppertal Institut für Klima, Umwelt, Energie and Heinrich Böll Stiftung, 2007) 20; Young et al, above n 10, 118.

121 Postel, above n 1, 96.122 United Nations Development Programme, above n 7, 197.123 Ibid, 196.124 Partzsch, above n 120, 10; Postel, above n 1, 96.125 Water is also used to wash clothes. As a household use, this is already covered by the

human right to water as established in ch 4, section III.A.i. This shows that the different com-ponents of the right to an adequate standard of living are inextricably linked.

Different Water Uses and Their Link to Human Rights 169

ton. Wool and synthetic materials also require water in their production. For instance, the production of one kilogram of cotton on average requires about 10,000 litres of water. This translates to an average 2,720 litres of water for one T-shirt126.

i.  Link to the right to clothing as a component of the right to an adequate  standard of living

The right to clothing is explicitly mentioned as a component of the right to an adequate standard of living alongside food and housing in Article 11(1) of the Social Covenant, but so far has received very limited attention. An attempt to define the scope and content of the right to clothing has been undertaken by Engbruch. In her definition, she starts from the two main objectives of clothing as protection from the elements as well as a require-ment for integration into society and interaction with others127. As with other components of the right to an adequate standard of living, clothing has to be available, physically accessible, affordable, safe and culturally acceptable128. The specific requirements depend on climatic, cultural, social and other circumstances129.

ii.  Relevance at different levels

As the human right to clothing has not yet been considered in much detail, the contours of its core content remain relatively vague. Determining the core content of the right to clothing must take account of both objectives of clothing, ie as protection from the elements and as a requirement for integration into society130. Its minimum essential level has to be realised as core obligation131. Water is an essential factor in the production of clothing necessary to realise the core content. In certain circumstances, eg severe cli-matic conditions, the right to clothing also becomes relevant at the survival level. The further realisation of the right to clothing reaching beyond this minimum essential level and the water required to produce such clothing have to be considered at the level of full realisation of human rights.

126 AK Chapagain, AY Hoekstra, HHG Savenije and R Gautam, ‘The Water Footprint of Cotton Consumption: An Assessment of the Impact of Worldwide Consumption of Cotton Products on the Water Resources in Cotton Producing Countries’ (2006) 60 Ecological Economics 186, 193.

127 Engbruch, above n 82, 229.128 Ibid, 229 et seq.129 Ibid, 238.130 Ibid, 233 et seq.131 Ibid, 234.

170 Human Rights Implications for Water Allocation

iii.  Considerations in the balancing process

Regarding water for the production of clothing, similar considerations apply as for water for food production. Clothing does not necessarily have to be produced at the place of residence but can be transported and imported from regions with high water availability. It is even less com-mon to produce one’s own clothing, eg from self-grown cotton, than it is to rely on subsistence farming for food. Also, there is the possibility of substituting products that require rather large amounts of water in their production with products that require less. And lastly, the potential for saving water by using modern irrigation and production techniques also applies in the context of clothing.

D. Water for Sanitation

There are close links between sanitation and water. Inadequate sanitation is a major source of water pollution; where excreta are not adequately removed, treated and disposed of, they often end up in groundwater, riv-ers, lakes and oceans. Moreover, water-borne sanitation and sewerage rely on water – often, 50 litres of water per person per day are used for flushing toilets132, amounting to more than 15,000 litres per year133.

In large parts of the world, access to sanitation is inadequate. Some 2.6 billion people do not have access to what has been defined as ‘improved sanitation’134, amounting to almost half of the population in the develop-ing world135, with 1.1 billion people practising open defecation136. Not having access means that people have to defecate behind bushes, in ditches, on roadsides or into plastic bags. The ‘Flying Toilets of Kibera’, the largest slum in Nairobi, Kenya – plastic bags used for defecation that people then throw on the roadside – have become a sad synonym for the daily deprivation that people experience137. Such practices result in people

132 United Nations Development Programme, above n 7, 35.133 M Black and B Fawcett, The Last Taboo, Opening the Door on the Global Sanitation Crisis

(London, Earthscan, 2008) 8.134 World Health Organization and United Nations Children’s Fund, Progress on Sanitation 

and Drinking-Water,  2010 Update (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2010) 6. As with water, the adequateness of the indicator and the way ‘improved sanitation’ is defined based solely on the type of technology may be questioned. See Progress on Sanitation and Drinking-Water, 2010 Update, at 34 for the definition of ‘improved sanitation’. For instance, the definition does not take into account whether excreta are adequately collected, treated and disposed of; see IT Winkler, Lebenselixier und letztes Tabu, Die Menschenrechte auf Wasser und Sanitärversorgung (Berlin, Deutsches Institut für Menschenrechte, 2011) 4.

135 United Nations Development Programme, above n 7, 12.136 World Health Organization and United Nations Children’s Fund, above n 134, 22.137 See United Nations Development Programme, above n 7, 38 et seq; Black and Fawcett,

above n 133, 47.

Different Water Uses and Their Link to Human Rights 171

being directly exposed to contact with human excreta that contain highly pathogenic material.

The social and developmental impacts are vast: many diseases are caused by lack of adequate sanitation. In fact, many of the so-called water-related diseases are more closely related to the lack of adequate sanitation. Diarrhoea is transmitted via the faecal-oral transmission route. When path-ogens end up in drinking water, water indeed spreads the disease, but many other transmission routes exist, including shaking hands that have been in contact with excreta, or children playing in the dirt138. Altogether, the WHO and UNICEF estimate that 88 per cent of diarrhoeal deaths may be attributed to unsafe water, inadequate sanitation and lack of hygiene139. Every year, an estimated 2.5 billion instances of diarrhoea occur among children under the age of 5 years140. This seemingly harmless disease alone causes the death of 1.5 million children under the age of 5 every year141. In fact, it is the second most common cause of death for children under 5 years of age after pneumonia142, with more children dying from diarrhoea than from tuberculosis, malaria and HIV/AIDS combined143. Moreover, research suggests that poor sanitation also contributes to other sometimes deadly health conditions, such as child malnutrition and respiratory infections144.

These health consequences impact on people’s livelihoods and ability to work or go to school. Children often miss school due to illness, but also because of the lack of adequate sanitation facilities. Girls, in particular, often drop out of school at the age of puberty due to the lack of adequate, gender-specific facilities145. One estimate attributes half of all girls’ drop-outs from primary school to inadequate water and sanitation facilities146. In the absence of facilities on premises, women and girls often also face risks to their physical security. In particular when having to defecate in the open or relying on shared facilities, and specifically at night, they often face the risk of being attacked, assaulted or raped147.

138 Black and Fawcett, above n 133, 71 et seq.139 United Nations Children’s Fund and World Health Organization, Diarrhoea:  Why 

Children Are Still Dying and What Can Be Done (New York and Geneva, 2009) 2.140 Ibid, 5.141 Ibid, 1; Black and Fawcett, above n 133, 4.142 United Nations Children’s Fund and World Health Organization, above n 139, 1.143 World Health Organization and UN-Water, Global Annual Assessment of Sanitation and 

Drinking-Water  (GLAAS): Targeting Resources  for Better Results (Geneva, UN-Water, 2010) 2; United Nations Development Programme, above n 7, 42 et seq.

144 Centre on Housing Rights and Evictions, WaterAid, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Sanitation: A Human Rights Imperative (Geneva, 2008) 4.

145 Human Rights Council, Report of the independent expert on the issue of human rights obliga-tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, 1 July 2009, A/HRC/12/24, para 30; United Nations Development Programme, above n 7, 47; Black and Fawcett, above n 133, 9, 143.

146 United Nations Development Programme, above n 7, 47.147 Amnesty International, Insecurity  and  Indignity,  Women’s  Experiences  in  the  Slums  of 

Nairobi, Kenya (London, 2010) 21 et seq; Black and Fawcett, above n 133, 86.

172 Human Rights Implications for Water Allocation

Where there is no proper disposal, management and treatment of fae-ces, human excreta are often discharged untreated into rivers, streams and lakes, contaminating water resources that may be used for drinking water and leading not only to disastrous environmental impacts, but also to serious health consequences. In Latin America, less than 14 per cent of human waste is processed148; while in Delhi, less than 20 per cent of waste-water is treated before being dumped into the Yamuna River149. It is esti-mated that 80 per cent of pollution in Indian rivers stems from untreated human waste150. Even in the European Union, not all sewage is treated adequately 151. Where pit latrines are used, in particular in densely popu-lated urban areas, the removal and disposal of sludge often poses great challenges and requires a sophisticated service infrastructure. Where this is not in place or latrines are not properly sealed, effluents often leak into groundwater, latrines overflow and effluents end up in the larger environ-ment, including water resources152.

Sanitation has been – and still is – a neglected issue. Despite the enorm-ous impacts the lack of sanitation has on development and the clear bene fits of investing in sanitation helping to reduce the disease burden as well as work and school days lost to illness153, the issue was overlooked when drafting the MDGs. The target for sanitation was added only at a later stage, during the WSSD in 2002154. Currently, the sanitation target is one of the most off-track MDG targets155; and even if the target were met in 2015, 1.8 billion people would still be without access to improved sanitation156.

One of the reasons why the lack of sanitation is so difficult to address is that sanitation is surrounded by a powerful taboo. It makes most people uncomfortable to speak about such a highly private matter157. Toilets and latrines are not a popular topic. There is even a lack of appropriate vocabu-lary: either vulgarities such as ‘shit’, or childish language such as ‘poo-poo’ or medical-technical terms such as ‘excrement’ and ‘faeces’ are used158. The

148 United Nations Development Programme, above n 7, 39.149 Ibid, 114.150 Black and Fawcett, above n 133, 6.151 G Langengraber and E Muellegger, ‘Ecological Sanitation – A Way to Solve Global

Sanitation Problems?’ (2005) 31 Environment International 433, 435.152 United Nations Development Programme, above n 7, 114 et seq.153 WHO estimates that for every dollar invested in sanitation, $9 could be saved in costs

averted in healthcare and increased productivity, see G Hutton, L Haller and J Bartram, Economic and Health Effects of Increasing Coverage of Low Cost Household Drinking-Water Supply and  Sanitation  Interventions  to  Countries  Off-Track  to Meet MDG  Target  10  (Geneva, World Health Organization, 2007) 20.

154 JPoI, above n 17, para 8.155 United Nations, The Millennium Development Goals Report (New York, United Nations,

2011) 55.156 United Nations Development Programme, above n 7, 4.157 Human Rights Council, Report of  the  independent expert, A/HRC/12/24, above n 145,

para 7.158 Winkler, above n 134, 6.

Different Water Uses and Their Link to Human Rights 173

low priority afforded to sanitation is reflected in a lack of policies and strat-egies to address the issue, under-investment, institutional fragmentation and low capacity159.

Only by discussing the issue openly will it be possible to address the enormous challenges. Some countries, such as Bangladesh and Brazil, have clearly made sanitation a national priority, and have made impres-sive progress in improving access to sanitation160. At the international level, the United Nations General Assembly declared 2008 the International Year on Sanitation to increase attention to the issue 161, for the first time considering sanitation delinked from water162. More recently, the General Assembly has proclaimed a ‘five-year drive’ for sustainable sanitation163, to accelerate efforts on the sanitation target of the MDGs.

i.  Link to the human right to sanitation

Sanitation has received limited attention not only from a developmental, political and financial angle, but also from a human rights perspective. Only recently has sanitation been approached as a human rights issue.

As with the human right to water, the International Bill of Rights does not include an explicit human right to sanitation. However, more recent human rights treaties do make reference to sanitation. Most notably, Article 14(2)(h) CEDAW mentions sanitation alongside water and other elements in the context of adequate living conditions, and Article 24(2)(e) CRC refers to sanitation in the context of the right to the highest attainable standard of health. At the regional level, Article 11 of the Protocol of San Salvador guar-antees the right to have access to basic public services, which may be inter-preted to include sanitation, and Article 39(2)(f) of the Arab Charter on Human Rights includes the provision of proper sanitation systems in the context of the right to the enjoyment of the highest attainable standard of health. Lastly, a number of States, including Bolivia164, Ecuador165, Kenya166,

159 Human Rights Council, Report of  the  independent expert, A/HRC/12/24, above n 145, para 7; WaterAid, Tackling the Silent Killer, The Case for Sanitation (London, WaterAid, 2008) 2. For a brief analysis of the factors contributing to the low priority afforded to sanitation, see United Nations Development Programme, above n 7, 118 et seq.

160 Ibid, 12 et seq.161 General Assembly, International Year of Sanitation, 2008, 6 February 2007, A/Res/61/192.162 Black and Fawcett, above n 133, 203.163 General Assembly, Follow-up  to  the  International  Year  of  Sanitation,  2008, 11 February

2011, A/Res/65/153.164 República de Bolivia, Constitución Política del Estado, aprobado en Referendum de 25

de enero de 2009, Art 20, available at <www.bolivia.de/es/noticias_imagenes/constitucion.pdf> (accessed 1 October 2011).

165 República de Ecuador, Constitución, 2008, Art 66(2), available at <www.asambleanacional. gov.ec/documentos/Constitucion-2008.pdf> (accessed 1 October 2011).

166 Republic of Kenya, Constitution, 2010, Art 43(1)(b), available at <www.parliament.go.ke/index.php?option=com_content&view=article&id=83&Itemid=79> (accessed 1 October 2011).

174 Human Rights Implications for Water Allocation

the Maldives167 and Uruguay168, recognise the right to sanitation in their Constitutions.

In recent years, a series of developments on the right to sanitation has taken place over a relatively short period of time in the realm of the United Nations. In its General Comment No 15 on the right to water, the CESCR also touches on the issue of sanitation. It includes personal sanitation as well as personal and household hygiene in the personal and domestic uses covered by the right to water169. It further notes that

[e]nsuring that everyone has access to adequate sanitation is not only funda-mental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources. . . . States parties have an obligation to progressively extend safe sanitation services, par-ticularly to rural and deprived urban areas, taking into account the needs of women and children.170

In 2006, the Sub-Commission on the Promotion and Protection of Human Rights adopted Guidelines on the realisation of the right to drinking water and sanitation171. These state that ‘[e]veryone has the right to have access to adequate and safe sanitation that is conducive to the protection of pub-lic health and the environment’172. Further, the 2007 Report of the UN High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drink-ing water and sanitation under international human rights instruments concluded ‘that it is now time to consider access to . . . sanitation as a human right’173.

The Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation (formerly Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation) decided to focus the first year of her mandate on sanitation from a human rights perspective174. She analysed the linkages between sanitation and other human rights, including the rights to an adequate standard of living, housing, health, education, water, work, life and physical security, as well

167 Republic of Maldives, Constitution, 2008, Art 23(f), available at <www.maldivesinfo.gov.mv/home/upload/downloads/Compilation.pdf> (accessed 1 October 2011).

168 Republíca de Uruguay, Constitución, 1967, last amended 31 October 2004, Art 47, avail-able at <sip.parlamento.gub.uy/constituciones/const004.htm> (accessed 1 October 2011).

169 CESCR, General Comment No 15, above n 33, para 12(a).170 Ibid, para 29 (footnotes omitted).171 Sub-Commission on the Promotion and Protection of Human Rights, Promotion 

of  the  realization  of  the  right  to  drinking  water  and  sanitation, 24 August 2006, A/HRC/Sub.2/ Res/2006/10.

172 Sub-Commission on the Promotion and Protection of Human Rights, Realization of the right  to  drinking water  and  sanitation, Report  of  the  Special Rapporteur,  El Hadji Guissé, Draft Guidelines  for  the  Realization  of  the  Right  to  Drinking  Water  and  Sanitation, 11 July 2005, E/CN.4/Sub.2/2005/25, para 1.2.

173 Human Rights Council, Report of the High Commissioner, above n 36, para 66.174 Human Rights Council, Report of the independent expert, A/HRC/12/24, above n 145.

Different Water Uses and Their Link to Human Rights 175

as the prohibition of inhuman or degrading treatment, equality of men and women and the prohibition of discrimination. While not yet stating explic-itly that sanitation as a distinct human right is part of international law, the Special Rapporteur encouraged the recognition of the right. She noted that there was

an ongoing discussion about sanitation as a distinct right. She sees that there is momentum behind this issue, and recent developments in human rights law concerning sanitation suggest a trend towards recognition of such a distinct right. Convinced that there are unique aspects to sanitation that evoke the inherent dignity of all human beings and which make it impossible to address satisfactorily through other human rights, [she] supports and encourages developments in line with this trend175.

In later statements and reports she clearly expressed her view that the right to sanitation exists under international law176.

While General  Comment No  15 addressed the issue of sanitation only marginally, the CESCR adopted a statement explicitly focusing on sanita-tion and recognising it as a human right in November 2010177. Finally, and most significantly, the resolutions adopted by the General Assembly and the Human Rights Council in 2010 recognised not only the right to water178, but also the right to sanitation. As outlined in the context of the right to water179, the General Assembly does not declare a ‘new’ right but recognises sanitation as a pre-existing human right. The resolution by the Human Rights Council affirms this view and derives the right from the right to an adequate standard of living. Hence, it puts it in the framework of legally-binding human rights instruments that entail this human right, including Article 11(1) of the Social Covenant, Article 14(2)(h) CEDAW (that even mentions sanitation explicitly as a component), Article 27 CRC and Article 28(1) CRPD. As explained in the context of human right to water180, Article 11(1) of the Social Covenant uses an open formulation for the right to an adequate standard of living, listing a few components of the right but not defining it conclusively. Food, clothing and housing are essential for an adequate standard of living, but by themselves are not sufficient. Article 11(1) ICESCR and other similar provisions hence leave room for other unnamed components.

175 Ibid, para 59, see also para 81.176 See eg UN Independent Expert on human rights obligations related to access to safe

drinking water and sanitation, Catarina de Albuquerque, ‘UN united to make the right to water and sanitation legally binding’, available at <www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10403&LangID=E> (accessed 1 October 2011).

177 Committee on Economic, Social and Cultural Rights, Statement on the Right to Sanitation, 19 November, E/C.12/2010/1, para 7.

178 General Assembly, The human right to water and sanitation, 3 August 2010, A/Res/64/ 292, para 1; Human Rights Council, Human  rights  and  access  to  safe  drinking water  and  sanitation, 6 October 2010, A/HRC/RES/15/9, para 3.

179 Ch 3, section II.C.ii. 180 Ch 3, section I.A.ii.1.

176 Human Rights Implications for Water Allocation

Given the close nexus between sanitation, ill-health, poverty and inse-curity, an adequate standard of living cannot be realised without sanita-tion. Sanitation is as important for an adequate standard of living as food, clothing, housing and water181. One cannot speak of an adequate standard of living when people practise open defecation, or when they get sick due to a lack of hygiene and contact with human excreta.

This view is shared by the CESCR. In its General Comment No 19 on the right to social security, the Committee included sanitation in a listing alongside other elements of an adequate standard of living182. Similarly, in its Concluding Observations on State reports, the Committee has repeat-edly addressed sanitation under the right to an adequate standard of liv-ing183. In its statement on the right to sanitation, the CESCR explicitly reaffirmed that sanitation is an essential component of the right to an adequate standard of living184. Similarly, the Committee on the Rights of the Child has interpreted Article 27(1) CRC on the right to an adequate standard of living to encompass sanitation185. The interpretation of sanita-tion as a component of the right to an adequate standard of living is fur-ther underlined by the explicit inclusion in Article 14(2)(h) CEDAW, and the Cairo Programme of Action186 as well as the Istanbul Habitat Agenda187 mention sanitation as a component of this right. All in all, this reasoning and these provisions demonstrate that sanitation is understood as a com-ponent of the right to an adequate standard of living.

Further, the notion of human dignity may be drawn upon for the inter-pretation of human rights and to determine what additional elements are necessary for an adequate standard of living188. Human dignity permeates all human rights instruments189. For instance, the Preamble to the Social Covenant acknowledges that all human rights derive from the inherent

181 C de Albuquerque, ‘The Human Right to Sanitation – Essential for Survival, Health and a Life in Dignity’ (2010) 19 Human Rights Defender 3, 4.

182 Committee on Economic, Social and Cultural Rights, General Comment No 19, The right to social security (art 9), 4 February 2008, E/C.12/GC/19, para 18.

183 Human Rights Council, Report of  the  independent expert, A/HRC/12/24, above n 145, para 16.

184 CESCR, Statement on the Right to Sanitation, above n 177, para 7.185 See the references in ch 3, n 43.186 United Nations, Report  of  the  International  Conference  on  Population  and  Development, 

Cairo,  5–13  September  1994, A/Conf.171/13/Rev.1, Annex, ‘Cairo Programme of Action’, Principle 2.

187 United Nations, Report of the United Nations Conference on Human Settlements (Habitat II), Istanbul, 3–14 June 1996, A/Conf.165/14, Annex II, ‘Habitat Agenda’, para 11.

188 See generally on using the concept of dignity for the interpretation of human rights, S Liebenberg, ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 South  African  Journal  on  Human  Rights 1; C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655, in par-ticular 681, 721 et seq; also PG Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’ (2008) 19 European Journal of International Law 931.

189 For an overview of human dignity in national, international and regional human rights instruments see McCrudden, above n 188, 664 et seq.

Different Water Uses and Their Link to Human Rights 177

dignity of the human person. Despite this centrality, there is no commonly-agreed definition in international human rights law of what constitutes human dignity. In this regard, Schachter stated ‘I know it when I see it even if I cannot tell you what it is,’ explaining that the comprehension of dignity is largely left to an intuitive understanding and to a great extent based on the cultural context190. This leaves the concept difficult to grasp and define, but still allows for the recognition of instances where human dignity has been compromised. Schachter argues that such instances include ‘[d]egrad-ing living conditions and deprivation of basic needs’191. Moreover, a particu-larly close connection between human dignity and certain human rights can be established192. Among other areas, a pronounced link between pri-vacy and dignity has often been acknowledged193 in the sense that losing one’s privacy may compromise one’s human dignity194.

In many cultures, the act of defecating is considered a highly intimate act that requires privacy in order to be protected195. Dignity is not guaran-teed in the lives of people who have no choice but to use a plastic bag or a bucket, who have to use latrines that do not guarantee privacy, or who do not have any privacy at all, trying to hide behind bushes or in ditches. Cultural norms often require women, in particular, to maintain privacy when defecating, forcing them to defecate only before dawn or after dark in case they lack adequate access196. Such behaviour can lead to serious health consequences such as liver infection and constipation, and height-ens the risk of being attacked by animals or being assaulted or raped. Hence, not having access to sanitation is ‘a daily source of indignity as well as a threat to well-being’197. Apart from considerations linked to pri-vacy in general, the link between dignity and sanitation has been made explicit in the context of prison conditions198. Similarly, in Municipal Council Ratlam v Shri Vardhichand and Others, the Indian Supreme Court described the indignity caused by the failure of the municipality to pro-vide sanitation facilities, driving ‘the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under

190 O Schachter, ‘Human Dignity as a Normative Concept’ (1983) 77 American  Journal of International Law 848, 849.

191 Ibid, 852.192 D Feldman, ‘Human Dignity as a Legal Value – Part 1’ (1999) Public Law 682, 690.193 Ibid, 694 et seq; H Bielefeldt, Menschenwürde,  Der  Grund  der Menschenrechte (Berlin,

Deutsches Institut für Menschenrechte, 2008) 25.194 P Lee and RP George, ‘The Nature and Basis of Human Dignity’ (2008) 21 Ratio Juris

173, 174.195 Ibid.196 Black and Fawcett, above n 133, 9, 5.197 United Nations Development Programme, above n 7, 111.198 See J Bates, ‘Human Dignity – An Empty Phrase in Search of Meaning?’ (2005) 10

Judicial Review 165, 166; JA Frowein, ‘Human Dignity in International Law’ in D Kretzmer and E Klein (eds), The  Concept  of Human Dignity  in Human Rights Discourse (The Hague, Kluwer Law International, 2002) 121, 128.

178 Human Rights Implications for Water Allocation

Nature’s pressure, bashfulness becomes a luxury and dignity a difficult art’199.

Inadequate access to sanitation may be summed up as a ‘source of shame, physical discomfort, and insecurity’200 – in other words, indignity. In her report on sanitation, the Special Rapporteur comes to the conclusion that the ‘lack of access to sanitation . . . is an affront to the intrinsic worth of the human being and should not be tolerated in any society’201. This inextrica-ble link to human dignity further emphasises the understanding of sanita-tion as a component of the right to an adequate standard of living.

As such a component, sanitation is to be understood as a distinct human right, just like the rights to food or housing202. It has to be acknowledged that the resolutions adopted by the General Assembly and the Human Rights Council both speak of ‘the right to water and sanitation’ in the sin-gular, hence perceiving water and sanitation as one combined human right that covers both elements. However, even though it seems unlikely that a right to sanitation would have been recognised without also recog-nising the right to water, and water and sanitation are closely linked, this does not imply that both elements have to be combined in one human right. For the reasons outlined above203, it seem preferable not to see water for sanitation covered by the human right to water, but rather to consider sanitation a distinct right. Only by understanding sanitation as a distinct right – also distinct from the right to water – can its own specific charac-teristics be captured204, the specific challenges in implementation be addressed and the much-needed attention that has thus far been lacking be devoted to the issue of sanitation. In this regard, the recognition of sanitation as a distinct right might help to overcome the powerful taboo that surrounds it.

In her report on sanitation, the Special Rapporteur offered a definition of sanitation in human rights terms: ‘[A] system for the collection, trans-port, treatment and disposal or reuse of human excreta and associated hygiene’205. Hence, adequate sanitation is more than just access to toilets or latrines; it requires the safe disposal of human excreta in a way that avoids direct contact in order to minimise health risks. The report stressed that ‘States must ensure without discrimination that everyone has

199 Supreme Court of India, Municipal  Council, Ratlam  v  Shri  Vardhichand  and  Others, 29 July 1980, (1981) 1 Supreme Court Reports 97.

200 United Nations Development Programme, above n 7, 48.201 Human Rights Council, Report of  the  independent expert, A/HRC/12/24, above n 145,

para 57.202 Apart from being a distinct human right, there are, of course, close linkages between

sanitation and other human rights, underlining the indivisibility of human rights. For a detailed analysis of these linkages to other human rights, see ibid.

203 See ch 4, section III.A.i.1. 204 De Albuquerque, above n 181, 4.205 Human Rights Council, Report of  the  independent expert, A/HRC/12/24, above n 145,

para 63 (footnotes omitted).

Different Water Uses and Their Link to Human Rights 179

physical and economic access to sanitation, in all spheres of life, which is safe, hygienic, secure, socially and culturally acceptable, provides privacy and ensures dignity’206. This definition has, inter alia, been taken up by the CESCR in its statement on the right to sanitation207.

ii.  Relevance at different levels

The right to sanitation becomes relevant at all levels of the framework. Basic access to sanitation is necessary to avoid sanitation-related diseases and hence to ensure survival, and the right to sanitation remains relevant at the core level and at the level of full realisation of human rights. The progressive realisation of the right to sanitation moving from the survival to the core and to the level of full realisation of the right to sanitation is often illustrated by the concept of a sanitation ladder208. Such a ladder of progressively better levels of service could, for instance, span the range from very basic pit latrines to improved pit latrines, pour-flush facilities with septic tanks to conventional sewers209. However, significantly, it is not the type of technology that determines the level of service, but rather the question whether – regardless of the technology chosen – health, secur ity, privacy and dignity are ensured effectively. Water toilets and conventional sewers are not the only type of technology that allows for the full realisation of the right to sanitation. On-site sanitation solutions may also be adequate and even more appropriate, depending on the cir-cumstances. Accordingly, it cannot generally be stated that higher levels of service necessarily require larger amounts of water.

iii.  Considerations in the balancing process

As just explained, water-borne sanitation and sewerage systems are just one option for the realisation of the right to sanitation, with various alterna-tives for on-site sanitation210. Facilities connected to septic tanks and sim-pler versions of pour-flush toilets usually require smaller amounts of water than conventional water toilets connected to sewerage systems. Other forms of sanitation are completely ‘dry’. Most latrines, whether of the very basic or the ventilated and improved kind, do not require water for flush-ing. Likewise, different kinds of ecological sanitation or composting toilets do not require water but instead rely on lime or ash to reduce smells, and

206 Ibid. These criteria are further explained in paras 69 et seq of the report.207 CESCR, Statement on the Right to Sanitation, above n 177, para 8.208 COHRE, WaterAid, SDC and UN-Habitat, above n 144, 22.209 United Nations Development Programme, above n 7, 113.210 For an overview of different sanitation options, see E Tilley, C Lüthi, A Morel, C Zurbrügg

and R Schertenleib, Compendium  of  Sanitation  Systems  and  Technologies (Dübendorf, Swiss Federal Institute of Aquatic Science and Technology, 2008).

180 Human Rights Implications for Water Allocation

often involve urine-diversion to keep it separate from faeces, which further reduces the smell211.

In fact, most of the increase in access to sanitation over the last decade has been based on on-site solutions212. However, water-borne sanitation and sewerage systems are very common in developed countries as well as in formal urban areas. Once the respective infrastructure has been con-structed, it is very expensive and difficult to replace with other systems. Moreover, there is much greater cultural acceptance for water-borne systems in many parts of the world, and consumer preferences tend toward this type of sanitation since it is regarded as more convenient and aesthetic213. Nevertheless, ‘dry’ systems should be considered, in particu-lar when water availability is low. Not only do flush toilets and sewage networks require a lot of water, but in addition they result in large amounts of water being polluted with pathogens contained in faeces that subsequently require treatment214.

Where water-borne sanitation systems are in place, direct access to water is required. However, lastly, it should be considered that even where sanitation is water-borne, technical devices within the system can offer water-saving measures. The existence of alternatives for its realisa-tion as well as the potential for water saving distinguish the right to sani-tation from the right to water.

E. Water for Power Generation

There is a mutual link between water and energy. On the one hand, energy is used to maintain water services, for example for running pumps215. On the other hand, water is used to produce energy in hydropower genera-tion as well as in cooling power stations, in particular coal and nuclear stations216. While these water uses are non-consumptive, they cause modi-fications of the aquatic environment217 and require water to be in a certain place at a certain time, and thus have an impact on water allocation. The

211 On ecological sanitation, see Black and Fawcett, above n 133, 121 et seq, in particular 125. Ecological sanitation does not consider urine and faeces as waste but promotes their utilisation as fertiliser, see MW Jenkins and S Sugden, Rethinking  Sanitation:  Lessons  and Innovation for Sustainability and Success in the New Millennium, Occasional Paper (New York, UNDP Human Development Report Office, 2006) 20. Advocating for ecological sanitation, see eg S Narain, ‘The Flush Toilet Is Ecologically Mindless’ (2002) 10/19 Down to Earth (28 February 2002); Langengraber and Muellegger, above n 151.

212 Jenkins and Sugden, above n 211, 9.213 Black and Fawcett, above n 133, 124, 132.214 Ibid, 124.215 World Water Assessment Programme, above n 80, 307; on these linkages see ibid, 308 et

seq; S Tully, ‘Access to Electricity as a Human Right’ (2006) 24 Netherlands Quarterly of Human Rights 557, 563.

216 World Water Assessment Programme, above n 80, 307; Young et al, above n 10, 12.217 World Water Assessment Programme, above n 80, 307; Young et al, above n 10, 12.

Different Water Uses and Their Link to Human Rights 181

electricity produced is used for many different purposes. At global level, 29 per cent of energy is used in households, while manufacturing, trans-port and services account for the greatest part of the remaining energy use218. Within households energy is, for example, used for heating, light-ing, cooking, refrigerating and running other appliances.

i.  Access to energy services as part of the right to an adequate standard of living?

Access to electricity or – more broadly – energy for household uses has only recently been discussed from a human rights perspective219. Energy is an important factor in improving living conditions, so there is a close link to the right to an adequate standard of living as provided for in Article 11(1) of the Social Covenant220. This provision may therefore be used as a starting point to consider access to energy as a human right221.

At the household level, some of the main uses of energy are for heating, lighting and cooking. These uses may be linked to the right to housing – which is a component of the right to an adequate standard of living in Article 11(1) of the Social Covenant – as interpreted by the CESCR. The Committee states in its General Comment No  4 on the right to adequate housing that the right should not be interpreted too narrowly, for example by equating it with ‘merely having a roof over one’s head’222. Rather, the right guarantees a place to live in security, peace and dignity. This includes the availability of essential services, including energy for cooking, heating and lighting223. According to this interpretation, energy for these purposes is guaranteed under the right to housing. Energy that is used for cooking and refrigerating also shows a close link to the right to food, which is also a component of the right to an adequate standard of living. In particular, cooking is an essential part of food preparation and is often required to make food fit for human consumption224. Moreover, access to safe energy

218 International Energy Agency, Worldwide Trends in Energy Use and Efficiency, Key Insights from  IEA  Indicator  Analysis (Paris, Organisation for Economic Co-Operation and Development, 2008) 17. In non-OECD countries, the share of household energy use is higher (36%) than in the global aggregate, see ibid, 18.

219 AJ Bradbrook and JG Gardam, ‘Placing Access to Energy Services within a Human Rights Framework’ (2006) 28 Human Rights Quarterly 389; Engbruch, above n 82, 240 et seq; Tully, above n 215.

220 Engbruch, above n 82, 245; M Langford, ‘Expectation of Plenty: Response to Stephen Tully’ (2006) 24 Netherlands  Quarterly  of  Human  Rights 473, 474. For a compilation of Concluding Observations by the CESCR and CEDAW Committee, as well as reports of Special Rapporteurs in which electricity has become relevant, see Tully, above n 215.

221 Bradbrook and Gardam, above n 219, 405.222 Committee on Economic, Social and Cultural Rights, General Comment No 4, The right to 

adequate  housing  (Art  11(1)  of  the  Covenant), 13 December 1991, contained in E/1992/23, Annex III, para 7; see also Tully, above n 215, 563.

223 CESCR, General Comment No 4, above n 222, para 8(b); see also Engbruch, above n 82, 250.

224 Engbruch, above n 82, 250 et seq.

182 Human Rights Implications for Water Allocation

shows a close link to the right to health, for instance being required for running medical appliances, and to the right to education, as lighting allows one, for instance, to study in the evening225.

Apart from these linkages to other human rights, the question arises whether access to energy also constitutes a distinct human right. As already outlined in the context of the legal foundations of the right to water226, the enumeration in Article 11(1) ICESCR is not exhaustive and may include other elements that are necessary to realise an adequate standard of living. It may be argued that access to energy services, in par-ticular for cooking, heating and lighting, is necessary for that purpose. Engbruch concludes that access to energy is a constituting element of an adequate standard of living227. The right to an adequate standard of living allows for the interpretation to include access to energy228. This argument is supported by a provision in CEDAW. While Article 11 of the Social Covenant does not refer to electricity or energy services, Article 14(2)(h) CEDAW does mention electricity as part of the right to enjoy adequate living conditions in the context of rural development229. As for water, this provision may be seen as an indication that access to energy is part of the right to an adequate standard of living. In the African context, Article 15 of the Protocol to the Banjul Charter on the Rights of Women in Africa obliges States Parties inter alia to provide women with ‘sources of domes-tic fuel’. Moreover, the Protocol of San Salvador includes in Article 11, mentioned above230, a guarantee of access to basic public services. Apart from access to water services, such services are usually understood to include energy. Accordingly, access to energy is guaranteed as a human right at regional level.

However, at global level, it remains unclear whether access to energy can be considered a distinct component of the right to an adequate stand-ard of living231. In contrast to the right to water and the right to sanitation, there seems to be hardly any discussion or academic debate on the issue of access to energy as a human right in international human rights fora232. Hence, apart from the CEDAW provision, there are no further indications

225 Ibid, 251; Tully, above n 215, 575.226 See ch 3, section I.A.ii.1. 227 Engbruch, above n 82, 252.228 Ibid, 253. A first attempt to define the content of a right to energy services was under-

taken by Bradbrook and Gardam. They stated that it entails access ‘to a sufficient, regular, reliable, efficient, safe, and affordable supply of (ideally clean and sustainable) energy’, see Bradbrook and Gardam, above n 219, 409. Engbruch uses the approach developed by the CESCR for other rights, stating that energy services (as other components of the right to an adequate standard of living) have to be available, physically accessible, affordable and of a safe quality, see Engbruch, above n 82, 258 et seq.

229 On the drafting process see Tully, above n 215, 558 et seq.230 See above ch 3, section I.C.ii.3. 231 Tully argues that access to electricity should be formally recognised as an independent

human right, Tully, above n 215, 574.232 But cf the references given above n 219.

Different Water Uses and Their Link to Human Rights 183

that could underline its status as a distinct human right guaranteed as an implicit component of Article 11(1) ICESCR. It is thus too early to con-clude that the right to access to energy is a recognised component of the right to an adequate standard of living.

Yet, as has been stated above, access to energy is required for the reali-sation of other human rights, including the right to housing and the right to food. Accordingly, human rights obligations related to access to energy services exist, regardless of whether the right to energy services is a dis-tinct human right. These human rights obligations relating to access to energy will have to be considered in the balancing process as far as they relate to the generation of hydropower and other uses of water in energy production.

Apart from the direct linkage between water used for power generation and human rights obligations related to access to energy considered under the right to an adequate standard of living, there are a number of indirect linkages. Water is used to produce energy, and energy in turn is used for many different purposes. Energy used in hospitals, work places, schools and other educational institutions, as well as in food production, relates to the rights to health, work, education and food, respectively233. In fact, the uses of energy are as manifold as those of water.

ii.  Relevance at different levels

Again, it seems difficult to define the core human rights obligations that relate to access to energy. A first attempt has been made by Engbruch. She points out that States have to ensure that everyone has access to minimum energy services, in particular for heating and lighting such as is required to live in dignity234. Depending on the climatic conditions, access to energy for heating is required even for survival. More far-reaching obligations related to access to energy exist at the level of the full realisation of human rights.

Overall, the amount of energy necessary to satisfy basic energy needs is very small235. It has been estimated to be in the range of a power equivalent of about 100 watts of electricity per person236. This would be sufficient for cooking, lighting, and powering fans and a small refrigerator237. Accordingly, even when reaching beyond these basic energy requirements, only a small share of total energy use – and even of the energy consumption in house-holds – is linked to human rights obligations related to access to energy.

233 Tully, above n 215, 573.234 Engbruch, above n 82, 260.235 Bradbrook and Gardam, above n 219, 391.236 Ibid.237 Ibid, 391, fn 9.

184 Human Rights Implications for Water Allocation

iii.  Considerations in the balancing process

A number of considerations become relevant in the balancing process regarding water for energy. First, it has to be kept in mind that the amount of energy used in households makes up only a small part of total energy use, and only a part of that use relates to human rights.

Secondly, it is essential to take into account that not all ways of produc-ing energy depend on access to water. Hydropower is only one way of generating energy. And not all the alternatives for producing energy rely on water for cooling or other purposes. While the percentage of hydro-power in total energy generation was 2.2 per cent in 2002, its share in electricity generation more specifically amounted to 19 per cent in 2001 at a global level238. Of course, there are great variations from country to country. Some do not use hydropower at all, while more than 20 countries generate more than 90 per cent of their electricity through hydropower239. Within households sources of energy other than electricity are commonly used, in particular for heating. To realise their human rights obligations related to access to energy, States are not constrained to make use of a specific type of energy240.

Thirdly, even when States rely on hydropower or water for cooling in power stations, energy may be produced where water availability is high and then be fed into the electricity network, ie water used in the produc-tion of energy does not have to be directly accessible to the energy user. In fact, hydropower generation is usually not an option that is considered in a situation of water scarcity.

To sum up, there exist other ways to produce electricity and energy for heating that do not rely on water, ie water used in power generation may be substituted. When water is used for such purposes, this may be done in regions with high water availability. The overall reliance on water for the realisation of human rights obligations related to access to energy is there-fore rather low compared to other water uses and their links to human rights.

F. Water as a Means of Personal Transportation

Water is used not only as a means of transport for goods (thus relating to the productive uses of water considered next), but also for personal trans-portation. There is no explicit right to transportation, but it could be con-sidered as a further component of the right to an adequate standard of

238 World Water Assessment Programme, above n 80, 313, 316.239 Ibid, 316.240 Engbruch, above n 82, 260.

Different Water Uses and Their Link to Human Rights 185

living guaranteed in the Social Covenant241. Article 14(h) CEDAW might be viewed as an indication of that, as it mentions transportation in the context of adequate living conditions. However, lacking other indications, the status of transportation as a human right is questionable.

Moreover, ships and boats (ie water-based transportations) play only a minor role compared to other means of personal transport such as trains, cars and buses. Whenever personal transportation on waterways is used, water availability is usually very high and transportation is a non- consumptive use, so that its implications for water allocation are very lim-ited. Water for personal transportation will therefore not be considered any further.

G. Productive Uses of Water

Water is used in myriad ways for productive activities. On a small scale, many livelihood activities, which allow people to generate income and as such help to alleviate poverty, require access to water, for example small-scale manufacturing such as brick-making and pottery242 or micro enter-prises such as laundry services. Access to water resources is also critical on a larger scale. Many productive and industrial activities are impossible without access to water. This applies not only when water is used as a direct input, eg in the production of beverages, but also when water serves, say, as a coolant or as a cleaning agent. Water is also an important means of transportation for goods, another non-consumptive use.

i.  Link to the human right to work

Many productive uses of water may be linked to the right to work. Article 6(1) of the Social Covenant guarantees ‘the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’243. Other relevant guarantees may be found

241 In the drafting process of the Social Covenant, it was briefly considered to include a right to transport (based on a proposal by China), but this proposal was rejected: see Langford, above n 79, 441; MCR Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on Its Development (Oxford, Oxford University Press, 1995) 291.

242 Poverty-Environment Partnership, above n 65, 31.243 On this unclear formulation that reflects the compromise found in the drafting process

between completely diverging positions, see EH Riedel, Theorie der Menschenrechtsstandards, Funktion, Wirkungsweise und Begründung wirtschaftlicher und sozialer Menschenrechte mit exem-plarischer  Darstellung  der  Rechte  auf  Eigentum  und  Arbeit  in  verschiedenen  Rechtsordnungen (Berlin, Duncker & Humblot, 1986) 47; also K Drzewicki, ‘The Right to Work and Rights in Work’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 223, 236; RL Siegel, ‘The Right to Work: Core Minimum Obligations’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 21, 23.

186 Human Rights Implications for Water Allocation

in Article 11(1)(a) CEDAW, Article 5(e)(i) ICERD, Article 27(1) CRPD and in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families244. Moreover, Article 32 CRC on the protection of children in the context of employment is also relevant. At the regional level, Article 1 of the Revised ESC, Article 15 of the Banjul Charter and Article 6 of the Protocol of San Salvador include relevant guarantees.

The link between productive water uses and the right to work is most obvious on a small scale, as many of the livelihood activities mentioned above cannot be carried out without access to water245. But in many cases also water used for industrial purposes is indirectly important for the realisation of the right to work246, as water is one productive factor in industrial activities that are prerequisite for many people’s work. The employment of people who work in these industries also depends on access to water. For many people, work provides the primary source of income, thus being the means to ensure their survival and an adequate standard of living247. Furthermore, water used in agriculture relates not only to the right to food, as examined above, but also to the farmers’ right to work.

ii.  Relevance at different levels

The right to work and water for productive uses come into play at the level of full realisation of human rights. Facilitating access to productive resources such as water is one step in policies aiming at full employment in the progressive realisation of the right to work. The right to work (and rights in work) is a very complex topic, which exacerbates any attempt to define its core content. The CESCR has established a number of core obli-gations in its General Comment No 18, but does not clearly define the mini-mum essential level of the right to work248. However, even without clearly determining its core content, it can be established that water is not such an essential input for the realisation of the right to work that it would relate to the core content of the right. Many activities that would allow individu-als to realise the right to work may be carried out without access to water

244 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, entered into force 1 July 2003, 45 State Parties (as of 3 October 2011), see General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, A/Res/45/158.

245 COHRE, AAAS, SDC and UN-Habitat, above n 1, 12.246 See ibid, 81; Engbruch, above n 82, 191 et seq.247 Craven, above n 241, 194.248 Committee on Economic, Social and Cultural Rights, General Comment No 18, The Right 

to Work (Art 6), 6 February 2006, E/C.12/GC/18, para 31. Siegel also undertakes to define core obligations, see Siegel, above n 243, 32 et seq.

Different Water Uses and Their Link to Human Rights 187

for productive uses. Hence, water is not so central to the realisation of the right to work that the right would lose its raison d’être if access to water were not ensured.

iii.  Considerations in the balancing process

As with all human rights, States also bear obligations with regard to the realisation of the right to work. They are obliged to realise the right to work progressively. Measures with the aim of achieving full employment have to be adopted as quickly as possible249. Nonetheless, States enjoy a broad margin of discretion250. According to Article 6(2) ICESCR, the steps to be taken by States to realise the right to work ‘shall include . . . policies and techniques to achieve steady economic, social and cultural develop-ment and full and productive employment’. Thus, States may take differ-ent measures towards the realisation of the right to work, including measures to stimulate economic growth and development,251 and meas-ures to develop employment opportunities252. This may be understood to include facilitating access to productive resources such as water.

However, this does not entail a right of individuals to be provided with access to water for productive uses. The right to work does not imply ‘an absolute and unconditional right to obtain employment’253. It is commonly agreed that States have no obligation to provide everyone with work254. And while work may be freely chosen or accepted according to Article 6(1) ICESCR255, the right to specific employment is not guaranteed. Rather, the right to work must be understood as a right of access to employment, with accessibility meaning that the labour market must be open to every-one256. Accordingly, States have no specific obligation to provide access to water to every individual who would depend on such access for income-generating activities. Rather, States have broad leeway on how to realise the right to work. Similar to water for subsistence farming, facilitating access to water can be a useful measure for developing employment opportunities, particularly in the context of livelihood activities, but States are not confined to it from a human rights perspective.

Moreover, modern production techniques open up an enormous potential for water saving. This is underlined by the fact that water use in the indus-trial sector has levelled off or even declined in many developed countries.

249 CESCR, General Comment No 18, above n 248, para 19.250 Ibid, para 37; Riedel, above n 243, 50; see also Siegel, above n 243, 46.251 CESCR, General Comment No 18, above n 248, para 26; Siegel, above n 243, 46.252 Craven, above n 241, 197; Siegel, above n 243, 34.253 CESCR, General Comment No 18, above n 248, para 6.254 Craven, above n 241, 203 et seq; Riedel, above n 243, 47; Drzewicki, above n 243, 235 et

seq.255 See in this regard Drzewicki, above n 243, 233.256 CESCR, General Comment No 18, above n 248, para 12(b).

188 Human Rights Implications for Water Allocation

H. Water for Cultural and Religious Practices

Water is required for certain cultural practices and plays a central role in many religions and beliefs257. Different ways of relating to water may be distinguished. Some practices actually rely on the provision of water, such as water required for baptism258 or the Japanese tea ceremony259. The Thingyan Water Festival celebrated in Myanmar in April, when people throw water at each other to wash away their sins symbolically, is another example260. In relation to total water use, such practices require only mar-ginal quantities that have hardly any impact on resource allocation. Other practices relate to a certain perception of water261, for example the Ganges as Holy River262. This may be related to the conservation and protection of water but does not require specific amounts of water to be allocated. Other practices again relate to the overall way of life that depends on water, as well as approaches to water management, protection and con-servation. While cultural rights protecting a particular way of life may also be relevant to other people relying on subsistence farming, this aspect is particularly important for indigenous peoples and will be considered in the section entitled ‘Indigenous Water Uses’, below263.

i.  Link to the human right to take part in cultural life and the freedom of religion

Provisions of both the Social Covenant and the Civil Covenant contain relevant guarantees in the context of cultural and religious practices. Article 15 of the Social Covenant guarantees the right to take part in cul-tural life264, while Article 18 of the Civil Covenant provides for the free-dom of religion, including the freedom to manifest one’s religion in

257 United Nations Educational, Scientific and Cultural Organization, Water and Culture, Infosheet for the World Water Day (Paris, United Nations Educational, Scientific and Cultural Organization, 2006) 2.

258 F Kürschner-Pelkmann, Das  Wasser-Buch,  Kultur,  Religion,  Gesellschaft,  Wirtschaft (Frankfurt am Main, Lembeck, 2005) 97 et seq.

259 UNESCO, above n 257, 3.260 Ibid; see also Kürschner-Pelkmann, above n 258, 72 et seq.261 UNESCO, above n 257, 2.262 Kürschner-Pelkmann, above n 258, 152 et seq, see also 201 et seq on Hinduism.263 See, on ‘culture as way of life’ and its relevance for indigenous peoples, R O’Keefe, ‘The

“Right to Take Part in Cultural Life” under Article 15 of the ICESCR’ (1998) 47 International and Comparative Law Quarterly 904, 916 et seq.

264 See Committee on Economic, Social and Cultural Rights, General Comment No 21, Right of everyone to take part in cultural life (art 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009, E/C.12/GC/21. For a recent detailed analysis, see also C Groni, Das Menschenrecht  auf  Teilhabe  am  kulturellen  Leben,  Inhalt,  Grenzen  und Justitiabilität von Art. 15(1) lit. A) des Internationalen Paktes über wirtschaftliche, soziale und kul-turelle Rechte (Stuttgart, Boorberg, 2008), including an English summary, 411 et seq; see also VT Thamilmaran, ‘Cultural Rights in International Law’ (2003) 14 Sri  Lanka  Journal  of International Law 101.

Different Water Uses and Their Link to Human Rights 189

worship or practice. This freedom of manifestation encompasses a broad range of different activities265, including such practices as rely on water. Moreover, Article 27 of the Civil Covenant contains a special safeguard for the right of minorities to enjoy their own culture and practise their own religion. Other relevant provisions are Article 13(c) CEDAW, Article 31 CRC and Article 5(e)(vi) ICERD, as well as Article 17(2) of the Banjul Charter, Article 14 of the Protocol of San Salvador and Articles 42(1) and 15 of the Arab Charter on Human Rights.

There is no generally accepted definition of ‘culture’, but there is agree-ment that culture in terms of Article 15 of the Social Covenant has to be understood in a broad sense266. The CESCR states that, in its view, ‘culture is a broad, inclusive concept encompassing all manifestations of human existence. The expression “cultural life” is an explicit reference to culture as a living process, historical, dynamic and evolving, with a past, a pre-sent and a future.’267 According to an anthropological concept of culture, culture may be manifested in many different forms, including a particular way of life268. The CESCR adds that culture encompasses inter alia ‘lan-guage, oral and written literature, music and song, non-verbal communi-cation, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environ-ments, food, clothing and shelter and the arts, customs and traditions’ as means of expression269. Accordingly, all the above-mentioned water uses relate to cultural rights.

ii.  Relevance at different levels

Water becomes relevant at the level of full realisation of cultural and reli-gious rights. Due to the broad understanding of cultural and religious rights and the diversity of activities covered by them, the core content is difficult to define. The CESCR has stipulated a number of core obligations

265 Human Rights Committee, General Comment No 22, The right to freedom of thought, con-science and religion (Art 18), 30 July 1993, CCPR/C/21/Rev.1/Add.4, para 4.

266 A Eide, ‘Cultural Rights as Individual Human Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 289, 290; Groni, above n 264, 167; SA Hansen, ‘The Right to Take Part in Cultural Life: Toward Defining Minimum Core Obligations Related to Article 15(1)(A) of the International Covenant on Economic, Social and Cultural Rights’ in AR Chapman and R Sage (eds), Core Obligations:  Building  a New  Framework  for  Economic,  Social  and  Cultural Rights (Antwerp, Intersentia, 2002) 279, 285; for an overview of the content of the right using three different concepts of culture as based on the practice of the CESCR, see O’Keefe, above n 263; also R Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 85, 87 et seq.

267 CESCR, General Comment No 21, above n 264, para 11.268 Ibid, para 13; Groni, above n 264, 167; Stavenhagen, above n 266, 89 et seq; Hansen,

above n 266, 285. On indigenous rights in that context, see section III. I below.269 CESCR, General Comment No 21, above n 264, para 13.

190 Human Rights Implications for Water Allocation

relating to the right to take part in cultural life270, but does not clearly define what the minimum essential level of this right would encompass. Yet even without a clear definition of the core content, it has to be kept in mind that many cultural and religious activities can still be carried out even when access to water is not guaranteed. These human rights guaran-tees do not lose their raison  d’être when access to water is not ensured. Therefore, water is generally not so essential to the realisation of cultural and religious rights that it would relate to their core content.

iii.  Considerations in the balancing process

In contrast to, for example, water for the production of food or clothing, direct access to water is required for cultural or religious practices. However, the overall quantities used for such activities are very low and are therefore of limited relevance in the allocation of water. When water is perceived as sacred, this relates to the conservation of water, but does not require any direct allocation either. Where water is needed to maintain a particular way of life, this requires direct access to water.

I. Indigenous Water Uses

The special relationship of indigenous peoples to water is explained in the Indigenous  Peoples’  Kyoto Water  Declaration adopted at the Third World Water Forum in 2003. Paragraph 3 reads:

Our relationship with our lands, territories and water is the fundamental physical cultural and spiritual basis for our existence. This relationship to our Mother Earth requires us to conserve our freshwaters and oceans for the survival of present and future generations. . . .271

Water has a cultural and spiritual significance for many indigenous peo-ples and is often used as the basis of subsistence, eg by fishing, at the same time. Water is inextricably tied to their distinctive way of life272. Due to

270 Ibid, para 55. Some other attempts have been made to establish core obligations relating to the right to take part in cultural life. While Hansen, above n 266, 299 et seq, lists rather far-reaching obligations, Groni, above n 264, 379 et seq, is more restrictive.

271 Indigenous  Peoples  Kyoto Water Declaration, Third World Water Forum, Kyoto, Japan, March 2003, available at <www.waterculture.org/uploads/IPKyotoWaterDeclarationFINAL.pdf> (accessed 1 October 2011).

272 L Barrera-Hernandez, ‘Indigenous Peoples, Human Rights and Natural Resource Development: Chile’s Mapuche Peoples and the Right to Water’ (2005) 11 Annual Survey of International  and Comparative  Law 1, 6; DH Getches, ‘Indigenous Peoples’ Rights to Water under International Norms’ (2005) 16 Colorado Journal of International Environmental Law and Policy 259, 271; E Brown Weiss, The Evolution of International Water Law, Recueil des Cours 2007-VI, Vol 331 (la Haye, Académie de Droit International de la Haye, 2007) 339; Engbruch, above n 82, 195; Groni, above n 264, 242; for a series of case studies, see R Boelens, M Chiba

Different Water Uses and Their Link to Human Rights 191

that close dependence, indigenous peoples claim the right to manage, use and control water resources on their territories without interference273. When authorisations for other water uses are granted, this may have the effect of rendering indigenous forms of water management impossible when water resources are appropriated, depleted or polluted by others274. Mining, logging, power generation and tourism can all have a negative impact on water resources.

i.  Link to indigenous rights

Of course, indigenous individuals have the same human rights as all other individuals. However, in combination with these universal human rights, specifically recognised indigenous rights that address the particu-lar ways of living of indigenous peoples275 also have to be considered276. Therefore, this section addresses indigenous water uses and their link to human and indigenous rights separately. In order to examine to what extent indigenous water uses are guaranteed, it seems useful to distin-guish between water for specific cultural and spiritual practices, water for subsistence activities, and the overall management and control of water resources. In regard to specific cultural activities, reference should be made to the preceding section. Such activities require marginal quantities and are therefore of limited relevance for water allocation purposes.

In principle, reference should also be made to section III.B. above on the human right to food, as indigenous individuals, of course, enjoy the human right to food as do all other individuals. However, in regard to subsistence activities – which relate to the right to food – the particular ways of living of many indigenous peoples have to be taken into account. Subsistence activities relate not only to the human right to food, but also to cultural rights and specific indigenous rights277. The ILO Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries278 contains relevant guarantees in that regard. It entered into

and D Nakashima (eds), Water and Indigenous Peoples, Knowledges of Nature 2 (Paris, United Nations Educational, Scientific and Cultural Organization, 2006).

273 Indigenous Peoples Kyoto Water Declaration, above n 271, para 11.274 COHRE, AAAS, SDC and UN-Habitat, above n 1, 63; Getches, above n 272, 260;

K Bourquain, Freshwater Access from a Human Rights Perspective, A Challenge to International Water Law and Human Rights Law (Leiden, Martinus Nijhoff, 2008) 163 et seq.

275 For a discussion of the definition of the term ‘indigenous peoples’, see A Eide, ‘Rights of Indigenous Peoples – Achievements in International Law during the Last Quarter of a Century’ (2006) 37 Netherlands Yearbook of International Law 155, 185 et seq.

276 Damman, above n 109, 285, 293.277 See CESCR, General Comment No 21, above n 264, para 36; Damman, above n 109, 293 et

seq, 307 et seq, 313.278 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO

Convention No 169), 27 June 1989, entered into force 5 September 1991, 22 State Parties (as of 3 October 2011), 72 ILO Official Bulletin 59.

192 Human Rights Implications for Water Allocation

force in 1991 and currently has 22 States Parties. Article 23 of the ILO Convention acknowledges that there is a close link between subsistence rights and cultural rights, and that subsistence economy and traditional activities such as hunting and fishing are important elements in the main-tenance of indigenous peoples’ cultures. This is also underlined by the Human Rights Committee and the CESCR. The former observes in its General Comment No 23 on the rights of minorities (Article 27 ICCPR) ‘that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indige-nous peoples. That right may include such traditional activities as fishing or hunting . . .’279. The CESCR states that

[i]ndigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity.280

Provisions protecting the culture of indigenous peoples may thus be understood as protecting not only specific cultural and spiritual activities, but also culture in a broader sense that encompasses such peoples’ tradi-tional way of life281. These guarantees are derived from a combination of universal cultural and specific indigenous rights, the two bodies of law interacting and complementing each other282. Cultural rights thus have to be interpreted to extend to protecting traditional water uses of indigenous peoples, not only for spiritual purposes but also for subsistence activities that depend on water283. The special protection accorded to indigenous subsistence rights as part of their traditional way of life is underlined by General Comment No 15 of the CESCR. In the context of water for agricul-tural production to realise the right to food, the General Comment links indigenous rights to Article 1(2) of the Social Covenant, which states that a people must not ‘be deprived of its own means of subsistence’284. It pro-

279 Human Rights Committee, General Comment No 23, The rights of minorities  (Art 27), 8 April 1994, CCPR/C/21/Rev.1/Add.5, para 7; see also AC Bloch, ‘Minorities and Indigenous Peoples’ in A Eide, C Krause and A Rosas (eds), Economic,  Social  and Cultural  Rights  – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 373, 379; also the View of the Human Rights Committee, Communication No 167/1984, Bernard  Ominayak, Chief  of  the Lubicon  Lake  Band  v  Canada, 26 March 1990, contained in A/45/40 Vol II, 1-30; see also Committee on the Elimination of Racial Discrimination, General  Recommendation  No  23, Indigenous Peoples, 18 August 1997, contained in A/52/18, Annex V, para 4(a). On the protec-tion guaranteed by Art 27 ICCPR see also Bourquain, above n 274, 165 et seq.

280 CESCR, General Comment No 21, above n 264, para 36 (footnote omitted).281 Groni, above n 264, 167; Stavenhagen, above n 266, 89 et seq; Hansen, above n 266, 285.282 Damman speaks of a ‘dual set of rights’ in that regard, see Damman, above n 109, 294.283 Getches, above n 272, 283; Groni, above n 264, 242; see also Hansen, above n 266, 293 et

seq.284 CESCR, General Comment No 15, above n 33, para 7; see also Engbruch, above n 82, 195,

who notes that the language employed by the Committee is very cautious.

Different Water Uses and Their Link to Human Rights 193

vides that ‘States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indige-nous peoples’285.

Lastly, regarding the overall management and control of water resources, Article 15(1) of ILO Convention No 169 is relevant. It stipulates that ‘[t]he rights of the peoples concerned to the natural resources pertain-ing to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conserva-tion of these resources’286. It thus requires that indigenous peoples have a say in any economic development or other projects concerning resource exploitation or extraction on their territories287. However, it does not grant them the exclusive right to decide on these issues.

The more recent United Nations Declaration on the Rights of Indigenous Peoples288 is more far-reaching. According to Article 26(1) of the Declaration, indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or other-wise used or acquired, and to own, use, develop and control these289. This includes water resources. Moreover, according to Article 29 of the Declaration, they have the right to the conservation and protection of the environment, and to the productive capacity of these resources290. Lastly,

285 CESCR, General  Comment  No  15, above n 33, para 7 (footnotes omitted). Similarly, General Comment No 12 on the right to food notes that indigenous population groups may be particularly vulnerable due to the lack of access to their ancestral lands, see CESCR, General Comment No 12, above n 72, para 13.

286 Emphasis added.287 J Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions about

Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources’ (2005) 22 Arizona  Journal  of  International  and Comparative Law 7, 10.

288 General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/Res/61/295.

289 Art 26 reads: ‘1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peo-ples concerned.’

290 Art 29 reads: ‘1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. 2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent. 3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.’

194 Human Rights Implications for Water Allocation

Article 32 of the Declaration guarantees the right to determine and develop priorities and strategies for their development or use291.

However, as a declaration of the General Assembly these assertions are not legally binding. While some authors argue that the Declaration reflects customary international law292, its process of drafting shows that its provi-sions are not uncontentious293. It is too early and far-reaching to conclude that the Declaration reflects customary international law.

Furthermore, a passage of General Comment No 15 has to be noted in the context of rights regarding the overall management and control over water resources. It reads:

Whereas the right to water applies to everyone, States parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including . . . indigenous peoples . . . In particular, States parties should take steps to ensure that: . . . (d) Indigenous peoples’ access to water resources on their ancestral lands is protected from encroachment and unlawful pollution. States should provide resources for indigenous peoples to design, deliver and control their access to water294.

From the wording alone, this could be understood to refer to overall con-trol over water. However, this passage has to be seen in the context of the entire General  Comment. Apart from some introductory paragraphs, the General Comment solely focuses on water for personal and domestic use. Therefore, it cannot be assumed that it extends beyond these uses. Also,

291 Art 32 reads: ‘1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed con-sent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.’

292 Anaya, above n 287, 8; see also Getches, above n 272, 277, 286.293 See generally the detailed account by Eide, above n 275. According to Eide, some of these

rather far-reaching provisions on natural resources are among the most contentious issues (see ibid, 199 et seq). Initially, four States with significant indigenous populations (the United States, Canada, New Zealand and Australia) voted against the declaration in the General Assembly. However, they have since reversed their position by formally endorsing the declaration; see United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, ‘UN expert welcomes United States’ endorsement of the Declaration on the Rights of Indigenous Peoples’, 17 December 2010, available at <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10606&LangID=E> (accessed 1 October 2011). For Australia’s endorsement, see Minister for Families, Housing, Community Services and Indigenous Affairs (Government of Australia), Statement on the United Nations Declaration on the Rights of Indigenous Peoples, 3 April 2009, available at <www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf> (accessed 1 October 2011); for the US endorse-ment, see Government of the United States of America, Announcement of US Support  for  the United Nations Declaration on  the Rights of  Indigenous Peoples, 16 December 2010, available at <www.state.gov/documents/organization/153223.pdf> (accessed 1 October 2011).

294 CESCR, General Comment No 15, above n 33, para 16(d).

Different Water Uses and Their Link to Human Rights 195

this passage of the General Comment focuses on ‘access’, and thus cannot be understood to refer to the overall management and control of water resources.

Lastly, the management of and control over water resources by indigen-ous peoples also relate to the right to self-determination295. Article 1 of both the Social Covenant and the Civil Covenant contain such a guaran-tee. Also, Article 20(1) of the Banjul Charter has to be noted. However, the scope and content of this guarantee, as well as its beneficiaries, have not been conclusively defined296. It therefore seems impossible to establish its specific implications for the rights of indigenous peoples and the impact of such rights on water allocation297. Accordingly, an exclusive right for indigenous peoples to control and manage the water resources on their territories cannot be established.

To summarise, first of all, indigenous individuals enjoy the same human rights as all other individuals as outlined above. Moreover, their way of living, which to a great extent relies on subsistence activities, is accorded special protection. It relates not only to the human right to food, but also to cultural human rights that encompass the notion of culture as a way of life. While States generally have a large margin of discretion regarding the realisation of the right to food, as outlined above, the special protection of indigenous peoples’ way of life under cultural human rights limits these policy options. Lastly, regarding the overall management and control of water resources, ILO Convention No 169 provides for the participation of indigenous peoples in the use, management and conservation of resources. While the Declaration on the Rights of Indigenous Peoples contains more far-reaching guarantees, it is not legally binding and therefore does not give rise to an exclusive right of indigenous peoples in the management of water resources.

ii.  Relevance at different levels

In principle, the protection of the way of life of indigenous peoples, including its reliance on subsistence activities, becomes relevant at the level of full realisation of human rights. In exceptional circumstances, when the essence of their way of life is concerned, this may also relate to the core content of cultural rights.

295 See Getches, above n 272, 289 et seq; generally Human Rights Committee, General Comment No 12, The right to self-determination of peoples (Art 1), 13 March 1984, contained in HRI/GEN/1/Rev.6 at 134; A Rosas, ‘The Right of Self-Determination’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 111; G Alfredsson, ‘The Right of Self-Determination and Indigenous Peoples’ in C Tomuschat (ed), Modern  Law  of  Self-Determination (Dordrecht, Martinus Nijhoff, 1993) 41.

296 Bloch, above n 279, 374.297 For a more detailed consideration of the right to self-determination in that context, see

Bourquain, above n 274, 174 et seq.

196 Human Rights Implications for Water Allocation

iii.  Considerations in the balancing process

In contrast to the other water uses and linkages to human rights consid-ered so far, indigenous rights are not universal but relate to a specific group. Consequently, these rights do not always have to be taken into account in the balancing process, but only when indigenous peoples are involved. In cases where indigenous territories are concerned, though, the realisation of their rights requires direct access to water that cannot be substituted due to the specific protection of subsistence as a way of life. However, when competing with water for personal and domestic use (which seems rather unlikely), indigenous subsistence activities still allow for greater variation as far as water requirements are concerned, eg depending on the kind of crops being cultivated.

J. Recreational Uses of Water

Water is also used for recreational purposes, such as swimming or kayak-ing. While Article 7(d) of the Social Covenant recognises the right to just and favourable working conditions that ensure, inter alia, ‘[r]est, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays’, and recreation also shows a close link to the right to an adequate standard of living, it is not essential for recreation to be linked to water. Thus, there are no specific human rights implications in the context of recreational uses of water298.

K. Water for Preserving and Protecting Ecosystems

Water is also necessary for preserving and protecting ecosystems. Such ecological uses may be understood as referring to the ‘quantity of water that is necessary to sustain existing ecosystems’299. It has been submitted that such ecological requirements have to be accorded priority once basic human needs are fulfilled300. Does such a priority follow from human rights? Is there a human right to environment?

298 On the protection of the aesthetic value of water, see below in the context of the right to environment (section III.K.); see also D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991/92) 28 Stanford Journal of International Law 103, 133; L Collins, ‘Are We There Yet? The Right to Environment in International and European Law’ (2007) 3 McGill  International  Journal  of  Sustainable Development  Law  and  Policy  119, 150.

299 P Cullet, Water  Law,  Poverty  and Development, Water  Sector  Reforms  in  India (Oxford, Oxford University Press, 2009) 14.

300 COHRE, AAAS, SDC and UN-Habitat, above n 1, xxvii.

Different Water Uses and Their Link to Human Rights 197

It is widely acknowledged that there is a close link between human rights and the protection of the environment301. The realisation of many human rights depends on the preservation of natural resources and the protection of soil, air and water302. The realisation of the human right to water itself is jeopardised if sufficient attention is not paid to environmen-tal protection. The necessary quality of water for personal and domestic uses can be guaranteed only if water bodies are protected from pollu-tion303. However, this does not imply that there is an explicit human right to environment. Yet increasingly since the early 1990s, a human right to environment304 has been discussed305. The underlying rationale for such a human right is that the environment as such has to be protected and preserved for its own intrinsic value306, as well as due to its enormous significance for human existence307. Such a substantive human right would entitle rights-holders308 to a certain quality of the environment309,

301 G Handl, ‘Human Rights and Protection of the Environment’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 303, 303; A Epiney and M Scheyli, Umweltvölkerrecht, Völkerrechtliche Bezugspunkte des schweizerischen Umweltrechts (Bern, Stämpfli, 2000) 155.

302 Epiney and Scheyli, above n 301, 155. Such a link is acknowledged eg in Art 24(2)(c) CRC, which requires States parties to take ‘into consideration the dangers and risks of envir-onmental pollution’ in the context of the realisation of the right to health. A similar reference may be found in Art 12(2)(c) ICESCR, which lists the ‘improvement of all aspects of environ-mental and industrial hygiene’ as one of the steps to be taken to achieve the full realisation of the right to the highest attainable standard of health.

303 Scanlon et al, above n 31, 27.304 The terminology used is not consistent. Rather, different terms are found: right to

envir onment, healthy environment, clean environment, as used by S Hobe, ‘Menschenrecht auf Umweltschutz? – Bestand und Begründungsmöglichkeiten’(1994) Zeitschrift  für Umweltrecht 15, 15; U Beyerlin, ‘Nachhaltige Nutzung natürlicher Ressourcen und Menschenrechtsschutz’ in K Dicke, S Hobe, KU Meyn, A Peters and E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 47, 48 (‘sau-bere Umwelt’); safe environment, intact environment, as used ibid, at 58; good environment, as used by S Turner, ‘The Human Right to a Good Environment – The Sword in the Stone’ (2004) 4 Non-State  Actors  and  International  Law 277; decent environment, as used by RR Churchill, ‘Environmental Rights in Existing Human Rights Treaties’ in AE Boyle and MR Anderson (eds), Human Rights Approaches  to Environmental Protection (Oxford, Oxford University Press, 1996) 89, 107; see also the listing by Collins, above n 298, 136 et seq.

305 J Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Journal of Environmental Law 283, 284; for early contributions on the discussion, see I Hodkova, ‘Is There a Right to a Healthy Environment in the International Legal Order?’ (1991) 7 Connecticut Journal of International Law 65; Hobe, above n 304; Shelton, above n 298.

306 Turner, above n 304, 300; see also Sub-Commission on the Promotion and Protection of Human Rights, Human Rights and the Environment, Final Report prepared by Mrs Fatma Zohra Ksentini, Special Rapporteur, 6 July 1994, E/CN.4/Sub.2/1994/9, Annex I, ‘Draft principles on human rights and the environment’, Art 6.

307 Epiney and Scheyli, above n 301, 158; Turner, above n 304, 292, 300.308 The question whether rights-holders of this right would be individuals or groups will

not be considered further. In this regard see eg Epiney and Scheyli, above n 301, 159 et seq; also Hodkova, above n 305, 75 et seq; Churchill, above n 304, 105 et seq, for the Banjul Charter.

309 Turner, above n 304, 280.

198 Human Rights Implications for Water Allocation

which could have implications for the protection and preservation of eco-systems such as the maintenance of ecological flows, and as a result impli-cations for the allocation of water.

The following discussion thus focuses solely on the questions whether such a substantive human right to environment exists in international law and whether it has implications for water allocation. It is not concerned with the question whether a substantive human right to environment is desirable de lege ferenda310, or with indirect protection against environmental degradation by other human rights such as the right to life and the right to health311, or with procedural environmental rights312 or with the question of intergenerational justice that is often linked to environmental rights313.

Support for a substantive right to environment may be drawn from non-binding declarations as well as from regional human rights treaties. An early reference is to be found in the Stockholm Declaration, Principle 1 of which reads:

Man 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 . . .314

Less explicitly, Principle 1 of the Rio Declaration states that human beings ‘are entitled to a healthy and productive life in harmony with nature’315. However, these declarations are not legally-binding, and there is no evidence that they have been elevated to the status of customary inter-national law316.

310 To a large extent, the debate seems to focus on this question. Cf (rather sceptical) Epiney and Scheyli, above n 301, 158 et seq; Handl, above n 301, 304, 312 et seq, 327; in sup-port of a right to environment Turner, above n 304.

311 See in this regard Churchill, above n 304; Handl, above n 301, 316 et seq; Turner, above n 304, 281 et seq; Hobe, above n 304, 15 et seq; Collins, above n 298, 127 et seq; Lee, above n 305, 290 et seq; PW Birnie and AE Boyle, International Law and the Environment, 2nd edn (Oxford, Oxford University Press, 2002) 259 et seq.

312 See in this regard Handl, above n 301, 318 et seq; A Kiss, ‘The Right to the Conservation of the Environment’ in R Picolotti and JD Taillant (eds), Linking  Human  Rights  and  the Environment (Tucson, University of Arizona Press, 2003) 31, 33 et seq; Collins, above n 298, 129 et seq.

313 See in this regard RP Hiskes, ‘The Right to a Green Future: Human Rights, Environmentalism and Intergenerational Justice’ (2005) 27 Human  Rights  Quarterly  1346; E Brown Weiss, In Fairness  to Future Generations,  International Law, Common Patrimony and Intergenerational Equity, 2nd edn (Tokyo, United Nations University, 1992); Lee, above n 305, 325 et seq; Supreme Court of the Philippines, Minors Oposa v Secretary of the Department of Environment  and Natural  Resources, 30 July 1993, reprinted in (1994) 33 International  Legal Materials 173.

314 United Nations, Report  of  the  United  Nations  Conference  on  the  Human  Environment, Stockholm,  5–16  June  1972, A/Conf.48/14/Rev.1, Chapter I, ‘Declaration of the United Nations Conference on the Human Environment’, Principle 1.

315 United Nations, Report of the United Nations Conference on Environment and Development, Rio  de  Janeiro,  3–14  June  1992, A/Conf.151/26/Rev.1 (Vol I), Annex I, ‘Rio Declaration on Environment and Development’, Principle 1. There have been a number of other non- binding instruments, see in this regard Collins, above n 298, 132 et seq; Lee, above n 305, 308 et seq.

316 Turner, above n 304, 278.

Different Water Uses and Their Link to Human Rights 199

In that context, the work of the Special Rapporteur on Human Rights and the Environment appointed by the former Sub-Commission on the Prevention of Discrimination and Protection of Minorities has to be con-sidered. She submitted her final report in 1994, which also includes a set of Draft Principles on Human Rights and the Environment317. In Principle 2, this draft states that ‘[a]ll persons have the right to a secure, healthy and ecologically sound environment’. However, no further action has been taken on these Draft Principles. The Commission on Human Rights (or now the Human Rights Council) has never formally adopted them318. Thus they remain in draft form, with limited legal significance.

None of the universal human rights treaties recognises a human right to the environment319. As far as customary law is concerned, the unequivocal support by States that would be required for recognition as a customary human right cannot be established320, which has already been shown by the fact that the Draft Principles on Human Rights and the Environment have never been adopted. Accordingly, there is no universal human right to environment de lege lata321.

At the regional level, however, provisions stipulating a right to environ-ment exist. Article 24 of the Banjul Charter and Article 11 of the Protocol of San Salvador should be noted. The former reads: ‘All peoples shall have the right to a general satisfactory environment favourable to their develop-ment.’ It is thus framed as a collective right. The latter provides that ‘[e]veryone shall have the right to live in a healthy environment’. Moreover, the right to (a healthy) environment is recognised in a large number of the constitutions of many Latin American and African (but also other) coun-tries. All in all, more than 50 constitutions include such a right322. There have been enormous developments in that regard since the 1990s323, with newly-adopted constitutions often including such a right324. Some authors therefore conclude that there is strong evidence for the right to environment having turned into regional customary law325. In any case, its recognition in treaties and constitutions is beyond question, though only at the regional and national level.

317 Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/1994/9, above n 306, Annex I, ‘Draft principles on human rights and the environ-ment’.

318 Handl, above n 301, 308; Lee, above n 305, 311.319 Beyerlin, above n 304, 58.320 Handl, above n 301, 312; Beyerlin, above n 304, 58. Yet some authors see strong evid-

ence for the emergence of such a right; see Collins, above n 298, 136, 148.321 Hobe, above n 304, 17; Bourquain, above n 274, 82.322 See Collins, above n 298, 135 et seq, and the listing in fn 102; Lee, above n 305, 314 and

Appendix A.323 Lee, above n 305, 314. In 1994, Hobe still noted that hardly any constitutions recognised

environmental rights, see Hobe, above n 304, 16.324 Shelton, above n 298, 128; Collins, above n 298, 135.325 Lee, above n 305, 314, 339.

200 Human Rights Implications for Water Allocation

Even those authors who argue in favour of a human right to environ-ment admit that its content is uncertain and ambiguous326. Efforts to clar-ify the scope and content of the provisions included in regional human rights instruments seem to be rather limited so far, in terms of both (quasi-)judicial pronouncements and academic writings327. On the contrary, Article 24 of the Banjul Charter in particular has been stated to be ambigu-ous and unclear in terms of the meaning and scope of the entitlement for which it provides328. Nevertheless, the provision became relevant in the Ogoni  Case of the African Commission on Human and Peoples’ Rights (ACHPR): The Social and Economic Rights Action Center and the Center  for Economic  and  Social  Rights  v  Nigeria329. The applicants argued that the exploitation of oil reserves by a consortium in Nigeria resulted in the con-tamination of water, soil and air in Ogoniland, by disposing toxic wastes into the environment and waterways as well as causing oil spills. The con-tamination had serious impacts on health330. The applicants therefore alleged that the Nigerian Government had violated its obligations under the right to health and the right to a clean environment as recognised under Articles 16 and 24 of the Banjul Charter, by directly participating in the contamination of air, water and soil, and by failing to protect the Ogoni population from the harm caused by the oil consortium331. The Commission found Nigeria to be in violation, inter alia, of Articles 16 and 24 of the Banjul Charter, and appealed to the Government to ensure pro-tection of the environment, health and livelihood of the people of Ogoniland by conducting an investigation, ensuring adequate compensa-tion and undertaking a comprehensive clean-up of lands and rivers dam-aged by oil operations332.

However, the fact that Article 24 was found to have been violated in this rather extreme case of environmental degradation does not further elu-cidate its scope and specific content. The precise contours of the right to environment have not yet been defined and its (potential) normative con-tent remains unclear333. It seems impossible to determine which concrete obligations States bear towards the realisation of the right334. And it is there-

326 Collins, above n 298, 148.327 But cf the effort made by Collins to distil the content of the ‘pure’ right to environment

as far as it reaches beyond the protection offered by other human rights, including the pro-tection of the ‘aesthetic value of natural spaces’; Collins, above n 298, 148 et seq.

328 Handl, above n 301, 309; Churchill, above n 304, 106. Some indication of its content is provided by Churchill, ibid.

329 African Commission on Human and Peoples’ Rights, The Social  and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, Communication 155/96, decision taken at 30th Ordinary Session, Banjul, The Gambia, from 13th to 27th October 2001, ACHPR/COMM/A044/1659.

330 Ibid, para 2.331 Ibid, para 50.332 Ibid.333 Epiney and Scheyli, above n 301, 159.334 Ibid, 160.

Different Water Uses and Their Link to Human Rights 201

fore impossible to draw specific conclusions335 for water allocation, such as establishing minimum flow requirements. Judging from the limited evid-ence provided so far, the right (for example as phrased in the Banjul Charter) seems to be characterised by an anthropocentric conception336 and to be focused on the environment as far as it is linked to human health, well-being and development, instead of on the environment per se and its intrin-sic value. Again, this makes it impossible to determine any ecological requirements from the perspective of the right to environment. All in all, the human rights implications for allocating water to the envir onment for sus-taining ecosystems are very limited. Rather, other areas of law have to be taken into account for these purposes337. Environmental and water laws, as well as international agreements in that area, often contain requirements in that regard and stipulate specific quality standards as well as requirements for minimum environmental flows. Again, the South African National Water Act may be consulted as an example. It establishes not only the Basic Human Needs Reserve referred to above, but also an Ecological Reserve that relates to water required to protect aquatic ecosystems 338.

L. Right to Development?

The book will not take into account the right to development, as its con-tours seem even more vague339 than those of the right to environment. The right to development does not seem sufficiently developed to allow one to draw any specific conclusions and to determine the implications for water allocation. Moreover, specific aspects discussed under the right to devel-opment have already been determined, in particular under the aspect of productive uses of the right to water and their link to the right to work, as well as other water uses that are linked to various components of the right to an adequate standard of living. A separate consideration therefore does not seem necessary.

335 See generally Handl, above n 301, 315.336 See also Shelton, above n 298, 137. This anthropocentric nature is one of the main con-

cerns in the debate over the right to environment; see Handl, above n 301, 315; Hobe, above n 304, 17; Birnie and Boyle, above n 311, 257 et seq.

337 See in this regard Cullet, above n 299, 209 et seq.338 Republic of South Africa, National Water Act, above n 25, ss 1(1)(xviii)(b), 16 et seq.339 See generally eg A Rosas, ‘The Right to Development’ in A Eide, C Krause and A Rosas

(eds), Economic,  Social  and  Cultural  Rights  –  A  Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 119; S von Schorlemer, ‘Das Recht auf Entwicklung – Recht des Individuums oder Recht der Völker?’ (2008) 56 Vereinte Nationen 212; P van Weerelt, ‘The Right to Development: From Rhetoric to a Global Strategy’ in F Nuscheler (ed), The  International Debate on Human Rights and the Right to Development, INEF-Report 30 (Duisburg, INEF, 1998) 48, and other contributions in that report.

202 Human Rights Implications for Water Allocation

M. Cutting across all water uses: Non-discrimination

All of the water uses mentioned link to the human rights principle of non-discrimination that has already been elaborated upon340. This cuts across all the other human rights and obliges States not to discriminate on prohibited grounds. States have to avoid not only de  jure discrimination, but also de facto discrimination, which may require targeted measures to address exist-ing discrimination. Where individuals and groups have traditionally been neglected, greater resources will need to be devoted to their advancement in order to address and compensate for structural inequalities. Such meas-ures may, for instance, be addressed to subsistence farmers under the right to food, to people living in rural communities to enable them to engage in productive activities that depend on water, or to indigenous peoples.

Non-discrimination is not only relevant in regard to water uses guaran-teed by human rights; it reaches beyond that. While Article 2(1) of the Civil Covenant and Article 2(2) of the Social Covenant refer to the rights guaranteed in the respective Covenant and thus are limited in their scope, Article 26 of the Civil Covenant entails a general guarantee of non- discrimination341. The Human Rights Committee stated that

article 26 does not merely duplicate the guarantee already provided for in arti-cle 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof342.

Accordingly, States must ensure that they do not discriminate against certain parts of the population on prohibited grounds. For example, States cannot choose to provide water for amenity uses to one part of the population while excluding another population group. Also, economic development must not benefit only certain groups.

N. Summary: Priorities at Different Levels

Prioritisation in the allocation of water in line with the human rights framework is a complex process. Thus far, water uses have been identified that are relevant from a human rights perspective other than water for personal and domestic uses. The fact that a number of these rights are only just emerging and are not yet clearly defined complicates the ques-tion of prioritisation.

340 See ch 4, section II.B. 341 Bourquain, above n 274, 158.342 Human Rights Committee, General Comment No 18, Non-discrimination, 10 November

1989, contained in HRI/GEN/1/Rev.1 at 26, para 12.

Different Water Uses and Their Link to Human Rights 203

This analysis has shown that some of the above-mentioned water uses are irrelevant in the balancing process from a human rights perspective. It is questionable whether water as a means of personal transportation can be considered a component of the right to an adequate standard of living; and in any case, this water use may be ignored in the allocation of water. Moreover, it has been shown that neither recreational uses of water nor water for the environment per se are guaranteed by human rights. Even if one considers the right to environment to be an emerging human right, its contours remain too vague to establish its specific content and obligations resulting from it that would allow one to determine its implications for water allocation. The right to environment is an emerging human right at most, and to a large extent the discussion focuses on aspects de lege ferenda. Moreover, human rights are an inherently anthropocentric concept. The right to environment in its present form focuses on the impact on humans instead of recognising water for nature for its own intrinsic value. In order adequately to take into account water for ecosystems in the allocation of water, human rights therefore have to be complemented by an ecosystem approach343.

Precisely determining the human rights implications for water alloca-tion is made more difficult by the fact that many other rights considered above are also only just emerging or in a state of discussion de lege ferenda. Access to energy and electricity has only recently been considered from a human rights perspective, and it cannot yet be determined whether it can be considered a component of the right to an adequate standard of living. While the acknowledgement of indigenous rights has made great pro-gress with the adoption of the Declaration on the Rights of Indigenous Peoples, the Declaration is not legally binding. Yet clearly-established cul-tural rights have implications for indigenous water uses.

However, a number of water uses clearly show a link to human rights. Apart from personal and domestic water uses, water for food production, for the production of clothing, for sanitation and for power generation, productive uses of water, water for cultural and religious practices, and indigenous water uses all have to be taken into account in prioritising water uses from a human rights perspective. They link to the right to food, the right to clothing, the right to sanitation, human rights obligations in relation to access to energy, the right to work, the right to take part in cul-tural life, the freedom of religion and indigenous rights, respectively. The strength of the link between these water uses and the respective human rights has been shown to be of varying degrees. Non-discrimination cuts across all these human rights and relates to all water uses.

The framework of survival level, core level and the level of full realisa-tion presented above provides the basis for prioritisation. The framework

343 Scanlon et al, above n 31, 27.

204 Human Rights Implications for Water Allocation

starts from the idea that the survival level and the core level have to be realised before moving to the full realisation of human rights. Different water uses have been found to become relevant at different levels. Moreover, it has been shown that these human rights are not equally dependent on access to water for their realisation but require it to varying degrees, in particular because other methods of realisation exist. The fol-lowing paragraphs aim to summarise these findings.

i.  Survival level

The first level of water use is that of survival. Water uses compete at this level only so far as they are necessary for human survival. In addition to the minimum amount of water necessary for drinking purposes and ensuring basic health, water for producing sufficient food for survival needs becomes relevant at this level, relating to the right to be free from thirst and the right to be free from hunger respectively. Moreover, water for access to basic san-itation has to be considered so as to avoid serious consequences for human health. In certain circumstances, clothing and heating, ie access to energy, may also become relevant at this level. No other water uses that concern survival requirements could be identified. Other kinds of water usage can compete with water required for the realisation of the human right to water only at a higher level in the framework. This also includes water uses for personal needs, the production of food and clothing, and power generation that reach beyond ensuring survival requirements.

In the vast majority of cases it will not be necessary to establish priori-ties between uses at survival level. However, in emergency situations or times of extreme drought, for example, there may be local competition between these uses so that it becomes necessary to balance them. When priorities at survival level have to be established, it is essential to take into account that water for drinking cannot be substituted and requires direct access. In contrast, food can generally be produced in areas with higher water availability, and be transported to the point of consumption. While the specific situation of people who rely on subsistence agriculture has been shown to require special attention, and providing access to water for subsistence farmers can be a very suitable method by which to realise the human right to food, States are not restricted to adopting this measure but can opt for other methods to realise the right. Accordingly, the production of food does not necessarily require direct access to water. The same holds true for the production of clothing and energy. Moreover, energy can be generated in many different ways and does not necessarily depend on water. Similarly, sanitation may be ensured by means other than those which are water-borne.

This does not diminish the significance of other human rights. All of them are or may become relevant at survival level. States bear core obliga-

Different Water Uses and Their Link to Human Rights 205

tions to realise these, and there is no priority of one right over another. But only the realisation of the human right to water depends on direct access to water in all circumstances; other human rights may be realised in alter-native ways. Therefore, water for drinking purposes and ensuring basic health has to be accorded priority in water allocation.

ii.  Core level

At the core level, water for personal and domestic uses, water for the pro-duction of food and clothing, water for sanitation and water for power generation again have to be taken into account. In this regard, the same considerations apply as above. Only water for personal and domestic uses requires direct access and cannot be substituted by other means.

Moreover, water used for subsistence activities relating to the ways of living, in particular, of indigenous peoples, protected by cultural rights, may become relevant at the core level. To that extent, local access to water is required. Yet only in very special circumstances may access to water for subsistence activities be of such central significance for the realisation of cultural rights that it relates to the core content. Even when the very essence of people’s way of living is concerned and subsistence activities thus become relevant at the core level, greater variation in the realisation of rights is possible than in the case of the right to water, eg by cultivating crops that require less water. Moreover, it should be recalled that personal and domestic uses require relatively low quantities of water, in particular as far as they relate to the core level. Furthermore, areas where indigenous peoples live are often not densely populated. A conflict between personal and domestic uses (of other parts of the population) and indigenous water uses therefore seems somewhat theoretical, whereas conflicts between industrial uses of water (considering, for instance, mining projects and resulting water pollution) and indigenous water uses may easily be imag-ined. Such industrial uses are not relevant at the core level, though. In the unlikely case that competition exists at the core level between personal and domestic uses on the one hand and water uses necessary to maintain a particular way of life on the other hand, priority in water allocation should be given to the realisation of the core level of the human right to water, as maintaining a particular way of life based on subsistence activi-ties allows for greater variation.

iii.  Level of full realisation of human rights

At the level of full realisation of human rights, States’ obligations are not of an immediate but of a progressive nature. To a certain extent this level is therefore characterised by a greater margin of discretion. States enjoy broader leeway in how to set priorities in the realisation of human rights.

206 Human Rights Implications for Water Allocation

Yet overall they have to move as effectively and quickly as possible towards the goal of full realisation of human rights, making use of their maximum available resources. As for the previous levels, some considera-tions guiding the prioritisation of different water uses are in place.

All the water uses that have been established as linking to human rights become relevant at this level. An adequate standard of living consists of many different facets that directly or indirectly relate to water in their realisation, in particular food, clothing, water for personal and domestic uses, sanitation and access to energy. Also, other human rights relate to water, ie the human right to work, cultural and religious rights, and indig-enous rights.

In regard to water for the production of food and clothing, it has already been pointed out that this does not necessarily require direct access; food and clothing can be produced a long way from the place of consumption or use. Personal and domestic uses, in contrast, require direct access. In relation to water for sanitation, access to water is needed only in the case of water-borne sanitation (including sewers and pour-flush facilities); other sanitation solutions exist, including different types of latrines and ecological sanitation, and should be considered. As far as water use for power generation is concerned, this is one of the water uses that can read-ily be substituted. Hydropower makes up only a relatively small share of total energy/electricity production, and in fact is considered a viable option only in situations of high water availability. Not all other methods of energy production depend on water for cooling. Moreover, these water uses are non-consumptive, and therefore overall have only a limited impact on water allocation.

In regard to productive uses of water that relate to the right to work, it seems appropriate to distinguish between water for industrial activities and water for livelihood activities. While facilitating economic develop-ment relates to the right to work, and while such activities overall require access to water, this link is not as close as that between other water uses and human rights. There are myriad ways for the realisation of the right to work, and not all of them depend on access to water. Water for indus-trial activities therefore does not have to be accorded priority from a human rights perspective, in particular when such activities have detri-mental effects on other water uses. With regard to livelihood activities, the link to the right to work is of a more direct nature, as people’s choices are often more limited when depending on such activities for income genera-tion. Many livelihood activities require direct access to water, but still there are other possibilities for the realisation of the right to work.

Turning to cultural and religious rights, it should be noted that specific cultural and religious activities require direct access to water. However, as these quantities are marginal, they do not have great impact on water allo-cation. Moreover, certain perceptions of water as sacred relate to religious

Conclusion: Priorities in Water Allocation 207

rights. In this regard, water conservation and protection from pollution become relevant, but it is difficult, if not impossible, to establish exact water requirements for that purpose and its precise implications for water allocation. When water use for subsistence activities, in particular of indigenous peoples, is concerned, this may also relate to cultural rights. In that case, direct access is required and water can hardly be substituted. As mentioned above, conflicts of indigenous water uses guaranteed by human rights can most likely be imagined with industrial activities such as mining projects. The link to the human right to work of such projects is marginal. From a human rights perspective, the priority in water alloca-tion is therefore for indigenous uses in that case.

iv.  Level beyond human rights guarantees

Many water uses do not relate to human rights. That applies to levels of water use that go beyond the levels established above, for example when reaching beyond an adequate standard of living. The same holds true for the broad range of water uses that do not relate to human rights at all, such as water for recreational activities. In this regard, human rights do not require priority to be accorded to any particular water use. Accordingly, States have a broad margin of discretion in their decisions on water alloca-tion at the level beyond human rights guarantees. Nevertheless, certain human rights principles apply. As outlined above, in particular, the human rights principle of non-discrimination sets limits on States’ discre-tion in water allocation.

IV. CONCLUSION: PRIORITIES IN WATER ALLOCATION

Establishing priorities in water allocation from a human rights perspec-tive has proven to be a complex task. As many different water uses relate to human rights, there can be no general and unconditional priority for any single sector of water use. Rather, a system of prioritisation has to be found that advances all human rights that depend on water for their real-isation. The different levels of realisation of human rights are used as a starting point for that prioritisation. Priorities in the realisation of human rights move from the survival level to the core level to the level of full realisation of human rights. Water becomes relevant to varying degrees in the realisation of different human rights, as other resources may be relied on to a greater or lesser extent depending on the human right in question. These alternatives have to be taken into account when setting priorities in water allocation.

The human right to water is the only human right that combines three factors that single it out from other human rights and their link to water use:

208 Human Rights Implications for Water Allocation

a) it requires direct access to water for its realisation in all circumstances; b) water for personal and domestic uses cannot be substituted with any

other resource; and c) water used for the realisation of the right to water does not allow for

any savings in the required amount, whereas this may occur in many other sectors of water use.

Most other human rights that have been established to relate to water use can potentially be realised in other ways, or do not necessarily require direct access. Only cultural and indigenous rights require direct access to water in their realisation. However, water quantities required for cultural practices are marginal, and indigenous rights become relevant only in cer-tain regions, so that competition for water between these uses and house-hold use seems unlikely.

As long as alternative options exist for the realisation of other human rights, water used for the realisation of the human right to water therefore has to be accorded priority. This priority relates not only to the core con-tent of the human right to water, but to its full realisation too. Referring back to the examples presented above, the priority for personal and domestic uses from a human rights perspective thus reaches further than established by the South African Reserve. Yet prioritisation of water uses in accordance with human rights does not entail a general priority for household use, as the human right to water does not guarantee water use beyond the standard of an adequate standard of living. This does not nec-essarily mean that water laws that establish a general priority for domes-tic uses – as they often do – are incompatible with human rights. As long as the realisation of other human rights that depend on water is not ren-dered impossible, such a general priority may be established and may be a means of simplification in decisions on water allocation. Nevertheless, such a general and unconditional priority is not required from a human rights perspective. Rather, the prioritised amount corresponds to the full realisation of the human right to water.

States are obliged to accord priority in water allocation to the human right to water as long as they have other resources at their disposal that they can use for the realisation of other human rights. Overall, States are required to devote the maximum available resources to the progressive realisation of human rights, ie to realise all human rights to the greatest extent possible. This requires a mix of resources that is optimally employed to achieve the best possible overall result in the realisation of all human rights. When other human rights such as food, clothing, sanitation or work are able to be realised with the input of other resources, priority in water allocation has to be accorded to those human rights that depend directly on water. This relates most obviously to the human right to water, but also to cultural, religious and indigenous

Conclusion: Priorities in Water Allocation 209

rights, as the use of water cannot be substituted in the realisation of these rights.

This priority, in particular for water for personal and domestic use, is based on the assumption that other resources exist that may be employed in the realisation of other human rights, in particular when water availa-bility is low. There may be circumstances, however, in which States do not have such other resources available to them to a sufficient extent. Such cases are rather unlikely, but they require prioritising the use of water without being able to resort to alternative resources. If alternative meas-ures for the realisation of other human rights are not feasible, these rights continue to rely on water in their realisation alongside the human right to water itself. In that case – that will not occur in practice in such a pure form – alternatives for realisation cannot be considered, and priorities in water allocation move strictly from the relevant water uses at survival level to the core level and the level of full realisation. Accordingly, water uses that have been established as becoming relevant at the respective level of realisation of human rights all enjoy the same priority, eg the core content of the human right to food is as essential as the core content of the human right to water.

Assuming, for instance, that the realisation of the right to food depends on local access to water (as no alternatives for its realisation exist), and further assuming that this water use competes with water for personal and domestic use, as water availability is very low in a given local context, prioritisation in water allocation becomes necessary. A human rights-based prioritisation requires according priority to the core content of the human right to food over the full realisation of the human right to water. In such exceptional circumstances the priority for personal and domestic uses would then be less far-reaching. However, it is highly unlikely that water availability would be so low and that no other resources that could be used for the realisation of the human right to food would exist at the same time.

Apart from the priority for personal and domestic uses, it is difficult to prioritise water uses further. Cultural and indigenous rights that rely on water in their realisation have already been mentioned. As they require direct access to water, they need to be prioritised in water allocation when they become relevant, keeping in mind, however, that cultural and reli-gious practices require only marginal quantities and indigenous water uses become relevant only in particular circumstances.

In contrast to this requirement of direct access that links certain rights closely to access to water, States have the most options available to them in the realisation of the human right to work and human rights obliga-tions related to access to energy. As there are many other ways of realising these, the link to water is somewhat weak. Accordingly, priority for these water uses is low from a human rights perspective. Similarly, other

210 Human Rights Implications for Water Allocation

options exist for the realisation of the human right to sanitation. While water-borne technologies match consumer preferences and are very common in developed countries as well as in formal urban areas, other sanitation solutions exist that do not rely on water, and they should be considered.

While the realisation of the human right to food does not necessarily require direct access to water, as agricultural production can take place in regions with relatively high water availability and be transported to the point of consumption or usage, water is overall an essential input. Agricultural production is simply impossible without water, and it requires large amounts. States may choose to import food from other countries but production has to take place in some region, and overall suf-ficient water resources have to be allocated for agricultural production. Water use in the agricultural sector is therefore very closely linked to the human right to food (and the human right to clothing to a lesser degree). Moreover, it is already relevant at the survival and core levels, and there-fore has a priority status in the overall realisation of human rights. Consequently, water for food production has to be accorded priority over other water uses that link to human rights which can also be realised by other means.

The above considerations demonstrate the difficulties in determining priorities in water allocation at an abstract level. When related to the real-life cases presented in chapter two, the question of prioritisation does not always prove to be as dificult. When industrial activities and golf courses that have little or nothing to do with human rights are accorded priority over survival needs, this clearly is not in line with a human rights-based prioritisation. The same applies when, within the household sector, the well-off are provided with almost unlimited amounts of water, while low-income neighbourhoods are not served at all. Rather, the presented human rights framework and the minimum core approach call for starting with the most basic requirements and first realising the core level for everyone and then moving towards the full realisation of human rights and beyond. This is reinforced by the human rights principle of non-discrimination, which requires a specific focus on the most marginalised and disadvan-taged. When relating to specific contexts, it is easier to determine when water allocation is not in line with a human rights-based prioritisation and human rights are violated as a result344 than establishing priorities in the abstract.

Specific solutions to prioritisation in water uses have to be found in every single case which requires a contextualised approach. In each case, the specific human rights depending on access to water and the resources

344 See generally on a violations approach and its benefits, AR Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23.

Conclusion: Priorities in Water Allocation 211

available for their realisation, including resources other than water, have to be taken into account. This chapter has shown which water uses are generally relevant from a human rights perspective and potentially have to be balanced. It has also provided a framework that allows for prioritis-ing the most basic requirements based on different levels of the realisation of human rights and alternatives for the realisation of human rights that do not rely on water exclusively. Human rights are not a straitjacket for States’ policy decisions, but a human rights-based prioritisation can pro-vide only a broad framework that guides resource allocation: a frame-work that puts the most basic requirements first and focuses on those who are all too often left behind.

6

Benefits of Understanding Water as a Human Right

A HUGE NUMBER of people still lack access to water1. As has been illustrated in chapter two, current policies are often defined in such a way as to protect the interests of the ‘haves’, the afflu-

ent and the elites, instead of adopting pro-poor policies, due to systemic biases and structural discrimination2. Thus, ‘[t]he distribution of assets and capabilities does not occur by accident, but is the product of conscious policy choices and political and social struggle’3.

This chapter aims to reveal the benefits of understanding water as a human right, taking an approach that is based on human rights in order to address the underlying structural causes of the crisis regarding lack of access to water. What is its contribution in realising access to water and achieving an equitable allocation? What is the benefit of recognising water as a human right? To what extent does it reach further than the currently prevailing instruments such as the MDGs? What does the status of legally-binding human right mean for its implementation and enforcement? Does it permit the enforcement of priorities in water allocation as established in the previous chapter?

Human rights-based approaches (HRBAs) have mainly been discussed in the context of development cooperation4, but they are not limited to

1 According to the data collected by the Joint Monitoring Programme, close to 1 billion people lack access to ‘improved water sources’, see World Health Organization and United Nations Children’s Fund, Progress on Sanitation and Drinking-Water, 2010 Update (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2010) 7. On the inadequateness and deficits of that definition, see ch 1, section I. and below section I.A.

2 M Darrow and A Tomas, ‘Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation’ (2005) 27 Human Rights Quarterly 471, 475; E Filmer-Wilson, ‘The Human Rights-Based Approach to Development: The Right to Water’ (2005) 23 Netherlands Quarterly of Human Rights 213, 235 et seq; P Newell and J Wheeler, ‘Rights, Resources and the Politics of Accountability: An Introduction’ in P Newell and J Wheeler (eds), Rights, Resources and the Politics of Accountability (London, Zed Books, 2006) 1, 6. See generally on rising inequality and its link to poverty reduction and development prospects, Darrow and Tomas, above, 474 et seq.

3 Darrow and Tomas, above n 2, 475.4 See eg A Frankovits, ‘Rules to Live by: The Human Rights Approach to Development’

(2002) 17 Praxis – The Fletcher Journal of Development Studies 9; B Hamm, ‘A Human Rights Approach to Development’ (2001) 23 Human Rights Quarterly 1005; Darrow and Tomas, above n 2; M Robinson, ‘What Rights Can Add to Good Development Practice’ in P Alston

Benefits of Understanding Water as a Human Right 213

this field of policy 5. When discussed in the context of development coop-eration, three sets of actors have to be taken into account: the individual; the State; and the development organisation or agency in question6, at least in its role as facilitator in supporting States. In the present context of water allocation, the human rights framework can more easily be applied, as only the State itself and the individual are concerned. As human rights relate primarily to the relationship between the individual and the State, their application in that two-dimensional framework is less complex. Nevertheless, most of the questions discussed in the context of an HRBA to development cooperation are also relevant in the present context, and the following analysis of the benefits of understanding water as a human right therefore draws on that body of literature.

This chapter starts by considering the characteristics and benefits of the human rights framework in general terms. It will first highlight to what extent the right to water and an approach based thereon reach beyond and beneath the MDGs as the currently prevailing approach. This will be fol-lowed by a discussion of the concept of rights-holders and duty- bearers stemming from human rights and their corresponding obligations. The first section ends with an analysis of the implications of the human rights prin-ciples of participation, non-discrimination, and attention to marginalised and vulnerable groups as well as accountability. Considering the question of remedies and redress for alleged violations of the human right to water in the context of accountability, questions regarding the possibilities of

and M Robinson (eds), Human Rights and Development – Towards Mutual Reinforcement (Oxford, Oxford University Press, 2005) 25; P Gready and J Ensor, ‘Introduction’ in P Gready and J Ensor (eds), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice (London, Zed Books, 2005) 1; Newell and Wheeler, above n 2; Office of the United Nations High Commissioner for Human Rights, Human Rights and Poverty Reduction – A Conceptual Framework, HR/PUB/04/1 (Geneva, 2004); United Nations Development Programme, Human Development Report 2000, Human Rights and Human Development (New York, Oxford University Press, 2000); specifically in regard to water, Filmer-Wilson, above n 2; P Laban, ‘Accountability and Rights in Rights-Based Approaches for Local Water Governance’ (2007) 23 International Journal of Water Resources Development 355. For a critical perspective, mainly as far as the added value in development practice is concerned, cf P Uvin, ‘On High Moral Ground: The Incorporation of Human Rights by the Development Enterprise’ (2002) 17 Praxis – The Fletcher Journal of Development Studies 1. For a reflection on the relationship between a human rights-based approach and the right to development, see M Nowak, ‘The Human Right to Development versus Human-Rights-Based Development Co-operation, Reflections following the Vienna Conference on Human Rights’ in R Tetzlaff (ed), Human Rights and Development (Bonn, Stiftung Entwicklung und Frieden, 1993) 215; BA Andreassen, ‘Development, Capabilities, Rights: What Is New about the Right to Development and a Rights Approach to Development?’ in M Bergsmo (ed), Human Rights and Criminal Justice for the Downtrodden, Essays in Honour of Asbjørn Eide (Leiden, Martinus Nijhoff, 2003) 211.

5 J Kirkemann Hansen and HO Sano, ‘The Implications and Value Added of a Rights-Based Approach’ in BA Andreassen and SP Marks (eds), Development as a Human Right – Legal, Political, and Economic Dimensions (Cambridge, Mass, Harvard University Press, 2006) 36, 36.

6 On the accountability of development organisations, see Laban, above n 4, 357 et seq.

214 Benefits of Understanding Water as a Human Right

(quasi)judicial enforcement of the human right to water require attention and will be addressed in the second section of the chapter.

I. GENERAL BENEFITS OF THE HUMAN RIGHTS FRAMEWORK

The benefits of understanding water as a human right can all be linked to the fact that human rights are legally-binding instruments. The right to water obliges States to set a priority for the fulfilment of basic human needs as delineated in chapter five. Accordingly, the main benefits of the human rights framework, and an approach based thereon, may be traced to its ‘substantive coherence and its legal and normative foundation in international law’7. Being founded on objective legal standards as a solid, non-negotiable, normative basis8, it provides a compelling framework and a source of authority and legitimacy9. Access to water is not a matter of benevolence, charity or welfare, but rather of legal entitlements and claims10. Providing access to water is not left to government discretion11 but constitutes a legal obligation. Such a legally-binding instrument puts people in a position to claim their rights instead of just referring to their needs. As such, they are in a much stronger position than if they were simply to rely on charitable benevolence or general considerations of equitableness12.

In the further analysis of the benefits of the human rights framework, a distinction may be made between the substantive dimension and the pro-cedural dimension13, even though these issues are, of course, interlinked. First, the human right to water as delineated in chapter four is the sub-stantive component referring to the aim to be reached, ie universal access to water in line with human rights standards. The human rights frame-work requires that the realisation of human rights standards is set as the objective14 of water management. The specific measures necessary to reach this objective are generally left to the discretion of governments. However, secondly, human rights law also stipulates certain process requirements. Human rights principles such as participation and account-ability inform the process of how to reach the objective15 of universal

7 Andreassen, above n 4, 227.8 Darrow and Tomas, above n 2, 485.9 Ibid, 484; Office of the United Nations High Commissioner for Human Rights, above n 4,

2.10 Andreassen, above n 4, 228; Hamm, above n 4, 1014; P Uvin, Human Rights and Development

(Bloomfield, Kumarian Press, 2004) 129.11 Darrow and Tomas, above n 2, 511.12 Gready and Ensor, above n 4, 23.13 Andreassen, above n 4, 220.14 Hamm, above n 4, 1011; Gready and Ensor, above n 4, 10.15 Gready and Ensor, above n 4, 10.

General Benefits of the Human Rights Framework 215

access to water. It will be examined to what extent these process require-ments are beneficial for achieving an allocation of water that meets the needs of all people.

A. Reaching Beyond and Beneath the Millennium Development Goals

One of the fundamental characteristics of human rights is their universal-ity16. Access to water is a universal human right, ie every single individual has this right simply by virtue of being human. The right to water entitles everyone to sufficient, safe, accessible and affordable water for personal and domestic needs17. States bear corresponding obligations to realise the right to water that are in principle obligations of progressive realisation. However, the concept of minimum core obligations requires that the mini-mum core of the right to water is realised for everyone immediately, and States have to show that they have undertaken every effort to achieve this18. Only when States are able to demonstrate that they are not in a position to realise the minimum core, despite according it due priority, can they justify its non-realisation. In this regard, human rights reach beyond the MDGs as the currently prevailing minimum consensus in development. The MDG target on water and sanitation is to halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation. If the MDG target on water is reached in 2015, there will still be approximately 672 million people without access to an improved water source19. In con-trast, human rights do not stop at a certain quantified target – such as 50 per cent of the population at a given date, as in the MDGs – but ultimately require access to water for everyone20.

Further in contrast to the MDGs, the human right to water does not set the same target for all States to be reached at a specific date, but requires States to realise the right to water progressively to the maximum of their available resources. States have to determine targets and benchmarks that

16 See generally eg Kirkemann Hansen and Sano, above n 5, 45; K Stern, ‘Zur Universalität der Menschenrechte’ in F Ruland, B Baron von Maydell and HJ Papier (eds), Verfassung, Theorie und Praxis des Sozialstaates, Festschrift für Hans F Zacher zum 70. Geburtstag (Heidelberg, CF Müller, 1998) 1063.

17 See ch 4, section III.18 See ch 4, section II.C.ii; cf as well the Grootboom Case, where, although the South African

Constitutional Court did not apply the minimum core approach, it clearly held that a statisti-cal advance is not sufficient but that special attention has to be paid to those most in need, and that a significant number of people in desperate need have to be afforded relief; see Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, 4 October 2000, (2000) 11 Butterworths Constitutional Law Reports 1169 (CC), para 68; see further on the Grootboom Case below, section II.B.ii.3.a.

19 World Health Organization and United Nations Children’s Fund, above n 1, 9.20 See M Langford, ‘The United Nations Concept of Water as a Human Right: A New

Paradigm for Old Problems?’ (2005) 21 International Journal of Water Resources Development 273, 275.

216 Benefits of Understanding Water as a Human Right

are tailored and contextualised to the national conditions based on an objective assessment of their available resources21. In many cases, this implies more far-reaching obligations than the MDG commitments.

Moreover, the human right to water and an approach based thereon do not settle for minimum targets, such as the MDGs, but reach further, which also relates to the principle of progressive realisation. The right to water extends beyond its core content; States are obliged to realise the full content of the human right to water as expeditiously and effectively as possible22. The normative content is specified by a number of criteria as outlined above: the human right to water entails a guarantee of a sufficient quantity of safe, acceptable, accessible and affordable water for every individual23.

The MDG target is to halve the proportion of people without sustain-able access to safe drinking water. The indicator used to assess progress is access to an improved water source, based on the assumptions that a suf-ficient quantity of water is provided by such improved sources, that they are likely to provide safe water and that they are physically accessible at a given distance24. However, using the indicator as a proxy fails ade-quately to capture the human rights criteria. It cannot be guaranteed that the sources considered as improved actually provide sufficient water. Likewise, water quality is not necessarily ensured by only physically pro-tecting water sources, which does not mitigate all types of pollution. In fact, recent assessments show that water obtained from improved sources is in many instances unsafe25. Moreover, physical accessibility is not nec-essarily guaranteed either. Lastly, the affordability of improved water sources is not taken into account at all. The same holds true for the regu-larity of supply26. In this regard, the human right to water sets up much more specific criteria than the MDGs, which fail to reflect these require-ments adequately, even for those 50 per cent who are targeted by them.

The human rights framework also has implications for priority setting in the expansion of access to water. Whereas the MDGs require only a proportional 50 per cent reduction, which could be met by targeting only the relatively well-off and easy-to-reach as long as 50 per cent are covered, such an approach would not be in line with the human rights obligation of non-discrimination and the need to focus on the most marginalised groups and individuals27.

21 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 4 July 2011, A/HRC/18/33, para 28.

22 See ch 4, section II.C.i. 23 See the detailed delineation of the normative content of the right to water in ch 4, sec-

tion III.24 United Nations, Indicators for Monitoring the Millennium Development Goals, Definitions,

Rationale, Concepts and Sources, ST/ESA/STAT/SER.F/95 (New York, United Nations, 2003) 64.25 World Health Organization and United Nations Children’s Fund, above n 1, 31.26 Office of the United Nations High Commissioner for Human Rights, Claiming the

Millennium Development Goals (MDGs): A Human Rights Approach (Geneva, 2008) 39.27 Ibid, 4, 9.

General Benefits of the Human Rights Framework 217

In summary28, the human right to water and an approach based thereon aim at access to water for every individual instead of only a certain pro-portion. They reach beyond minimum standards, requiring progressive realisation of the full content of the right to water, and they establish specific requirements that are not adequately taken into account by the MDGs. They focus on the most marginalised and disadvantaged, and thus require the addressing of root causes of discrimination, in this regard also reaching beneath the MDGs. The principles of non-discrimination, participation and accountability will be discussed further below.

B. The Concept of Rights-holders and Duty-bearers

In contrast to the MDGs and other approaches based on the perception of water as a basic human need, the concept of human rights encompasses corresponding obligations29 – the State’s obligations to respect, to protect and to fulfil the human right to water, as well as obligations to achieve non-discrimination30. The implementation of an HRBA is founded on the relationship between rights-holders and duty-bearers31, by building upon the rights held by individuals and the corresponding obligations borne by the States. This relationship differs significantly from the one between individuals as mere recipients and the State as a sort of charity-giver32. In particular, it allows individuals to hold the duty-bearer accountable33, an aspect that will be explored in more depth below. By stressing the aspect of obligations, human rights help to identify the duty-bearer34. There must

28 For a detailed analysis of the contributions of the human rights framework to address a number of gaps in MDG monitoring, see General Assembly, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 6 August 2010, A/65/254. On human rights and the MDGs, see also Center for Human Rights and Global Justice, NYU School of Law, Human Rights Perspectives on the Millennium Development Goals, 2003, 14, available at <www.chrgj.org/images/NYUCHRGJMDGREPORT2003.pdf> (accessed 1 October 2011); UN Committee on Economic, Social and Cultural Rights and the UN Commission on Human Rights’ Special Rapporteurs on Economic, Social and Cultural Rights, The Millennium Development Goals and Economic, Social and Cultural Rights, Joint Statement, 29 November 2002, para 13, available at <hurilink.org/tools/MDGSandESCsJointStatement.pdf> (accessed 1 October 2011); United Nations Development Programme, Human Rights and the Millennium Development Goals, Making the Link (Oslo, United Nations Development Programme, Oslo Governance Centre, 2007).

29 See Robinson, above n 4, 39; Andreassen, above n 4, 221.30 For an analysis of these obligations, see above ch 4, section II.31 Filmer-Wilson, above n 2, 223; United Nations Development Programme, above n 4, 21;

Kirkemann Hansen and Sano, above n 5, 48.32 Kirkemann Hansen and Sano, above n 5, 48.33 United Nations Development Programme, above n 4, 21.34 Robinson, above n 4, 39; Darrow and Tomas, above n 2, 511; United Nations

Development Programme, above n 4, 21; Gready and Ensor, above n 4, 23; O Ball, ‘Conclusion’ in P Gready and J Ensor (eds), Reinventing Development?, Translating Rights-Based Approaches from Theory into Practice (London, Zed Books, 2005) 278, 289. In certain cir-cumstances it can be rather difficult to determine which entity is responsible, see eg the case

218 Benefits of Understanding Water as a Human Right

always be an institution responsible for the realisation of a specific human right (eg access to water), and an HRBA allows that entity to be identified and its responsibilities clarified35.

Once rights-holders and duty-bearers and their respective entitlements and obligations have been identified, the aim of an HRBA is to build and strengthen their capacities36. On the side of rights-holders, the first step must be awareness-raising and human rights education37. Only if people have sufficient information and know their human rights, will they be able to claim those rights. In this regard, it is of great significance whether people perceive themselves as ‘victims’ with needs, or as rights-holders with legitimate demands and claims38. Moreover, training and capacity building, including negotiation and advocacy skills, are necessary to enable people to claim their human right to water39. On the side of duty-bearers too, raising awareness of water as a human right and of human rights principles, as well as capacity building and institutional strength-ening, are essential40.

The implications of the concept of right-holders and duty-bearers will become relevant in the following discussion of the human rights princi-ples of participation, non-discrimination and accountability that are essential elements of the human rights framework.

C. The Human Rights Principles of Participation, Non-discrimination and Accountability

A number of human rights principles may be derived from international human rights instruments: universality, indivisibility, interdependence and inter-relatedness, participation, non-discrimination and accountability41.

study on improving water supply in Karachi, IUCN – The World Conservation Union, You Can Make a Difference, Environmental Public Interest Litigation in Pakistan (Karachi, 1998) 49 et seq.

35 United Nations Development Programme, above n 4, 21; see also Newell and Wheeler, above n 2, 10.

36 Kirkemann Hansen and Sano, above n 5, 48 et seq; Ball, above n 34, 289.37 Frankovits, above n 4, 13; Hamm, above n 4, 1023 et seq.38 Filmer-Wilson, above n 2, 223.39 See Darrow and Tomas, above n 2, 494.40 Filmer-Wilson, above n 2, 238; Hamm, above n 4, 1023; Kirkemann Hansen and

Sano, above n 5, 48; Ball, above n 34, 282; see also Third High Level Forum on Aid Effectiveness, Accra Agenda for Action, 2–4 September 2008, Accra, Ghana (hereafter ‘Accra Agenda for Action’), para 14, available at <siteresources.worldbank.org/ACCRAEXT/Resources/ 4700790-1217425866038/ AAA-4-SEPTEMBER-FINAL-16h00.pdf> (accessed 1 October 2011).

41 These human rights principles (universality and inalienability, indivisibility, inter-dependence and inter-relatedness, non-discrimination and equality, participation and inclu-sion, as well as accountability and the rule of law) have been identified by the UN Common Understanding on a Rights Based Approach to Development Cooperation, see United Nations, Report of the Second Interagency Workshop on Implementing a Human Rights-based

General Benefits of the Human Rights Framework 219

While the first three principles are of overarching significance, the last three are of more direct relevance in the implementation of human rights and result in the more tangible benefits of an HRBA. Participation, non- discrimination and accountability are of great value for the goal of attaining a more equitable water allocation, and the process of achieving this aim and will therefore now be considered in more detail.

i. Participation

Participation in human right terms is enshrined in many conventions42. At a general level, Article 25 of the Civil Covenant guarantees the right to take part in the conduct of public affairs, to vote and to be elected, as well as to have access to public service. It lies at the core of democracy43 and includes elements of representative as well as direct participation. In regard to direct participation, General Comment No 25 of the Human Rights Committee provides that ‘[c]itizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government’44. Moreover, ‘[c]itizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their repre-sentatives or through their capacity to organize themselves’45. Apart from the general provision of Article 25 of the Civil Covenant, CEDAW includes a number of specific provisions guaranteeing women equal rights to par-ticipation (Articles 7, 13, 14(2)46). Similarly, Article 29 CRPD includes a provision that aims at the equal participation of persons with disabilities in political and public life. Moreover, Article 12 CRC refers to children’s rights to participate and express their views.

Approach in the Context of UN Reform, Stamford, USA, 5–7 May 2003, ‘Attachment 1: The Human Rights Based Approach to Development Cooperation, Towards a Common Understanding Among the UN Agencies’, para 14, available at <www.undg.org/archive_docs/4128-Human_Rights_Workshop__Stamford___Final_Report.doc> (accessed 1 October 2011) (hereafter ‘Common Understanding’); see also Kirkemann Hansen and Sano, above n 5, 37; Human Rights Committee, General Comment No 18, Non-discrimination, 10 November 1989, contained in HRI/GEN/1/Rev.1 at 26, para 1.

42 Darrow and Tomas, above n 2, 494, 507 et seq; Hamm, above n 4, 1019.43 Human Rights Committee, General Comment No 25, The right to participate in public

affairs, voting rights and the right of equal access to public service (Art 25), 27 August 1996, CCPR/C/21/Rev.1/Add.7, para 1.

44 Ibid, para 6.45 Ibid, para 8.46 See in this regard Committee on the Elimination of Discrimination against Women,

General Recommendation No 23, Women in Public Life (Art 7), 1997, 16th Session, contained in A/52/38/Rev.1 at 61.

220 Benefits of Understanding Water as a Human Right

Participation in a human rights sense has to be ‘active, free and mean-ingful’47. It requires attention to the quality of the participation process in contrast to ad hoc or superficial stakeholder contacts or mere consulta-tions48. Participation in a human rights sense requires the inclusive involvement in decision-making of all people concerned 49 that provides a genuine opportunity to express demands and concerns, and to influence decision-making. It has to ‘be viewed as a process of fostering critical con-sciousness and decision making as the basis for active citizenship’50. As such, it allows for people being actively involved as rights-holders instead of being mere passive recipients. Human rights require broad-based par-ticipation by all who are affected by decisions on water allocation, includ-ing marginalised groups often discriminated against in decisions regarding water governance and allocation. In this respect, participation shows a close link to non-discrimination and attention to marginalised groups, a topic that will be discussed next. To achieve such active and broad-based participation that includes all relevant stakeholders in prac-tice is one of the great challenges in implementing an HRBA51. Brazil’s Law on Environmental Sanitation from 2007 provides an example of suc-cessfully implementing participatory processes, leading to more sustain-able results that meet people’s priorities and needs. The law itself was developed through an extensive multi-stakeholder process, and it pro-vides for participatory processes in decision-making52.

As outlined above in chapter five, human rights have implications for water allocation that result in a framework for priority setting, but specific policy choices and decisions on how to allocate water remain to be made, which has to be done in a participatory manner. In this regard, the sub-stantive dimension and the procedural dimension of the human rights framework are interlinked. While the substantive human rights provide a framework for water allocation as outlined above, the human rights prin-ciple of participation requires that the specific decisions regarding water allocation within that framework are taken by including all relevant

47 General Assembly, Declaration on the Right to Development, 4 December 1986, A/Res/41/ 128, Art 2(3).

48 Darrow and Tomas, above n 2, 506; Gready and Ensor, above n 4, 25; Kirkemann Hansen and Sano, above n 5, 49.

49 Gready and Ensor, above n 4, 25.50 Darrow and Tomas, above n 2, 506.51 Filmer-Wilson, above n 2, 239. One of the challenges pointed out refers to the fact that

stakeholder participation is often understood as the inclusion of NGOs. This, however, raises questions in terms of representation, legitimacy and accountability; see Hamm, above n 4, 1019 et seq; Uvin, above n 10, 141 et seq. For an overview of participatory instruments, see P Moriarty, C Batchelor, FT Abd-Alhadi, P Laban and H Fahmy, The EMPOWERS Approach to Water Governance – Guidelines, Methods and Tools (Amman, The Inter-Islamic Network on Water Resources Development and Management, 2007) 51 et seq.

52 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, ‘Addendum, Compilation of good practices’, 16 June 2011, A/HRC/18/33/Add.1, para 14.

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stakeholders. All stakeholders must be enabled to take part in the deci-sion-making process and have the opportunity to express their demands53. On this basis, a decision can be reached that responds to the demands of the community in question and matches its needs and priorities54. By uti-lising local knowledge and determining local preferences, the efficiency and adequacy of resource allocation may be enhanced.

The principle of participation highlights the interdependence and inter-relatedness of human rights, as procedural rights as well as free-dom of expression, freedom of assembly, freedom of association, freedom of the press and access to information (as guaranteed in Articles 19, 21 and 22 of the Civil Covenant) are prerequisites for any meaningful par-ticipation55. For example, when the human right to water is infringed by a disconnection of water services, the freedom of speech and freedom of assembly entail the necessary guarantees to be able to protest against such infringements56. Human rights law provides a framework to address inter-related concerns. Measures to realise the right to water cannot be seen in isolation but require an integrated approach. They have to be linked to the strengthening of democratic systems and institutions57 and other interventions to enhance democratic governance.

ii. Non-discrimination and attention to marginalised and vulnerable groups and individuals

Non-discrimination is a fundamental principle of international human rights law. Article 2(2) of the Social Covenant guarantees the exercise of human rights without any kind of discrimination, listing race, colour, sex, language, religion, political or other opinion, national or social origin, prop-erty, birth or other status as prohibited grounds. Moreover, certain conven-tions, such as the CEDAW, the CRPD and the ICERD, at a minimum aim to

53 Filmer-Wilson, above n 2, 234.54 Filmer-Wilson, above n 2, 219, 233; see also Office of the United Nations High

Commissioner for Human Rights, above n 4, 24.55 Human Rights Committee, General Comment No 25, above n 43, paras 8, 25; Frankovits,

above n 4, 14; United Nations Development Programme, above n 4, 74, 85; Office of the United Nations High Commissioner for Human Rights, above n 4, 19; Darrow and Tomas, above n 2, 509 et seq. They point out that, in turn, for participation to take place a minimum level of realisation of economic, social and cultural rights is required, at least as far as sur-vival requirements, but also a minimum level of education is concerned; see Darrow and Tomas, above n 2, 510. See also Andreassen, above n 4, 220; Hamm, above n 4, 1019.

56 See, on protests in South Africa, L Partzsch and IT Winkler, ‘South Africa, Water Struggles’ in I Ness (ed), International Encyclopedia of Revolution and Protest, vol VI (Oxford, Wiley Blackwell, 2009) 3099.

57 Filmer-Wilson, above n 2, 221, 224; Hamm, above n 4, 1020; Office of the United Nations High Commissioner for Human Rights, above n 4, 18. See Sen’s famous study on famines, showing that no famine continued unabated in any democratic State with a relatively free press, A Sen, Development as Freedom (Oxford, Oxford University Press, 2001) 178 et seq; United Nations Development Programme, above n 4, 74.

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eliminate discrimination against specific groups and individuals. States must not discriminate against certain groups and individuals on prohibited grounds. Moreover, existing or past systemic discrimination has to be dis-continued and redressed58, which may require preferential treatment and affirmative action for specific groups in certain circumstances. The reduc-tion of disparity as well as equality in substantive terms have to be achieved to the greatest extent possible59.

In this regard, specific attention should be paid to marginalised groups and individuals, which in turn requires identifying those groups and indi-viduals suffering from discrimination and marginalisation60 in regard to access to water. Apart from the general identification of individuals who often face difficulties in exercising their right to water, such as women and people living in deprived urban areas, as provided by General Comment No 1561, it is necessary to identify marginalised groups in each specific context, region or community. In order to do so, disaggregated data according to specific groups, eg women, people living in rural areas, people living in informal settlements and other deprived urban areas, indigenous peoples, among others, is necessary62.

To address the systemic and underlying causes of discrimination, understanding the reasons for discrimination and marginalisation is essential63. An HRBA requires analysing and addressing the political and social power relationships by examining how laws, policies, institutions, and social and cultural practices affect access to water64. Current govern-ment priorities in resource allocation have to be determined. In doing so, the most marginalised sectoral and geographical areas must be identi-fied65. In this regard, human rights help to shed light on how power ine-qualities affect access to water66. As such, underlying structural causes, including discrimination and inequality, become apparent67. Such an anal-ysis is a precondition to being able to address the systemic causes that prevent people from gaining access to water. Only then can targeted measures be taken that aim at strengthening the capacity of rights-holders

58 Human Rights Committee, General Comment No 18, above n 41, para 10; see also further above ch 4, section II.B.

59 Darrow and Tomas, above n 2, 505.60 Ibid; Filmer-Wilson, above n 2, 236; Kirkemann Hansen and Sano, above n 5, 50.61 See Committee on Economic, Social and Cultural Rights, General Comment No 15, The

right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11, para 16.

62 Hamm, above n 4, 1024; Office of the United Nations High Commissioner for Human Rights, above n 4, 24; see also Accra Agenda for Action, above n 40, para 23(a).

63 Filmer-Wilson, above n 2, 222, 236.64 Filmer-Wilson, above n 2, 219; Frankovits, above n 4, 12; Kirkemann Hansen and Sano,

above n 5, 50.65 Frankovits, above n 4, 12.66 See Darrow and Tomas, above n 2, 537.67 See Frankovits, above n 4, 12.

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to claim their rights and of duty-bearers to fulfil their obligations68 in order to realise the right to water. Ideally, the human right to water will then provide the ‘substantive parameters regulating the distribution of power and resources’69. As such, human rights may be used to challenge existing power and resource imbalances70.

This again highlights the importance of an integrated approach looking beyond the water sector. For instance, the discrimination that women suf-fer in other sectors, such as land rights, inheritance, education and access to employment, impacts on their access to water71. Accordingly, from a human rights perspective, it is not sufficient to have a statistical advance in figures on access to water. Rather, an HRBA gives particular attention to the situation of the most marginalised and disadvantaged. To achieve long-term and sustainable results, an HRBA aims to address the structural causes of discrimination. Discrimination due to caste is often deeply ingrained in societal structures and requires targeted, long-term strategies to be addressed. For instance, the Department for Water Affairs in Tamil Nadu, India, developed a programme to tackle caste discrimination in access to water and sanitation and other areas, working closely with com-munities and using awareness training to expose discrimination72.

Gender equality, non-discrimination, and attention to marginalised and vulnerable groups are also significant in procedural terms, in particular in the context of participation. All individuals and groups who are affected by decisions on water allocation must be enabled to participate in the decision-making process – including marginalised groups73. Only then can the rights and entitlements of all individuals and groups be identified and addressed74. The participation and inclusion of women is of particu-lar relevance in the water sector, as women play a central role in the man-agement and provision of water in many regions and cultures75, often being responsible for collecting water, which often takes many hours per day. Accordingly, women would benefit particularly from access to water, and it is therefore essential to include them in the decision-making process.

68 Filmer-Wilson, above n 2, 217.69 Darrow and Tomas, above n 2, 490; see also Gready and Ensor, above n 4, 8 et seq.70 Gready and Ensor, above n 4, 23; Darrow and Tomas, above n 2, 505; Newell and

Wheeler, above n 2, 4; Office of the United Nations High Commissioner for Human Rights, above n 4, 14.

71 Filmer-Wilson, above n 2, 235.72 Human Rights Council, Report of the Special Rapporteur, ‘Compilation of good practices’,

A/HRC/18/33/Add.1, above n 52, para 61.73 Filmer-Wilson, above n 2, 218; Kirkemann Hansen and Sano, above n 5, 50.74 Filmer-Wilson, above n 2, 237.75 Filmer-Wilson, above n 2, 234.

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iii. Accountability

The human rights framework stresses the relationship between people as rights-holders and the State as the primary duty-bearer. Accountability as a human rights principle follows directly from this structure of human rights held by individuals and corresponding State obligations76. It distinguishes an HRBA most distinctively from mere charitable interventions77; some argue that this is the feature most specific to an HRBA78. As a result of emphasising this relationship, the question of accountability can be approached from both sides: the capacity of duty-bearers being accountable to the rights-holders, and the capacity of rights-holders to hold govern-ments accountable79.

The human right to water is a ‘performance standard’ against which the State’s efforts to realise access to water for all people may be measured and assessed80. The State’s compliance with its human rights obligations may be monitored81 and the government is accountable to people under its jurisdiction regarding the realisation of the right to water. In order to mon-itor its realisation, the right to water as a human rights standard may be translated and broken down into specific indicators and benchmarks82 that allow progress in the realisation of the right to be measured. This allows government failures to be identified, when the state is not realising the right to water progressively to the full extent of its available resources. For instance, the National Human Rights Institutions (NHRIs) in Colombia, Ecuador and Peru have set up extensive programmes to monitor the reali-sation of the right to water based on detailed indicators83.

When viewed from the perspective of individuals (the rights-holders), the human right to water allows them to hold governments accountable. This capacity may be seen as one of the outcomes of empowerment by

76 Darrow and Tomas, above n 2, 518; Centre on Housing Rights and Evictions, American Association for the Advancement of Science, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Manual on the Right to Water and Sanitation (Geneva, 2007) 17.

77 Uvin, above n 10, 131.78 Kirkemann Hansen and Sano, above n 5, 48; Uvin, above n 10, 131; see also Office of the

United Nations High Commissioner for Human Rights, above n 4, 15.79 Kirkemann Hansen and Sano, above n 5, 42.80 Darrow and Tomas, above n 2, 511; Frankovits, above n 4, 12; Hamm, above n 4, 1031.81 Filmer-Wilson, above n 2, 222.82 Kirkemann Hansen and Sano, above n 5, 48 et seq; Office of the United Nations High

Commissioner for Human Rights, above n 4, 25. A set of indicators on the right to water has been developed by V Roaf, A Khalfan and M Langford, Monitoring Implementation of the Right to Water: A Framework for Developing Indicators, Global Issue Paper No 14 (Berlin, Heinrich Boell Foundation, 2005). At the United Nations level efforts are also undertaken to develop lists of indicators, see eg Twentieth meeting of chairpersons of the human rights treaty bod-ies, Report on indicators for promoting and monitoring the implementation of human rights, 6 June 2008, HRI/MC/2008/3.

83 Human Rights Council, Report of the Special Rapporteur, ‘Compilation of good practices’, A/HRC/18/33/Add.1, above n 52, para 83.

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human rights84. In order to be able to do so, institutional structures and responsibilities have to be transparent85. People have to be able to access information86, for example existing water policies and data on water use. Only if people have access to such information will they be able to iden-tify current patterns and priorities in resource allocation, which then ena-bles them to question current priorities and the preferential allocation of water to purposes other than basic needs87. Having such information and having knowledge of human rights makes it easier for people then to demand the realisation of their human right to water.

Rights-holders may make use of a wide array of different approaches to hold the State accountable to live up to its human rights obligations88. Different forms of accountability mechanisms may broadly be distin-guished: judicial, quasi-judicial, administrative, political and social mechan-isms89. Judicial mechanisms are the most obvious from a legal perspective and most closely associated with human rights (and will be explored in detail below90). However, mechanisms are by no means limited to formal adjudication. In fact, litigation is often considered only as a last resort91, while political and social processes are of great significance92 in securing the right to water. There are many other forms of protection and remedies, and myriad possible accountability mechanisms that individuals and groups can employ, that are often more easily accessible and sometimes also more effective93.

Quasi-judicial, administrative and political mechanisms are of particular significance94. At the national level, quasi-judicial mechanisms include NHRIs95 such as ombuds-institutions and human rights commissions, which can play an important role in publicising and responding to viola-tions of the right to water. For example, the South African Human Rights Commission monitors the implementation of the right to water in South

84 Kirkemann Hansen and Sano, above n 5, 51.85 Darrow and Tomas, above n 2, 512.86 See United Nations Development Programme, above n 4, 75.87 See Robinson, above n 4, 40.88 For an overview of different formal and informal strategies and instruments, see Newell

and Wheeler, above n 2, 17 et seq; see also Ball, above n 34, 291; Uvin, above n 10, 133 et seq.89 See eg H Potts, Accountability and the Right to the Highest Attainable Standard of Health

(Colchester, University of Essex Human Rights Centre, 2008) 17.90 See section II. below.91 Gready and Ensor, above n 4, 9.92 Ibid; Sen, above n 57, 5; Ball, above n 34, 291.93 See Gready and Ensor, above n 4, 9.94 Office of the United Nations High Commissioner for Human Rights, above n 4, 16; see

also Committee on Economic, Social and Cultural Rights, General Comment No 9, The domestic application of the Covenant, 3 December 1998, E/C.12/1998/24, para 9.

95 See generally Committee on Economic, Social and Cultural Rights, General Comment No 10, The role of national human rights institutions in the protection of economic, social and cultural rights, 10 December 1998, E/C.12/1998/25; V Aichele, Nationale Menschenrechtsinstitutionen: ein Beitrag zur nationalen Implementierung von Menschenrechten (Frankfurt am Main, Peter Lang, 2003).

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Africa and issues regular reports96. Most NHRIs also have the competence to receive individual complaints. Administrative mechanisms may be of great significance at an early stage, ie not only by redressing violations of the human right to water, but also by preventing them in the first place, for example by carrying out an ex ante human rights impact assessment97. Moreover, political mechanisms such as parliamentary committees can be important, and often gain the attention of the public at large, which may be greatly enhanced by social accountability efforts.

Apart from such rather formal mechanisms, more informal instruments in the social sphere may be used simultaneously. It may be assumed that exerting political pressure will remain the main way to protect rights98. In this regard, lobbying, advocacy, public hearings and campaigns, and political mobilisation are important instruments, as is using the press and other media to publicise violations of the right to water99. In all such efforts, relying on the human right to water can serve as a valuable tool to demand access to water100. Examples of such action range from interna-tional campaigns for the recognition of the right to water101, to publicising violations of the right to water102, to very specific local actions to improve access103. When making use of all these instruments, the human right to water always serves as an authoritative basis104 that lends legitimacy to

96 See South African Human Rights Commission, 6th Economic and Social Rights Report (Johannesburg, South African Human Rights Commission, 2006) 104 et seq.

97 Office of the United Nations High Commissioner for Human Rights, above n 4, 16. On Human Rights Impact Assessments and suggested methodologies, see eg BA Andreassen and HO Sano, ‘What’s the Goal? What’s the Purpose? Observations on Human Rights Impact Assessment’ (2007) 11 International Journal of Human Rights 275; G de Beco, ‘Human Rights Impact Assessments’ (2009) 27 Netherlands Quarterly of Human Rights 139; International Finance Corporation and International Business Leaders Forum, Guide to Human Rights Impact Assessment and Management, Road-Testing Draft (Washington DC, 2007).

98 J Cottrell and Y Ghai, ‘The Role of the Courts in the Protection of Economic, Social & Cultural Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 58, 66.

99 United Nations Development Programme, above n 4, 75; Ball, above n 34, 294.100 See Gready and Ensor, above n 4, 8; Newell and Wheeler, above n 2, 6.101 See in this regard IT Winkler and L Partzsch, Wasser für alle – Wie zivilgesellschaftliche

Kampagnen ‘neuartige’ Menschenrechte vorantreiben, Paper Presented at the Conference ‘Menschenrechte in der Weltgesellschaft’, 27–28 June 2008 (Bielefeld, University of Bielefeld, 2008).

102 See eg FIAN International and Bread for the World, Investigating Some Alleged Violations of the Human Right to Water in India, Report of the International Fact Finding Mission to India (Heidelberg, FIAN International, 2004).

103 For instance, a community in a low-income neighbourhood in Buenos Aires was suc-cessful in invoking the right to water by direct reliance on General Comment No 15. It was supported in various petitions to the local authorities by the Centro de Estudios Legales y Sociales and the Centre on Housing Rights and Evictions. Their efforts resulted in the community being added to the plans to construct new water networks in Buenos Aires; see M Langford, ‘Ambition that Overleaps Itself? A Response to Stephen Tully’s Critique of the General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433, 447 et seq.

104 Robinson, above n 4, 38.

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the claims brought forward105. Civil society and other organisations may also play an important role in monitoring State progress in the realisation of the right to water. Alternative or shadow reports from civil society organisations to the reports handed in by States under treaty body proced-ures106, are an important instrument that may also spark a wider debate on the realisation of socio-economic rights107.

Nevertheless, (quasi-)judicial remedies should also be stressed as a means to give a voice to rights-holders108. The mere fact that the human right to water could be judicially enforced reinforces it as political argu-ment109. (Quasi-)judicial instruments have to be seen in connection with other strategies and mechanisms110 that reinforce and complement each other. Frequently, strategies that combine a range of mechanisms are most successful111. It is true that judicial remedies are often not accessible to the most marginalised, and that they certainly do not always provide timely redress112. However, they are still an important instrument, especially as a last resort and when supported by civil society organisations. Apart from providing redress for specific violations of the right to water, court cases often have effects well beyond the specific issue, serving as an important stimulus for the further realisation of the right to water by creating judi-cial precedents and increasing public awareness113. Also, successfully liti-gating a case based on the right to water may be an extremely empowering experience that has spill-over effects reaching well beyond gaining access to water in itself.

Yet even the issuing of a court order does not always provide effective redress114. Crucially, judgments must be implemented by the authorities. This can result in a continuous struggle, requiring further political pres-sure115. The legitimacy of these claims is then further strengthened by the court order to that effect. This highlights again that litigation should not

105 Newell and Wheeler, above n 2, 6.106 See below, section II.C.i.1. 107 See Robinson, above n 4, 30.108 C Courtis, ‘The Right to Food as a Justiciable Right: Challenges and Strategies’ (2007)

11 Max Planck Yearbook of United Nations Law 317, 319. The role of litigation strongly depends on legal traditions in different countries, see Newell and Wheeler, above n 2, 16.

109 See EA Yamin, ‘Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health’ (2008) 10 Health and Human Rights Journal 1, 6.

110 A Sen, ‘Human Rights and Development’ in BA Andreassen and SP Marks (eds), Development as a Human Right – Legal, Political, and Economic Dimensions (Cambridge, Mass, Harvard University Press, 2006) 1, 5.

111 Office of the United Nations High Commissioner for Human Rights, above n 26, 15. See also the examples provided by Yamin, above n 109, 3.

112 Darrow and Tomas, above n 2, 512.113 C Scott and P Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social

Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1, 38.

114 See Darrow and Tomas, above n 2, 512.115 See Sen, above n 110, 5.

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be pursued in isolation from other strategies to hold government to account, but rather should be linked to these116.

The opportunities for litigating the right to water and making use of (quasi-)judicial remedies require more in-depth theoretical consideration, in particular because the justiciability of socio-economic rights has often been challenged. These issues will therefore be explored in the next section.

D. Conclusion

The considerations discussed above have highlighted the benefits of rec-ognising water as a human right and taking an approach to water alloca-tion that is based on human rights. Above all, the human right to water is universal in reach. Its core content must be realised for every individual immediately, while its full content must be achieved progressively. The right to water stipulates specific requirements in terms of the quantity, quality, acceptability, accessibility and affordability of water. In this regard, the right to water is more far-reaching and more specific than the MDGs. Moreover, human rights require the situation of the most margin-alised and disadvantaged to be addressed specifically, and thus go beyond general considerations of equitableness.

The human right to water and an approach to water allocation based on it have the potential to empower individuals and groups by translating needs into rights. Whereas access to water has often been considered a mere need, the human right to water translates it into a rightful claim117. This is a significant difference:

Someone who merely has unmet needs may inspire compassion or indifference, but only the altruistic and the charitable will respond. Recasting that same per-son as a rights holder acknowledges their agency and dignity118.

Empowerment aims at strengthening this agency and people’s ability to act on their own behalf119. The human rights framework requires active, free and meaningful participation and involvement in the decision- making process. And as rights give rise to corresponding legal obliga-tions, people are able to abandon their role as ‘victims’ and claim their rights120 by holding institutions to account to live up to their human rights obligations. Empowerment may be understood as the ‘expansion of

116 Darrow and Tomas, above n 2, 531.117 See Office of the United Nations High Commissioner for Human Rights, above n 4, 33.118 Ball, above n 34, 289.119 Robinson, above n 4, 40; see also Darrow and Tomas, above n 2, 514.120 Filmer-Wilson, above n 2, 217; Frankovits, above n 4, 12.

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people’s capabilities and freedoms to participate in, negotiate with, influ-ence, control and hold accountable institutions that affect their lives’121.

Such empowerment, combined with taking an integrated approach that, in particular, aims at democratic and institutional strengthening at the same time, allows one to address the systemic biases and power asym-metries as the underlying structural causes122 that lead to the inequitable allocation of water resources and the lack of access to water. Due to its legally-binding status, the human right to water lends authority and legit-imacy to any activities aimed at furthering access to water. Human rights law provides a coherent normative framework based on non-negotiable standards and principles. Relying on the human right to water thus has the potential to transform these power relations.

Yet it still has to be explored whether and how this human right can be enforced. Litigation may either be used to complement and reinforce other activities, or become relevant when political and social accountabil-ity mechanisms prove insufficient and States refuse or fail to comply with their obligations regarding the human right to water.

II. POSSIBILITY OF JUDICIAL ENFORCEMENT

The judicial enforcement of the right to water is a means to subject duty-bearers to control, to determine whether rights have been violated, and to allow for reparation and redress in cases of violations123. In practice, legal enforcement is (or should be) considered only as a last resort, when administrative or other mechanisms are not successful124. Nevertheless, the focus will now turn to questions of justiciability and judicial enforce-ment of the right to water, considering the potential of the human rights framework from a more formal, legal point of view. This seems appropri-ate not only because judicial enforcement is a possible measure – albeit as a last resort – but also because the mere fact that rights are judicially enforceable is a strong argument when advocating for the realisation of right to water125 and motivating duty-bearers to comply with it.

General Comment No 15 states that all persons and groups should have access to effective judicial or other appropriate remedies at the national as

121 Darrow and Tomas, above n 2, 494; see also Office of the United Nations High Commissioner for Human Rights, above n 26, 11. This notion of empowerment shows a strong link to the capabilities approach developed by Amartya Sen; see Sen, above n 57, 74 et seq, 87 et seq; United Nations Development Programme, above n 4, 19 et seq; Kirkemann Hansen and Sano, above n 5, 51; Office of the United Nations High Commissioner for Human Rights, above n 4, 5 et seq; Andreassen, above n 4, 220, 221.

122 Darrow and Tomas, above n 2, 489; see also Nowak, above n 4, 224; Gready and Ensor, above n 4, 25; Ball, above n 34, 278; Laban, above n 4, 358.

123 Courtis, above n 108, 319.124 Cottrell and Ghai, above n 98, 88.125 Ibid, 60.

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well as the international level126. As international instruments are mostly subsidiary and subject to the exhaustion of local remedies127, there is pri-macy of national remedies128; enforcement at the national level will thus be considered first, followed by an analysis of instruments at the inter-national level. Those sections are preceded by a discussion of the general question of justiciability of the human right to water. Within the scope of the present book, it is impossible to discuss the enforcement of socio- economic rights such as the right to water conclusively129. Rather, the aim is to provide an overview of potential enforcement mechanisms to give effect to the right to water.

A. Justiciability of the Human Right to Water

The first question to be considered is the general one of justiciability, asking whether the human right to water is susceptible to (quasi-)judicial determin-ation130. In the national context, this relates to the question whether the right

126 CESCR, General Comment No 15, above n 61, para 55. See also ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, reprinted in (1998) 20 Human Rights Quarterly 691, para 22; Commission on Human Rights, Note verbale dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights, 8 January 1987, E/CN.4/1987/17, Annex, ‘The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’, para 19; CESCR, General Comment No 9, above n 94, para 3; Art 2(3) of the Civil Covenant (this provision has no direct counterpart in the Social Covenant); Art 8 UDHR.

127 See Art 3(1) of the Optional Protocol to the Social Covenant. The exhaustion of domes-tic remedies does not apply to reporting procedures. The Optional Protocol to the European Social Charter on the collective complaint mechanism is also an exception in that regard; see J Schneider, Die Justiziabilität wirtschaftlicher, sozialer und kultureller Menschenrechte (Berlin, Deutsches Institut für Menschenrechte, 2004) 22; see also K Weschke, Internationale Instrumente zur Durchsetzung der Menschenrechte (Berlin, Berliner Wissenschafts-Verlag, 2001) 21.

128 CESCR, General Comment No 9, above n 94, para 4.129 On the enforcement of economic, social and cultural rights in different contexts and

legislations, see the contributions in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2009); S Liebenberg, ‘The Protection of Economic and Social Rights in Domestic Legal Systems’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 55; S Liebenberg, ‘Enforcing Positive Socio-Economic Rights Claims: The South African Model of Reasonableness Review’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 73, and other contributions in that volume; Cottrell and Ghai, above n 98, and other contribu-tions in that volume; D Brand, ‘Socio-Economic Rights and Courts in South Africa: Justiciability on a Sliding Scale’ in F Coomans (ed), Justiciability of Economic and Social Rights, Experiences from Domestic Systems (Antwerp, Intersentia, 2006) 207, and other contributions in that volume.

130 Scott and Macklem, above n 113, 17; Schneider, above n 127, 9. For a discussion how the term ‘justiciability’ is used in different contexts, see MJ Dennis and DP 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?’ (2004) 98

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may be invoked in courts and be applied by judges131. At the international level, it relates to a range of different quasi-judicial mechanisms.

To a certain extent, the theoretical debate whether socio-economic rights are justiciable seems outdated and redundant, considering the adoption of the Optional Protocol to the Social Covenant132 at the international level and the enormous body of case law on the right to water in a great num-ber of countries that has developed exponentially over the last few years133. Nevertheless, this general (theoretical) question will be consid-ered briefly134 in order to engage with the criticism the justiciability of socio-economic rights has encountered. In particular in South African lit-erature, an extensive debate has evolved on the issue of justiciability of socio-economic rights, even during the process of drafting the 1996 Constitution135. A number of authors have dealt in detail with the criticism that socio-economic rights in the form of justiciable rights have been confronted with136. This section therefore to some extent draws on this body of literature.

A number of arguments are usually brought up to question the justicia-bility of socio-economic rights. One suggests that courts (as well as quasi-judicial bodies) lack the expertise and are ill-equipped to enforce socio-economic rights, while a second argument relates to the legitimacy of courts and the separation of powers, thus being mostly relevant in a national context. A third point is mainly advanced in the international context, holding that the provisions of the Social Covenant are too vague to be justiciable. These arguments will now be considered in more detail.

American Journal of International Law 462, 473 et seq. Some of the questions discussed and arguments put forward in this context have already been mentioned in the context of deter-mining the legal nature of the human right to water, as the two issues are, of course, inter-linked (see above ch 4, section I).

131 M Scheinin, ‘Economic and Social Rights as Legal Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 29, 29.

132 General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 5 March 2009, A/Res/63/117.

133 For a compilation of case law, see WASH United, Freshwater Action Network and WaterLex, The Right to Water and Sanitation in International and National Law (working title), forthcoming 2012.

134 For a more detailed discussion, see eg Cottrell and Ghai, above n 98; Scott and Macklem, above n 113; Schneider, above n 127; K Arambulo, Strengthening the Implementation of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Antwerp, Intersentia, 1998) 53 et seq.

135 See in particular the seminal article of Scott and Macklem, above n 113; also CR Sunstein, Social and Economic Rights? Lessons from South Africa, Chicago Public Law and Legal Theory Working Paper No 12 (Chicago, Ill, University of Chicago, 2001) 2.

136 See eg M Pieterse, ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 South African Journal on Human Rights 383.

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i. Alleged lack of capacity

The first argument usually raised to dispute the justiciability of socio- economic rights such as the right to water, is that courts lack the expertise and capacity to engage with such rights. As questions relating to socio-economic rights often involve complex policy issues and choices, it is argued that judges are ill-equipped to deal with these because they are not public policy experts and lack technical expertise in specific areas137. It is held that they are not competent to evaluate policy options and the impact that such decisions have on society as a whole, and on the realisa-tion of other rights and policies138.

Yet the fact that decisions regarding human rights have social policy implications holds true not only for socio-economic rights, but for all human rights139. In many cases, judges have to deal with issues in which they are not experts140. The lack of policy expertise is thus not a problem specific to socio-economic rights cases. It cannot be used as an argument completely to deny the justiciability of these rights, but rather has impli-cations for the way in which courts exercise their jurisdiction141.

ii. Alleged lack of legitimacy

An argument to be considered in more detail relates to the legitimacy of dealing with issues brought up by socio-economic rights, holding that the adjudication of these issues would violate the separation of powers. Socio-economic rights cases often relate to policy decisions that require alloca-tion of resources, in particular when obligations to fulfil socio-economic

137 Lord Lester of Herne Hill, QC, and C O’Cinneide, ‘The Effective Protection of Socio-Economic Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 17, 19 et seq; see also Scott and Macklem, above n 113, 24, 43; Pieterse, above n 136, 394; Brand, above n 129, 225.

138 This is often referred to as the problem of polycentricity; see Pieterse, above n 136, 392 et seq.

139 A An-Na’im, ‘To Affirm the Full Human Rights Standing of Economic, Social & Cultural Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 7, 13 et seq; Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 60 (giving the constitutionality of abortion as one such example); CESCR, General Comment No 9, above n 94, para 10; see also the examples given by Scott and Macklem, above n 113, 48 et seq, of cases where courts have dealt with positive action in the context of civil and politi-cal rights.

140 Pieterse also draws attention to the fact that members of parliament often lack tech-nical expertise on many social policy issues with which they deal, and points out that at the same time a shift can be observed towards the executive branch (that is usually only indirectly accountable) gaining in influence, size and access to expertise; see Pieterse, above n 136, 387 et seq.

141 See below, section II.B.ii.

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rights are concerned142. Usually, a number of different options exist regard-ing how to fulfil these obligations. If the judiciary were to compel the administration to take the necessary measures for the enjoyment of socio-economic rights, it is argued that this would cover political questions and therefore exceed the competencies of the judiciary and infringe on the powers of the legislative branch; in effect, it would turn the judiciary into a political organ143. Budgetary and policy decisions should be reserved to the democratically-legitimised legislature (and to a certain extent to the executive branch). Furthermore, it is argued that the legislature is better equipped to adopt an overall view of any socio-economic rights issue than the courts which examine the specific case brought before them, typ-ically a narrowly-defined situation144. More specifically, it is suggested that the judicial protection of socio-economic rights pre-empts the demo-cratic deliberation of crucial issues145.

However, not only decisions on cases involving socio-economic rights, but also many cases concerning civil and political rights relate to policy choices and have budgetary implications146. They also often require a balancing of interests. Nevertheless, the power of courts to enforce these rights is not questioned. In this regard, the CESCR stipulated:

In relation to civil and political rights, it is generally taken for granted that judi-cial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This dis-crepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions. . . . 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. The adoption of a rigid classifica-tion 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 interdepend-ent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society147.

Similarly, the South African Constitutional Court held that the task of adjudicating socio-economic rights cases is not ‘so different from that

142 Lord Lester and O’Cinneide, above n 137, 19 et seq; see also Cottrell and Ghai, above n 98, 69; R Pejan, ‘The Right to Water: The Road to Justiciability’ (2004) 36 George Washington International Law Review 1181, 1182.

143 EW Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69, 93.

144 Lord Lester and O’Cinneide, above n 137, 20; see also Courtis, above n 108, 319.145 Sunstein, above n 135, 3; S Liebenberg, ‘Socio-Economic Rights: Revisiting the

Reasonableness Review/Minimum Core Debate’ in S Woolman and M Bishop (eds), Constitutional Conversations (Pretoria, Pretoria University Press, 2008) 305, 313.

146 Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 58; Schneider, above n 127, 32; Sunstein, above n 135, 2.

147 CESCR, General Comment No 9, above n 94, para 10.

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ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers’148.

Moreover, the principle of the separa tion of powers is not a value per se but its primary purpose is to prevent a concentration of power in a single branch149. To achieve this purpose, the separation of powers does not nec-essarily have to be applied in a strict sense. It is also possible to move towards a more flexible system of checks and balances (as originally devel-oped in US constitutional law). In such a system, the judiciary is typically asked to scrutinise actions of the other two branches and to hold them accountable150. The judiciary thus has a role to play in the enforcement of socio-economic rights151. This role must be seen in conjunction with that of the other branches of government. The judiciary does not take its decisions without any legal basis. Rather, decisions about the allocation of resources necessary to realise socio-economic rights are based on legal instruments such as the Social Covenant, other human rights treaties or national consti-tutions. The decision to include socio-economic rights in the Constitution is usually taken by the legislative branch or some constitutional assem-bly152, and it must be assumed that the legislature is aware of the fact that such decisions inevitably have policy and budgetary implications. The same holds true for the decision to become party to a human rights treaty. Human rights provide a framework for State policies and priorities and the courts are guided by this framework in their decisions153. By taking certain fundamental decisions that imply resource allocations, the realisa-tion of human rights has already been established as a priority. The State is now bound to these fundamental decisions and has to allocate resources within these limits. As such, human rights are immutable, not subject to policy choices and shifting preferences, but rather serve as a trump154. These priorities have already been established by the competent branches, and courts take their decisions on the basis of these commitments.

148 Constitutional Court of South Africa, Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 6 September 1996, (1996) 10 Butterworths Constitutional Law Reports 1253 (CC), para 77.

149 Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 59; Pieterse, above n 136, 386; see generally eg in German constitutional law, Sachs in M Sachs (ed), Grundgesetz, Kommentar, 5th edn (Munich, Beck, 2009) Art 20, paras 79 et seq; in US constitu-tional law, GR Stone, LM Seidman, CR Sunstein and MV Tushnet, Constitutional Law, 3rd edn (New York, Aspen Law & Business, 1996) 385 et seq.

150 Pieterse, above n 136, 385 et seq, 391; see also Courtis, above n 108, 319 et seq.151 Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 59 et seq.152 See Pieterse, above n 136, 391 et seq. But cf the very broad interpretation by Indian

courts of the right to life (Art 21 of the Indian Constitution), to encompass inter alia the right to a healthy environment and the right to water, which they have developed in spite of Art 37 of the Constitution explicitly declaring certain provisions to be non-justiciable; see further below, section II.B.ii.

153 Cottrell and Ghai, above n 98, 61.154 E Riedel, ‘The Human Right to Water’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel

et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 585, 594.

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The courts thus come in only at a certain point, and their role is limited to scrutinising whether the other branches meet the constitutional or other human rights obligations by which they are bound155. Any decisions taken by the judiciary are based on these commitments. As the South African Constitutional Court has described it:

The primary duty of courts is to the Constitution and the law, ‘which they must apply impartially and without fear, favour or prejudice’. The Constitution requires the State to ‘respect, protect, promote, and fulfil the rights in the Bill of Rights’. Where State policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the execu-tive, that is an intrusion mandated by the Constitution itself156.

The courts’ decisions may have an influence on policy decisions as well as budgetary implications, but courts do not as such adapt policies or rear-range budgets157. Rather, they require the legislative or executive branch to do this in a way that meets their human rights obligations. Courts only set the parameters for decisions that are acceptable from a human rights point of view, while leaving the decision itself and the specific choice of means to the other branches158. Only if there is merely one policy option that meets the constitutional or other human rights obligations can courts issue a specific order in that regard159.

Moreover, courts do not always have to rely on the human rights provi-sions as such, but in many cases may enforce entitlements created through legislation or executive action that aim at translating socio-economic rights into practice and are much more specific160. In that case, the con-straint imposed by the separation of powers applies even less, as courts do not have to depend solely on the interpretation of constitutional rights

155 See Pieterse, above n 136, 407 et seq; An-Na’im, above n 139, 14. Craven points out that it is the very nature of legal guarantees of human rights to presuppose judicial scrutiny of government action; see M Craven, ‘The Domestic Application of the International Covenant on Economic, Social and Cultural Rights’ (1993) 40 Netherlands International Law Review 367, 381.

156 Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, 5 July 2002, (2002) 10 Butterworths Constitutional Law Reports 1033 (CC), para 99 (footnotes omitted).

157 Ibid, para 38.158 Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 60; S Liebenberg,

‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 South African Journal on Human Rights 1, 26; Pieterse, above n 136, 409; Cottrell and Ghai, above n 98, 66, 86.

159 See eg Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, above n 156; see also Liebenberg, ‘The Value of Human Dignity’, above n 158, 26.

160 See MCR Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on Its Development (Oxford, Oxford University Press, 1995) 128. See the example of the South African Water Services Act outlined below in section II.B.ii.3.b.

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or international human rights guarantees to define their content161, but may also rely on legislative pronouncements.

Accordingly, the question to be asked is not whether the judiciary can be involved in socio-economic rights issues, but how it should exercise its jurisdiction162. Depending on the facts and context of each case, its involve-ment and standard of review will be of varying degrees of specificity and intensity163. In this regard, courts are required to strike a balance between judicial vigilance and restraint164. Brand, in that context, speaks of a ‘justi-ciability spectrum’165. The exemplary case law on the right to water out-lined below will illustrate this point166.

iii. Alleged vagueness of legal provisions on the human right to water

A further argument often advanced in the international context to chal-lenge the legally-binding nature or justiciability of socio-economic rights, relates to the vagueness of these provisions. In some cases, it applies equally to constitutional provisions.

As outlined above167, it is true that the normative content of socio- economic rights is less developed than that of most civil and political rights. However, this is not inherent in their nature168, but rather the result of their having been excluded from adjudication for a long time169. Many of the provisions on civil and political rights are by themselves as little specific as provisions on socio-economic rights, but their content has been developed in a long process by courts and quasi-judicial bodies, in many

161 Brand, above n 129, 211, 233; see also S Muralidhar, ‘Economic, Social & Cultural Rights: An Indian Response to the Justiciability Debate’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 23, 31.

162 See Brand, above n 129, 207.163 Pieterse, above n 136, 394 et seq; see also Brand, above n 129, 225; G Budlender,

‘Justiciability of Socio-Economic Rights: Some South African Experiences’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 33, 41; Cottrell and Ghai, above n 98, 70.

164 Pieterse, above n 136, 410.165 Brand, above n 129, 226.166 See below, section II.B.ii. 167 See ch 4, section I.B. 168 B Simma, ‘“Die vergessenen Rechte”: Bemühungen zur Stärkung des VN-Sozialpaktes’

in F Ruland, B Baron von Maydell and HJ Papier (eds), Verfassung, Theorie und Praxis des Sozialstaates, Festschrift für Hans F Zacher zum 70. Geburtstag (Heidelberg, CF Müller, 1998) 867, 873; Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 61; An-Na’im, above n 139, 15; RR Churchill and U Khaliq, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417, 420; Craven, above n 155, 368.

169 Liebenberg ‘The Protection of Economic and Social Rights’, above n 129, 61; An-Na‘im, above n 139, 15; Scott and Macklem, above n 113, 72 et seq.

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countries over the last 200 years170. The precise delineation of the scope and content of many socio-

economic rights is exactly what is lacking. In regard to constitutional provisions, superior courts have the ultimate authority in interpreting these171 in many countries. The interpretation of international human rights provisions is more difficult, as courts often regard these as not directly applicable172. In this regard, quasi-judicial interpretation at the international level, eg by way of the General Comment on the right to water, provides an important impetus. Moreover, the adoption of the Optional Protocol to the Social Covenant has to be stressed in that regard, as it will allow the Committee to apply the provisions of the Covenant to individ-ual cases, and to develop and specify their content further.

iv. Conclusion

There are no convincing arguments to deny the justiciability of the human right to water and other socio-economic human rights. The human right to water is not inherently non-justiciable. On the contrary, the judiciary may contribute to delineating its content more specifically by applying it to concrete cases. Moreover, courts lack neither the capacity nor the legit-imacy to adjudicate on the human right to water. Rather, the decisive questions are how the courts exercise their power, which standard of review they apply, and how far-reaching and specific their decisions are. These questions will be referred to again below in the context of consider-ing specific case law on the human right to water that also takes into account the distinction between obligations to respect, to protect and to fulfil.

B. Enforcement in National Courts

Having determined that the human right to water is justiciable, this chapter now turns to consider how the courts and quasi-judicial bodies can exercise and have exercised their jurisdiction. The first level to be examined is the national one, ie the enforcement of the human right to water through national case law, followed by a discussion of enforcement mechanisms at the international level. National courts may rely either directly on the guar-antees of the right to water in international law, in particular the relevant provisions of the Social Covenant, or on national provisions. The former option has proven to be of limited relevance and the questions arising in

170 An-Na’im, above n 139, 15; Scott and Macklem, above n 113, 72.171 Muralidhar, above n 161, 31; see also Pieterse, above n 136, 395.172 See section II.B.i.

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that context will thus only briefly be alluded to, while an enorm ous body of case law relying on national (constitutional) provisions has developed in countries all over the world, particularly in recent years173. Nevertheless, it will first be considered to what extent national courts can rely on interna-tional human rights law in adjudicating on the right to water.

i. Invoking international human rights law in national courts

One possibility to invoke the right to water in national courts would be to rely on the human right to water as guaranteed in international human rights law as established in chapter three. Yet while there is an enormous body of case law on the right to water, national courts have generally proved hesitant to rely exclusively on international law. Many judgments include a wealth of references to international human rights provisions174 (as well as comparative human rights law) to support their reasoning, but generally national courts rely on national provisions and constitutional guarantees to a higher degree175. For example, in spite of India having rat-ified the Social Covenant, its courts do not rely directly on its provisions, but rather have developed an extensive interpretation of the right to life under the Indian Constitution to include, inter alia, the right to water, as will be outlined further below176. Despite little practical evidence, though, it seems pertinent to consider whether national courts could rely on inter-national law more extensively177.

1. Relationship between international law and national law

The first relevant question in this context is the relationship between inter-national law and national law. In order to be enforced at the national level,

173 For a compilation of case law, see WASH United, Freshwater Action Network and WaterLex, above n 133.

174 See eg High Court, Witwatersrand Local Division, South Africa, Residents of Bon Vista Mansions v Southern Metropolitan Local Council, 5 September 2001, (2002) 6 Butterworths Constitutional Law Reports 625 (W), paras 14 et seq; High Court, Witwatersrand Local Division, South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, 30 April 2008, paras 31 et seq, available at <www.wits.ac.za/academic/clm/law/cals/basic-services/11193/mazibuko.html> (accessed 1 October 2011); Supreme Court of India, Vellore Citizens Welfare Forum v Union of India, 28 August 1996, [1996] All India Reporter 2715. In this regard, international human rights law can be relevant in the interpretation of national pro-visions; see also Art 39(1)(b) of the South African Constitution. On such indirect effects of international human rights law in particular as being used in the interpretation of domestic legislation, see generally Craven, above n 155, 395 et seq.

175 See Craven, above n 155, 380 et seq; Craven, above n 160, 28; Courtis, above n 108, 322 et seq.

176 See section II.B.ii. 177 Craven, above n 155, 381, argues for the domestic application of the Covenant. The

Maastricht Guidelines also encourage the direct incorporation or application of international instruments; see Maastricht Guidelines, above n 126, para 26.

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the human right to water as part of public international law must be given effect in the national legal order178. In doing so, States follow different the-ories: one is the monist system, meaning that treaties are automatically incorporated into the domestic law179; while other States follow a dualist system, requiring that treaties must be incorporated or transformed sepa-rately into the domestic legal order in order to be given effect180. As far as customary international law is concerned, it is recognised as part of the domestic law in many States181. The specific system of giving effect to international law in the State’s legal order depends on its national provi-sions, but generally international law is given effect in one way or the other and becomes part of the law of the State in question. However, in some cases countries have argued that the provisions of the Covenant only constitute programme objectives instead of legal obligations, and therefore cannot be given legislative effect182. In cases where the necessary incorporation or transformation fails to take place, it is impossible to invoke the rights guaranteed in the Covenant before national courts183.

2. Direct applicability

Apart from giving effect to international law in the national legal system, it is further required that international law is directly applicable in order to be invoked in national courts. Whether it is directly applicable depends on the provision in question and its precision, ie whether it is self- executing184. It has to be determined whether further measures such as

178 Craven, above n 160, 27; CESCR, General Comment No 9, above n 94, paras 4 et seq.179 Eg the United States, France, Spain and The Netherlands; see Craven, above n 155, 371;

Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 77; M Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp, Intersentia, 2003) 341.

180 See eg Arts 32 and 59 of the German Constitution. Other States following the dualist system include Canada, India and Sweden; see Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 77. A further distinction may be made between the incorporation and transformation of ratified treaties. In the case of incorporation, the treaty as a whole becomes part of the domestic legal system. Other States – such as Sweden and Canada – have transformed the Social Covenant by amending domestic legislation; see Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 81; Craven, above n 155, 372. On monism and dualism, see generally I Brownlie, Principles of Public International Law, 6th edn (Oxford, Oxford University Press, 2003) 31 et seq.

181 Craven, above n 155, 401. See eg Art 25 of the German Constitution. As outlined above, customary international law is not (yet) of great relevance for the right to water (see ch 3, section II.).

182 See eg Committee on Economic, Social and Cultural Rights, Report on the 16th and 17th Session, 1 January 1998, E/1998/22, ‘Concluding Observations: United Kingdom of Great Britain and Northern Ireland’, para 293; Committee on Economic, Social and Cultural Rights, Report on the 18th and 19th Session, 1 January 1999, E/1999/22, ‘Concluding Observations: Switzerland’, para 348.

183 See Sepúlveda, above n 179, 342 et seq.184 Craven, above n 155, 377. The terminology in this regard is a little confusing as the term

‘self-executing’ is used in different ways. In the following, the term ‘directly applicable’ will

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national legislation are needed before the treaty provisions can be applied185. This depends in particular on the question whether the provi-sion is sufficiently determined and precise to be applied directly by the courts186. It is for the national authorities to decide on the direct applicabil-ity of treaty provisions187. In large part, the determination of these issues therefore depends on the attitude of the judiciary188.

Nevertheless, the CESCR has provided its own interpretation concern-ing the direct applicability of the Social Covenant. In an early statement, it has put forward the view that ‘there are a number of other provisions . . . including articles 3, 7(a)(i), 8, 10(3), 13(2)(a), (3) and (4) and 15(3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provi-sions indicated are inherently non-self-executing would seem to be diffi-cult to sustain.’189 This list refers primarily to provisions that guarantee equal treatment190, to provisions which relate to the obligation to respect191 or to provisions that are rather specifically formulated compared to other provisions of the Social Covenant192. However, as the formulation ‘includ-ing’ suggests, the list is not exhaustive. In later statements, the CESCR has proceeded to determine justiciable components of all rights193. This

therefore be used. The term ‘direct effect’ is mostly used in regard to the question whether the provision confers a subjective right to the individual; see Schneider, above n 127, 10; Craven, above n 155, 378 et seq, 392 et seq.

185 Craven, above n 155, 378, 386; Schneider, above n 127, 10; Sepúlveda, above n 179, 344. For other criteria to determine direct applicability, including the intention of the States par-ties, see Craven, above n 155, 385 et seq.

186 Schneider, above n 127, 10.187 CESCR, General Comment No 9, above n 94, para 11; Craven, above n 155, 383 et seq;

Sepúlveda, above n 179, 344.188 Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 77; Craven,

above n 155, 374.189 Committee on Economic, Social and Cultural Rights, General Comment No. 3, The nature

of States parties obligations (Art 2 para 1), 12 December 1990, contained in E/1991/23, Annex III, para 5; see also CESCR, General Comment No 9, above n 94, para 10; ‘Limburg Principles’, above n 126, para 8.

190 Arts 3 and 7(1)(i): equal treatment of men and women, equal remuneration. See also Craven, above n 155, 395.

191 Arts 8, 13(3) and (4), and 15(3): trade union rights, respect for the liberty of parents to choose a school, liberty to establish educational institutions, respect for the freedom of scien-tific research. See also Craven, above n 155, 395.

192 Arts 10(3) and 13(2)(a): protection of children inter alia in the context of employment, free primary education. See also Craven, above n 155, 389.

193 E Riedel, ‘Verhandlungslösungen im Rahmen des Sozialpakts der Vereinten Nationen’ in J Ipsen and E Schmidt-Jortzig (eds), Recht – Staat – Gemeinwohl, Festschrift für Dietrich Rauschning (Köln, Carl Heymanns, 2001) 441, 444; see also CESCR, General Comment No 9, above n 94, para 10. However, the question arises to what extent courts are willing to apply single elements of a provision while other elements remain non-directly applicable; see Craven, above n 155, 389. Note the judgment of the German OVG Münster, arguing that such splitting between different kinds of obligations is impossible, Oberverwaltungsgericht für das Land Nordrhein-Westfalen, Germany, 15. Senat, 9 October 2007, Az: 15 A 1596/07, Deutsches Verwaltungsblatt 2007, 1442, para 56.

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approach is supported by the fact that the Optional Protocol to the Social Covenant is not characterised by an ‘à la carte-approach’ but instead by a comprehensive one, allowing for complaints to be submitted regarding all rights guaranteed in the Covenant194.

Via its examination of State reports (and individual complaints in the future), as well as through the issuance of General Comments, the Committee continues to develop the substantive content of the Covenant rights195, including the right to water. Thus, in spite of the vagueness of many provisions in the Social Covenant, such as Article 11(1) on an ade-quate standard of living, the nature of some elements and obligations may be determined with sufficient precision by relying on the interpretations provided by the Committee. In particular, its General Comments may help the national administration and courts to interpret and apply the provisions of the Social Covenant196. Generally, obligations that require immediate implementation may be regarded as being open to judicial consideration197. The Committee has defined relatively specific core obli-gations that it regards to be of immediate effect198. In this regard, States have no margin of appreciation regarding the realisation of the right to water. If a State does not fulfil its core obligations, it has the burden of proof to show that it does not have the means to do so, an assessment that may be scrutinised by the courts. It is therefore assumed that the core obligations are justiciable and directly applicable199 without precluding that courts may also adjudicate on obligations to progressive realisation. Moreover, obligations to respect200 and to protect201 the right to water generally do not require further measures of implementation, and are therefore often suitable for direct application202. It is thus arguable that the General Comment has at least sufficiently determined some aspects of the right to water to be directly applicable.

Yet the Committee’s interpretation of the Covenant’s rights is not bind-ing on States – only the Covenant itself is binding – although the Committee’s pivotal position as the supervisory body of the Covenant must be taken into account203. Thus, whether socio-economic rights are deemed directly applicable depends on the attitude of courts towards the work of the Committee, and to what extent they accept the interpretations provided by it as a means to render the Covenant’s provision more precise

194 Art 2. On the Optional Protocol, see further below section II.C.ii.1. 195 Craven, above n 155, 389.196 Schneider, above n 127, 27.197 Craven, above n 155, 369.198 See CESCR, General Comment No 15, above n 61, para 37; see also ch 4, section II.C.ii. 199 Schneider, above n 127, 32. On the minimum core approach in the courts, see below

section II.B.ii.3.b. 200 See CESCR, General Comment No 15, above n 61, para 21.201 Ibid, paras 23, 24.202 See Craven, above n 155, 391, 395.203 Ibid, 390.

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and to determine the content of the human right to water and the corre-sponding obligations204. In the end, national courts determine the direct applicability of the provision in question.

3. Conclusion

Accordingly, national courts could rely directly on the human right to water as guaranteed in international human rights law, provided that the State in question is a party to the Social Covenant or another relevant human rights treaty. At least certain aspects of the human right to water are sufficiently determined to be directly applicable. However, so far no such case has become known. Courts refer to international law to support their reason-ing, but they do not rely on it directly as a basis for their decisions.

ii. Reliance on national guarantees of the right to water

In practical terms, it is of greater relevance to consider judicial enforce-ment in the context of national guarantees of the right to water. Therefore, the analysis now turns to some of the case law on the right to water, to examine how the courts in different countries have responded to the chal-lenges of justiciability presented to them and how they have sought to strike a balance between the aim of giving meaning to the right to water while respecting the competencies of the other branches.

Courts have developed different approaches to the enforcement of the right to water, in particular as they have started out from different consti-tutional provisions. There are only a few countries that have explicitly recognised the human right to water in their constitutions: South Africa (Article 27), Nicaragua (Article 105), Ecuador (Article 12), Uruguay (Article 47), the Democratic Republic of the Congo (Article 48), The Maldives (Article 23(a)), Bolivia (Article 16) and Kenya (Article 43(1)(d))205. However, case law on the human right to water may be observed not only in some of these countries, but also in a great number of other countries in all regions of the world that form part of different legal sys-tems, ranging (say) from France, Great Britain and Belgium, to Costa Rica and Brazil, to Malaysia and Indonesia206. Some of this case law will be referred to in what follows for illustrative purposes.

Courts have developed innovative approaches to adjudicate on the right to water. For example, Argentinian courts have developed an exten-sive body of case law without being able to rely on a specifically guaran-teed human right to water in the national Constitution, inter alia, by

204 Craven regards it as ‘entirely appropriate’ for courts to refer to the Committee’s inter-pretation, see ibid.

205 For references see ch 3, nn 321–328.206 For a compilation of case law, see WASH United, Freshwater Action Network and

WaterLex, above n 133.

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relying on the right to a healthy environment207. Moreover, courts in India – as well as in Bangladesh, Pakistan and Nepal208 – started from the right to life in order to derive the right to water. While Article 39(a) of the Indian Constitution entails the right to an adequate means of livelihood and Article 48A provides for the protection and improvement of the environ-ment as directive principles of State policy – which Article 37 of the Constitution explicitly classifies as not being enforceable in court – the Indian Supreme Court and High Courts have developed sophisticated case law on the right to water and similar issues revolving around the right to life as guaranteed in Article 21 of the Indian Constitution209. They have interpreted this guarantee in wide terms to include, inter alia, the right to a healthy environment and the right to water, and have turned it into a justiciable human right210. In spite of starting from legal provisions that show great differences, courts in all of these countries have devel-oped quite an extensive body of case law dealing with the right to water. However, courts in other countries are less willing to adjudicate on socio-economic rights211.

In the context of judicial enforcement, the distinction outlined above between obligations to respect, to protect and to fulfil212 provides a useful categorisation. The obligation to fulfil has often been regarded the least justiciable. It seems easier for courts to adjudicate on the obligation to respect and to a certain extent on the obligation to protect, as they mostly give rise to negative obligations to abstain from certain activities213. Yet the following illustrative case law will show that courts have been dealing with all types of obligations, and have not shied away from considering

207 IT Winkler, ‘Judicial Enforcement of the Human Right to Water – Case Law from South Africa, Argentina and India’ (2008) 11 Law, Social Justice & Global Development Journal, avail-able at <www2.warwick.ac.uk/fac/soc/law/elj/lgd/2008_1/winkler> (accessed 1 October 2011).

208 J Razzaque, Human Rights and the Environment: The National Experience in South Asia and Africa, Background Paper No 4, Joint UNEP–OHCHR Expert Seminar on Human Rights and the Environment, 14–16 January 2002 (Geneva, 2002) 8 et seq, available at <www2.ohchr.org/english/issues/environment/environ/bp4.htm> (accessed 1 October 2011).

209 See the account by Cottrell and Ghai, above n 98, 71 et seq, on how the courts have developed this case law.

210 Muralidhar, above n 161, 25. In an early judgment, the Supreme Court of India held that ‘the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life’; see Supreme Court of India, Francis Coralie Mullin v The Administrator, Union Territory of Delhi, 13 January 1981, (1981) 2 Supreme Court Reports 516, para 6.

211 COHRE, AAAS, SDC and UN-Habitat, above n 76, 18. On the right to education, see in the German context Oberverwaltungsgericht für das Land Nordrhein-Westfalen, Germany, 15. Senat, Az: 15 A 1596/07, above n 193.

212 See above ch 4, section II.A. 213 Budlender, above n 163, 35.

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obligations to fulfil the right to water. Judgments dealing with a range of issues will be referred to, while particular emphasis will be placed on those dealing with questions of water allocation and priority setting.

1. Obligations to respect

Obligations to respect the human right to water can most easily be regarded as justiciable214, as they require the State to refrain from inter-fering with an already realised human right to water and accordingly do not require additional resource allocations. They may be compared to negative obligations often associated with civil and political rights, the justiciability of which is taken for granted. The South African Constitutional Court has regarded the justiciability of obligations to respect as beyond question, stating that ‘at the very minimum, socio- economic rights can be negatively protected from improper invasion’215.

A great number of judgments from countries all over the world, many of them dealing with the disconnection of water services, confirm this assessment. One example is the South African decision Residents of Bon Vista Mansions v Southern Metropolitan Local Council216. The applicants in that case launched an urgent application for interim relief because their water supply had been disconnected, which they regarded as unlawful. The court held that the disconnection of water supplies is prima facie a breach of the constitutional obligation to respect the right to water217 and therefore requires constitutional justification218. At the time of the interim order, the Council (the respondent) had not yet justified the disconnec-tion. Therefore, the judge ordered the residents’ water supply to be restored pending the final determination of the application219.

214 Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 63; Pejan, above n 142, 1187; Schneider, above n 127, 33; Craven, above n 160, 28.

215 Constitutional Court of South Africa, Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, above n 148, para 78.

216 High Court, Witwatersrand Local Division, South Africa, Residents of Bon Vista Mansions v Southern Metropolitan Local Council, above n 174.

217 In order to interpret the Bill of Rights in the South African Constitution, and in casu in particular s 27(1)(b), the judge considered international law as stipulated by s 39(1)(b) of the Constitution. He stated that international law is particularly useful for interpretation when the language used in international instruments and the South African Bill of Rights is simi-lar, as in the case of the Social Covenant. He thus concluded that the constitutional duty must be understood in the same way as duties under the Covenant, namely, that the State must refrain from actions that would deprive individuals of their rights. As South Africa is not party to the Social Covenant, the judge could not rely on it directly; see High Court, Witwatersrand Local Division, South Africa, Residents of Bon Vista Mansions v Southern Metropolitan Local Council, above n 174, paras 14 et seq.

218 Ibid, para 20.219 Ibid, para 35.

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In the context of water allocation, the case FK Hussain v Union of India220 before the Indian High Court of Kerala may be considered to illustrate the obligation to respect existing water supply. It is concerned with the par-ticular situation on some coral islands where water availability is limited and saltwater intrusion into the groundwater is a major threat. The admin-istration had developed a scheme to increase water supply by extracting additional groundwater. The petitioners argued that increasing the extrac-tion would upset the freshwater equilibrium on the islands and lead to salinity of groundwater. The Court followed this argumentation and held that the administrative action would amount to an infringement of Article 21 of the Indian Constitution, as the right to life ‘is much more than the right to animal existence. . . . The right to sweet water, and the right to free air, are attributes of the right to life, for these are basic elements which sustain life itself’221. The court ordered the administration to ensure that its action would not result in saltwater intrusion in order to protect the existing water supply, and consequently to respect the right to water of the inhabitants of the islands. It thus ordered the administration to reach a specific result but left the choice of policy to its discretion.

These cases – in the context of the disconnection of water services as well as the protection of water resources – demonstrate that the obligation to respect the human right to water is undoubtedly justiciable.

2. Obligations to protect

The obligation to protect has also proved to be justiciable, in particular in a number of cases in the context of private sector participation in water service provision222. The same holds true for cases dealing with water pol-lution committed by third parties. The Indian case Vellore Citizens Welfare Forum v Union of India223 explicitly links environmental concerns to the right to water. The petitioners were concerned about the water pollution caused by more than 900 tanneries in the State of Tamil Nadu that dis-charged untreated effluent into agricultural fields, waterways and open land. The effluent ended up in the River Palar, the main source of water supply for the residents of the area, who did not have access to potable water as a result.

The Court acknowledged the vital importance of the leather industry to the country, as it generates foreign exchange and provides employment

220 High Court of Kerala, India, FK Hussain v Union of India, 26 February 1990, available at <www.elaw.org/node/2497> (accessed 1 October 2011).

221 Ibid, para 7.222 See eg the Argentinian case Juez Sustituta de Primera Instancia y 51 Nominación en lo

Civil y Comercial, Ciudad de Córdoba, Argentina, Quevedo Miguel Angel y Otros c/ Aguas Cordobesas SA, Acción de Amparo, 8 April 2002 (on file with the author).

223 Supreme Court of India, Vellore Citizens Welfare Forum v Union of India, above n 174.

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opportunities, but stressed that any development must be sustainable. It held that the economy must not destroy the ecology and constitute a hazard to human health224. The Court linked the concept of sustainable development and principles of environmental law to Article 21 of the Constitution225. Furthermore, it stressed that the Constitution and the stat-utory provisions protect the right to clean water, citing the common law right of clean environment as the source of this right226. The Court noted that efforts had been made for more than 10 years to persuade the tanner-ies to construct pollution control devices, but had not been successful. It therefore saw no justification for granting much more time. It directed the tanneries to set up pollution control devices within a specified time frame of a few months. After that deadline, they would have to obtain the Government’s consent to operate. If such consent were not granted, the tanneries would be ordered to be closed227. The case thus shows that the State’s obligation to prevent third parties – here the tanneries – from undermining the right to water of others and to protect people from pol-lution of their drinking water is justiciable.

In the context of the allocation of water resources, the judgment of the Kerala High Court in the case Perumatty Grama Panchayat v State of Kerala228 is most illustrative. The case concerned a licence of a factory producing non-alcoholic beverages that was cancelled by the village council because of the excessive exploitation of groundwater resources. The extraction led to drinking water shortages in the region as water sources dried up. The company objected to the cancellation on the grounds that there was no law governing the use of groundwater and that everybody is free to extract groundwater which is available under the land that he or she owns.

The court pointed out that the company’s view was incompatible with the emerging environmental case law developed around Article 21 of the Indian Constitution. It held that ‘[t]he State is the trustee of all natural resources which are by nature meant for public use and enjoyment’229. Consequently, the State is obligated to protect the natural resources. The Court concluded that the underground water belongs to the public and must be protected by the State against excessive exploitation for the ben-efit of present and future generations. If the State failed to do so, this would be tantamount to an infringement of the right to life under Article 21 of the Constitution, as the right to clean water forms part of this right230.

224 Ibid, para 9.225 Ibid, above n 174, paras 12 et seq.226 Ibid, para 15.227 Ibid, para 24.228 High Court of Kerala, India, Perumatty Grama Panchayat v State of Kerala, 16 December

2003, available at <www.elaw.org/node/1410> (accessed 1 October 2011) already briefly discussed in ch 2, section II.B.ii.

229 Ibid, para 34.230 Ibid.

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The High Court acknowledged that, in principle, every landowner has the customary right to extract groundwater from the ground under the land he or she owns. However, it held that this is restricted to a reasonable amount, a quantity that was exceeded by the company. Furthermore, the Court pointed out that the natural water cycle was broken by converting water into products and transporting them away. It highlighted the dras-tic consequence if every other landowner were to be permitted to extract as much groundwater as he or she wished: the entire region would turn into a desert231. It concluded that the excessive exploitation of ground-water was illegal and that the State had a duty to prevent this as part of its obligation to protect the right to water. The Court therefore directed the company to stop drawing groundwater232.

However, this judgment was not the last one rendered in this matter. In 2005, a bench of the Kerala High Court reversed the decision by the single judge and decided that the company could extract a certain amount of water under certain conditions. Currently, the matter is pending before the Supreme Court233, providing the Court with an opportunity to provide its views on how to reconcile extraction rights with human rights in the context of groundwater regulation. In any case, the bottling plant has been closed since 2004234, highlighting that the enforcement of human rights often proves most successful when combining litigation with other strategies such as community advocacy. Moreover, regardless of the final outcome in this case, it has shown that the obligation to protect the human right to water is justiciable in the context of water allocation and the exces-sive exploitation of water by third parties. The same has proved to be the case in the context of private sector participation in water service provi-sion, and in the context of water pollution by third parties.

3. Obligations to fulfil

Obligations to fulfil have often been regarded to be the least justiciable, as they most closely relate to the above-mentioned questions of policy choices, implications for resource allocation and the separation of powers235. Yet, as outlined above236, the fact that a judicial decision has implications for policies and budget allocation does not render a matter

231 Ibid.232 Ibid, Order No 1.233 S Muralidhar, ‘The Right to Water: An Overview of the Indian Legal Regime’ in E Riedel

and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 65, 79; P Cullet, Water Law, Poverty and Development, Water Sector Reforms in India (Oxford, Oxford University Press, 2009) 131. On the parallel developments in Kerala where the state govern-ment set up a special tribunal to decide on compensation, see Business World, ‘Kerala Tribunal to Get Compensation from Coke’, 1 July 2010.

234 R Krishnakumar, ‘Plachimada’s Claims’, Frontline, The Hindu, vol 27, no 15 (July 2010).235 Pejan, above n 142, 1187; see also Budlender, above n 163, 38.236 See section II.A.ii.

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non-justiciable per se. Rather, respect for the other branches’ competencies has an impact on the scope of judgments relating to the obligation to fulfil the right to water and the way judicial orders are framed. It will be demonstrated that courts have not shied away from adjudicating on the obligation to fulfil the right to water, by presenting two different models of judicial review.

a. South African reasonableness reviewThe model of reasonableness review developed by the South African Constitutional Court – in particular in the Grootboom237 and TAC238 cases – is one example of how to enforce the obligation to fulfil and to scrutinise whether government policies are aimed at the progressive realisation of human rights. The Grootboom judgment is a ground-breaking decision of the South African Constitutional Court, primarily concerned with the human right to housing. The applicant, Mrs Grootboom, and other people had occupied vacant, but privately-owned land from which they were then evicted and rendered homeless239. In the context of this case, the Constitutional Court had the opportunity to evaluate the Government’s housing programmes, which it did by making use of the newly- developed notion of reasonableness. It applies not only to the right to housing, but to all socio-economic rights, including the right to water, which have to be interpreted together240.

The notion of reasonableness has become the litmus test against which the realisation of socio-economic rights in South Africa is assessed241. It allows courts to scrutinise the reasonableness242 of government policies. According to the Constitutional Court, the State is required to take meas-

237 Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, above n 18.

238 Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, above n 156.

239 Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, above n 18, para 4.

240 Ibid, paras 19, 24, 76, 93.241 See South African Human Rights Commission, The Right to Water, 5th Economic and

Social Rights Report Series, 2002/2003 Financial Year (Johannesburg, South African Human Rights Commission, 2004) ix. The Constitutional Court itself used the concept again in the TAC judgment, see Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, above n 156.

242 For this evaluation the Constitutional Court has developed certain criteria: measures must be comprehensive, adequate financial and human resources have to be allocated for implementation, measures must be reasonable in conception and implementation, they have to be balanced and flexible, respond to short-, medium- and long-term needs, and must not exclude a significant part of society but respond to the needs of people in desperate situa-tions, and lastly, measures must be transparent; see Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, above n 18, paras 39 et seq; Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, above n 156, para 123; see also the analysis by Brand, above n 129, 221 et seq; Liebenberg, above n 145, 309.

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ures that are reasonable in their conception and their implementation. Programmes must be balanced and flexible, and must take account of short-, medium- and long-term needs243. This requires that the needs of those parts of the population that are in most urgent need are taken into account, and that a significant number of people in desperate need are afforded relief244. But the Court does not demand that all people in desper-ate need be afforded immediate relief, arguing that – in the Court’s view – there are no individual rights entailing entitlements to a minimum core245. Within reasonableness review, the availability of resources has to be taken into account. The State is not required

to do more than its available resources permit. . . . There is a balance between goal and means. The measures must be calculated to attain the goal expedi-tiously and effectively but the availability of resources is an important factor in determining what is reasonable.246

The notion of reasonableness limits the courts’ role to declaring whether or not a given policy is reasonable. In cases of unreasonableness they do not prescribe a specific (altered or entirely different) policy to the State, but rather leave it to the Government to find a reasonable policy247. It is thus designed to allow for the Government’s margin of discretion248. In this regard, the South African Constitutional Court points out:

The precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable. . . . A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasona-ble. It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness249.

The reasonableness review thus addresses concerns regarding the courts’ role in the enforcement of socio-economic rights, in particular in regard to the lack of democratic legitimacy250. It is designed to strike a balance between the needs to evaluate government policies against constitutional

243 Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, above n 18, para 43.

244 Ibid, para 68.245 Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign,

above n 156, para 35.246 Constitutional Court of South Africa, Government of the Republic of South Africa and

Others v Grootboom and Others, above n 18, para 46.247 Brand, above n 129, 227; Pejan, above n 142, 1201.248 Liebenberg, above n 145, 307; Pejan, above n 142, 1201 et seq.249 Constitutional Court of South Africa, Government of the Republic of South Africa and

Others v Grootboom and Others, above n 18, para 41.250 Brand, above n 129, 227.

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standards and to leave the specificities of implementation to the Government251. It may be regarded as ‘a flexible, context-sensitive tool for adjudicating positive socio-economic rights claims’252. It also shows that courts are capable of taking into account the broader situation by requir-ing the Government to adopt a reasonable overall programme. However, depending on the constitutional requirements, courts may narrow the policy options available to the Government253. This can result in very spe-cific orders such as in the TAC case, where the Constitutional Court found that the options available to the Government were limited to just one254.

b. The minimum core in the courtsAnother model of judicial review of obligations to fulfil might be based on the minimum core approach. This is the subject of particular debate. The South African Constitutional Court has so far refused to apply the mini-mum core approach255. One of its arguments relates to the separation of powers and the courts’ alleged lack of legitimacy. It held that the State is free to decide how to meet its human rights obligations and that it has available a wide range of possible measures. Taking these decisions has implications for budget allocation and the expenditure of public revenues. Such decisions should not be taken by the Court, but should be reserved to the legislature256. Moreover, it has been suggested that the minimum

251 Sunstein, above n 135, 12 et seq.252 Liebenberg, ‘The Value of Human Dignity’, above n 158, 22.253 Brand, above n 129, 227. He speaks of ‘justiciability on a sliding scale’ in that regard.254 Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign,

above n 156, para 115. For determining reasonableness in that context, it was significant that the cost of providing Nevirapine was admittedly within the resources of the State (see ibid, para 120). See also Liebenberg, ‘The Value of Human Dignity’, above n 158, 26.

255 Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, above n 18, para 33; Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, above n 156, paras 26 et seq. However, the Constitutional Court issued a caveat to allow for the consideration of the minimum core approach, stating that ‘[t]here may be cases where it may be possible and appropriate to have regard to the content of a minimum core obligation to determine whether the measures taken by the State are reasonable. However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core in any given context.’ See Constitutional Court of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others, above n 18, para 33. The High Court in the Mazibuko case interpreted this passage as meaning that the Constitutional Court did not disavow the minimum core approach in principle but stated that it presents difficult questions which may be resolved if the Court is provided with sufficient information; see High Court, Witwatersrand Local Division, South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, above n 174, para 131, also para 133. The latter judgment has thus found an interpretation to include the approach within a reasonableness review. For a case note on the Mazibuko judgment, see M Langford and A Russell, ‘“Global Precedent” or “Reasonable No More?”: The Mazibuko Case’ (2008) 19 Journal of Water Law 73. For the Constitutional Court’s judgment, see below n 265.

256 Constitutional Court of South Africa, Minister of Health v Treatment Action Campaign, above n 156, paras 37 et seq; see also M Wesson, ‘Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court’ (2004) 20 South

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core approach is too prescriptive and would convey too much power to the courts in determining this core257.

However, the minimum core approach does not necessarily violate the separation of powers. As outlined above258, the fundamental decisions about human rights have already been taken by the competent legislative (and executive) branch. Inevitably, these decisions have implications for the allocation of resources. Accordingly, the judicial branch does not take these decisions itself but only interprets and enforces them. Courts have a role to play in determining and delineating the content of rights259. In this regard, the minimum core approach is one possible – and convincing – interpretation of human rights.

Moreover, the minimum core approach as such provides only a frame-work and does not prescribe how and by whom the core is determined. It does not necessarily have to be delineated by the courts alone; its deter-mination may involve other actors, including the legislative and executive branches as well as civil society and academia260. This may be exemplified by noting the different actors involved in establishing the minimum amount of water to be supplied in South Africa. To start with, the legisla-ture adopted the Water Services Act261 in order to give concrete content to the constitutional rights (see the Preamble to the Act). This includes a definition of ‘basic water supply’ in section 1(iii)262. This is further speci-fied by a regulation establishing a minimum of 25 l/c/d263 that has been promulgated by the Minister of Water Affairs and Forestry as part of the executive branch. The Government’s Free Basic Water Policy264 aims at the implementation of this guarantee. It aims to provide everyone with this

African Journal on Human Rights 284, 305; KG Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008) 33 Yale Journal of International Law 113, 159 et seq.

257 Liebenberg, above n 145, 313 et seq.258 See above, section II.A.ii. 259 Cottrell and Ghai, above n 98, 86. They even argue that the main contribution of courts

may lie in developing core or minimum entitlements (see ibid, 87).260 See P Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee

on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332, 353; Arambulo, above n 134, 132 et seq.

261 Republic of South Africa, Water Services Act, Act No 108 of 1997, 19 December 1997, available at <www.dwaf.gov.za/Documents/Legislature/a108-97.pdf> (accessed 1 October 2011).

262 It reads: ‘“basic water supply” means the prescribed minimum standard of water sup-ply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene’.

263 Republic of South Africa, Regulations relating to compulsory national standards and measures to conserve water, available at <www.dwaf.gov.za/Documents/Notices/Water%20Services%20Act/SEC9DREG-20%20April%202001.doc> (accessed 1 October 2011).

264 For more details on the policy, see IT Winkler, ‘Respect, Protect, Fulfill: The Implementation of the Human Right to Water in South Africa’ in P Cullet, A Gowlland-Gualtieri, R Madhav and U Ramanathan (eds), Water Governance in Motion, Towards Socially and Environmentally Sustainable Water Laws (New Delhi, Cambridge University Press, 2010) 415.

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minimum amount of water free of charge. In this example, both the legis-lative and the executive branches have been involved in determining the minimum core. The courts merely scrutinise the other branches’ activities and examine whether they meet the constitutional requirements of the right to water. The quantity to be provided was challenged in the Mazibuko case, but was found by the Constitutional Court to meet the standard of reasonableness and thus to be constitutional265.

Apart from the limited role of the judiciary in the determination of the minimum core, it also has to be taken into account that the opportunity to consider different perspectives is precisely one of the benefits of adjudicat-ing on socio-economic rights cases. It allows individuals to bring their cases to the courts and to explain their view on the alleged violation of their rights266, while the court will also hear the respondent’s point of view.

Hence, others argue that courts can enforce obligations relating to the minimum core267, and see their specific advantage in the fact that they ren-der provisions on the right to water less vague268. As outlined above269, the minimum core is based on the assumption that States are in the position to realise this minimum. If they do not realise it, they prima facie fail to meet their human rights obligations. This results in a change of the burden of proof, which then rests on the State. The State has to ‘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’270.

265 Constitutional Court of South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, 8 October 2009, available at <www.constitutionalcourt.org.za/ uhtbin/hyperion-image/S-CCT39-09> (accessed 1 October 2011). For a critique of the judg-ment, cf S Liebenberg, Socio-Economic Rights, Adjudication under a Transformative Constitution (Cape Town, Juta Law, 2010) 466 et seq; M Wesson, ‘Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v City of Johannesburg’ (2011) 11 Human Rights Law Review 390. In contrast, the South African Supreme Court of Appeal accepted the amount stipulated in the Regulation as the generally applicable minimum, but held that a larger amount of water had to be provided under the particular living conditions in Phiri, in particular due to the use of water-borne sanitation systems; see Supreme Court of Appeal, South Africa, The City of Johannesburg and Others v Lindiwe Mazibuko and Others, 25 March 2009, paras 14 et seq, available at <www.wits.ac.za/academic/clm/law/cals/ basicservices/11193/mazibuko.html> (accessed 1 October 2011). The High Court had also required a larger quantity of water to be provided, which could be understood to be part of the obligation to realise the right to water progressively. In its reasoning, it was essential that the City of Johannesburg admitted that it was within its available resources to provide an amount of 50 l/c/d; see High Court, Witwatersrand Local Division, South Africa, Lindiwe Mazibuko and Others v The City of Johannesburg and Others, above n 174, para 126.

266 B Porter, ‘The Crisis of ESC Rights and Strategies for Addressing It’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 43, 46.

267 Muralidhar, above n 161, 31; Schneider, above n 127, 32; see also CESCR, General Comment No 15, above n 61, para 57.

268 Scott and Macklem, above n 113, 77; Schneider, above n 127, 32.269 See ch 4, section II.C.ii.2. 270 CESCR, General Comment No 3, above n 189, para 19.

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Not bearing the burden of proof is a significant relief for individuals approaching the courts about alleged violations of the minimum core of their right to water.

Even if they do not explicitly engage with the notion of a minimum core, some judgments may be understood as encompassing the approach271. An example is the case Marchisio José Bautista y Otros272 from Argentina. It was concerned with some low-income neighbourhoods in the city of Córdoba that were not connected to the public water distribution network. Rather, the neighbourhoods relied on wells that were, however, heavily polluted with faecal matter and other contaminants. Apart from that, a treatment plant had been built upstream on the river close to these neighbourhoods. The capacity of this plant was insufficient, which resulted in the spillage of untreated sewage into the river on which people in the neighbourhood also relied for their water supply273.

In its judgment, the Court acknowledged the right to safe drinking water as being implied in the right to health, and found a violation of that right. It made specific reference to several international human rights instruments incorporated in the Argentinian Constitution: Article 25 UDHR, as well as Articles 11 and 12 of the Social Covenant. Furthermore, the Court specifically mentioned General Comment No 15, stressing that access to safe water is indispensable to the realisation of the right to health. The Court continued to point out that the right to health requires meas-ures to be taken to prevent damage to health, such as the provision of water, and obliges the State to take positive measures in that regard274.

The Court order comprised two elements: first, the State was obliged to build a sewage system that has sufficient capacity to prevent the spillage of sewage and enable the provision of safe drinking water; secondly, the Court ordered the State to address the situation immediately by taking urgent measures, in particular to minimise the environmental impact of the plant until a permanent solution for its functioning could be found. Moreover, the State was ordered to provide 200 litres of safe drinking water per household per day until full access to the public water services was ensured275. The decision thus includes an obligation for the State to find a long-term solution by expanding the capacity of the sewage plant,

271 For judgments encompassing the notion of the minimum core dealing with issues other than water, see M Langford, ‘Judging Resource Availability’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 89, 99 et seq.

272 Primera Instancia y 8 Nominación en lo Civil y Comercial, Ciudad de Córdoba, Argentina, Marchisio José Bautista y Otros, Acción de Amparo (Expte No 500003/36), 19 October 2004, available at <wp.cedha.net/wp-content/uploads/2011/06/Sentencia-Chacras.pdf> (accessed 1 October 2011).

273 Ibid, para V.274 Ibid, para VIII.275 Ibid, para VIII.

254 Benefits of Understanding Water as a Human Right

but due to the urgency of the situation also to provide short-term relief. The short-term relief of providing 200 litres per day may be related to the core content of the right to water that has to be realised immediately, while building a sewage system aims at the full realisation of the right to water that has to be achieved progressively over a longer period276.

c. Concluding remarks on obligations to fulfilThe above cases show that both the obligation to realise the right to water progressively and the obligation to guarantee its minimum core may be enforced judicially. Using the minimum core approach in the courts does not imply that adjudication is restricted to this minimum277. It is one instrument that may be used as a starting point to adjudicate on most urgent needs. Different approaches, such as the notion of reasonableness, may be used to review the progressive realisation of the right to water judicially. The above-mentioned case Marchisio José Bautista y Otros shows that one approach does not exclude the other; a court order may combine both elements, relating in part to the most urgent measures that have to be taken immediately and at the same time to the more long-term goals to be achieved over time. In other contexts orders might be limited to the mini-mum core, whereas the focus might be entirely on the obligation to pro-gressive realisation in instances where a minimum standard has already been achieved. By relying on the obligation to progressive realisation, States may be held accountable if they do not use the maximum available resources for the realisation of human rights278. Accordingly, both approaches – the minimum core approach and reasonableness review – are useful instruments to adjudicate on the obligation to fulfil the human right to water depending on the specific context.

iii. Conclusion

The justiciability of the human right to water as such is beyond doubt, but the ‘how’ of adjudication poses a number of questions. A few observa-tions may be made from the increasing body of case law on the right to water. Courts in countries all over the world have adjudicated on the right to water in the context of different legal systems, starting out from differ-ent legal provisions and using different – often innovative – approaches. In doing so, courts rely primarily on national guarantees of the right to water, but also include references to international human rights law to support their reasoning.

276 On the impact of the judgment that resulted in budget allocations for sewage treatment and the commencement of construction works, see Langford, above n 103, 448 et seq.

277 As feared by Porter, above n 266, 49 et seq.278 Ibid, 65 et seq.

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The enforcement of the obligation to respect seems comparably straight-forward. Likewise, the obligation to protect is undoubtedly enforceable by the courts, although the issues raised are already more complex. The adju-dication of the obligation to fulfil the right to water is the most challenging task for the courts. It relates most closely to the questions of policy choices and resource allocation, and thus requires respect for the other branches’ competencies. Yet, as the above-mentioned cases show, there is no reason to doubt that the courts have a role to play; the question is how they exer-cise that jurisdiction. The judiciary’s role has to be seen in conjunction with those of the other branches in order to strike a balance between the aim to subject the other branches to control in order to determine whether human rights have been violated, and the need to respect the other branches’ com-petencies at the same time. It has to be reiterated that judgments are not rendered without any legal basis, but are rather based on constitutional and legal provisions, ie decisions taken by the legislature. Courts come in only at a later stage in order to scrutinise whether the other branches have met their human rights obligations. Moreover, courts have shown a certain self-restraint regarding the scope of judgments and the framing of judicial orders. The specific choice of measures for the further realisation of the right to water is left to the executive in many judgments. In that regard the case FK Hussain v Union of India may be recalled, which required the admin-istration to ensure that its action would not result in saltwater intrusion but left the choice of how to implement that order to the administration.

Yet in a number of cases, courts have been prepared to issue rather detailed orders279. Some circumstances may be observed that have led to their issuance: a government’s inactivity280 over a long period of time, as in the Vellore case, where the court required the installation of sewage treatment plants within a specified time frame; the fact that only one option met the constitutional requirements, as in the TAC case; or the urgency of the matter281 and the need to realise minimum standards in the Argentinian case Marchisio José Bautista y Otros.

Overall, more discussion of these issues is needed. The exact border between a policy choice for government and an appropriate court ruling giving effect to the right to water is difficult to determine. This is a long-term process that may be advanced by the issuance and discussion of more judgments engaging with the right to water and other socio- economic rights.

279 For a general critique of some rather far-reaching decisions by Indian courts looking beyond the right to water, see Cottrell and Ghai, above n 98, 83 et seq, 89.

280 See Muralidhar, above n 161, 31 et seq; Langford, above n 271, 107.281 In that regard, see also an Indian case concerned with the right to food referred to by

Muralidhar, above n 161, 30.

256 Benefits of Understanding Water as a Human Right

C. Enforcement at the International Level

At the international level282, it seems pertinent to distinguish between mechanisms of a general nature that aim to assess human rights compli-ance at a broad level, and individual complaint mechanisms that allow individuals to raise alleged violations of their rights. While general mechanisms – in particular reporting procedures – are well-established in international human rights law, especially in regard to socio-economic rights, a number of complaint mechanisms will also be examined. The impact of reporting procedures should not be underestimated; yet mecha-nisms that may be employed by the individual are of a more direct quasi-judicial nature.

As far as UN mechanisms are concerned, another distinction between enforcement mechanisms is that of Charter-based and treaty-based instru-ments. Charter-based instruments include those of organs that are directly created by the UN Charter and those that have been authorised by these organs, whereas treaty bodies are established by the different human rights treaties283. In regard to the former, the Universal Periodic Review (UPR) by the Human Rights Council, the Special Procedures and the for-merly entitled 1235- and 1503-Procedures will be referred to, while the latter are relevant in the form of reporting procedures to the treaty bodies as well as individual complaint mechanisms. The Charter-based instru-ments now belong in the realm of the Human Rights Council284. The Council was established by General Assembly Resolution 60/251 on 15 March 2006 and replaces the former Commission on Human Rights285 that has often been said to have become discredited286. Lastly, a number of regional instruments will also be referred to.

282 Only instruments that seem of relevance for the enforcement of the right to water will be referred to. For a general overview of international instruments for the enforcement of human rights, see eg Weschke, above n 127.

283 See HJ Steiner, P Alston and R Goodman, International Human Rights in Context, Law, Politics, Morals – Text and Materials, 3rd edn (New York, Oxford University Press, 2008) 737; for contrasts between the two sets of instruments, see ibid, 741; for an overview of Charter-based instruments, see ibid, 746. Note the particularity of the CESCR that has been estab-lished by an ECOSOC resolution instead of by the treaty itself; see Economic and Social Council, Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 28 May 1985, E/Res/1985/17.

284 See generally Steiner et al, above n 283, 739.285 General Assembly, Human Rights Council, 3 April 2006, A/Res/60/251, paras 1, 13. For

an overview and first assessment of the entire reform process of the UN human rights sys-tem, see FJ Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 Human Rights Law Review 7.

286 See Steiner et al, above n 283, 739; for background on the Council and the process lead-ing to its establishment, see ibid, 791 et seq; also P Scannella and P Splinter, ‘The United Nations Human Rights Council: A Promise to be Fulfilled’ (2007) 7 Human Rights Law Review 41, 42 et seq.

Possibility of Judicial Enforcement 257

i. Instruments assessing general human rights compliance

Several instruments aim to assess general compliance by States with their human rights obligations. In regard to the right to water, reporting proce-dures under the Social Covenant and several other human rights treaties are relevant. Charter-based mechanisms include procedures to respond to (gross) violations of human rights, the Special Procedures and the UPR by the Human Rights Council.

1. Reporting procedures

Reporting procedures287 may be regarded as one of the most common and most accepted mechanisms aiming at the enforcement of human rights288. Generally, they require States to report on the measures they have adopted in order to realise the guaranteed rights289. Until the adoption of the Optional Protocol, the only control mechanism of the Social Covenant was such a reporting procedure290.

287 See generally J Connors, ‘An Analysis and Evaluation of the System of State Reporting’ in AF Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (The Hague, Kluwer Law International, 2000) 3; G Oberleitner, Menschenrechtsschutz durch Staatenberichte (Frankfurt am Main, Peter Lang, 1998). For an overview of reporting procedures relevant to the field of socio-economic rights, see A Rosas and M Scheinin, ‘Implementation Mechanisms and Remedies’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 425, 426 et seq.

288 Oberleitner, above n 287, 17; Weschke, above n 127, 13.289 Weschke, above n 127, 7.290 This procedure has often been described in detail, see eg Simma, above n 168, 874 et

seq; E Riedel, ‘The Examination of State Reports’ in E Klein (ed), The Monitoring System of Human Rights Treaty Obligations (Berlin, Arno Spitz, 1998) 95; 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, Arno Spitz, 1998) 31; C Reimann, Ernährungssicherung im Völkerrecht, Der Menschenrechtsansatz und seine Ergänzungsmöglichkeiten angesichts der Welthungerproblematik (Stuttgart, Boorberg, 2000) 300 et seq; see in particular on the aspect of NGO involvement, S Leckie, ‘The Committee on Economic, Social and Cultural Rights: Catalyst for Change in a System Needing Reform’ in P Alston and J Crawford (eds), The Future of Human Rights Treaty Monitoring (Cambridge, Cambridge University Press, 2000) 129; F 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’ (2002) 35 Verfassung und Recht in Übersee 182, 186 et seq. For details concerning the establishment of the Committee and its work in general, see P Alston, ‘The Committee on Economic, Social and Cultural Rights’ in P Alston (ed), The United Nations and Human Rights, A Critical Appraisal, 2nd edn (Oxford, Clarendon Press, 1992) 473. On the particularities of the CESCR as being estab-lished by an ECOSOC resolution (instead of the treaty itself), see above ch 3, section I.A.i.; also B Simma and S Bennigsen, ‘Wirtschaftliche, soziale und kulturelle Rechte im Völkerrecht – Der Internationale Pakt von 1966 und sein Kontrollverfahren’ in JF Baur, KJ Hopt and KP Mailänder (eds), Festschrift für Ernst Steindorff zum 70. Geburtstag am 13. März 1990 (Berlin, De Gruyter, 1990) 1477, 1494. On the system prior to 1987, see Simma and Bennigsen, ibid, 1492 et seq; B Simma, ‘Die internationale Kontrolle des VN-Paktes über wirtschaftliche, soziale und kulturelle Rechte: neue Entwicklungen’ in U Beyerlin, M Bothe and R Hofmann (eds), Recht zwischen Umbruch und Bewahrung: Völkerrecht – Europarecht – Staatsrecht: Festschrift für Rudolf Bernhardt (Berlin, Springer, 1995) 579, 581 et seq.

258 Benefits of Understanding Water as a Human Right

The CESCR and other treaty bodies examine the reports submitted by States and produce Concluding Observations thereon. These are not legally-binding, but are endowed with the Committee’s authority. Compared to other mechanisms, such reporting is a rather weak form of international supervision291. However, the political effect of such reports to the Committee and the Committee’s recommendations thereon should not be underesti-mated292. In practice, the impact varies; in some cases the Concluding Observations of the Committee have led to a revision of legislation or policies293. In spite of the challenges the procedure faces294, it is generally seen as a constructive dialogue295 between the Committee members and representatives of States Parties, aiming to find solutions for the problems in the realisation of socio-economic rights identified by the Committee296.

The CESCR has addressed the lack of access to water in many of its Concluding Observations297, inter alia in the context of discrimination against and marginalisation of certain groups, that relate to the question of how to set priorities in the allocation of water. For example, in regard to Canada it expressed its concern about ‘the gross disparity between Aboriginal people and the majority of Canadians’ among other areas, in regard to the provision of safe and adequate drinking water298. Similarly, the Committee showed its concern about the situation of indigenous com-munities and Afro-descendants in Costa Rica suffering from the lack of access to water to a large extent299. In its Concluding Observations on Yemen, the Committee stated that it

291 Coomans, above n 290, 200; Weschke, above n 127, 13; W Piepenstock, ‘Zur Durchsetzung internationaler Sozialrechte’ in H Faber and G Frank (eds), Demokratie in Staat und Wirtschaft – Festschrift für Ekkehart Stein zum 70. Geburtstag (Tübingen, Mohr Siebeck, 2002) 377, 379.

292 Riedel, above n 154, 594; Simma and Bennigsen, above n 290, 1493; Oberleitner, above n 287, 18.

293 COHRE, AAAS, SDC and UN-Habitat, above n 76, 25; Langford, above n 103, 451.294 Such as the lack of time and resources, see Weschke, above n 127, 11 et seq.295 Riedel, above n 290, 100, 104; Simma, ‘The Examination of State Reports’, above n 290,

36; Coomans, above n 290, 182; Weschke, above n 127, 8; Simma, above n 168, 875; Riedel, above n 193, 447 et seq; critical, Leckie, above n 290, 132.

296 See Schneider, above n 127, 13.297 For a compilation of concluding observations dealing with (access to) water, see

M Duttwiler, ‘Das Recht auf Wasser nach dem Internationalen Pakt über wirtschaftliche, soziale und kulturelle Rechte – Ein Umriss seines Normgehalts’, Jusletter No 432 (16 July 2007); K Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard, Ernährung, Wasser, Bekleidung, Unterbringung und Energie als Elemente des Art. 11(1) IPWSKR (Frankfurt am Main, Peter Lang, 2008) 201 et seq.

298 Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, 10 December 1998, E/C.12/1/Add.31, para 17 (‘The delegation of the State Party conceded that almost a quarter of Aboriginal household dwellings required major repairs and lacked basic amenities.’).

299 Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted States Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Costa Rica, 4 January 2008, E/C.12/CRI/CO/4, paras 15, 26.

Possibility of Judicial Enforcement 259

is concerned about the persisting water crisis which constitutes an alarming environmental emergency in the State party, and which prevents access to safe and affordable drinking water, particularly for the disadvantaged and margin-alized groups of society, and for rural areas.300

Not only the reporting procedure under the Social Covenant plays a significant role in regard to the right to water, but reporting under other universal treaties as well, notably Article 40 of the Civil Covenant, Articles 18 et seq CEDAW, Articles 44 et seq CRC and Articles 35 et seq CRPD. Moreover, reporting under regional treaties is relevant, ie as provided for in Article 62 of the Banjul Charter301, Article 19 of the Protocol of San Salvador, Article 48 of the Arab Charter and Article 21 of the Revised ESC. As there is a large overlap between these reporting procedures, in particu-lar in the United Nations context, discussion about the harmonisation, consolidation or unification of reporting obligations is not surprising302. A rather far-reaching solution would be the establishment of a unified treaty body303.

2. Procedures for responding to human rights violations

The former 1235-Procedure is one of the oldest Charter-based human rights instruments304. It is named after an ECOSOC resolution from 1967305. It focused on gross violations of human rights, providing for an annual debate of the Commission on Human Rights focusing on a number of States306. Following the establishment of the Human Rights Council, the legal basis for the procedure for responding to human rights violations is found in

300 Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by State Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Yemen, 12 December 2003, E/C.12/1/Add.92, para 19.

301 See CA Odinkalu, ‘Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights’ in MD Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge, Cambridge University Press, 2002) 178, 201 et seq.

302 See Weschke, above n 127, 12; Hampson, above n 285, 12; Rosas and Scheinin, above n 287, 432.

303 See generally Eighteenth meeting of chairpersons of the human rights treaty bodies, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, Report by the Secretariat, 22 March 2006, HRI/MC/2006/2; RL Johnstone, ‘Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body’ (2007) 7 Human Rights Law Review 173; M O’Flaherty and C O’Brien, ‘Reform of the UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 Human Rights Law Review 141.

304 Steiner et al, above n 283, 754.305 Economic and Social Council, Question of the violation of human rights and fundamental

freedoms, including policies of racial discrimination and segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories, 6 June 1967, Res 1235 (XLII).

306 Steiner et al, above n 283, 759. See generally, on the question of addressing specific country situations, Scannella and Splinter, above n 286, 60 et seq.

260 Benefits of Understanding Water as a Human Right

paragraph 3 of the General Assembly resolution establishing the Human Rights Council307 that has effectively superseded ECOSOC Resolution 1235308. It mandates the Council to ‘address situations of violations of human rights, including gross and systematic violations, and make recom-mendations thereon’309. In contrast to the former 1503-Procedure described below, it is an instrument that highly relies on its being public310. Judging from the practice to date, the focus of the procedure seems to be on gross violations of civil and political rights311. However, gross violations of socio-economic rights, including the human right to water, could also be addressed312. Depending on the situation, the former Commission and now the Council may decide on a range of different measures as the next steps, for instance the establishment of Special Procedures313 that will be con-sidered next.

3. Special Procedures

The Special Procedures have been described as ‘the crown jewel’314 of the human rights system by the former UN Secretary General Kofi Annan. They consist of a range of country and thematic mandates (44 as of 1 October 2011)315. The Special Procedures perform a range of different functions316 that depend on their specific mandate. Generally, the most important functions include the presentation of an annual report, country fact-finding missions and the sending of complaints to governments317. The Special Procedures have been reviewed by the Human Rights Council318, and all previously-established mandates relevant in the con-text of the right to water have been extended319.

307 General Assembly, A/Res/60/251, above n 285, para 3.308 Steiner et al, above n 283, 811.309 General Assembly, A/Res/60/251, above n 285, para 3.310 Weschke, above n 127, 318; Reimann, above n 290, 298; see the possible outcomes of the

procedure pointed out by Steiner et al, above n 283, 761.311 Reimann, above n 290, 298.312 Ibid, 298 et seq.313 Steiner et al, above n 283, 761; C Callejon, ‘Developments at the Human Rights Council

in 2007: A Reflection of its Ambivalence’ (2008) 8 Human Rights Law Review 323, 332; Weschke, above n 127, 318; Reimann, above n 290, 296.

314 United Nations, Secretary-General’s message to the Third Session of the Human Rights Council, Geneva, Switzerland, 29 November 2006, available at <www.un.org/apps/sg/sgstats.asp?nid=2333> (accessed 1 October 2011).

315 For an overview, see Steiner et al, above n 283, 765 et seq; H Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on Human Rights’ (2007) 7 Human Rights Law Review 73, 74 et seq.

316 See Steiner et al, above n 283, 767.317 Ibid, 768 et seq.318 See General Assembly, A/Res/60/251, above n 285; on the review process, see Scannella

and Splinter, above n 286, 56 et seq.319 See Human Rights Council, Institution-building of the United Nations Human Rights

Council, 18 June 2007, A/HRC/Res/5/1, Annex, para 61 and Appendix I.

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Most important in the present context is the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation (formerly Independent Expert320 on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation), a Special Procedure established in March 2008321. Catarina de Albuquerque was appointed in September 2008 and took up her mandate in November 2008. Originally, her mandate con-sisted of three main tasks:

a) to prepare a compilation of best practices; b) to undertake a study on the further clarification of human rights obliga-

tions relating to access to water and sanitation; and c) to make recommendations on furthering the realisation of the MDGs322.

After submitting a preliminary report at the 10th Session of the Human Rights Council in March 2009, she submitted her first substantive report at the 12th Session in September 2009, which focuses on human rights obliga-tions related to sanitation323. During the second year of her mandate, she focused on non-State provision of water and sanitation services, and the obligations of States and responsibilities of non-State actors in that con-text324. During the third year – after the right to water and sanitation had been formally recognised – Catarina de Albuquerque decided to address national and local planning as one of the first and foremost steps in the implementation of the rights to water and sanitation325. Her reports to the General Assembly so far dealt with recommendations on the realisation of the MDGs326 and financing issues327. She also developed a set of criteria for the identification of good practices328, and issued the final compendium of

320 The fact that different terminology is used for the Special Procedures is confusing but of limited practical relevance; see Steiner et al, above n 283, 767. The title ‘Independent Expert’ (instead of ‘Special Rapporteur’) is likely to be used when the relevant Special Procedure includes a component of further clarification of human rights, the respective obli-gations or concepts used in the context of human rights (as it was the case during the first term of the mandate on water and sanitation).

321 Established by Human Rights Council, Human rights and access to safe drinking water and sanitation, 28 March 2008, A/HRC/Res/7/22.

322 Ibid, para 2(a)–(c).323 Human Rights Council, Report of the independent expert on the issue of human rights obliga-

tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, 1 July 2009, A/HRC/12/24.

324 Human Rights Council, Report of the independent expert on the issue of human rights obliga-tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, 29 June 2010, A/HRC/15/31.

325 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 4 July 2011, A/HRC/18/33.

326 General Assembly, Report of the independent expert, A/65/254 above n 28.327 General Assembly, Report of the Special Rapporteur on the human right to safe drinking

water and sanitation, Catarina de Albuquerque, 3 August 2011, A/66/255.328 Human Rights Council, Report of the independent expert A/HRC/18/33/Add.1 above

n 52.

262 Benefits of Understanding Water as a Human Right

good practices in 2011329. Finally, she has undertaken a number of country missions330.

In a resolution dating from March 2011, which changed the title of the mandate to Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, the Human Rights Council extended the mandate for further three years and provided the Special Rapporteur with a broad mandate that will guide her activities over the next years. It encourages her, inter alia, to promote the full realisation of the human right to water and sanitation331, to identify challenges, obstacles and protection gaps, as well as good practices and enabling factors, in its realisation, to monitor its realisation throughout the world, to make recommendations for devel-opment goals beyond the 2015 MDGs, and to facilitate technical assistance in the area of the human right to water and sanitation332.

At an earlier stage the former Sub-Commission on the Promotion and Protection of Human Rights, a subsidiary body of the former Commission on Human Rights, had already established a Special Procedure in this context. The Sub-Commission started as early as the late 1990s to consider the promotion of the realisation of the right of access of everyone to drink-ing water supply and sanitation services. In 2001, it suggested to the Commission on Human Rights that the Sub-Commission should be authorised to appoint El Hadji Guissé as Special Rapporteur to conduct a detailed study333. In April 2002, the Commission of Human Rights decided to approve the decision to appoint the Special Rapporteur ‘to conduct a detailed study on the relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation’ 334. The Special Rapporteur has produced a number of reports and a set of draft guidelines for the realisa-tion of the right to drinking water supply and sanitation. However, his mandate was restricted to conducting a study and did not include any country-specific assessment of the realisation of the right to water.

329 Human Rights Council, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Addendum, ‘Compilation of good practices’, 29 June 2011, A/HRC/18/33/Add.1.

330 Human Rights Council, Report of the independent expert on the issue of human rights obliga-tions related to access to safe drinking water and sanitation, Catarina de Albuquerque, Addendum, ‘Mission to Costa Rica’, 23 June 2009, A/HRC/12/24/Add.1. From 2009 to 2011, she has undertaken further missions to Egypt, Bangladesh, Slovenia, Japan, the United States, Namibia and Senegal.

331 As discussed above, the General Assembly and Human Rights Council resolutions speak of the human right to water and sanitation in the singular, whereas the view put for-ward here is that water and sanitation are two distinct human rights; see ch 5, section III.D.i.

332 Human Rights Council, The human right to safe drinking water and sanitation, 8 April 2011, A/HRC/Res/16/2, para 5.

333 Sub-Commission on the Promotion and Protection of Human Rights, Promotion of the realization of the right to drinking water and sanitation, 10 August 2001, E/CN.4/Sub.2/Res/2001/2, para 3.

334 Commission on Human Rights, Promotion of the realization of the right to drinking water and sanitation, 22 April 2002, E/CN.4/Dec/2002/105.

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Moreover, the political profile of mandates authorised by the Sub-Commission is lower than that of those established by the Human Rights Council (or the former Commission on Human Rights).

As outlined above335, also other Special Procedures that have already been in existence for some time have dealt with certain aspects of the right to water in their mandates, notably the Special Rapporteurs on the Rights to Food336, Health337 and Housing338.

4. Universal periodic review by the Human Rights Council

One of the characteristic features of the Human Rights Council is the new Universal Periodic Review (UPR) of the fulfilment of human rights obligations by each State, which is to be based on objective and reliable information339. Unlike the former 1235-Procedure described above, it not only scrutinises and debates gross violations in a number of countries, but aims at a review of the human rights performance of all States340. This mechanism is meant to complement the work of the treaty bodies341 such as the CESCR. In contrast to the treaty bodies, the review is not carried out by independent experts but by the members of the Human Rights Council, ie the States themselves. A sample analysis of the first 48 reports examin-ing States, for which the procedure was completed in 2008, shows that water was addressed in about one-third of the reports issued in 2008.

335 See ch 3, section II.C.v. 336 Established by Commission on Human Rights, The right to food, 17 April 2000,

E/CN.4/Res/2000/10; last renewed by Human Rights Council, Mandate of the Special Rapporteur on the right to food, 27 September 2007, A/HRC/Res/6/2; from 2000 to 2008 Jean Ziegler held the mandate, while Olivier De Schutter was appointed as Special Rapporteur in March 2008.

337 Established by Commission on Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, 22 April 2002, E/CN.4/Res/2002/31; last renewed by Human Rights Council, Right of everyone to the enjoyment of the highest attain-able standard of physical and mental health, 14 December 2007, A/HRC/Res/6/29; from 2002 to 2008 Paul Hunt held the mandate, while Anand Grover was appointed as Special Rapporteur in August 2008.

338 Established by Commission on Human Rights, Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 17 April 2000, E/CN.4/Res/2000/9, para 7(c); last renewed by Human Rights Council, Adequate housing as a component of the right to an adequate standard of living, 14 December 2007, A/HRC/Res/6/27; from 2000 to 2008 Miloon Kothari held the mandate, while Raquel Rolnik was appointed as Special Rapporteur in 2008.

339 General Assembly, A/Res/60/251, above n 285, para 5(e). See generally FD Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7 Human Rights Law Review 109; Hampson, above n 285, 15 et seq.

340 Steiner et al, above n 283, 806; Callejon, above n 313, 334; C Tomuschat, ‘Internationaler Menschenrechtsschutz – Anspruch und Wirklichkeit’ (2008) 56 Vereinte Nationen 195, 197. The resolution reads ‘in a manner which ensures universality of coverage and equal treat-ment with respect to all States . . .’, General Assembly, A/Res/60/251, above n 285, para 5(e).

341 Ibid.

264 Benefits of Understanding Water as a Human Right

Some States highlight the progress made in their realisation of the right to water342. In other cases, States commend other States for their achieve-ments343. Moreover, questions are asked regarding the measures States are planning to take to improve access to drinking water344. States also point out specific situations in which the realisation of the right to water is threatened: the effects of mining projects345, the rights of indigenous peoples346, unsanitary prison conditions347 and the effect of climate

342 Human Rights Council, Report of the Working Group on the Universal Periodic Review: South Africa, 23 May 2008, A/HRC/8/32, paras 7 et seq; Human Rights Council, Report of the Working Group on the Universal Periodic Review: Guatemala, 29 May 2008, A/HRC/8/38, para 16; Human Rights Council, Report of the Working Group on the Universal Periodic Review: Ukraine, 3 June 2008, A/HRC/8/45, para 52; Human Rights Council, Report of the Working Group on the Universal Periodic Review: Cape Verde, 12 January 2009, A/HRC/10/81, paras 17, 60, Luxembourg also pointed to its development cooperation with Cape Verde, see para 41; Israel pointed out how it fulfils its humanitarian obligations, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Israel, 8 January 2009, A/HRC/10/76, para 50.

343 Sudan commended Bahrain, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Bahrain, 22 May 2008, A/HRC/8/19, para 43; Sudan com-mended Morocco, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Morocco, 22 May 2008, A/HRC/8/22, para 61; Algeria appreciated the recog-nition of the right to water in the South African Constitution, Germany also noted South Africa’s progress, see Human Rights Council, A/HRC/8/32, above n 342, paras 34, 37; the Philippines noted progress in Benin, Senegal also welcomed progress in Benin, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Benin, 28 May 2008, A/HRC/8/39, paras 13, 38; Chad and Tunisia welcomed efforts by Zambia, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Zambia, 2 June 2008, A/HRC/8/43, paras 27, 30; Bangladesh noted progress in Tonga, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Tonga, 5 June 2008, A/HRC/8/48, para 58; China commended Turkmenistan, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Turkmenistan, 6 January 2009, A/HRC/10/79, para 46.

344 Japan asked Gabon, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Gabon, 28 May 2008, A/HRC/8/35, para 38; South Africa, Germany and Brazil asked Ghana (inter alia referring to the measures to be taken to mitigate the effects of large-scale mining), see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Ghana, 28 May 2008, A/HRC/8/36, paras 43, 47, 57; Japan requested infor-mation from Peru, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Peru, 28 May 2008, A/HRC/8/37, para 27; Brazil requested information from Benin, see Human Rights Council, A/HRC/8/39, above n 343, para 12, answers by Benin in para 30; the Russian Federation, the Democratic Republic of the Congo and South Africa requested information from Zambia, see Human Rights Council, A/HRC/8/43, above n 343, paras 15, 17, 52, answers by Zambia in paras 20, 56 et seq; Indonesia stated that the Palestinians’ right to water is denied by Israel, see Human Rights Council, A/HRC/10/76, above n 342, para 76.

345 Brazil noted the situation of communities in Ghana living in the vicinity of mining projects, see Human Rights Council, A/HRC/8/36, above n 344, para 57.

346 Finland expressed its concern about the rights of indigenous peoples and their access to water in Botswana, Denmark recommended ensuring equity in the allocation of water sources, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Botswana, 13 January 2009, A/HRC/10/69, paras 35, 81, 91 No 17.

347 The Russian Federation cited the problem related to unsanitary prison conditions and lack of water supply in Zambia, see Human Rights Council, A/HRC/8/43, above n 343, para 15; Italy expressed its concern about the same issue Botswana, Human Rights Council, A/HRC/10/69, above n 346, para 63.

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change348 are some major issues. Furthermore, States explicitly recom-mend measures to be taken to improve access to water349.

Considering that the UPR is a rather general tool aiming to assess over-all human rights compliance and thus focusing on the most important aspects350, the repeated emphasis placed on the right to water in a number of reports351 is striking. It underlines the increasing significance and recog-nition of the human right to water.

ii. (Individual) complaint mechanisms

Apart from the instruments assessing general compliance with human rights obligations, it remains to be examined whether individual mechan-isms of enforcement also exist at an international level, to allow individu-als to claim that their right to water has been violated and to seek redress. Such individual complaints give the respective bodies the opportunity to address specific cases of violations and to apply the human right to water to concrete situations. This can lead to a concretisation of the normative content of the right to water.

1. Optional Protocol to the Social Covenant on an Individual Complaint Mechanism

The first individual complaint mechanism to be examined is the Optional Protocol to the Social Covenant. Its adoption had long been discussed352,

348 The Maldives asked how climate change affects the right to water in The Bahamas and in Tuvalu, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Bahamas, 7 January 2009, A/HRC/10/70, para 37; Human Rights Council, Report of the Working Group on the Universal Periodic Review: Tuvalu, 9 January 2009, A/HRC/10/84, para 47, see also para 6.

349 Luxembourg’s recommendation to Pakistan in regard to women’s access to clean water and sanitation, in particular in rural areas, see Human Rights Council, Report of the Working Group on the Universal Periodic Review: Pakistan, 4 June 2008, A/HRC/8/42, paras 40, 106 No 34; Canada’s recommendation to Israel to ensure the Bedouin population’s access to water, see Human Rights Council, A/HRC/10/76, above n 342, paras 59, 100 No 26; South Africa’s recommendation to grant access to water to Syrian citizens living in the occupied Syrian Golan, Human Rights Council, A/HRC/10/76, above n 342, paras 78, 100 No 36.

350 It has to be taken into account that only three hours are scheduled for each review, see Tomuschat, above n 340, 198.

351 Noteworthy in this regard are the reports on South Africa, see Human Rights Council, A/HRC/8/32, above n 342; on Ghana, see Human Rights Council, A/HRC/8/36, above n 344; on Zambia, see Human Rights Council, A/HRC/8/43, above n 343.

352 See Reimann, above n 290, 315 et seq; Simma, above n 168, 879 et seq. For a recent view strongly opposing an Optional Protocol, cf Dennis and Stewart, above n 130; critical as well is C Tomuschat, ‘An Optional Protocol for the International Covenant on Economic, Social and Cultural Rights?’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 815; Reimann, above n 290, 319 et seq.

266 Benefits of Understanding Water as a Human Right

and for a long time it did not seem bound to occur353. Attempts to draft an Optional Protocol date back to the early 1990s and have been undertaken by academics354 as well as by the CESCR itself355. The Final Declaration of the Vienna World Conference on Human Rights encouraged the Committee to continue the examination of an Optional Protocol356. The Committee’s study of the question resulted in a draft proposal357 that was submitted to the Commission on Human Rights. The Commission, in 2001, convened a workshop on the issue of the justiciability of economic, social and cultural rights, and decided to appoint an Independent Expert to consider the question of an Optional Protocol358. In his reports, the Independent Expert was more hesitant than other bodies359.

In 2002, the Commission on Human Rights established an Open-ended Working Group to consider the issue360. In April 2008, the Working Group finalised its work and submitted a draft Optional Protocol361 to the Human Rights Council for its consideration. The Council adopted the Protocol on 18 June 2008362. Following the recommendation of the Third Committee363, the General Assembly finally adopted the Optional Protocol on 10 December 2008364. Ecuador, Mongolia, Spain, El Salvador, Argentina, Bolivia and

353 For a detailed account of the process of discussing the Optional Protocol, see Dennis and Stewart, above n 130, 467 et seq; also Tomuschat, above n 352, 815 et seq.

354 See in particular the Utrecht drafts of an Optional Protocol, reprinted in Arambulo, above n 134, 391 et seq; as well as the proposal by Arambulo herself, Arambulo, above n 134, 409 et seq.

355 Commission on Human Rights, Draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, 18 December 1996, E/CN.4/1997/105.

356 United Nations, World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action, A/Conf.157/23, Part II, para 75.

357 Commission on Human Rights, E/CN.4/1997/105, above n 355.358 Commission on Human Rights, Question of the realization in all countries of the economic,

social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 20 April 2001, E/CN.4/Res/2001/30, para 8(c).

359 See Dennis and Stewart, above n 130, 469 et seq.360 Commission on Human Rights, Question of the realization in all countries of the economic,

social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 22 April 2002, E/CN.4/Res/2002/24, para 9(f). For a detailed account of the working group sessions and the process, see C de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights – The Missing Piece of the International Bill of Rights’ (2010) 32 Human Rights Quarterly 144.

361 Human Rights Council, Report of the Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its fifth session, 23 May 2008, A/HRC/8/7, Annex I.

362 Human Rights Council, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 18 June 2008, A/HRC/Res/8/2.

363 General Assembly, Report of the Third Committee, 28 November 2008, A/63/435, para 11.364 General Assembly, Optional Protocol to the International Covenant on Economic, Social and

Cultural Rights, 5 March 2009, A/Res/63/117.

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Bosnia and Herzegovina were the first seven States to ratify the Protocol. It will enter into force three months after it has been ratified by 10 States, according to its Article 18(1).

Article 2 of the Optional Protocol allows for complaints to be submitted regarding any rights guaranteed in the Covenant, and the Protocol is thus not restricted to specific rights. According to Article 9 of the Optional Protocol, the Committee provides its views on any communications brought before it. Just like the Concluding Observations on State reports, its views are not legally binding. However, being based on individual complaints, the views address specific cases and are therefore framed in much more specific terms. Consequently, their rate of implementation is generally higher365. In general terms, the specific cases brought to the Committee as individual complaints will also allow the Committee to develop its jurisprudence and to clarify the scope and content of the rights in the Covenant further366.

2. Other complaint mechanisms in the area of economic, social and cul-tural rights

As outlined above367, a number of human rights instruments that are lim-ited either ratione personae or ratione loci explicitly or implicitly guarantee certain aspects of the right to water. They include other complaint mechan-isms that allow the right to water to be addressed in specific contexts: the Optional Protocol to CEDAW368; and the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints369. As the Revised ESC provides for an ‘à la carte-approach’, allowing States to choose to which Articles they are bound (Part III, Article A), complaints are possible only as far as the Charter is binding upon States.

Article 19(6) of the Protocol of San Salvador also gives rise to the applica-tion of a system of individual petitions in cases of the violation of certain rights, thus allowing for selective adjudication only. The system is of no direct relevance in regard to the right to water. However, a case before the Inter-American Commission on Human Rights (IACHR) relates to the right to water: Mapuche Paynemil and Kaxipayiñ Communities v Argentina370. It is concerned with the failure of the Argentinian State to comply with a domes-

365 COHRE, AAAS, SDC and UN-Habitat, above n 76, 26.366 Coomans, above n 290, 197.367 See ch 3, section I.C. 368 See generally AF Bayefsky, How to Complain to the UN Human Rights Treaty System (The

Hague, Kluwer Law International, 2003) 107 et seq.369 As its title suggest, the Protocol does not allow for individual but for collective com-

plaints; see Schneider, above n 127, 20 et seq. For a detailed description and assessment of the system, see Churchill and Khaliq, above n 168, 422 et seq.

370 Inter-American Commission on Human Rights, Mapuche Paynemil and Kaxipayiñ Communities, Case No 12.010, summary of the case available at <www.escr-net.org/caselaw/caselaw_show.htm?doc_id=405939> (accessed 1 October 2011).

268 Benefits of Understanding Water as a Human Right

tic judgment that ordered the provision of drinking water to an indigenous community in Neuquén, Argentina, that was exposed to water contami-nated with heavy metals. The case is still pending with the IACHR and presumably under consideration for a friendly settlement.

The Banjul Charter does not include any restrictions as to the kinds of rights that may be raised as allegedly having been violated. Various aspects of economic, social and cultural rights have been addressed and figured prominently in cases before the African Court on Human and People’s Rights (ACHPR)371, stressing the fact that all rights guaranteed in the Charter are interdependent372. The Commission explicitly stated that it ‘will apply any of the diverse rights contained in the African Charter [and that it] welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective’373. The case The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria374, already referred to above375, should be noted in particu-lar in the context of the right to water. The Commission found a violation of, inter alia, Articles 16 and 24 of the Banjul Charter due to the contami-nation of water, soil and air in Ogoniland caused by oil spills.

These cases illustrate that there are some opportunities to lodge indi-vidual complaints with regional bodies aiming at the protection of human rights. These are already further developed than mechanisms in the realm of the United Nations.

371 The African Court on Human and People’s Rights has recently started functioning, but so far no case law relevant in the context of the right to water could be detected. See Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III), 10 June 1998, entered into force 25 January 2004, 26 State Parties (as of 11 March 2011), available at <www.africa-union.org/root/au/Documents/Treaties/Text/africancourt-humanrights.pdf> (accessed 1 October 2011). See also Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008, not yet entered into force, 3 ratifications (as of 27 January 2011), available at <www.africa-union.org/root/au/Documents/Treaties/text/Protocol%20on%20the%20Merged%20Court%20-%20EN.pdf> (accessed 1 October 2011). The latter Protocol merges the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union into one single court (Art 2).

372 Odinkalu, above n 301, 206.373 African Commission on Human and Peoples’ Rights, The Social and Economic Rights

Action Center and the Center for Economic and Social Rights v Nigeria, Communication 155/96, decision taken at 30th Ordinary Session, Banjul, The Gambia, from 13 to 27 October 2001, ACHPR/COMM/A044/1659, para 68.

374 Ibid. See also African Commission on Human and Peoples’ Rights, Free Legal Assistance Group and Others v Zaire, Communications Nos 25/89, 47/90, 56/91, 100/93 (1995), decision taken at the 18th Ordinary Session, Praia, Cape Verde, October 1995, para 47, where the Commission inter alia found that the failure of the Government to provide basic services such as safe drinking water amounts to a violation of the right to enjoy the best attainable state of physical and mental health as guaranteed in Art 16 of the Banjul Charter.

375 See ch 5, section III.K.

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3. Individual complaints in the context of procedures aiming at the pro-tection of civil and political rights

To a certain degree, the human right to water may be raised in individual complaints through procedures that aim primarily at the protection of civil and political rights376. The Optional Protocol to the Civil Covenant allows for individual complaints to the Human Rights Committee that monitors the implementation of the Civil Covenant377. As outlined above, access to water is to a certain extent guaranteed by the right to life, as in Article 6 ICCPR. Therefore, the lack of access to water could be raised in complaints to the Human Rights Committee378. Furthermore, the Committee has interpreted Article 26 ICCPR to prohibit discrimination not only in the context of civil and political rights, but also in the context of socio-economic rights379. This allows socio-economic rights to be raised indirectly before the Human Rights Committee for violations occurring in the form of discrimination380.

The same holds true for a number of provisions in the ECHR, in particu-lar those relating to procedural safeguards. The fair trial clause in Article 6(1) ECHR has been used as the starting-point in a number of cases, giv-ing protection to socio-economic rights381. In this regard, a judgment of the European Court of Human Rights is particularly noteworthy. The appli-cants in Butan and Dragomir v Romania382 requested an individual water connection after the collective connection had been disconnected by their neighbours. After their request had been denied by the lower Romanian courts, the Romanian High Court of Cassation and Justice ordered the water services provider to conclude an individual contract with the

376 Schneider, above n 127, 29 et seq; see generally C Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal 769. See also the compila-tion by Scheinin on this ‘integrated approach’, Scheinin, above n 131, 32 et seq. For some examples of how national courts have used this approach for the indirect protection of socio-economic rights, see Liebenberg, ‘The Protection of Economic and Social Rights’, above n 129, 71 et seq.

377 See generally Bayefsky, above n 368, 51 et seq.378 See Scott, above n 376, 875 et seq; Schneider, above n 127, 30.379 Scott, above n 376, 852 et seq; Schneider, above n 127, 9; Scheinin, above n 131, 32 et seq;

Rosas and Scheinin, above n 287, 440.380 Schneider, above n 127, 30.381 See generally Scheinin, above n 131, 34 et seq; Schneider, above n 127, 30 et seq. One of

the leading cases in that regard is Airey concerning the right to free legal aid, see European Court of Human Rights, Airey Case, 9 October 1979, Series A, vol 32. The European Court of Human Rights has also held in a number of cases that forced evictions may amount to a violation of the right to respect for private life, family life and the home as guaranteed in Art 8 ECHR; see Courtis, above n 108, 335 for references; see also Langford, above n 271, 91 et seq.

382 Cour Européenne des Droits de l’Homme, Butan et Dragomir c Roumanie, Requête no 40067/06, 14 February 2008. For a brief analysis, see C Cojocariu, ‘Challenging Violations of the Right to Water before the European Court of Human Rights’ (2008) 5 (No 1) Housing and ESC Rights Law Quarterly 10.

270 Benefits of Understanding Water as a Human Right

applicants. However, the judgment was not executed and the applicants were not connected individually. The Court found a violation of Article 6(1) ECHR due to the lack of enforcement of a final domestic judgment383. In an earlier case (Zander v Sweden), the Court found a violation of Article 6(1) that was related to the potential pollution of a drinking-water well from a nearby dump384. These cases demonstrate that the indirect protec-tion of socio-economic rights via procedures aiming at the protection of civil and political rights may also be used in the context of access to water.

4. Confidential complaint procedure

ECOSOC Resolution 1503385, dating from 1970, established a confidential complaint procedure that has since been named the ‘1503-Procedure’. It is concerned with the examination of complaints relating to situations ‘which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’386, as a general, non treaty-based complaint mechanism covering violations all over the world387. The procedure does not examine the individual complaints one by one, but uses them as a source of information to scrutinise the country situation overall388. In contrast to other mechanisms, the procedure is entirely confidential, which has been the subject of criticism and debate389. The Human Rights Council has reviewed the Commission‘s mandates and responsibilities, including the complaint procedure390, and has decided to retain the procedure in its essence391. The procedure makes no distinction as to the category of the right in question and would theoretic-ally be suitable for complaints about human rights violations in the field

383 Cour Européenne des Droits de l’Homme, Butan et Dragomir c Roumanie, above n 382, paras 33, 39, 42.

384 European Court of Human Rights, Zander v Sweden, 25 November 1993, Series A, No 279B, para 29.

385 Economic and Social Council, Procedure for dealing with communications relating to viola-tions of human rights and fundamental freedoms, 27 May 1970, Res 1503 (XLVIII).

386 Ibid, para 1.387 Steiner et al, above n 283, 754; see also Reimann, above n 290, 295 et seq.388 Weschke, above n 127, 315; Hannum, above n 315, 85.389 See Steiner et al, above n 283, 758; Callejon, above n 313, 332 et seq.390 See General Assembly, A/Res/60/251, above n 285, para 6.391 Steiner et al, above n 283, 811; Callejon, above n 313, 332 et seq. Human Rights Council,

A/HRC/Res/5/1, above n 319, Annex, para 85 reads: ‘A complaint procedure is being established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.’; para 86 reads: ‘Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970 as revised by resolution 2000/3 of 19 June 2000 served as a working basis and was improved where necessary, so as to ensure that the complaint procedure is impartial, objective, efficient, victims-oriented and conducted in a timely manner. The procedure will retain its confidential nature, with a view to enhancing cooperation with the State con-cerned.’ For a proposed reform of the procedure, see Hannum, above n 315, 85 et seq.

Possibility of Judicial Enforcement 271

of socio-economic rights too392. So far, however, it seems to have largely focused on complaints about violations of civil and political rights393.

5. Individual complaints to Special Procedures

Special Procedures also accept individual or collective complaints, referred to as ‘communications’, about alleged violations of the respective human right. Such communications may be addressed to the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation. On that basis, Special Procedures may intervene with Governments regarding specific allegations of violations of human rights. Generally, the process involves sending letters of allegation or urgent appeals to the Government concerned, requesting information and comments on the allegation. In turn, governments reply to these letters. This exchange remains confidential until the Special Procedures submit a report on com-munications to the Human Rights Council394.

iii. Conclusion

There is a range of mechanisms for the enforcement of the human right to water at the international level – procedures that aim at assessing general human rights compliance by States, as well as complaint mechanisms and both treaty- and Charter-based instruments.

From the instruments that aim at assessing States’ general compliance, reporting procedures are the most well-established in the context of the right to water. However, more recent developments are noteworthy: the establishment of the mandate of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation; and the UPR, in which the right to water figures prominently. None of these procedures provide direct redress but produce recommendations only. In general, inter-national mechanisms rely to a great extent on the political pressure exer-cised by them, on the ‘mobilisation of shame’395. This effect should not be underestimated, though, in particular when used in combination with other advocacy strategies.

In most cases, individual complaint mechanisms also result only in recommendations by the relevant body. However, they are of a more direct quasi-judicial nature than reporting procedures. In that regard,

392 Scheinin, above n 131, 31.393 Reimann, above n 290, 296 et seq; Scheinin, above n 131, 31; Rosas and Scheinin, above

n 287, 442.394 See generally Office of the United Nations High Commissioner for Human Rights,

Special Procedures of the Human Rights Council, Urgent appeals and letters of allegation on human rights violations, available at <www2.ohchr.org/english/bodies/chr/special/docs/communicationsbrochure_en.pdf> (accessed 1 October 2011).

395 Craven, above n 155, 368.

272 Benefits of Understanding Water as a Human Right

the adoption of the Optional Protocol to the Social Covenant is a major step. But the first complaints have yet to reach the Committee. In this regard, mechanisms at the regional level are already more developed. Cases (indirectly) dealing with the right to water have been heard by the IACHR, the ACHPR and the the European Court of Human Rights. The case law of the European Court of Human Rights demonstrates that the human right to water may also be raised in procedures that aim primar-ily at the protection of civil and political rights. All in all, there are numerous mechanisms at the international level to enforce the human right to water. In regard to many of them, it seems possible to use them more widely.

III. CONCLUSION

Recognising water as a human right and taking an approach to water allo-cation that is based on human rights demonstrates enormous potential for improving access to water and achieving a more equitable allocation of water. The benefits of the human rights framework stem from the trans-formation of mere needs into rights. The human rights framework is based on legally-binding and coherent standards. As such, it provides a non-negotiable normative basis and a source of authority and legitimacy. Access to water becomes a matter of legal entitlements rather than of charitable benevolence.

As with all human rights, the right to water is universal and encom-passes specific government obligations towards its realisation. In this regard, the human right to water is considerably more far-reaching and more specific than the MDGs. Moreover, the human rights framework requires a focus on the most deprived and marginalised groups and indi-viduals in order to redress past discrimination and to achieve substantive equality to the greatest extent possible.

By requiring active, free and meaningful participation – by vulnerable and marginalised groups too – and by strengthening accountability, human rights have the potential to empower people. Moreover, the human rights framework allows for an integrated approach to address inter-related concerns. Improving access to water has, for example, to be linked to institutional and democratic strengthening. This is essential to address not only the symptoms of the water crisis, but also its underlying structural reasons, and to challenge existing power relations that prevent equitable access to water.

As human rights law stresses the relationship between the State as the primary duty-bearer and the people as rights-holders, the realisation of access to water may be measured and assessed against the standard of the right to water. This also allows individuals to hold the duty-bearer

Conclusion 273

accountable and to rely on the right to water, which is far more compel-ling than merely asserting that water is a basic human need396. In doing so, individuals and groups may make use of a wide array of different meas-ures, such as exerting political pressure and advocacy.

Furthermore, understanding water as a human right opens up a broad range of accountability mechanisms at the national and international level in the sphere of human rights. The justiciability of the human right to water has undoubtedly been established, and it should be beyond ques-tion that individuals have access to judicial remedies in the case of an alleged violation of their human rights397. An emerging and growing body of case law from all over the world illustrates that the justiciability of the right to water is not only a theoretical question but is enforced in practice.

However, even though the judicial enforcement of the human right to water is possible, its practical value as a means of redress should not be over-estimated398. Porter exaggerates this position by stating that human rights lawyers

recognise that the primary locus for claiming ESC rights is outside of courts, in social movements and historical struggles. Where the law can be of instrumen-tal value [they] help clients use it to pursue particular ends, but [they] have no illusions about the law providing an all-encompassing framework for ESC rights.399

Indeed, it seems most promising to link (quasi-)judicial mechanisms to advocacy. Litigation should not be considered in isolation but be embed-ded in broader strategies for furthering the realisation of the right to water. The same holds true for international mechanisms. For example, the Concluding Observations of the CESCR resulting from the reporting procedure and its views in future individual complaints can serve as a powerful tool in advocacy for the right to water due to the standing of the Committee.

Most international mechanisms are subsidiary and subject to the exhaustion of local remedies. Remedies at the national level often provide more timely and efficient redress400 to ensure the enjoyment of the human right to water. Judicial protection as such may be of particular relevance in certain cases, eg to protect the rights of minorities, vulnerable and mar-ginalised groups against decisions of the political majority401, but in most cases judicial enforcement may be used to support and complement other

396 P Alston, ‘Human Rights and Basic Needs: A Critical Assessment’ (1979) 12 Revue des Droits de l’Homme 19, 51.

397 Porter, above n 266, 48, 69.398 Darrow and Tomas, above n 2, 487.399 Porter, above n 266, 45.400 Craven, above n 155, 403.401 Courtis, above n 108, 319.

274 Benefits of Understanding Water as a Human Right

forms of advocacy402. Litigation can be a powerful instrument to enforce the right to water, as it often has effects well beyond the specific case by raising awareness and providing impetus for the further realisation of the right to water.

The opportunity for judicial enforcement contributes to people’s empowerment, even beyond a specific case. All in all, the human right to water provides a non-negotiable, consistent, authoritative and legitimate framework that may be relied upon for increasing access to and to achiev-ing a more equitable allocation of water.

402 Porter, above n 266, 69.

7

Conclusion and Outlook

THE RESOLUTIONS BY the UN General Assembly and the Human Rights Council in 2010 heralded a breakthrough in the rec-ognition of the human right to water. While the General Assembly

resolution was not adopted by consensus, and a total of 70 States abstained from voting or were absent, it carries significant polit ical weight since no States voted against the resolution. The Human Rights Council resolution further reinforced this political significance, since it was adopted by con-sensus. Yet the resolution goes far beyond a political statement. It ‘[a]ffirms that the human right to safe drinking water . . . is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity’1, hence putting the right to water in the context of legally-binding human rights instruments which provide a firm basis in international law.

While the International Bill of Rights does not mention water explicitly, some of its provisions may be interpreted to include access to water. Above all, the right to water may be understood as an implicit component of the right to an adequate standard of living guaranteed in Article 11(1) of the Social Covenant, an interpretation that is explicitly affirmed by the resolution of the Human Rights Council. Moreover, certain aspects of access to water are guaranteed under the rights to housing, health and life as far as they relate to basic facilities, health requirements and survival, respectively. These guarantees relate to States that have ratified the Social and Civil Covenants, respectively.

Other treaties that are limited in their personal and/or territorial scope also include relevant guarantees. Some provisions of these treaties are comparable to the comprehensive treaties at the global level, being under-stood implicitly to guarantee access to water. This includes provisions on health, housing and access to basic services. Moreover, in contrast to the International Bill of Rights, other provisions explicitly mention water: Article 24(2)(c) CRC, Article 14(2)(c) of the African Charter on the Rights and Welfare of the Child, as well as Article 39(e) and (f) of the Arab Charter on Human Rights in the context of the right to health; Article 15 of the

1 Human Rights Council, Human rights and access to safe drinking water and sanitation, 6 October 2010, A/HRC/Res/15/9, para 3.

276 Conclusion and Outlook

Protocol to the Banjul Charter on the Rights of Women in Africa in the context of the right to food security; Article 28(2)(a) CRPD in the context of the right to social protection; and Article 14(2)(h) CEDAW in the con-text of the right to an adequate standard of living. This last provision is particularly important because it highlights that water is understood as a component of the right to an adequate standard of living and because it is of significance beyond its actual scope. The fact that it aims to address discrimination in access to water must be understood to imply that water is regarded as a pre-existing human right that is already guaranteed to all persons. This deserves mention, as the CEDAW has been ratified by more States than the Social Covenant, ie 187 States. When taken together, the provisions of the Social Covenant and the CEDAW attain almost univer-sal coverage, as only a few States have not ratified one or the other of these human rights treaties2.

Apart from these guarantees derived from international human rights treaties mainly by way of interpretation, the human right to water had also gained political recognition even before its explicit recognition through the General Assembly and the Human Rights Council. Early sig-nificant statements include the Mar del Plata Action Plan and the Dublin Principles. In the early 1990s, the international community had advanced as far in Agenda 21 as to describe the right to have access to drinking water as a ‘commonly agreed premise’3. Some years later the Cairo Programme of Action and the Istanbul Habitat Agenda reiterated the rec-ognition of water as a human right. However, this consensus was not maintained. No statement on the right to water can be found in the Johannesburg Plan of Implementation. The MDGs are not characterised by the human rights framework. And none of the Ministerial Declarations issued at the World Water Fora speaks of a human right to water.4

Yet in recent years there have been promising developments at a series of conferences. The Final Document of the 14th Summit Conference of the Non-Aligned Movement in September 2006 in Havana is just one such example, acknowledging ‘the right to water for all’ 5. Moreover, important developments concerning the human right to water have been taking place in the UN context. General Comment No 15 of the CESCR may be attributed a catalytic role, having initiated many later developments. In August 2007, the UN High Commissioner on Human Rights presented her report ‘on the scope and content of the relevant human rights obliga-tions related to equitable access to safe drinking water and sanitation

2 On human rights treaties as legal foundations, see the more detailed ch 3, section I.3 United Nations, Report of the United Nations Conference on Environment and Development,

Rio de Janeiro, 3–14 June 1992, A/Conf.151/26/Rev.1 (Vol I), Annex II, Agenda 21, Chapter 18.47.

4 See ch 3, section II.C.iv. for an analysis of these documents.5 Non-Aligned Movement, Final Document of the 14th Summit Conference, 11–16 September

2006, Havana, NAM 2006/Doc.1/Rev.3, para 226, reprinted in Internationale Politik 11/2006.

Conclusion and Outlook 277

under international human rights instruments’6, requested by the Human Rights Council, which concluded that ‘it is now time to consider access to safe drinking water and sanitation as a human right’7. Moreover, the Human Rights Council has established the mandate of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation (formerly Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation)8. Catarina de Albuquerque was appointed as Special Rapporteur and took up her man-date in November 2008. This process at the UN culminated with the 2010 resolutions of the General Assembly and the Human Rights Council explicitly recognising the right to water.

In parallel to these developments at the international level, a trend of increasing recognition of the right to water may be observed at the national level, particularly, but not exclusively, in Latin American coun-tries. The right to water is increasingly acknowledged in national consti-tutions and legislation, as well as enforced through the courts. Such case law may be observed in countries in all regions of the world. All these developments have implications for the emergence of a customary human right to water. While it is too early to state that water has attained that status as a customary human right, it may be regarded as customary law in statu nascendi9.

De lege lata the human right to water is guaranteed through inter-national human rights treaties, above all as a component of the right to an adequate standard of living under Article 11(1) of the Social Covenant. As a legally-binding human right, it gives rise to corresponding State obliga-tions. States are obliged to respect the human right to water, ie not to interfere with existing access; to protect the right to water, ie to prevent infringement of the rights of individuals by third parties, for instance through water pollution or in the context of private sector participation in water service provision; and to fulfil the right to water. This last obligation primarily requires the State to facilitate access to water, enabling people to provide for themselves. Only when people are unable to do so, for reasons beyond their control, does the role of the State as direct provider become relevant. Moreover, States are obliged not to discriminate on prohibited grounds. This relates to any current or future measures, and also requires States to address existing de facto discrimination. They must pay specific attention to marginalised and vulnerable groups and individuals.

6 Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, 16 August 2007, A/HRC/6/3.

7 Ibid, para 66.8 Human Rights Council, Human rights and access to safe drinking water and sanitation, 28

March 2008, A/HRC/Res/7/22.9 On customary international law, see the detailed analysis in ch 3, section II.

278 Conclusion and Outlook

In principle, States are obliged to realise the rights guaranteed in the Social Covenant progressively, depending on the availability of resources. This does not leave the realisation of human rights to the States’ discretion but requires them to move towards the goal of full realisation as efficiently and quickly as possible to the maximum of available resources. Yet the full realisation of the human right to water is not required to be achieved immediately. Only minimum core obligations apply immediately. They relate to a minimum essential level of water necessary to guarantee human survival, basic health and dignity10.

In delineating the normative content of the human right to water11, a distinction may be made between the core level and the level of full reali-sation of the human right to water. Overall, the human right to water relates to water for personal and domestic use. Its guarantee is specified by the following criteria: availability, safety and acceptability, accessibility and affordability. The core content of the right to water refers to a mini-mum standard that ensures survival and basic human needs to guarantee human dignity. To realise the human right to water in full and to achieve an adequate standard of living, a quantity in the range of 100 l/c/d should be regarded as necessary. Water has to be of such a quality that it does not cause a threat to human health, as well as of an acceptable colour, odour and taste. Moreover, water has to be physically accessible. Again, this requires taking into account specific personal requirements, for instance those of people with disabilities or elderly people. In normal circum-stances, basic access may be assumed when water is accessible in the vicinity of the household. To realise the right to water in full and allow for larger quantities to be collected, access must be ensured in the immediate vicinity or the household itself. Lastly, water has to be affordable, ie other basic needs such as food and housing must not be compromised by pay-ing for water. This does not necessarily imply that water has to be pro-vided free of charge, but requires such provision for people living in extreme poverty who do not have any income.

Not only water for personal and domestic uses is related to human rights, but also water for other uses12. Water for the production of food and clothing relates to the rights to food and clothing, respectively, while water for sanitation is relevant for the realisation of the human right to sanitation. Water used in power generation may be linked to human rights obligations in relation to access to energy, while productive uses of water relate to the right to work. Lastly, water for cultural and religious practices and indigenous water uses may be linked to the right to take part in cultural life, the freedom of religion and indigenous rights. Other

10 See ch 4, section II. for more details on State obligations.11 See ch 4, section III. for a detailed delineation of the normative content.12 For an analysis of different water uses and their link to human rights, see ch 5, section

III.

Conclusion and Outlook 279

water uses, namely, water for personal transportation, water for recrea-tional uses and water for the environment, have been considered, but a link to human rights could not be established.

When prioritising water uses in accordance with human rights, all water uses that have been established to be linked to human rights have to be taken into account. Accordingly, no single use of water can be granted unconditional priority. Rather, the most basic requirements as relating to different human rights have to be met first. In the framework that has been developed, priorities in the realisation of human rights move from the survival level, to the core level, to the level of full realisa-tion of human rights. At the survival level, water for the realisation of the rights to water, to food, to clothing and to sanitation, as well as for the realisation of human rights obligations related to access to energy, becomes (or may become) relevant. At the core level, in addition to these water uses, water used for subsistence activities relating to a particular way of living, in particular of indigenous peoples, that is protected by cultural rights may become relevant when the essence of that way of liv-ing is concerned. Turning to the level of full realisation of human rights, all water uses that have been established to be linked to human rights have to be considered. In addition to the water uses already mentioned, this includes water for productive uses relating to the human right to work, as well as water for specific cultural and religious activities that relate to the right to take part in cultural life and the freedom of religion.

However, the extent to which human rights rely on water for their reali-sation varies, which is factored in as the second component in the frame-work13. Some human rights may be realised in different ways and do not rely exclusively on water to achieve their realisation. Others cannot be real-ised without water but do not necessarily require direct access. Moreover, the amount of water required for the realisation of some rights is not fixed but shows a potential for water saving. These factors have to be taken into account in the process of water allocation, and require according priority to those human rights that exclusively rely on water for their realisation.

The human right to water may be singled out from other human rights as regards its reliance on water in its realisation. Water for household uses cannot be substituted with any other resource; there is no alternative for the realisation of the right to water. Also, the realisation of the right to water requires direct access for individuals. And the required amount does not allow for any water savings.

Cultural and religious activities, including subsistence activities, in par-ticular of indigenous peoples, that can be linked to the respective human rights are the only other water uses that require direct access. Yet the quanti-ties of water required for specific practices are marginal, and indigenous

13 The framework is described in detail in ch 5, section II.

280 Conclusion and Outlook

rights in that respect become relevant only in certain regions, so that com-petition with water for household use seems rather unlikely.

In regard to agricultural water use relating to the right to food, it must be stressed that food production is impossible without access to water. In fact, agriculture is the largest user of water. However, the realisation of the human right to food does not necessarily require direct access to water. The same holds true for the production of clothing. Food does not have to be produced at the point of consumption but may be cultivated and produced in regions with relatively high water availability, or even abroad, and then be imported. However, while it does not necessarily require direct access, the realisation of the right to food is impossible on an overall scale without allocating sufficient water resources. By and large, States therefore have to accord priority to water for food production over other water uses that link to human rights that may also be realised by alternative means, except when choosing to rely completely on food imports from other countries.

As far as water for sanitation is concerned, alternatives exist for the realisation of the right to sanitation. Only water-borne sanitation requires access to water; other sanitation solutions, such ecological sanitation and different types of latrines, exist and should be considered.

Turning to water used for productive activities and power generation, it has been established that these water uses may be linked to the human right to work and human rights obligations related to access to energy. However, States have the greatest range of options available to them in the realisation of these rights, so that the link between these water uses and the respective human rights is rather loose.

Based on these considerations, a priority for water required for the real-isation of the right to water can be established that not only covers its survival and core content, but also relates to the full realisation of the right to water. Moreover, priority has to be accorded to water required for the realisation of cultural, religious and indigenous rights when they become relevant, keeping in mind, however, that these will generally have to be considered only at the level of full realisation of human rights.

This priority applies only on the assumption that alternatives exist for the realisation of other human rights. As long as alternatives exist, States are obliged to make use of these, as they are under the obligation to devote the maximum of their available resources to the realisation of human rights, ie to realise all human rights to the greatest extent possible. This requires States optimally to employ the mix of resources available to them. In using these resources, States are required to meet the most basic requirements as relating to different human rights first, ie the survival and core levels, and then move towards the full realisation of human rights. When an alterna-tive realisation of other human rights is not feasible and the realisation of other human rights in that case depends on water resources as well, priori-ties have to be established according to the levels of realisation of human

Conclusion and Outlook 281

rights. Accordingly, water resources then have to be allocated in a way that allows for the realisation of the core content of the right to food, the right to clothing, the right to sanitation and human rights obligations related to energy, as well as cultural and indigenous rights, before the full content of the human right to water is realised.

In any case, human rights require realisation of the most basic require-ments first. This follows not only from the minimum core approach, but also from the principle of non-discrimination, which puts a particular focus on the most marginalised and vulnerable. In decisions on water allocation and improving access to water, currently disadvantaged groups must be paid particular attention. General Comment No 15 has identified a number of groups that typically suffer from discrimination and difficul-ties in exercising their right to water. Yet their identification in each spe-cific context, region or community is essential to be able to redress discrimination. Moreover, to address the systemic biases and underlying causes, it is essential to understand the reasons for such discrimination and marginalisation. Decisions on allocation and access to water are affected by political and social power relationships that become evident in laws and policies, as well as in institutional, social and cultural practices. Only if current patterns in decisions on allocation are understood can ine-qualities and resource imbalances be challenged. In this regard, the mini-mum core approach and the principle of non-discrimination mutually reinforce each other in according priority to the most basic needs.

Establishing priorities in water allocation has proved to be a complex task. While this book has focused on the question of priorities in the allo-cation of water resources, the framework for prioritisation may be trans-ferred to the allocation of other resources upon which the realisation of human rights relies. Realising the human right to water, in particular, requires not only water as such, but also the necessary infrastructure to facilitate access to water. Building and expanding infrastructure requires financial, human and institutional resources. Establishing priorities in that broader context is even more complex as most human rights rely on financial resources in their realisation, whereas the human rights that are linked to water in their realisation have been found to be more limited. The realisation of the right to health, the right to education, access to justice and many other human rights is impossible without financial resources and the respective infrastructure. The sheer number of rights and corresponding policy sectors exacerbates the task of establishing priorities. Yet the framework for prioritisation may prove useful in that context too. The basic idea that priority cannot be conceded to any single use of the resource, but that the most basic requirements as relating to different human rights must be met first, applies equally to prioritisation in the use of financial resources. Priorities move from the survival level, to the core level, to the level of full realisation of human rights. Water

282 Conclusion and Outlook

infrastructure that allows for basic access to a minimum essential level of water may be related to the core content of the right to water, and thus enjoys priority status. The same holds true for the realisation of the core content of other human rights. Overall, the realisation of the core level has priority over the full content of other human rights and using resources for purposes beyond the realisation of human rights. In moving towards the goal of full realisation, States have to employ the mix of resources available to them in the best way to achieve the realisation of all human rights to the greatest extent possible. In this regard, the framework for prioritisation may be transferred and be applied to other resources, and has signific ant implications for their allocation.

As far as human rights guide the allocation of resources, the established priorities have a foundation in human rights law. The benefits of an approach that is based on the human right to water accrue from its status as a legally-binding instrument that has a solid normative basis in inter-national law. It is non-negotiable, and thus a source of authority and legit-imacy. Conceding priority to water for personal and domestic use is not left to government discretion but is a legal obligation. Accordingly, mere needs are transformed into rightful claims, and access to water is no longer perceived as charity or welfare but as a legal entitlement.

An approach based on the right to water reaches beyond currently pre-vailing approaches such as the MDGs. As a universal human right, the right to water not only aims at a proportional reduction in the lack of access to water, but ultimately requires that every individual has access to a sufficient amount of safe, acceptable, accessible and affordable water. In this regard, the human right to water establishes requirements that are more specific and detailed than the indicators used for monitoring pro-gress towards the MDG targets. Its core content has to be realised for every individual as a matter of priority, while its full content has to be achieved progressively. In other words, human rights do not settle for minimum targets but require progressive realisation of the rights to the maximum of available resources, with the aim of achieving an adequate standard of living for everyone.

Moreover, the human rights framework has significant benefits in pro-cedural terms. It requires active, free and meaningful participation in any decisions on water management, including water allocation. All individu-als and groups concerned, including marginalised and vulnerable groups, have to be involved and must have the opportunity to express their demands and concerns, and to influence decisions.

Lastly, human rights law allows rights-holders to hold the State accountable to live up to its human rights obligations14. This aspect most

14 On the benefits of the human rights framework and an approach based thereon, see ch 6, section I.

Conclusion and Outlook 283

distinctively distinguishes the understanding as human right from char-ity or welfare. The human right to water is a standard against which gov-ernment efforts and progress may be measured and assessed. Individuals can rely on this human rights standard as an authoritative and legitimate basis. In holding the State to account, people may make use of a broad range of accountability mechanisms, from informal mechanisms in the social sphere, such as lobbying, advocacy, public campaigns and using the press and other media, to more formal quasi-judicial, political and administrative mechanisms, such as human rights commissions and ombuds-institutions, to using the courts and litigating the right to water. As an instrument to hold authorities accountable, litigation is often most successful when linked to advocacy strategies and public campaigns.

There is no reason to doubt that the right to water is justiciable15. The question is not whether courts have a role to play in the enforcement of the right to water, but how they exercise that jurisdiction – how far-reaching their decisions are and how their orders are framed. Especially when the obligation to fulfil is concerned, courts have to respect the com-petencies of the other branches of government and leave the specific choice of policies and measures to implement the human right to water to them. In particular, in recent years, an enormous body of case law on the human right to water has developed in countries all over the world, pri-marily relying on national guarantees16. It addresses a wide range of aspects under the human right to water, including questions on water allocation.

Apart from enforcement through national courts, a range of instru-ments exists at the international level17. A number of mechanisms aim to assess general compliance with human rights. Reporting procedures under the Social Covenant and other human rights treaties, procedures to respond to gross violations of human rights (the former 1235-Procedure now assumed by the Human Rights Council), the Special Procedures and the UPR should be noted. Other instruments provide individuals (or groups) with the opportunity to lodge complaints with human rights bodies. The Optional Protocol to the Social Covenant allowing for such complaints has only recently been adopted and still has to enter into force. Other human rights treaties that are limited in their personal or territorial scope already have individual complaint mechanisms in place. Moreover, procedures that aim primarily at the protection of civil and political rights may to a certain extent also be used in the context of access to water. Individual complaints may also be addressed to the Special Procedures, in particular the mandate of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation. Altogether, there are numerous

15 On the question of justiciability, see ch 6, section II.A. 16 Some examples of case law are provided in ch 6, section II.B.ii. 17 For more details, see ch 6, section II.C.

284 Conclusion and Outlook

mechanisms at the international level to enforce the human right to water, many of which can be used more extensively.

While establishing priorities in water allocation in the abstract has proved complex, identifying inequities in water allocation in concrete cases that are not in line with a human rights-based prioritisation is easier. For instance, when priority is accorded to amenity uses such as watering golf courses while neighbouring, more disadvantaged areas are no longer supplied during the dry season, when low-income neighbourhoods are disproportionally affected by water rationing or when excessive indus-trial uses lead to the drying-up of water sources on which people rely for the supply of drinking water, such priorities in water allocation do not concur with the framework based on human rights. This allows one to determine violations of the human right to water, and to challenge such policies and decisions. Courts and other accountability mechanisms can play an important role in that regard by enforcing the priority for basic human needs.

All in all, human rights have the potential to empower people. An approach based on human rights aims at strengthening people’s agency and the ability to act on their own behalf through human rights educa-tion, capacity building, and raising negotiation and advocacy skills. It puts people in the position to rely on human rights and claim these, instead of merely asserting that they have needs. As a result, people are no longer perceived as victims – and no longer perceive themselves as victims – but as individuals with legal entitlements. By linking activities to improve access to water, inter alia, to institutional and democratic strengthening, the human rights framework allows one to address the underlying structural causes and to challenge the existing power relations that prevent equitable access to water. The human right to water provides a non-negotiable, coherent, authoritative and legitimate framework that may be relied upon for increasing access to and achieving a more equita-ble allocation of water.

Evidently, an approach based on the human right to water is no pana-cea for all water-related concerns. It addresses the human dimension of the water crisis, focusing on water for personal and domestic uses. It requires according priority to these uses and provides a framework for prioritising other water uses that are linked to human rights. However, many uses of water are beyond the guarantees established by human rights, or do not link to human rights at all. The human rights framework does not aim to replace the integrated management of water resources that takes account of all uses of water and all interrelated concerns, but rather complements it and enriches it with normative human rights con-siderations that guide resource allocation in a way that prioritises the most basic needs. When recognising the limitations of an approach based on human rights, it is also obvious that it does not address ecological

Conclusion and Outlook 285

concerns. However, a sometimes-feared direct competition between water for personal and domestic uses, as guaranteed by the human right to water, and water for the environment18 seems rather unlikely. Only a small part of total human water use occurs in households, and an even more limited share is necessary for the realisation of the human right to water that does not guarantee amenity uses. Competition is much more likely to occur when other human water uses, in particular for agricultural or industrial purposes, come into play, as these require much larger amounts of water. To address competition in that regard and establish priorities for the environment, the human rights framework has to be complemented by an ecosystem approach in that regard, since human rights law does not encompass direct guarantees for water for the environment.

Inequities in water allocation and the lack of access to water have proved to be persistent. Efforts to address this crisis date back a long time. Can human rights make a difference? They have the potential to empower people to abandon their position as victims and act as active rights- holders who can hold the State accountable to live up to its obligations to realise the right to water. The human right to water is legally binding and thus provides a legitimate basis for such claims. Moreover, analysing water allocation through the human rights lens allows for a better understand-ing of how laws, policies, social norms, cultural and traditional practices, and institutional actions affect access to water. Human rights law thus not only aims at curing the symptoms, but provides a framework to address the underlying structural causes and systemic biases.

Evidently, this is a long-term process. Recognising the human right to water is only the very first step. Actual implementation is essential. While developments at the international level may provide an important impe-tus, activities at the national level are crucial for the realisation of the right to water. The examples of national legislation, policies and judicial enforcement of the right to water referred to throughout this book have highlighted that there are some very promising developments towards the realisation of the human right to water. Activities in the realm of the UN, such as the work undertaken by the Special Rapporteur, the explicit recognition as human right, or the development of strategies for stressing the human rights orientation of the MDGs and other development goals, can help to continue highlighting the significance of the right to water and may reinforce its realisation. The local, national and international levels are intertwined and reinforce each other.

18 See J Verschuuren, ‘The Right to Water as a Human Right or a Bird’s Right? – Does Co-Operative Governance Offer a Way Out of a Conflict of Interests and Legal Complexity?’ in P Cullet, A Gowlland-Gualtieri, R Madhav and U Ramanathan (eds), Water Governance in Motion, Towards Socially and Environmentally Sustainable Water Laws (New Delhi, Cambridge University Press, 2010) 359.

286 Conclusion and Outlook

The more the human rights dimension of water is stressed, the more violations of the human right to water are perceived as such, the more the State is held accountable for the realisation of the right to water – be it via media reports, via civil society campaigns or via litigation – the less can the crisis in the lack of access to water and inequitable allocation persist. The human right to water obliges States to act on this crisis in order to realise access to water for all people and to achieve an equitable allocation of water that puts all people’s basic needs first.

Bibliography

AO Adede, ‘The Road to Rio: The Development of Negotiations’ in L Campiglio, L Pineschi, D Siniscalco and T Treves (eds), The Environment after Rio: International Law and Economics (London, Graham & Trotman/Martinus Nijhoff, 1994) 3

V Aichele, Nationale Menschenrechtsinstitutionen: ein Beitrag zur nationalen Implementierung von Menschenrechten (Frankfurt am Main, Peter Lang, 2003)

M Akehurst, ‘Custom as a Source of International Law’ (1974/75) 47 British Yearbook of International Law 1

C de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights – The Missing Piece of the International Bill of Rights’ (2010) 32 Human Rights Quarterly 144

—— ‘The Human Right to Sanitation – Essential for Survival, Health and a Life in Dignity’ (2010) 19 Human Rights Defender 3

C de Albuquerque and IT Winkler, ‘Neither Friend nor Foe – Why the Commercialization of Water and Sanitation Services Is Not the Main Issue for the Realization of Human Rights’ (2010) 17 Brown Journal of World Affairs 167

G Alfredsson, ‘The Right of Self-Determination and Indigenous Peoples’ in C Tomuschat (ed), Modern Law of Self-Determination (Dordrecht, Martinus Nijhoff, 1993) 41

G Alfredsson and A Eide (eds), The Universal Declaration of Human Rights – A Common Standard of Achievement (The Hague, Martinus Nijhoff, 1999)

O Al Jayyousi, ‘Water as a Human Right: Towards Civil Society Globalization’ (2007) 23 International Journal of Water Resources Development 329

JA Allan, ‘Virtual Water’: A Long Term Solution for Water Short Middle Eastern Economies?, Paper Presented at the 1997 British Association Festival of Science (Leeds, University of Leeds, 1997)

A Al Radif, ‘Integrated Water Resource Management (IWRM): An Approach to Face the Challenges of the Next Century and to Avert Future Crises’ (1999) 124 Desalination 145

P Alston, ‘Human Rights and Basic Needs: A Critical Assessment’ (1979) 12 Revue des Droits de l’Homme 19

—— ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607

—— ‘International Law and the Human Right to Food’ in P Alston and K Tomaševski (eds), The Right to Food (Utrecht, Martinus Nijhoff, 1984) 9

—— ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332

—— ‘The Committee on Economic, Social and Cultural Rights’ in P Alston (ed), The United Nations and Human Rights, A Critical Appraisal, 2nd edn (Oxford, Clarendon Press, 1992) 473

288 Bibliography

P Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755

P Alston and G Quinn, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156

IJ Alvarez, ‘The Right to Water as a Human Right’ in R Picolotti and JD Taillant (eds), Linking Human Rights and the Environment (Tucson, University of Arizona Press, 2003) 71

AA D’Amato, The Concept of Custom in International Law (Ithaca, NY, Cornell University Press, 1971)

AA D’Amato, ‘Custom and Treaty: A Response to Professor Weisburd’ (1988) 21 Vanderbilt Journal of Transnational Law 459

American Law Institute, ‘Restatement of the Law Third, The Foreign Relations Law of the United States’, vol 2 (Saint Paul, American Law Institute Publishers, 1987)

Amnesty International, Clouds of Injustice, Bhopal Disaster 20 Years On (Oxford, Alden Press, 2004)

—— Insecurity and Indignity, Women’s Experiences in the Slums of Nairobi, Kenya (London, 2010)

J Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources’ (2005) 22 Arizona Journal of International and Comparative Law 7

E Anderson and M Foresti, ‘Assessing Compliance: The Challenge for Economic and Social Rights’ (2009) 1 Journal of Human Rights Practice 469

BA Andreassen, ‘Development, Capabilities, Rights: What Is New about the Right to Development and a Rights Approach to Development?’ in M Bergsmo (ed), Human Rights and Criminal Justice for the Downtrodden, Essays in Honour of Asbjørn Eide (Leiden, Martinus Nijhoff, 2003) 211

BA Andreassen and HO Sano, ‘What’s the Goal? What’s the Purpose? Observations on Human Rights Impact Assessment’ (2007) 11 International Journal of Human Rights 275

BA Andreassen, T Skålnes, AG Smith and H Stokke, ‘Assessing Human Rights Performance in Developing Countries: The Case for a Minimal Threshold Approach to the Economic and Social Rights’ (1987/88) 3 Human Rights in Developing Countries: Yearbook on Human Rights in Countries Receiving Aid from Nordic Countries, the Netherlands and Canada 333

A An-Na’im, ‘To Affirm the Full Human Rights Standing of Economic, Social & Cultural Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 7

K Arambulo, Strengthening the Implementation of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Antwerp, Intersentia, 1998)

OY Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (The Hague, Martinus Nijhoff, 1966)

Bibliography 289

G Bächler, V Böge, S Klötzli, S Libiszewski and KR Spillman, Kriegsursache Umweltzerstörung, Ökologische Konflikte in der Dritten Welt und Wege ihrer friedli-chen Bearbeitung (Zürich, Rüegger, 1996)

R Balakrishnan, D Elson, J Heintz and N Lusiani, Maximum Available Resources and Human Rights, Analytical Report (New Brunswick, Center for Women’s Global Leadership, 2011)

O Ball, ‘Conclusion’ in P Gready and J Ensor (eds), Reinventing Development?, Translating Rights-Based Approaches from Theory into Practice (London, Zed Books, 2005) 278

M Barlow and T Clarke, Blaues Gold, Das Globale Geschäft mit dem Wasser (Munich, Kunstmann, 2004)

L Barrera-Hernandez, ‘Indigenous Peoples, Human Rights and Natural Resource Development: Chile’s Mapuche Peoples and the Right to Water’ (2005) 11 Annual Survey of International and Comparative Law 1

BC Bates, ZW Kundzewicz, S Wu and JP Palutikof (eds), Climate Change and Water, Technical Paper of the Intergovernmental Panel on Climate Change (Geneva, Intergovernmental Panel on Climate Change Secretariat, 2008)

J Bates, ‘Human Dignity – An Empty Phrase in Search of Meaning?’ (2005) 10 Judicial Review 165

AF Bayefsky, How to Complain to the UN Human Rights Treaty System (The Hague, Kluwer Law International, 2003)

G de Beco, ‘Human Rights Impact Assessments’ (2009) 27 Netherlands Quarterly of Human Rights 139

U Beyerlin, ‘Nachhaltige Nutzung natürlicher Ressourcen und Menschenrechtsschutz’ in K Dicke, S Hobe, KU Meyn, A Peters and E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 47

H Bielefeldt, ‘Access to Water, Justice and Human Rights’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 49

—— Menschenwürde, Der Grund der Menschenrechte (Berlin, Deutsches Institut für Menschenrechte, 2008)

D Bilchitz, ‘Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance’ (2002) 119 South African Law Journal 484

—— ‘Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence’ (2003) 19 South African Journal on Human Rights 1

—— Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford, Oxford University Press, 2007)

PW Birnie and AE Boyle, International Law and the Environment, 2nd edn (Oxford, Oxford University Press, 2002)

AK Biswas, ‘The Water Crisis – Current Perceptions and Future Reality’ (2000) Development + Cooperation 16

—— ‘Integrated Water Resources Management: A Reassessment’ (2004) 29 Water International 248

—— ‘Water Management for Major Urban Centres’ (2006) 22 International Journal of Water Resources Development 183

290 Bibliography

M Black and B Fawcett, The Last Taboo, Opening the Door on the Global Sanitation Crisis (London, Earthscan, 2008)

A Bleckmann, ‘Zur originären Entstehung gewohnheitsrechtlicher Menschenrechtsnormen’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts-Verlag, 2003) 29

AC Bloch, ‘Minorities and Indigenous Peoples’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 373

EB Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31 Ecology Law Quarterly 957

R Boelens, M Chiba and D Nakashima (eds), Water and Indigenous Peoples, Knowledges of Nature 2 (Paris, United Nations Educational, Scientific and Cultural Organization, 2006)

J Boesen and PE Lauridsen, ‘(Fresh) Water as a Human Right and a Global Public Good’ in EA Andersen and B Lindsnaes (eds), Towards New Global Strategies: Public Goods and Human Rights (Leiden, Martinus Nijhoff, 2007) 393

J Borger and J Jowitt, ‘Nearly a Billion People Worldwide Are Starving UN Agency Warns’, Guardian, 10 December 2008

M Bossuyt, ‘La distinction juridique entre les droits civils et politiques et les droits économiques, sociaux et culturels’ (1975) 8 Revue des Droits de l’Homme 783

K Bourquain, Freshwater Access from a Human Rights Perspective, A Challenge to International Water Law and Human Rights Law (Leiden, Martinus Nijhoff, 2008)

K Braams, Wasser als völkerrechtlicher Regelungsgegenstand im bewaffneten Konflikt (Aachen, Shaker, 2004)

AJ Bradbrook and JG Gardam, ‘Placing Access to Energy Services within a Human Rights Framework’ (2006) 28 Human Rights Quarterly 389

D Brand, ‘Socio-Economic Rights and Courts in South Africa: Justiciability on a Sliding Scale’ in F Coomans (ed), Justiciability of Economic and Social Rights, Experiences from Domestic Systems (Antwerp, Intersentia, 2006) 207

SW Breckle and W Wucherer, ‘Hat der Aralsee eine Zukunft?’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 131

C Breining-Kaufmann, Hunger als Rechtsproblem, Völkerrechtliche Aspekte eines Rechts auf Nahrung (Zürich, Schulthess, 1991)

E Brown Weiss, In Fairness to Future Generations, International Law, Common Patrimony and Intergenerational Equity, 2nd edn (Tokyo, United Nations University, 1992)

—— The Evolution of International Water Law, Recueil des Cours 2007-VI, vol 331 (la Haye, Académie de Droit International de la Haye, 2007)

I Brownlie, Principles of Public International Law, 6th edn (Oxford, Oxford University Press, 2003)

M Brüntrup and F Heidhues, Subsistence Agriculture in Development: Its Role in Processes of Structural Change, Discussion Paper No 1 (Stuttgart, University of Hohenheim, Center for Tropical Agriculture, 2002)

Bibliography 291

B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories, Thirsty for a Solution, The Water Crisis in the Occupied Territories and its Resolution in the Final-Status Agreement (Jerusalem, 2000)

G Budlender, ‘Justiciability of Socio-Economic Rights: Some South African Experiences’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 33

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 (New York, Columbia University Press, 1981) 72

J Bulloch and A Darwish, Water Wars: Coming Conflicts in the Middle East (London, Gollancz, 1993)

S Burchi, Balancing Development and Environmental Conservation and Protection of the Water Resource Base – The ‘Greening’ of Water Laws, Paper Presented at the Workshop ‘Legal Aspects of Water Sector Reforms’, 20–21 April 2007 (Geneva, International Environmental Law Research Centre, 2007)

Business World, ‘Kerala Tribunal to Get Compensation from Coke’, 1 July 2010A Cahill, ‘The Human Right to Water – A Right of Unique Status: The Legal Status

and Normative Content of the Right to Water’ (2005) 9 International Journal of Human Rights 389

C Callejon, ‘Developments at the Human Rights Council in 2007: A Reflection of its Ambivalence’ (2008) 8 Human Rights Law Review 323

A Calogeropoulos-Stratis, ‘Droit humanitaire – Droits de l’Homme et victimes des conflits armés’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 655

M Camdessus and J Winpenny, Financing Water for All, Report of the World Panel on Financing Water Infrastructure (Marseilles, 2003)

DA Caponera, Principles of Water Law and Administration, National and International (Rotterdam, Balkema, 1992)

PG Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’ (2008) 19 European Journal of International Law 931

A Cassese, International Law in a Divided World (Oxford, Clarendon Press, 1986)JE Castro, ‘Urban Conflicts over Water in Mexico: A Theoretical and Empirical

Exploration’ in United Nations Educational, Scientific and Cultural Organization (ed), Urban Water Conflicts (Paris, United Nations Educational Scientific and Cultural Organization, 2006) 71

Center for Human Rights and Global Justice, Human Rights Perspectives on the Millennium Development Goals (New York, New York University School of Law, 2003)

Centre on Housing Rights and Evictions, American Association for the Advancement of Science, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Manual on the Right to Water and Sanitation (Geneva, 2007)

Centre on Housing Rights and Evictions, WaterAid, Swiss Agency for Development and Cooperation and United Nations Human Settlements Programme, Sanitation: A Human Rights Imperative (Geneva, 2008)

292 Bibliography

AK Chapagain, AY Hoekstra, HHG Savenije and R Gautam, ‘The Water Footprint of Cotton Consumption: An Assessment of the Impact of Worldwide Consumption of Cotton Products on the Water Resources in Cotton Producing Countries’ (2006) 60 Ecological Economics 186

AR Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23

AR Chapman and S Russell ‘Introduction’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 1

LC Chen, ‘Protection of Persons (Natural and Juridical)’ (1989) 14 Yale Journal of International Law 542

B Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Indian Journal of International Law 23

FM Chmielewski, ‘Wasserbedarf in der Landwirtschaft’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 96

RR Churchill, ‘Environmental Rights in Existing Human Rights Treaties’ in AE Boyle and MR Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford, Oxford University Press, 1996) 89

RR Churchill and U Khaliq, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417

A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006)

CNN Mexico, ‘El Senado mexicano eleva a rango constitucional el derecho al agua’ (29 September 2011)

C Cojocariu, ‘Challenging Violations of the Right to Water before the European Court of Human Rights’ (2008) 5 (No 1) Housing and ESC Rights Law Quarterly 10

L Collins, ‘Are We There Yet? The Right to Environment in International and European Law’ (2007) 3 McGill International Journal of Sustainable Development Law and Policy 119

R Compagnucci, L da Cunha, K Hanaki, C Howe, G Mailu et al, ‘Hydrology and Water Resources’ in JJ McCarthy, OF Canziani, NA Leary, DJ Dokken, KS White (eds), Climate Change 2001: Impacts, Adaptation, and Vulnerability – Contribution of the Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, Cambridge University Press, 2001) 191

Comprehensive Assessment of Water Management in Agriculture, Water for Food, Water for Life, a Comprehensive Assessment of Water Management in Agriculture, International Water Management Institute (London, Earthscan, 2007)

K Conca, Governing Water: Contentious Transnational Politics and Global Institution Building (Cambridge, Mass, MIT Press, 2006)

J Connors, ‘An Analysis and Evaluation of the System of State Reporting’ in AF Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (The Hague, Kluwer Law International, 2000) 3

Bibliography 293

F Coomans, ‘In Search of the Core Content of the Right to Education’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 217

—— ‘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’ (2002) 35 Verfassung und Recht in Übersee 182

J Cottrell and Y Ghai, ‘The Role of the Courts in the Protection of Economic, Social & Cultural Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 58

L Cotula, M Djiré and RW Tenga, The Right to Food and Access to Natural Resources, Using Human Rights Arguments and Mechanisms to Improve Resource Access for the Rural Poor (Rome, Food and Agriculture Organization of the United Nations, 2009)

C Courtis, ‘The Right to Food as a Justiciable Right: Challenges and Strategies’ (2007) 11 Max Planck Yearbook of United Nations Law 317

M Cranston, ‘Human Rights, Real and Supposed’ in DD Raphael (ed), Political Theory and the Rights of Man (London, Macmillan, 1967) 43

M Craven, ‘The Domestic Application of the International Covenant on Economic, Social and Cultural Rights’ (1993) 40 Netherlands International Law Review 367

—— The International Covenant on Economic, Social and Cultural Rights, A Perspective on Its Development (Oxford, Oxford University Press, 1995)

—— ‘Some Thoughts on the Emergent Right to Water’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 37

B Crossette, ‘Severe Water Crisis Ahead for Poorest Nations in Next 2 Decades’, New York Times, 10 August 1995, A13

P Cullet, Water Law, Poverty and Development, Water Sector Reforms in India (Oxford, Oxford University Press, 2009)

S Damman, ‘The Right to Food of Indigenous Peoples’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol I, Legal and Institutional Dimensions and Selected Topics (Antwerp, Intersentia, 2005) 285

V Dankwa, C Flinterman and S Leckie, ‘Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 705

M Darrow, ‘Climate Change and the Right to Water’ in M Langford and A Russell (eds), The Right to Water: Theory, Practice and Prospects (Cambridge, Cambridge University Press, forthcoming 2012)

M Darrow and A Tomas, ‘Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation’ (2005) 27 Human Rights Quarterly 471

MJ Dennis and DP 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?’ (2004) 98 American Journal of International Law 462

294 Bibliography

A Dinar, MW Rosegrant and R Meinzen-Dick, Water Allocation Mechanisms – Principles and Examples, Policy Research Working Paper 1779 (Washington DC, World Bank, 1997)

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) 114

P Dobner, ‘Des Menschen Recht auf Wasser’ (2007) Blätter für deutsche und interna-tionale Politik 9

K Doehring, ‘Gewohnheitsrechtsbildung aus Menschenrechtsverträgen’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts-Verlag, 2003) 67

L Doswald-Beck and S Vité, ‘Le droit international humanitaire et le droit des droits de l’homme’ (1993) 75 Revue Internationale de la Croix-Rouge 99

GIAD Draper, ‘The Relationship Between the Human Rights Regime and the Law of Armed Conflict’ (1971) 1 Israel Yearbook of Human Rights 191

K Drzewicki, ‘The Right to Work and Rights in Work’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 223

M Duttwiler, ‘Das Recht auf Wasser nach dem Internationalen Pakt über wirtschaftliche, soziale und kulturelle Rechte – Ein Umriss seines Normgehalts’, Jusletter No 432 (16 July 2007)

A van Edig and H van Edig, ‘Integriertes Wasserressourcen-Management – Schlüssel zur nachhaltigen Entwicklung’ in S Neubert, W Scheumann, A van Edig and W Huppert (eds), Integriertes Wasserressourcen-Management (IWRM), Ein Konzept in die Praxis überführen (Baden-Baden, Nomos, 2005) 135

W Ediger, ‘Wasser als natürlicher Rohstoff’ in J Barandat (ed), Wasser – Konfrontation oder Kooperation: Ökologische Aspekte von Sicherheit am Beispiel eines weltweit begehrten Rohstoffs (Baden-Baden, Nomos, 1997) 27

K Ehringfeld, ‘Bis auf den letzten Tropfen’, Frankfurter Rundschau, 24 June 2008A Eide, ‘The Laws of War and Human Rights – Differences and Convergences’ in

C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 675

—— ‘Realization of Social and Economic Rights and the Minimum Threshold Approach’ (1989) 10 Human Rights Law Journal 35

—— ‘Economic, Social and Cultural Rights as Human Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 9

—— ‘The Right to an Adequate Standard of Living, Including the Right to Food’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 133

—— ‘Cultural Rights as Individual Human Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 289

—— ‘Rights of Indigenous Peoples – Achievements in International Law during the Last Quarter of a Century’ (2006) 37 Netherlands Yearbook of International Law 155

Bibliography 295

A Eide and A Rosas, ‘Economic, Social and Cultural Rights: A Universal Challenge’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 3

WB Eide and U Kracht, ‘The Right to Adequate Food in Human Rights Instruments: Legal Norms and Interpretations’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol I, Legal and Institutional Dimensions and Selected Topics (Antwerp, Intersentia, 2005) 99

M El-Fadel and K El-Fadl, ‘Water in the Middle East Revisited: Conflict Management Alternatives’ (2005) 7 Water Policy 385

K Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard, Ernährung, Wasser, Bekleidung, Unterbringung und Energie als Elemente des Art. 11(1) IPWSKR (Frankfurt am Main, Peter Lang, 2008)

R Engelmann, B Dye and P LeRoy, Mensch, Wasser, Report über die Entwicklung der Weltbevölkerung und die Zukunft der Wasservorräte (Hannover, Balance, 2000)

A Epiney, ‘Sustainable Use of Freshwater Resources’ (2003) 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 377

A Epiney and M Scheyli, Umweltvölkerrecht, Völkerrechtliche Bezugspunkte des schweizerischen Umweltrechts (Bern, Stämpfli, 2000)

J Eyles and R Sharma, ‘Infectious Diseases and Global Change: Threats to Human Health and Security’ (2001) 8 AVISO 1

M Falkenmark and M Lannerstad, ‘Consumptive Water Use to Feed Humanity – Curing a Blind Spot’ (2005) 9 Hydrology and Earth System Sciences 15

M Falkenmark and C Widstrand, ‘Population and Water Resources: A Delicate Balance’ (1992) 47 Population Bulletin No 3

D Feldman, ‘Human Dignity as a Legal Value – Part 1’ [1999] Public Law 682E Felner, ‘A New Frontier in Economic and Social Rights Advocacy? Turning

Quantitative Data into a Tool for Human Rights Accountability’ (2008) 5 Sur: International Journal on Human Rights 109

FIAN International and Bread for the World, Investigating Some Alleged Violations of the Human Right to Water in India, Report of the International Fact Finding Mission to India (Heidelberg, FIAN International, 2004)

E Filmer-Wilson, ‘The Human Rights-Based Approach to Development: The Right to Water’ (2005) 23 Netherlands Quarterly of Human Rights 213

M Fitzmaurice, ‘The Human Right to Water’ (2007) 18 Fordham Environmental Law Review 537

Food and Agriculture Organization of the United Nations, Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Adopted at the 127th Session of the FAO Council, November 2004 (Rome, Food and Agriculture Organization of the United Nations, 2005)

—— The State of Food Insecurity in the World, Addressing Food Insecurity in Protracted Crises (Rome, Food and Agriculture Organization of the United Nations, 2010)

Frankfurter Rundschau, ‘Überfischung der Meere raubt Inselstaaten Lebensgrundlage’ (14 January 2005) 6

—— ‘Afrika leidet am stärksten unter der globalen Erwärmung’ (11 January 2006) 5

—— ‘Trinkwasser in China vergiftet’ (11 September 2006) 16

296 Bibliography

A Frankovits, ‘Rules to Live by: The Human Rights Approach to Development’ (2002) 17 Praxis – The Fletcher Journal of Development Studies 9

C Fröhlich, ‘Zur Rolle der Ressource Wasser in Konflikten’ (2006) No 25 Aus Politik und Zeitgeschichte 32

JA Frowein, ‘Human Dignity in International Law’ in D Kretzmer and E Klein (eds), The Concept of Human Dignity in Human Rights Discourse (The Hague, Kluwer Law International, 2002) 121

S Fukuda-Parr, T Lawson-Remer and S Randolph, ‘An Index of Economic and Social Rights Fulfillment: Concept and Methodology’ (2009) 8 Journal of Human Rights 195

FD Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7 Human Rights Law Review 109

DH Getches, ‘Indigenous Peoples’ Rights to Water under International Norms’ (2005) 16 Colorado Journal of International Environmental Law and Policy 259

PR Ghandhi, ‘The Universal Declaration of Human Rights at Fifty Years’ (1998) 41 German Yearbook of International Law 206

P Gleick (ed), Water in Crisis: A Guide to the World’s Fresh Water Resources (Oxford, Oxford University Press, 1993)

—— ‘Basic Water Requirements for Human Activities: Meeting Basic Needs’ (1996) 21 Water International 83

—— ‘The Human Right to Water’ (1998) 1 Water Policy 487Global Water Partnership, Technical Advisory Committee, Integrated Water

Resources Management, TAC Background Paper No 4 (Stockholm, Global Water Partnership, 2000)

P Gready and J Ensor, ‘Introduction’ in P Gready and J Ensor (eds), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice (London, Zed Books, 2005) 1

C Groni, Das Menschenrecht auf Teilhabe am kulturellen Leben, Inhalt, Grenzen und Justitiabilität von Art. 15(1) lit A) des Internationalen Paktes über wirtschaftliche, so-ziale und kulturelle Rechte (Stuttgart, Boorberg, 2008)

H Gros Espiell, ‘Derechos Humanos, derecho internacional humanitario y derecho internacional de los refugiados’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 699

IR Gunning, ‘Modernizing Customary International Law: The Challenge of Human Rights’ (1991) 31 Virginia Journal of International Law 211

P Häberle, Die Wesensgehaltsgarantie des Art. 19 Abs. 2 Grundgesetz, Zugleich ein Beitrag zum institutionellen Verständnis der Grundrechte und zur Lehre vom Gesetzesvorbehalt, 3rd edn (Heidelberg, CF Müller, 1983)

B Hamm, ‘A Human Rights Approach to Development’ (2001) 23 Human Rights Quarterly 1005

FJ Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 Human Rights Law Review 7

G Handl, ‘Human Rights and Protection of the Environment’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 303

Bibliography 297

H Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on Human Rights’ (2007) 7 Human Rights Law Review 73

SA Hansen, ‘The Right to Take Part in Cultural Life: Toward Defining Minimum Core Obligations Related to Article 15(1)(A) of the International Covenant on Economic, Social and Cultural Rights’ in AR Chapman and R Sage (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 279

A Haratsch, ‘Die Allgemeine Erklärung der Menschenrechte – ein Ideal für alle Völker und Nationen’ (Dezember 2007) MenschenRechtsMagazin, Themenheft ‘50 Jahre AEMR’ 23

A Hardberger, ‘Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates’ (2005) 4 Northwestern Journal of International Human Rights 331

HJ Heintze, ‘On the Relationship between Human Rights Law Protection and International Humanitarian Law’ (2004) 86 International Review of the Red Cross (No 856) 789

A Hellum, ‘The Indivisibility of Water, Land and Food in Local, National and International Human Rights Law: The Case of Women’s Gardens in Mhondoro, Zimbabwe’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol II, Evolving Issues and Emerging Applications (Antwerp, Intersentia, 2007) 297

SE Hendin, ‘The Evolution of the Right to Life by the European Court of Human Rights’ (2004) 4 Baltic Yearbook of International Law 75

A Hildering, ‘The Right to Access to Freshwater Resources’ in N Schrijver and F Weiss (eds), International Law and Sustainable Development: Principles and Practice (Leiden, Martinus Nijhof, 2004) 405

RP Hiskes, ‘The Right to a Green Future: Human Rights, Environmentalism and Intergenerational Justice’ (2005) 27 Human Rights Quarterly 1346

—— ‘Missing the Green: Golf Course Ecology, Environmental Justice, and Local “Fulfillment” of the Human Right to Water’ (2010) 32 Human Rights Quarterly 326

S Hobe, ‘Menschenrecht auf Umweltschutz? – Bestand und Begründungs-möglichkeiten’(1994) Zeitschrift für Umweltrecht 15

S Hobe and O Kimminich, Einführung in das Völkerrecht, 8th edn (Tübingen, A Francke/UTB, 2004)

I Hodkova, ‘Is There a Right to a Healthy Environment in the International Legal Order?’ (1991) 7 Connecticut Journal of International Law 65

H Hoff and ZW Kundzewicz, ‘Süßwasservorräte und Klimawandel’ (2006) No 25 Aus Politik und Zeitgeschichte 14

TF Homer-Dixon, ‘On the Threshold: Environmental Changes as Causes of Acute Conflict’ (1991) 16 International Security 76

—— ‘Environmental Scarcity and Violent Conflict: Evidence from Cases’ (1994) 19 International Security 5

GJH van Hoof, Rethinking the Sources of International Law (Antwerp, Kluwer, 1983)

——‘The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views’ in P Alston and K Tomaševski (eds), The Right to Food (Utrecht, Martinus Nijhoff, 1984) 97

298 Bibliography

L Horlemann and S Neubert, ‘Virtueller Wasserhandel zur Überwindung der Wasserkrise?’ (2006) No 25 Aus Politik und Zeitgeschichte 26

G Howard and J Bartram, Domestic Water Quantity, Service Level and Health (Geneva, World Health Organization, 2003)

S Hughes, L Partzsch and J Gaskell, ‘The Development of Biofuels within the Context of the Global Water Crisis’ (2007) 7(3) Sustainable Development Law and Policy 58

JP Humphrey, ‘International Bill of Rights: Scope and Implementation’ (1976) 17 William and Mary Law Review 527

—— ‘The Universal Declaration of Human Rights: Its History, Impact and Judicial Character’ in BG Ramcharan (ed), Human Rights: Thirty Years after the Universal Declaration, Commemorative Volume on the Occasion of the Thirtieth Anniversary of the Universal Declaration of Human Rights (The Hague, Martinus Nijhoff, 1979) 21

G Hutton and J Bartram, ‘Global Costs of Attaining the Millennium Development Goal for Water Supply and Sanitation’ (2008) 86 Bulletin of the World Health Organization 13

G Hutton, L Haller and J Bartram, Economic and Health Effects of Increasing Coverage of Low Cost Household Drinking-Water Supply and Sanitation Interventions to Countries Off-Track to Meet MDG Target 10 (Geneva, World Health Organization, 2007)

Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, Climate Change and the Human Rights to Water and Sanitation, Position Paper (Geneva, 2010)

Indigenous Peoples Kyoto Water Declaration (Third World Water Forum, Kyoto, Japan, 2003)

International Crisis Group, The Curse of Cotton: Central Asia‘s Destructive Monoculture, Asia Report No 93 (Brussels, 2005)

International Energy Agency, Worldwide Trends in Energy Use and Efficiency, Key Insights from IEA Indicator Analysis (Paris, Organisation for Economic Co-operation and Development, 2008)

International Finance Corporation and International Business Leaders Forum, Guide to Human Rights Impact Assessment and Management, Road-Testing Draft (Washington DC, 2007)

International Law Association, ‘Helsinki Rules on the Uses of International Rivers’ in Report of the 52nd Conference (London, International Law Association, 1966) 484

—— ‘Berlin Rules on Water Resources Law’ in Report of the 71st Conference (London, International Law Association, 2004) 334

—— Sources of the International Law Association Rules on Water Resources (London, International Law Association, 2004)

—— Berlin Conference 2004 – Water Resources Committee Report, Dissenting Opinion, 9 August 2004 (London, International Law Association, 2004)

K Ipsen, Völkerrecht, 5th edn (Munich, Beck, 2004)IUCN – The World Conservation Union, You Can Make a Difference, Environmental

Public Interest Litigation in Pakistan (Karachi, 1998)N Jägers, Corporate Human Rights Obligations: in Search of Accountability (Antwerp,

Intersentia, 2002)

Bibliography 299

S Janakarajan, M Llorente and MH Zérah, ‘Urban Water Conflicts in Indian Cities: Man-made Scarcity as a Critical Factor’ in United Nations Educational, Scientific and Cultural Organization (ed), Urban Water Conflicts (Paris, United Nations Educational, Scientific and Cultural Organization, 2006) 91

MW Jenkins and S Sugden, Rethinking Sanitation: Lessons and Innovation for Sustainability and Success in the New Millennium, Occasional Paper (New York, UNDP Human Development Report Office, 2006)

RL Johnstone, ‘Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body’ (2007) 7 Human Rights Law Review 173

S Junod, ‘Les droits de l’homme et le Protocole II’ (1983) No 743 Revue Internationale de la Croix-Rouge 254

HA Kabaalioglu, ‘The Obligations to “Respect” and to “Ensure” the Right to Life’ in BG Ramcharan (ed), The Right to Life in International Law (Dordrecht, Martinus Nijhoff, 1985) 160

W Kälin and J Künzli, Universeller Menschenrechtsschutz (Basel, Helbing & Lichtenhahn, 2005)

D Kasang and F Kaspar, ‘Veränderung regionaler Extreme’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 202

G Keeley, ‘Barcelona Forced to Import Emergency Water’, Guardian, 14 May 2008B Kempen and C Hillgruber, Völkerrecht (Munich, Beck, 2007)G Kent, Freedom from Want: The Human Right to Adequate Food (Washington DC,

Georgetown University Press, 2005)T Kiefer, The Human Right to Water: Domestic and International Implications, LLM

Thesis (Amsterdam, Universiteit van Amsterdam, 2003)T Kiefer and C Brölmann, ‘Beyond State Sovereignty: The Human Right to Water’

(2005) 5 Non-State Actors and International Law 183J Kirkemann Hansen and HO Sano, ‘The Implications and Value Added of a

Rights-Based Approach’ in BA Andreassen and SP Marks (eds), Development as a Human Right – Legal, Political, and Economic Dimensions (Cambridge, Mass, Harvard University Press, 2006) 36

A Kiss, ‘The Role of the Universal Declaration of Human Rights in the Development of International Law’ (1988) Bulletin of Human Rights, Special Issue: Fortieth Anniversary of the Universal Declaration of Human Rights 47

—— ‘The Right to the Conservation of the Environment’ in R Picolotti and JD Taillant (eds), Linking Human Rights and the Environment (Tucson, University of Arizona Press, 2003) 31

A Klaphake and W Scheumann, ‘Politische Antworten auf die globale Wasserkrise: Trends und Konflikte’ (2001) No B 48-49 Aus Politik und Zeitgeschichte 3

S Klawitter, What Price Water? Sustainable Water Pricing and Tariff Setting for Residential Water Use (Berlin, Technische Universität, 2006)

K Klee, Die progressive Verwirklichung wirtschaftlicher, sozialer und kultureller Menschenrechte, Eine Interpretation von Art. 2 Abs. 1 des Internationalen Pakts für wirtschaftliche, soziale und kulturelle Rechte (Stuttgart, Boorberg, 2000)

300 Bibliography

E Klein, ‘General Comments: Zu einem eher unbekannten Instrument des Menschenrechtsschutzes’ in J Ipsen and E Schmidt-Jortzig (eds), Recht – Staat – Gemeinwohl, Festschrift für Dietrich Rauschning (Köln, Carl Heymanns, 2001) 301

—— ‘Bedeutung des Gewohnheitsrechts für den Menschenrechtsschutz’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts-Verlag, 2003) 11

—— ‘Die Allgemeinen Bemerkungen und Empfehlungen der VN-Vertragsorgane – Einführung’ in Deutsches Institut für Menschenrechte (ed), Die ‘General Comments’ zu den VN-Menschenrechtsverträgen, Deutsche Übersetzungen und Kurzeinführungen (Baden-Baden, Nomos, 2005) 19

JH Knox, ‘Horizontal Human Rights Law’ (2008) 102 American Journal of International Law 1

HF Köck, Vertragsinterpretation und Vertragsrechtskonvention, Zur Bedeutung der Artikel 31 und 32 der Wiener Vertragsrechtskonvention 1969 (Berlin, Duncker & Humblot, 1976)

C Kohfahl, G Massmann and A Pekdeger, ‘Fossiles und neues Grundwasser als Teil des Gesamtwassers’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 68

A Kok, ‘Privatisation and the Right to Access to Water’ in K Feyter and F Gómez Isa (eds), Privatisation and Human Rights in the Age of Globalisation (Antwerp, Intersentia, 2005) 259

D König, ‘Die Durchsetzung internationaler Menschenrechte – Neuere Entwicklungen am Beispiel des Übereinkommens der Vereinten Nationen zur Beseitigung jeder Form der Diskriminierung der Frau’ in K Dicke, S Hobe, KU Meyn, A Peters and E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 401

B van Koppen, P Moriarty and E Boelee, Multiple-Use Water Services to Advance the Millennium Development Goals, Research Report No 98 (Colombo, International Water Management Institute, 2006)

M Kotzur, ‘Zur originären Entstehung gewohnheitsrechtlicher Menschenrechtsnormen – Kommentar’ in E Klein and C Menke (eds), Menschen-rechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts-Verlag, 2003) 57

U Kracht, ‘Whose Right to Food? Vulnerable Groups and the Hungry Poor’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol I, Legal and Institutional Dimensions and Selected Topics (Antwerp, Intersentia, 2005) 119

R Krishnakumar, ‘Plachimada’s Claims’, Frontline, The Hindu, vol 27, No 15 (July 2010)

H Krüger, ‘Der Wesensgehalt der Grundrechte’ in H Krüger and J Seifert (eds), Die Einschränkung der Grundrechte (Hannover, Niedersächsische Landeszentrale für Politische Bildung, 1976) 35

R Künnemann, ‘The Right to Adequate Food: Violations Related to Its Minimum Core’ in D Brand and S Russell (eds), Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (Pretoria, Protea, 2002) 71

Bibliography 301

—— ‘The Right to Adequate Food: Violations Related to Its Minimum Core Content’ in AR Chapman and S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 161

JL Kunz, ‘The United Nations Declaration of Human Rights’ (1949) 43 American Journal of International Law 316

F Kürschner-Pelkmann, Das Wasser-Buch, Kultur, Religion, Gesellschaft, Wirtschaft (Frankfurt am Main, Lembeck, 2005)

—— ‘Der Wasser-Fußabdruck: 140 Liter für eine Tasse Kaffee’, Süddeutsche Zeitung, 21 August 2006

P Laban, ‘Accountability and Rights in Rights-Based Approaches for Local Water Governance’ (2007) 23 International Journal of Water Resources Development 355

G Langengraber and E Muellegger, ‘Ecological Sanitation – A Way to Solve Global Sanitation Problems?’ (2005) 31 Environment International 433

M Langford, ‘Judging Resource Availability’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 89

—— ‘The United Nations Concept of Water as a Human Right: A New Paradigm for Old Problems?’ (2005) 21 International Journal of Water Resources Development 273

—— ‘Ambition that Overleaps Itself? A Response to Stephen Tully’s Critique of the General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433

—— ‘Expectation of Plenty: Response to Stephen Tully’ (2006) 24 Netherlands Quarterly of Human Rights 473

—— (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2009)

M Langford and JA King, ‘Committee on Economic, Social and Cultural Rights – Past, Present and Future’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2009) 477

M Langford and A Russell, ‘“Global Precedent” or “Reasonable No More?”: The Mazibuko Case’ (2008) 19 Journal of Water Law 73

S Leckie, ‘Violations of Economic, Social and Cultural Rights’ in TC van Boven, C Flinterman and I Westendorp (eds), The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Workshop Proceedings (Utrecht, SIM, 1998) 35

—— ‘The Committee on Economic, Social and Cultural Rights: Catalyst for Change in a System Needing Reform’ in P Alston and J Crawford (eds), The Future of Human Rights Treaty Monitoring (Cambridge, Cambridge University Press, 2000) 129

J Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Journal of Environmental Law 283

P Lee and RP George, ‘The Nature and Basis of Human Dignity’ (2008) 21 Ratio Juris 173

S Libiszewski, ‘International Conflicts over Freshwater Resources’ in M Suliman (ed), Ecology, Politics and Violent Conflict (London, Zed Books, 1999) 115

302 Bibliography

S Liebenberg, ‘The National Water Bill – Breathing Life into the Right to Water’ (1998) 1 Economic and Social Rights Review 3

—— ‘The Protection of Economic and Social Rights in Domestic Legal Systems’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 55

—— ‘Enforcing Positive Socio-Economic Rights Claims: The South African Model of Reasonableness Review’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 73

—— ‘The Interpretation of Socio-Economic Rights’ in S Woolman, T Roux, J Klaaren, A Stein and M Chaskalson et al (eds), Constitutional Law of South Africa, 2nd edn (Lansdowne, Juta, 2005) ch 33

—— ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 South African Journal on Human Rights 1

—— ‘Socio-Economic Rights: Revisiting the Reasonableness Review/Minimum Core Debate’ in S Woolman and M Bishop (eds), Constitutional Conversations (Pretoria, Pretoria University Press, 2008) 305

—— Socio-Economic Rights, Adjudication under a Transformative Constitution (Cape Town, Juta Law, 2010)

O Lohse, Das Recht auf Wasser als Verpflichtung für Staaten und nichtstaatliche Akteure, Art. 11 Abs. 1, Art. 12 Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte (Hamburg, Kovac, 2005)

Lord Lester of Herne Hill, QC, and C O’Cinneide, ‘The Effective Protection of Socio-Economic Rights’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 17

RA Lorz, Modernes Grund- und Menschenrechtsverständnis und die Philosophie der Freiheit Kants, Eine staatstheoretische Untersuchung an Maßstäben des Grundgesetzes für die Bundesrepublik Deutschland (Stuttgart, Boorberg, 1993)

—— ‘Der Schutz von Kindern durch die UN-Kinderkonvention’ (2000) No 17–18 Aus Politik und Zeitgeschichte 30

H Lotze-Campen and M Welp, ‘Mehr Nahrungsmittel mit weniger Wasser erzeu-gen: Effizienzgewinne, Lebensstile, Handel’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 306

JL Lozán, S Meyer and L Karbe, ‘Wasser als Grundlage des Lebens’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 19

K Lüthke, ‘Normen und Verfahren im internationalen Menschenrechtsschutz – ein Überblick’ in H Bielefeldt, V Deile and B Thomsen (eds), Menschenrechte vor der Jahrtausendwende (Frankfurt am Main, Fischer, 1993) 53

‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, reprinted in (1998) 20 Human Rights Quarterly 691

A Markels, ‘Sin City’s Continuous Flow’, US News, 27 May 2007

Bibliography 303

SC McCaffrey, ‘A Human Right to Water: Domestic and International Implications’ (1992) 5 Georgetown International Environmental Law Review 1

—— ‘Water, Water Everywhere, But Too Few Drops to Drink: The Coming Fresh Water Crisis and International Environmental Law’ (2000) 28 Denver Journal of International Law and Policy 325

—— The Law of International Watercourses, Non-Navigational Uses (Oxford, Oxford University Press, 2001)

—— ‘The Human Right to Water’ in E Brown Weiss, L Boisson de Chazournes and N Bernasconi-Osterwalder (eds), Fresh Water and International Economic Law (Oxford, Oxford University Press, 2005) 93

C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655

MS McDougal, HD Lasswell and LC Chen, Human Rights and World Public Order, The Basic Policies of an International Law of Human Dignity (New Haven, Conn, Yale University Press, 1980)

JR McNeill, Blue Planet, Die Geschichte der Umwelt im 20. Jahrhundert (Bonn, Bundeszentrale für politische Bildung, 2005)

F Mégret, ‘The Disabilities Convention: Towards a Holistic Concept of Rights’ (2008) 12 International Journal of Human Rights 261

R Meinzen-Dick and L Nkonya, ‘Understanding Legal Pluralism in Water and Land Rights: Lessons from Africa and Asia’ in B van Koppen, M Giordano and J Butterworth (eds), Community-Based Water Law and Resource Management Reform in Developing Countries (Colombo, International Water Management Institute, 2008) 12

F Menghistu, ‘The Satisfaction of Survival Requirements’ in BG Ramcharan (ed), The Right to Life in International Law (Dordrecht, Martinus Nijhoff, 1985) 63

T Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon Press, 1989)

J Meurant, ‘Droit humanitaire et droits de l’homme: Spécificités et convergences’ (1993) 75 Revue Internationale de la Croix-Rouge 93

H Meyrowitz, ‘Le droit de la guerre et les droits de l’homme’ (1972) Revue de Droit Public et de la Science Politique en France et à l’Etranger 1059

F Molle and J Berkoff, Cities versus Agriculture: Revisiting Intersectoral Water Transfers, Potential Gains and Conflicts, Comprehensive Assessment Research Report 10 (Colombo, International Water Management Institute, 2006)

S Moller Okin, ‘Liberty and Welfare: Some Issues in Human Rights Theory’ in JR Pennock and JW Chapman (eds), Human Rights, Nomos XXIII (New York, New York University Press, 1981) 230

C Möllhoff, ‘Das schöne tägliche Chaos’, Frankfurter Rundschau, 4 April 2007, 25K Moosdorf, Das Recht auf Wasser, Die Entstehung eines neuen Menschenrechts

(Marburg, Tectum, 2007)P Moriarty, C Batchelor, FT Abd-Alhadi, P Laban and H Fahmy, The EMPOWERS

Approach to Water Governance – Guidelines, Methods and Tools (Amman, The Inter-Islamic Network on Water Resources Development and Management, 2007)

AR Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004)

304 Bibliography

J Müller-Bauseneik, ‘Metropolis sitzt auf dem Trockenen’, Freitag – Die Ost-West Wochenzeitung, 18 November 2005

S Muralidhar, ‘Economic, Social & Cultural Rights: An Indian Response to the Justiciability Debate’ in Y Ghai and J Cottrell (eds), Economic, Social & Cultural Rights in Practice – The Role of Judges in Implementing Economic, Social & Cultural Rights (London, Interrights, 2004) 23

—— ‘The Right to Water: An Overview of the Indian Legal Regime’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 65

DT Murphy, ‘The Restatement (Third)’s Human Rights Provisions: Nothing New, but Very Welcome’ (1990) 24 The International Lawyer 917

S Narain, ‘The Flush Toilet Is Ecologically Mindless’ (2002) 10/19 Down to Earth (28 February 2002)

S Narula, ‘The Right to Food: Holding Global Actors Accountable under International Law’ (2006) 44 Columbia Journal of Transnational Law 691

KMG Nayar, ‘Human Rights: the UN and US Foreign Policy’ (1978) 19 Harvard International Law Journal 813

S Neubert and L Horlemann, ‘Kann virtueller Wasserhandel die Wasserkrise lösen?’ in C Bastian, A Gunkel, H Leistert, T Menniken, R Rhodius et al (eds), Wasser – Konfliktstoff des 21. Jahrhunderts (Heidelberg, Universitätsverlag Winter, 2008) 143

P Newell and J Wheeler, ‘Rights, Resources and the Politics of Accountability: An Introduction’ in P Newell and J Wheeler (eds), Rights, Resources and the Politics of Accountability (London, Zed Books, 2006) 1

A Nigam and S Rasheed, Financing of Fresh Water for All: A Rights Based Approach, Staff Working Paper, Evaluation, Policy and Planning Series, Number EPP-EVL-98-003 (New York, UNICEF, 1998)

M Nowak, ‘The Human Right to Development versus Human-Rights-Based Development Co-operation, Reflections following the Vienna Conference on Human Rights’ in R Tetzlaff (ed), Human Rights and Development (Bonn, Stiftung Entwicklung und Frieden, 1993) 215

K Nowrot and 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, 2003)

F Nuscheler, Entwicklungspolitik, Lern- und Arbeitsbuch, 5th edn (Bonn, Bundeszentrale für politische Bildung, 2004)

—— ‘Sinnentleerung des Prinzips Nachhaltigkeit, Die Millennium-Entwicklungsziele haben eine ökologische Lücke’ in F Nuscheler and M Roth (eds), Die Millennium-Entwicklungsziele, Entwicklungspolitischer Königsweg oder ein Irrweg? (Bonn, Dietz, 2006) 155

G Oberleitner, Menschenrechtsschutz durch Staatenberichte (Frankfurt am Main, Peter Lang, 1998)

M O’Boyle, ‘The Development of the Right to Life’ in DP Björgvinsson, G Jörundsson, SM Stefánsson and T Gunnarsson (eds), Afmælisrit pór Vilhjálmsson (Reykjavik, Bókaútgáfa Orators, 2000) 65

CA Odinkalu, ‘Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights’ in MD Evans and R Murray

Bibliography 305

(eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge, Cambridge University Press, 2002) 178

Office of the United Nations High Commissioner for Human Rights, Human Rights and Poverty Reduction – A Conceptual Framework, HR/PUB/04/1 (Geneva, 2004)

—— Claiming the Millennium Development Goals (MDGs): A Human Rights Approach (Geneva, 2008)

M O’Flaherty and C O’Brien, ‘Reform of the UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 Human Rights Law Review 141

R O’Keefe, ‘The “Right to Take Part in Cultural Life” under Article 15 of the ICESCR’ (1998) 47 International and Comparative Law Quarterly 904

T Oki and S Kanae, ‘Global Hydrological Cycles and World Water Resources’ (2006) 313 Science 1068

Organisation for Economic Co-operation and Development, Social Issues in the Provision and Pricing of Water Services (Paris, Organisation for Economic Co-operation and Development, 2003)

E Örücü, ‘The Core of Rights and Freedoms: the Limit of Limits’ in T Campbell, D Goldberg, S McLean and T Mullen (eds), Human Rights: From Rhetoric to Reality (Oxford, Blackwell, 1986) 37

D O’Sullivan, ‘The Allocation of Scarce Resources and the Right to Life under the European Convention on Human Rights’ [1998] Public Law 389

R Pant, From Communities’ Hands to MNCs BOOTs: A Case Study from India on the Right to Water (Majkhali, Ecoserve, 2003)

P Parmar, ‘Revisiting the Human Right to Water’ (2008) 28 Australian Feminist Law Journal 77

KJ Partsch, ‘Human Rights and Humanitarian Law’ in R Bernhardt (ed), Encyclopedia of Public International Law, vol II/2 (Amsterdam, Elsevier, 1995) 910

L Partzsch, Global Governance in Partnerschaft, Die EU-Initiative ‘Water for Life’ (Baden-Baden, Nomos, 2007)

—— Öko-faire Preise im Welthandelsregime, Wasser – natürliche Ressource, Handelsware und Menschenrecht (Wuppertal, Wuppertal Institut für Klima, Umwelt, Energie and Heinrich Böll Stiftung, 2007)

L Partzsch and IT Winkler, ‘South Africa, Water Struggles’ in I Ness (ed), International Encyclopedia of Revolution and Protest, vol VI (Oxford, Wiley Blackwell, 2009) 3099

R Pejan, ‘The Right to Water: The Road to Justiciability’ (2004) 36 George Washington International Law Review 1181

NL Peluso and M Watts, ‘Violent Environments’ in NL Peluso and M Watts (eds), Violent Environments (Ithaca, NY, Cornell University Press, 2001) 3

B Peta, ‘3,000 Dead from Cholera in Zimbabwe’, Independent, 26 November 2008V Petrova, ‘At the Frontiers of the Rush for Blue Gold: Water Privatization and the

Human Right to Water’ (2006) 31 Brooklyn Journal of International Law 577R Picolotti, ‘Agenda 21 and Human Rights – The Right to Participate’ in R Picolotti

and JD Taillant (eds), Linking Human Rights and the Environment (Tucson, University of Arizona Press, 2003) 47

J Pictet, Les principes du droit international humanitaire (Geneva, Comité International de la Croix-Rouge, 1967)

306 Bibliography

W Piepenstock, ‘Zur Durchsetzung internationaler Sozialrechte’ in H Faber and G Frank (eds), Demokratie in Staat und Wirtschaft – Festschrift für Ekkehart Stein zum 70. Geburtstag (Tübingen, Mohr Siebeck, 2002) 377

M Pieterse, ‘A Different Shade of Red: Socio-Economic Dimensions of the Right to Life in South Africa’ (1999) 15 South African Journal on Human Rights 372

—— ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 South African Journal on Human Rights 383

B Pilardeaux, ‘Entwicklungslinien der internationalen Süßwasserpolitik’ in JL Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 316

R Plushnick-Masti, ‘Jordan River – Some Are Baptised in It, Others Pollute It’, Environmental News Network, 11 September 2006

B Porter, ‘The Crisis of ESC Rights and Strategies for Addressing It’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 43

S Postel, Die letzte Oase, Der Kampf um das Wasser (Frankfurt am Main, Fischer, 1992)

—— Pillar of Sand, Can the Irrigation Miracle Last? (New York, Worldwatch Institute/ Norton & Company, 1999)

SL Postel, ‘Securing Water for People, Crops, and Ecosystems: New Mindset and New Priorities’ (2003) 27 Natural Resource Forum 89

—— , GC Daily and PR Erlich, ‘Human Appropriation of Renewable Fresh Water’ (1996) 271 Science 785

H Potts, Accountability and the Right to the Highest Attainable Standard of Health (Colchester, University of Essex Human Rights Centre, 2008)

Poverty-Environment Partnership, Linking Poverty Reduction and Water Management (New York and Stockholm, Poverty-Environment Partnership, 2006)

G Pring, ‘The 2002 Johannesburg World Summit on Sustainable Development: International Environmental Law Collides with Reality, Turning Jo’burg into “Joke’burg”’ (2002) 30 Denver Journal of International Law and Policy 410

F Przetacznik, ‘The Right to Life as a Basic Human Right’ (1976) 9 Revue des Droits de l’Homme 585

R Quentin-Baxter, ‘Human Rights and Humanitarian Law – Confluence or Conflict?’ (1980) 9 Australian Yearbook of International Law 94

MM Rahaman and O Varis, ‘Integrated Water Resources Management: Evolution, Prospects and Future Challenges’ (2005) 1 Sustainability: Science, Practice & Policy 15

BG Ramcharan, ‘The Concept and Dimensions of the Right to Life’ in BG Ramcharan (ed), The Right to Life in International Law (Dordrecht, Martinus Nijhoff, 1985) 1

J Razzaque, Human Rights and the Environment: The National Experience in South Asia and Africa, Background Paper No 4, Joint UNEP–OHCHR Expert Seminar on Human Rights and the Environment, 14–16 January 2002 (Geneva, 2002)

C Reimann, Ernährungssicherung im Völkerrecht, Der Menschenrechtsansatz und seine Ergänzungsmöglichkeiten angesichts der Welthungerproblematik (Stuttgart, Boorberg, 2000)

Bibliography 307

HB Reimann, ‘Menschenrechtsstandards in bewaffneten Konflikten’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 771

P Reszat, Gemeinsame Naturgüter im Völkerrecht, Eine Studie zur Knappheit natürli-cher Ressourcen und den völkerrechtlichen Regeln zur Lösung von Nutzungskonflikten (Munich, Beck, 2004)

C Richter, Aspekte der universellen Geltung der Menschenrechte und der Herausbildung von Völkergewohnheitsrecht (Munich, Utz, 2007)

EH Riedel, Theorie der Menschenrechtsstandards, Funktion, Wirkungsweise und Begründung wirtschaftlicher und sozialer Menschenrechte mit exemplarischer Darstellung der Rechte auf Eigentum und Arbeit in verschiedenen Rechtsordnungen (Berlin, Duncker & Humblot, 1986)

—— ‘The Examination of State Reports’ in E Klein (ed), The Monitoring System of Human Rights Treaty Obligations (Berlin, Arno Spitz, 1998) 95

—— ‘Verhandlungslösungen im Rahmen des Sozialpakts der Vereinten Nationen’ in J Ipsen and E Schmidt-Jortzig (eds), Recht – Staat – Gemeinwohl, Festschrift für Dietrich Rauschning (Köln, Carl Heymanns, 2001) 441

—— ‘Die Allgemeinen Bemerkungen des Ausschusses für Wirtschaftliche, Soziale und Kulturelle Rechte’ in Deutsches Institut für Menschenrechte (ed), Die ‘General Comments’ zu den VN-Menschenrechtsverträgen, Deutsche Übersetzungen und Kurzeinführungen (Baden-Baden, Nomos, 2005) 160

—— ‘The Human Right to Water’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 585

—— ‘The Human Right to Water and General Comment No 15 of the Committee on Economic, Social and Cultural Rights’ in E Riedel and P Rothen (eds), The Human Right to Water (Berlin, Berliner Wissenschafts-Verlag, 2006) 19

V Roaf, A Khalfan and M Langford, Monitoring Implementation of the Right to Water: A Framework for Developing Indicators, Global Issue Paper No 14 (Berlin, Heinrich Boell Foundation, 2005)

L Roberts, ‘Diminishing Standards: How Much Water Do People Need?’, ICRC Forum: Water and War (Geneva, International Committee of the Red Cross, 1998)

AH Robertson, ‘Humanitarian Law and Human Rights’ in C Swinarski (ed), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (The Hague, Martinus Nijhoff, 1984) 793

RE Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693

M Robinson, ‘What Rights Can Add to Good Development Practice’ in P Alston and M Robinson (eds), Human Rights and Development – Towards Mutual Reinforcement (Oxford, Oxford University Press, 2005) 25

N Robinson, The Universal Declaration of Human Rights: Its Origin, Significance, Application, and Interpretation (New York, Institute of Jewish Affairs and World Jewish Congress, 1958)

308 Bibliography

A Rosas, ‘The Right of Self-Determination’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 111

—— ‘The Right to Development’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 119

A Rosas and M Scheinin, ‘Implementation Mechanisms and Remedies’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 425

N Rosemann, ‘Financing the Human Right to Water as a Millennium Development Goal’ (2005) 9 Law, Social Justice & Global Development Journal

B Rudolf, ‘Menschenrecht Wasser – Herleitung, Inhalt, Bedeutung, Probleme’ in B Rudolf (ed), Menschenrecht Wasser? (Frankfurt am Main, Peter Lang, 2007) 15

W Rudolf, ‘Gewohnheitsrechtsbildung aus Menschenrechtsverträgen – Kommentar’ in E Klein and C Menke (eds), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium, 26–28 September 2002, Potsdam (Berlin, Berliner Wissenschafts-Verlag, 2003) 84

AFS Russell, ‘International Organizations and Human Rights: Realizing, Resisting or Repackaging the Right to Water?’ (2010) 9 Journal of Human Rights 1

S Russell, ‘Minimum State Obligations: International Dimensions’ in D Brand and S Russell (eds), Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (Pretoria, Protea, 2002) 11

MR Rwelamira, ‘Human Rights and International Humanitarian Law: The Link or Common Ground Revisited’ (1992) 3 Stellenbosch Law Review 329

M Sachs (ed), Grundgesetz, Kommentar, 5th edn (Munich, Beck, 2009)W Sachs, Environment and Human Rights, Wuppertal Papers No 137 (Wuppertal,

Wuppertal Institute for Climate, Environment, Energy, 2003)W Sager, Wasser (Hamburg, Rotbuch, 2001)SMA Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the

Berlin Rules: Perspectives on International Water Law’ (2007) 23 International Journal of Water Resources Development 625

SMA Salman and S McInerney-Lankford, The Human Right to Water, Legal and Policy Dimensions, Law, Justice and Development Series (Washington DC, World Bank, 2004)

J Scanlon, A Cassar and N Nemes, Water as a Human Right? Environmental Policy and Law Paper No 51 (Gland, International Union for Conservation of Nature, 2004)

P Scannella and P Splinter, ‘The United Nations Human Rights Council: A Promise to be Fulfilled’ (2007) 7 Human Rights Law Review 41

T Schaber, Internationale Verrechtlichung der Menschenrechte, Eine reflexive institu-tionstheoretische Analyse des Menschenrechtsregimes der Vereinten Nationen (Baden-Baden, Nomos, 1996)

O Schachter, International Law in Theory and Practice: General Course in Public International Law, Receuil des Cours 1982-V, vol 178 (The Hague, Académie de Droit International, 1982)

—— ‘Human Dignity as a Normative Concept’ (1983) 77 American Journal of International Law 848

Bibliography 309

U Scheele and S Malz, ‘Wasserbedarf und Wasserverbrauch privater Haushalte und der Industrie nach Ländern’ in J L Lozán, H Graßl, P Hupfer, L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 91

M Scheinin, ‘Economic and Social Rights as Legal Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 29

W Scheumann and A Klaphake, Freshwater Resources and Transboundary Rivers on the International Agenda: from UNCED to Rio +10, Gutachten im Auftrag des Bundesministeriums für wirtschaftliche Zusammenarbeit und Entwicklung (Bonn, Deutsches Institut für Entwicklungspolitik, 2001)

J Schneider, Die Justiziabilität wirtschaftlicher, sozialer und kultureller Menschenrechte (Berlin, Deutsches Institut für Menschenrechte, 2004)

K Schollendorf, Die Auslegung völkerrechtlicher Verträge in der Spruchpraxis des Appellate Body der Welthandelsorganisation (WTO) (Berlin, Duncker & Humblot, 2005)

S von Schorlemer, ‘Das Recht auf Entwicklung – Recht des Individuums oder Recht der Völker?’ (2008) 56 Vereinte Nationen 212

F Schwarz, ‘Viertes Weltwasserforum in Mexiko’ (2006) Umwelt 282J Schweikle, ‘Stadt der Verschwender’ (2007) No 3 Zeit Wissen 26E Schwelb, Human Rights and the International Community: The Roots and Growth of

the Universal Declaration of Human Rights, 1948–1963 (Chicago, Ill, Quadrange Books, 1964)

C Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal 769

C Scott and P Alston, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal on Human Rights 206

C Scott and P Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1

A Sen, Development as Freedom (Oxford, Oxford University Press, 2001)—— ‘Human Rights and Development’ in BA Andreassen and SP Marks (eds),

Development as a Human Right – Legal, Political, and Economic Dimensions (Cambridge, Mass, Harvard University Press, 2006) 1

M Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp, Intersentia, 2003)

RF Service, ‘Desalination Freshens Up’ (2006) 313 Science 1088D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’

(1991/92) 28 Stanford Journal of International Law 103IA Shiklomanov, ‘Appraisal and Assessment of World Water Resources’ (2000) 25

Water International 11H Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton, NJ,

Princeton University Press, 1980)RL Siegel, ‘The Right to Work: Core Minimum Obligations’ in AR Chapman and

310 Bibliography

S Russell (eds), Core Obligations: Building a New Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 21

B Simma, ‘Die internationale Kontrolle des VN-Paktes über wirtschaftliche, soziale und kulturelle Rechte: neue Entwicklungen’ in U Beyerlin, M Bothe and R Hofmann (eds), Recht zwischen Umbruch und Bewahrung: Völkerrecht – Europarecht – Staatsrecht: Festschrift für Rudolf Bernhardt (Berlin, Springer, 1995) 579

—— ‘“Die vergessenen Rechte”: Bemühungen zur Stärkung des VN-Sozialpaktes’ in F Ruland, B Baron von Maydell and HJ Papier (eds), Verfassung, Theorie und Praxis des Sozialstaates, Festschrift für Hans F Zacher zum 70. Geburtstag (Heidelberg, CF Müller, 1998) 867

—— ‘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, Arno Spitz, 1998) 31

B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988-89) 12 Australian Yearbook of International Law 82

B Simma and S Bennigsen, ‘Wirtschaftliche, soziale und kulturelle Rechte im Völkerrecht – Der Internationale Pakt von 1966 und sein Kontrollverfahren’ in JF Baur, KJ Hopt and KP Mailänder (eds), Festschrift für Ernst Steindorff zum 70. Geburtstag am 13. März 1990 (Berlin, De Gruyter, 1990) 1477

UE Simonis, Wasser als Konfliktursache – Plädoyer für eine internationale Wasserstrategie, WZB Discussion Paper FS II 01-406 (Berlin, WZB, 2001)

C Singh, ‘Water Rights in India’ in C Singh (ed), Water Law in India (New Delhi, Indian Law Institute, 1992) 8

D Sjoblom and J Farrington, The Indian National Rural Employment Guarantee Act: Will It Reduce Poverty and Boost the Economy?, ODI Project Briefing No 7 (London, Overseas Development Institute, 2008)

B Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’ (1987) 58 British Yearbook of International Law 39

LB Sohn, ‘The Human Rights Law of the Charter’ (1977) 12 Texas International Law Journal 129

South African Human Rights Commission, The Right to Water, 5th Economic and Social Rights Report Series, 2002/2003 Financial Year (Johannesburg, South African Human Rights Commission, 2004)

—— 6th Economic and Social Rights Report (Johannesburg, South African Human Rights Commission, 2006)

Sphere Project, Sphere Handbook, Humanitarian Charter and Minimum Standards in Disaster Response, 3rd edn (Bourton on Dunsmore, Practical Action Publishing, 2011)

Spiegel Online, ‘Deutschland, Land des teuren Trinkwassers’, 29 June 2005—— ‘Ostdeutsche verbrauchen fast 30 Prozent weniger Wasser’, 4 June 2007 JR Starr, ‘Water Wars’ (1991) 82 Foreign Policy 17R Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in A Eide, C Krause

and A Rosas (eds), Economic, Social and Cultural Rights – A Textbook, 2nd edn (The Hague, Kluwer Law International, 2001) 85

HJ Steiner, P Alston and R Goodman, International Human Rights in Context, Law, Politics, Morals – Text and Materials, 3rd edn (New York, Oxford University Press, 2008)

Bibliography 311

C Stephens, ‘Healthy Cities or Unhealthy Islands? The Health and Social Implications of Urban Inequality’ (1996) 8 Environment and Urbanization 9

K Stern, ‘Zur Universalität der Menschenrechte’ in F Ruland, B Baron von Maydell and HJ Papier (eds), Verfassung, Theorie und Praxis des Sozialstaates, Festschrift für Hans F Zacher zum 70. Geburtstag (Heidelberg, CF Müller, 1998) 1063

GR Stone, LM Seidman, CR Sunstein and MV Tushnet, Constitutional Law, 3rd edn (New York, Aspen Law & Business, 1996)

E Strauß, ‘Die Entstehungsgeschichte der Allgemeinen Erklärung der Menschenrechte – Grundlage ihrer aktuellen Bedeutung’, MenschenRechtsMagazin Themenheft ‘50 Jahre AEMR’ (Dezember 2007) 13

CR Sunstein, Social and Economic Rights? Lessons from South Africa, Chicago Public Law and Legal Theory Working Paper No 12 (Chicago, Ill, University of Chicago, 2001)

LA Swatuk, Mainstreaming Politics: The Bottom Line on Transboundary Benefit Sharing, Paper presented at the World Water Week (Stockholm, 2006)

VT Thamilmaran, ‘Cultural Rights in International Law’ (2003) 14 Sri Lanka Journal of International Law 101

The Hindu, ‘Water Board Disputes Coca-Cola’s Claim on Ground Water’, 17 June 2004

L Tidwell, ‘Mehr Wasser aus Meerwasser’, Freitag – Die Ost-West Wochenzeitung, 9 December 2005

E Tilley, C Lüthi, A Morel, C Zurbrügg and R Schertenleib, Compendium of Sanitation Systems and Technologies (Dübendorf, Swiss Federal Institute of Aquatic Science and Technology, 2008)

BCA Toebes, The Right to Health as a Human Right in International Law (Antwerp, Intersentia, 1999)

C Tomuschat, Human Rights, Between Idealism and Realism (Oxford, Oxford University Press, 2003)

—— ‘An Optional Protocol for the International Covenant on Economic, Social and Cultural Rights?’ in K Dicke, S Hobe, KU Meyn, A Peters, E Riedel et al (eds), Weltinnenrecht – Liber amicorum Jost Delbrück (Berlin, Duncker & Humblot, 2005) 815

—— ‘Internationaler Menschenrechtsschutz – Anspruch und Wirklichkeit’ (2008) 56 Vereinte Nationen 195

C Tortajada, ‘Water Management in Mexico City Metropolitan Area’ (2006) 22 International Journal of Water Resources Development 353

J Toubkiss, Costing MDG Target 10 on Water Supply and Sanitation, Comparative Analysis, Obstacles and Recommendations (Marseille, World Water Council, 2006)

S Tully, ‘A Human Right to Access Water? – A Critique of General Comment No 15’ (2005) 23 Netherlands Quarterly of Human Rights 35

—— ‘Flighty Purposes and Deeds: A Rejoinder to Malcolm Langford’ (2006) 24 Netherlands Quarterly of Human Rights 461

—— ‘Access to Electricity as a Human Right’ (2006) 24 Netherlands Quarterly of Human Rights 557

S Turner, ‘The Human Right to a Good Environment – The Sword in the Stone’ (2004) 4 Non-State Actors and International Law 277

312 Bibliography

United Nations, Indicators for Monitoring the Millennium Development Goals, Definitions, Rationale, Concepts and Sources, ST/ESA/STAT/SER.F/95 (New York, United Nations, 2003)

—— Report of the Second Interagency Workshop on Implementing a Human Rights-Based Approach in the Context of UN Reform, Stamford, USA, 5–7 May 2003, Attachment 1: The Human Rights Based Approach to Development Cooperation, Towards a Common Understanding Among the UN Agencies (New York, United Nations, 2003)

—— World Population Prospects, 2004 Revision (New York, United Nations, 2005)

—— The Millennium Development Goals Report (New York, United Nations, 2011)United Nations Children’s Fund and World Health Organization, Diarrhoea: Why

Children Are Still Dying and What Can Be Done (New York and Geneva, 2009)United Nations Committee on Economic, Social and Cultural Rights and the UN

Commission on Human Rights’ Special Rapporteurs on Economic, Social and Cultural Rights, The Millennium Development Goals and Economic, Social and Cultural Rights, Joint Statement, 29 November 2002 (Geneva, United Nations, 2002)

United Nations Development Programme, Human Development Report 2000, Human Rights and Human Development (New York, Oxford University Press, 2000)

—— Human Development Report 2006, Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, Palgrave Macmillan, 2006)

—— Human Rights and the Millennium Development Goals, Making the Link (Oslo, United Nations Development Programme, Oslo Governance Centre, 2007)

United Nations Educational, Scientific and Cultural Organization, Water and Culture, Infosheet for the World Water Day (Paris, United Nations Educational, Scientific and Cultural Organization, 2006)

United Nations Environment Programme, Global Environment Outlook 3, Past, Present and Future Perspectives (London, 2002)

United Nations Human Settlements Programme, State of the World‘s Cities 2008/2009, Harmonious Cities (London, Earthscan, 2008)

P Uvin, ‘On High Moral Ground: The Incorporation of Human Rights by the Development Enterprise’ (2002) 17 Praxis – The Fletcher Journal of Development Studies 1

—— Human Rights and Development (Bloomfield, Kumarian Press, 2004)W Vandenhole and T Wielders, ‘Water as a Human Right – Water as an Essential

Service: Does it Matter?’ (2008) 26 Netherlands Quarterly of Human Rights 391O Varis, ‘Megacities, Development and Water’ (2006) 22 International Journal of

Water Resources Development 199S Vassolo, ‘Grundwasser und Klimaänderung’ in JL Lozán, H Graßl, P Hupfer,

L Menzel and CD Schönwiese (eds), Warnsignal Klima: Genug Wasser für alle?, Genügend Wasser für alle – ein universelles Menschenrecht (Hamburg, Wissenschaftliche Auswertungen, 2005) 171

A Verdross and B Simma, Universelles Völkerrecht, Theorie und Praxis, 3rd edn (Berlin, Duncker & Humblot, 1984)

Bibliography 313

J Verschuuren, ‘The Right to Water as a Human Right or a Bird’s Right? – Does Co-Operative Governance Offer a Way Out of a Conflict of Interests and Legal Complexity?’ in P Cullet, A Gowlland-Gualtieri, R Madhav and U Ramanathan (eds), Water Governance in Motion, Towards Socially and Environmentally Sustainable Water Laws (New Delhi, Cambridge University Press, 2010) 359

EW Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69

WASH United, Freshwater Action Network and WaterLex, The Right to Water and Sanitation in International and National Law (working title), forthcoming 2012

WaterAid, Arsenic 2002 – An Overview of Arsenic Issues and Mitigation Initiatives in Bangladesh (London, WaterAid, 2003)

—— Tackling the Silent Killer, The Case for Sanitation (London, WaterAid, 2008)JS Watson, ‘Legal Theory, Efficacy and Validity in the Development of Human

Rights Norms in International Law’ (1979) University of Illinois Law Forum 609J Watts, ‘Provinces Pay Price for Green Olympics, Millions of Gallons of Water are

Being Diverted to Beijing from Areas Hit by Drought’, Guardian, 1 March 2008G Weber, ‘Wasser bleibt in Staatshand‘, Frankfurter Rundschau, 2 November 2004, 9P van Weerelt, ‘The Right to Development: From Rhetoric to a Global Strategy’ in

F Nuscheler (ed), The International Debate on Human Rights and the Right to Development, INEF-Report 30 (Duisburg, INEF, 1998) 48

AM Weisburd, ‘Customary International Law: The Problem of Treaties’ (1988) 21 Vanderbilt Journal of Transnational Law 1

K Weschke, Internationale Instrumente zur Durchsetzung der Menschenrechte (Berlin, Berliner Wissenschafts-Verlag, 2001)

M Wesson, ‘Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court’ (2004) 20 South African Journal on Human Rights 284

—— ‘Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v City of Johannesburg’ (2011) 11 Human Rights Law Review 390

‘What Price for the Priceless?: Implementing the Justiciability of the Right to Water’ (without author) (2007) 120 Harvard Law Review 1067

M Williams, ‘Privatization and the Human Right to Water: Challenges for the New Century’ (2007) 28 Michigan Journal of International Law 469

M Windfuhr, ‘Experiences from Case Related Right to Food Work: Lessons Learned for Implementation’ in WB Eide and U Kracht (eds), Food and Human Rights in Development, Vol II, Evolving Issues and Emerging Applications (Antwerp, Intersentia, 2007) 331

IT Winkler, ‘Judicial Enforcement of the Human Right to Water – Case Law from South Africa, Argentina and India’ (2008) 11 Law, Social Justice & Global Development Journal, available at <www2.warwick.ac.uk/fac/soc/law/elj/lgd/2008_1/winkler> (accessed 1 October 2011)

—— ‘Respect, Protect, Fulfill: The Implementation of the Human Right to Water in South Africa’ in P Cullet, A Gowlland-Gualtieri, R Madhav and U Ramanathan (eds), Water Governance in Motion, Towards Socially and Environmentally Sustainable Water Laws (New Delhi, Cambridge University Press, 2010) 415

314 Bibliography

IT Winkler, Lebenselixier und letztes Tabu, Die Menschenrechte auf Wasser und Sanitärversorgung (Berlin, Deutsches Institut für Menschenrechte, 2011)

IT Winkler and L Partzsch, Wasser für alle – Wie zivilgesellschaftliche Kampagnen ‘neuartige’ Menschenrechte vorantreiben, Paper Presented at the Conference ‘Menschenrechte in der Weltgesellschaft’, 27–28 June 2008 (Bielefeld, University of Bielefeld, 2008)

M Woodhouse and M Langford, ‘Crossfire: There is no human right to water for livelihoods’ (2009) 28 Waterlines 5

World Bank, World Development Report 2000/2001, Attacking Poverty (Washington DC, World Bank, 2000)

World Health Organization, Guidelines for Drinking-Water Quality, 4th edn (Geneva, World Health Organization, 2011)

World Health Organization and United Nations Children’s Fund, Global Water Supply and Sanitation Assessment 2000 Report (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2000)

—— Progress on Sanitation and Drinking-Water, 2010 Update (Geneva and New York, World Health Organization and United Nations Children’s Fund, 2010)

World Health Organization and UN-Water, Global Annual Assessment of Sanitation and Drinking-Water (GLAAS): Targeting Resources for Better Results (Geneva, UN-Water, 2010)

World Water Assessment Programme, United Nations World Water Development Report 2: Water, a Shared Responsibility (Paris, 2006)

—— United Nations World Water Development Report 3: Water in a Changing World (London and Paris, Earthscan and United Nations Educational, Scientific and Cultural Organization, 2009)

Wuppertal Institut für Klima, Umwelt, Energie, Fair Future, Begrenzte Ressourcen und globale Gerechtigkeit (Bonn, Bundeszentrale für politische Bildung, 2005)

EA Yamin, ‘Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health’ (2008) 10 Health and Human Rights Journal 1

GJ Young, JCI Dooge and JC Rodda, Global Water Resource Issues (Cambridge, Cambridge University Press, 1994)

KG Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008) 33 Yale Journal of International Law 113

UNITED NATIONS DOCUMENTS

Conference Reports

United Nations, Final Act of the International Conference on Human Rights, Teheran, 22 April–13 May 1968, A/Conf.32/41, Proclamation of Teheran

—— Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, A/Conf.48/14/Rev.1, Chapter I, Declaration of the United Nations Conference on the Human Environment

—— Report of the United Nations Conference on Water, Mar del Plata, 14–25 March 1977, E/Conf.70/29

Bibliography 315

—— Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, A/Conf.151/26/Rev.1 (Vol I), Annex I, Rio Declaration on Environment and Development, Annex II, Agenda 21

—— World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action, A/Conf.157/23

—— Report of the International Conference on Population and Development, Cairo 5–13 September 1994, A/Conf.171/13/Rev.1, Annex, Cairo Programme of Action

—— Report of the United Nations Conference on Human Settlements (Habitat II), Istanbul, 3–14 June 1996, A/Conf.165/14, Annex II, Habitat Agenda

—— Report of the World Summit on Sustainable Development, Johannesburg, 26 August– 4 September 2002, A/Conf.199/20, Chapter I) 2), Johannesburg Plan of Implementation

General Assembly

General Assembly, Universal Declaration of Human Rights, 10 December 1948, A/810 Res 217 (III)

—— Violation by the Union of Soviet Socialist Republics of Fundamental Human Rights, Traditional Diplomatic Practices and Other Principles of the Charter, 25 April 1949, A/900 Res 285 (III)

—— Preparation of two Draft International Covenants on Human Rights, 5 February 1952, Res 543 (VI)

—— Declaration on the Right to Development, 4 December 1986, A/Res/41/128—— Indivisibility and interdependence of economic, social, cultural, civil and political

rights, 7 December 1987, A/Res/42/102—— The right to development, 15 February 2000, A/Res/54/175—— United Nations Millennium Declaration, 18 September 2000, A/Res/55/2—— Preliminary report of the Special Rapporteur of the Commission on Human Rights

on the right to food, Jean Ziegler, 23 July 2001, A/56/210—— Human Rights Council, 3 April 2006, A/Res/60/251—— International Year of Sanitation, 2008, 6 February 2007, A/Res/61/192—— United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007,

A/Res/61/295—— Report of the Third Committee, 28 November 2008, A/63/435—— Optional Protocol to the International Covenant on Economic, Social and Cultural

Rights, 5 March 2009, A/Res/63/117—— The human right to water and sanitation, 3 August 2010, A/Res/64/292—— Report of the independent expert on the issue of human rights obligations related to

access to safe drinking water and sanitation, Catarina de Albuquerque, 6 August 2010, A/65/254

—— Follow-up to the International Year of Sanitation, 2008, 11 February 2011, A/Res/65/153

—— Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 3 August 2011, A/66/255

316 Bibliography

Economic and Social Council

Economic and Social Council, Question of the violation of human rights and fundamen-tal freedoms, including policies of racial discrimination and segregation and of apart-heid, in all countries, with particular reference to colonial and other dependent countries and territories, 6 June 1967, Res 1235 (XLII)

—— Procedure for dealing with communications relating to violations of human rights and fundamental freedoms, 27 May 1970, Res 1503 (XLVIII)

—— Composition of the sessional working group on the implementation of the International Covenant on Economic, Social and Cultural Rights, 3 May 1978, E/Dec/1978/10

—— Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 28 May 1985, E/Res/1985/17

—— International Covenant on Economic, Social and Cultural Rights, 26 May 1987, E/Res/1987/5

—— Report of the High Commissioner for Human Rights on the Implementation of Economic, Social and Cultural Rights, 8 June 2009, E/2009/90

Commission on Human Rights

Commission on Human Rights, Note verbale dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights, 8 January 1987, E/CN.4/1987/17, Annex, The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights

—— Draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, 18 December 1996, E/CN.4/1997/105

—— Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 17 April 2000, E/CN.4/Res/2000/9

—— The right to food, 17 April 2000, E/CN.4/Res/2000/10—— Report of the Special Rapporteur on adequate housing as a component of the right to

an adequate standard of living, Mr Miloon Kothari, submitted pursuant to Commission resolution 2000/9, 25 January 2001, E/CN.4/2001/51

—— The right to food, Report by the Special Rapporteur on the right to food, Mr Jean Ziegler, submitted in accordance with Commission on Human Rights resolution 2000/10, 7 February 2001, E/CN.4/2001/53

—— The right to food, 20 April 2001, E/CN.4/Res/2001/25—— Question of the realization in all countries of the economic, social and cultural rights

contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 20 April 2001, E/CN.4/Res/2001/30

Bibliography 317

—— Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr Miloon Kothari, 1 March 2002, E/CN.4/2002/59

—— Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 22 April 2002, E/CN.4/Res/2002/24

—— The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, 22 April 2002, E/CN.4/Res/2002/31

—— Promotion of the realization of the right to drinking water and sanitation, 22 April 2002, E/CN.4/Dec/2002/105

—— The right to food, Report submitted by the Special Rapporteur on the right to food, Jean Ziegler, in accordance with Commission on Human Rights resolution 2002/25, 10 January 2003, E/CN.4/2003/54

—— The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report of the Special Rapporteur, Paul Hunt, submitted in accord-ance with Commission resolution 2002/31, 13 February 2003, E/CN.4/2003/58

—— The right to food, Report submitted by the Special Rapporteur on the right to food, Jean Ziegler, in accordance with Commission on Human Rights resolution 2003/25, 9 February 2004, E/CN.4/2004/10

—— Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, 16 April 2004, E/CN.4/Res/2004/17

—— Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, 14 April 2005, E/CN.4/Res/2005/15

—— Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, 3 March 2006, E/CN.4/2006/48

Human Rights Council

Human Rights Council, Human Rights and Access to Water, 4 October 2006, A/HRC/Dec/2/104

—— Institution-building of the United Nations Human Rights Council, 18 June 2007, A/HRC/Res/5/1

—— Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, 16 August 2007, A/HRC/6/3

—— Mandate of the Special Rapporteur on the right to food, 27 September 2007, A/HRC/Res/6/2

—— Adequate housing as a component of the right to an adequate standard of living, 14 December 2007, A/HRC/Res/6/27

—— Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, 14 December 2007, A/HRC/Res/6/29

—— Human rights and access to safe drinking water and sanitation, 28 March 2008, A/HRC/Res/7/22

318 Bibliography

Human Rights Council, Protect, Respect and Remedy: a Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 7 April 2008, A/HRC/8/5

—— Report of the Working Group on the Universal Periodic Review: Bahrain, 22 May 2008, A/HRC/8/19

—— Report of the Working Group on the Universal Periodic Review: Morocco, 22 May 2008, A/HRC/8/22

—— Report of the Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its fifth session, 23 May 2008, A/HRC/8/7

—— Report of the Working Group on the Universal Periodic Review: South Africa, 23 May 2008, A/HRC/8/32

—— Report of the Working Group on the Universal Periodic Review: Gabon, 28 May 2008, A/HRC/8/35

—— Report of the Working Group on the Universal Periodic Review: Ghana, 28 May 2008, A/HRC/8/36

—— Report of the Working Group on the Universal Periodic Review: Peru, 28 May 2008, A/HRC/8/37

—— Report of the Working Group on the Universal Periodic Review: Benin, 28 May 2008, A/HRC/8/39

—— Report of the Working Group on the Universal Periodic Review: Guatemala, 29 May 2008, A/HRC/8/38

—— Report of the Working Group on the Universal Periodic Review: Zambia, 2 June 2008, A/HRC/8/43

—— Report of the Working Group on the Universal Periodic Review: Ukraine, 3 June 2008, A/HRC/8/45

—— Report of the Working Group on the Universal Periodic Review: Pakistan, 4 June 2008, A/HRC/8/42

—— Report of the Working Group on the Universal Periodic Review: Tonga, 5 June 2008, A/HRC/8/48

—— Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 18 June 2008, A/HRC/Res/8/2

—— Report of the Working Group on the Universal Periodic Review: Turkmenistan, 6 January 2009, A/HRC/10/79

—— Report of the Working Group on the Universal Periodic Review: Bahamas, 7 January 2009, A/HRC/10/70

—— Report of the Working Group on the Universal Periodic Review: Israel, 8 January 2009, A/HRC/10/76

—— Report of the Working Group on the Universal Periodic Review: Tuvalu, 9 January 2009, A/HRC/10/84

—— Report of the Working Group on the Universal Periodic Review: Cape Verde, 12 January 2009, A/HRC/10/81

—— Report of the Working Group on the Universal Periodic Review: Botswana, 13 January 2009, A/HRC/10/69

—— Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, 15 January 2009, A/HRC/10/61

Bibliography 319

—— Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 25 February 2009, A/HRC/10/6

—— Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, Addendum, Mission to Costa Rica, 23 June 2009, A/HRC/12/24/Add.1

—— Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 1 July 2009, A/HRC/12/24

—— Human rights and access to safe drinking water and sanitation, 12 October 2009, A/HRC/12/8

—— Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 29 June 2010, A/HRC/15/31

—— Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, Addendum, Progress report on the compilation of good practices, 1 July 2010, A/HRC/ 15/31/Add.1

—— Human rights and access to safe drinking water and sanitation, 6 October 2010, A/HRC/Res/15/9

—— Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 21 March 2011, A/HRC/17/31

—— The human right to safe drinking water and sanitation, 8 April 2011, A/HRC/Res/16/2

—— Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Addendum, Compilation of good practices, 29 June 2011, A/HRC/18/33/Add.1

—— Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, 4 July 2011, A/HRC/18/33

—— The human right to safe drinking water and sanitation, 12 October 2011, A/HRC/Res/18/1

Sub-Commission on the Promotion and Protection of Human Rights

Sub-Commission on the Promotion and Protection of Human Rights, Human Rights and the Environment, Final Report prepared by Mrs Fatma Zohra Ksentini, Special Rapporteur, 6 July 1994, E/CN.4/Sub.2/1994/9, Annex I, Draft principles on human rights and the environment

—— Promotion of the realization of the right to drinking water and sanitation, 10 August 2001, E/CN.4/Sub.2/Res/2001/2

—— Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation, Final report of the Special Rapporteur, El Hadji Guissé, 14 July 2004, E/CN.4/Sub.2/2004/20

320 Bibliography

Sub-Commission on the Promotion and Protection of Human Rights, Realization of the right to drinking water and sanitation, Report of the Special Rapporteur, El Hadji Guissé, Draft Guidelines for the Realization of the Right to Drinking Water and Sanitation, 11 July 2005, E/CN.4/Sub.2/2005/25

—— Promotion of the realization of the right to drinking water and sanitation, 24 August 2006, A/HRC/Sub.2/Res/2006/10

Human Rights Committee

Human Rights Committee, General Comment No 3, Implementation at the national level (Art 2), 29 July 1981, contained in HRI/GEN/1/Rev.1 at 4

—— General Comment No 6, The right to life (art 6), 30 April 1982, contained in HRI/GEN/1/Rev.1 at 6

—— General Comment No 12, The right to self-determination of peoples (Art 1), 13 March 1984, contained in HRI/GEN/1/Rev.6 at 134

—— General Comment No 18, Non-discrimination, 10 November 1989, contained in HRI/GEN/1/Rev.1 at 26

—— Communication No 167/1984, Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, 26 March 1990, contained in A/45/40 vol II, 1–30

—— General Comment No 22, The right to freedom of thought, conscience and religion (Art 18), 30 July 1993, CCPR/C/21/Rev.1/Add.4

—— General Comment No 23: The rights of minorities (Art 27), 8 April 1994, CCPR/C/21/Rev.1/Add.5

—— General Comment No 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6

—— General Comment No 25, The right to participate in public affairs, voting rights and the right of equal access to public service (Art 25), 27 August 1996, CCPR/C/21/Rev.1/Add.7

—— General Comment No 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13

Committee on Economic, Social and Cultural Rights

Committee on Economic, Social and Cultural Rights, Report on the Third Session, 6–24 February 1989, E/C.12/1989/5

—— General Comment No 3, The nature of States parties obligations (Art 2 Para 1), 12 December 1990, contained in E/1991/23, Annex III

—— General Comment No 4, The right to adequate housing (Art 11(1) of the Covenant), 13 December 1991, contained in E/1992/23, Annex III

—— General Comment No 5, Persons with disabilities, 9 December 1994, contained in E/C.12/1994/20, Annex IV

—— Report on the 12th and 13th Session, 7 October 1996, E/1996/22—— Report on the 14th and 15th Session, 1 January 1997, E/1997/22

Bibliography 321

—— Report on the 16th and 17th Session, 1 January 1998, E/1998/22—— General Comment No 9, The domestic application of the Covenant, 3 December

1998, E/C.12/1998/24—— General Comment No 10, The role of national human rights institutions in the pro-

tection of economic, social and cultural rights, 10 December 1998, E/C.12/1998/25—— Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the

Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, 10 December 1998, E/C.12/1/Add.31

—— Report on the 18th and 19th Session, 1 January 1999, E/1999/22—— General Comment No 12, The right to adequate food (Art 11), 12 May 1999,

E/C.12/1999/5—— General Comment No 14, The right to the highest attainable standard of health

(article 12 of the International Covenant on Economic, Social and Cultural Rights), 11 August 2000, E/C.12/2000/4

—— Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Nepal, 24 September 2001, E/C.12/1/Add.66

—— 29th Session, Summary Record of the 46th Meeting, Preliminary discussion of a draft general comment on the right to water, 27 November 2002, E/C.12/2002/SR.46

—— General Comment No 15, The right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11

—— Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Yemen, 12 December 2003, E/C.12/1/Add.92

—— General Comment No 18, The Right to Work (Art 6), 6 February 2006, E/C.12/GC/18

—— Statement, An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant, 10 May 2007, E/C.12/2007/1

—— Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Costa Rica, 4 January 2008, E/C.12/CRI/CO/4

—— General Comment No 19, The right to social security (art 9), 4 February 2008, E/C.12/GC/19

—— General Comment No 20, Non-Discrimination in Economic, Social and Cultural Rights (art 2, para 2), 10 June 2009, E/C.12/GC/20

—— General Comment No 21, Right of everyone to take part in cultural life (art 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009, E/C.12/GC/21

—— Statement on the Right to Sanitation, 19 November, E/C.12/2010/1

Committee on the Rights of the Child

Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Niger, 13 June 2002, CRC/C/15/Add.179

322 Bibliography

Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Zambia, 2 July 2003, CRC/C/15/Add.206

—— Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Uganda, 23 November 2005, CRC/C/UGA/CO/2

—— Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Ethiopia, 1 November 2006, CRC/C/ETH/CO/3

—— Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Kenya, 19 June 2007, CRC/C/KEN/CO/2

Other Bodies

Committee on the Elimination of Discrimination against Women, General Recommendation No 23, Women in Public Life (Art 7), 1997, 16th Session, contained in A/52/38/Rev.1 at 61

Committee on the Elimination of Racial Discrimination, General Recommendation No 23, Indigenous Peoples, 18 August 1997, contained in A/52/18, Annex V

United Nations Economic and Social Commission for Asia and the Pacific, Ministerial Conference on Environment and Development in Asia and the Pacific, Current and critical environment and development concerns of the small island developing states of Asia and the Pacific, 16 June 2000, E/ESCAP/SO/MCED(00)/4

Eighteenth meeting of chairpersons of the human rights treaty bodies, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, Report by the Secretariat, 22 March 2006, HRI/MC/2006/2

Twentieth meeting of chairpersons of the human rights treaty bodies, Report on indicators for promoting and monitoring the implementation of human rights, 6 June 2008, HRI/MC/2008/3

MISCELLANEOUS DOCUMENTS

International Conference on Water and the Environment, Development issues for the 21st century, 26–31 January 1992, Dublin, Ireland, The Dublin Statement, Geneva, 1992

Declaration of Marrakech, First World Water Forum, World Water Council, 1997; available at <www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/Marrakech_Declaration.pdf> (accessed 1 October 2011)

Ministerial Declaration of The Hague, Water Security in the 21st Century, 2nd World Water Forum, 2000, available at <www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/The_Hague_Declaration.pdf> (accessed 1 October 2011)

International Conference on Freshwater, Bonn Recommendations for Action, Bonn, 2001

Bibliography 323

Council of Europe, Recommendation of the Committee of Ministers to member states on the European Charter on Water Resources, 17 October 2001, Rec (2001)14E

European Parliament, Resolution on the Commission communication on water manage-ment in developing countries and priorities for EU development cooperation, 4 September 2003, COM(2002) 132–C5-0335/2002–2002/2179(COS), Official Journal C 076 E, 25 March 2004, 430

Ministerial Declaration, Fourth World Water Forum, 2006, available at <www.worldwatercouncil.org/fileadmin/wwc/World_Water_Forum/WWF4/ declarations/Ministerial_Declaration_english.pdf> (accessed 1 October 2011)

Bolivia, Venezuela, Cuba and Uruguay, Declaración complementaria en el marco del IV Foro Mundial del Agua, Ciudad de México, 22 March 2006, available at <www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/Declaraci_n_Bolivia__Cuba__Uruguay_y_Venezuela_IVFMA1.pdf> (accessed 1 October 2011)

European Union, Statement, World Water Forum, Mexico, 22 March 2006, available at <www.worldwatercouncil.org/fileadmin/wwc/World_Water_Forum/WWF4/declarations/statement_UE.pdf> (accessed 1 October 2011)

Non-Aligned Movement, Final Document of the 14th Summit Conference, 11–16 September 2006, Havana, NAM 2006/Doc.1/Rev.3, reprinted in Internationale Politik 11/2006

First Africa–South America Summit, Declaration, November 2006, available at <www.africa-union.org/root/AU/Conferences/Past/2006/November/SummitASA/summit.htm> (accessed 1 October 2011)

1st Asia–Pacific Water Summit, Message from Beppu, 3–4 December 2007, Beppu, Japan, available at <www.apwf.org/archive/documents/summit/Message_from_Beppu_071204.pdf> (accessed 1 October 2011)

Third High Level Forum on Aid Effectiveness, Accra Agenda for Action, 2–4 September 2008, Accra, Ghana, available at <siteresources.worldbank.org/ACCRAEXT/Resources/4700790-1217425866038/AAA-4-SEPTEMBER-FINAL-16h00.pdf> (accessed 1 October 2011)

Istanbul Ministerial Statement, Fifth World Water Forum, Ministerial Process, 22 March 2009, para 15, available at <content.worldwaterforum5.org/files/PoliticalProcess/Ministerial_Statement_22_3_09.pdf> (accessed 1 October 2011)

Declaration of Governments for the Human Right to Water, Fifth World Water Forum, Istanbul, March 2009 (on file with the author)

Indexacceptability see quality, safety and

acceptabilityaccessibility

availability of water distinguished 107–8contextualised approach 136distance to water source 135–6, 139–40,

278food, right to 159–60, 280health, right to the highest attainable

standard of 136Report of the UN High Commissioner

on Human Rights 276–7infrastructure 6–8, 35, 42, 108, 111, 135 judicial, quasi-judicial and political

mechanisms 226–7Millennium Development Goals 216, 282non-discrimination 8, 12, 68, 113–14,

178–9, 202, 221–3, 276–7, 281personal and domestic use 157physical accessibility 107–8, 135–6, 278progressive realisation, principle of 136regularity of supply 136waiting and collection times 2, 5–6, 61,

135–6, 139, 223women and girls, safety of 136

accountability 214–19, 224–9, 273, 282–6adequate standard of living, right to 38,

41–5, 98 accessibility 138availability of water 127beyond full realisation, level which is

207Cairo Programme of Action 45clothing production 169core obligations 119, 121Council of Europe 86European Union 86, 87food, right to 41–6full realisation level 206General Assembly (UN) resolution 78–9housing 41–5Human Rights Council resolution 11,

45, 275infrastructure 42International Covenant on Economic,

Social and Cultural Rights 38–47, 54–6, 64, 78, 98, 125–6, 184–5, 275–7

interpretation 42–3Istanbul Habitat Agenda 45life, right to 54

normative content of right to water 125–6, 139–40

personal and domestic use 127, 157power generation 181–3progressive realisation, principle of 116,

139quantity of water 131–4, 278recreational use of water 196resources 125sanitation 173–4, 175–6transport 184–5travaux préparatoires 42–3treaties and conventions 42–4, 56–7,

61–2, 65, 71–3, 276Vienna Convention on the Law of

Treaties 42–4advocacy 273–4affirmative action/preferential treatment

113, 222, 225affordability 2, 137–9, 157, 216, 278, 282Africa see also African Charter on Human

and Peoples’ Rights (Banjul Charter); individual countries

African Charter on the Rights and Welfare of the Child 56, 275

North Africa, population growth in 21

rural areas 5African Charter on Human and Peoples’

Rights (Banjul Charter)cultural and religious rights 189ecosystems 199, 200–1food security 57health, right to 56individual complaint mechanisms 268judicial enforcement 259life, right to 53power generation 182productive uses 186socio-economic rights 103women, protocol on rights of 56–7, 182,

276Agenda 21 83–4, 95, 144, 276agriculture

allocation of water 156–7bio-fuel production 29cash crops 29, 166competing demands 16–17, 31–2, 36developed countries and developing

countries 27–9

326 Index

agriculture cont.food, right to 28, 47, 158–60, 164–7, 210,

280increasing demand for water 22–3industrialised farms 29, 36irrigation 23, 28, 31–2, 129–31, 165–8nitrogen-rich fertilisers 25non-sustainable use 23quantity of water 155, 167pollution 25prioritisation 146, 156–7subsistence farming 129–30, 164–7, 188,

192–3, 196, 202–7, 279urban areas, competition with 31–2virtual water 28–9work 186

aid 127, 165 algae 25allocation of water 141–211

agriculture 27, 28–9, 30, 31, 32, 156–7alternatives for realisation of rights 209,

280availability of water 107–8core obligations 148, 152, 280–1current trends 142–50declarations on international water

policy 142–4, 147–8different water uses and links to human

rights 155–207fulfil, obligation to 111human rights implications 141–211national legislation 144–8national water strategies 111non-discrimination 154, 202, 210, 281personal and domestic use 141, 148, 157,

203, 278prioritisation 27, 34, 35–6, 141–2,

147–211, 278–82, 284–5protect, obligation to 109reallocation 23, 31–2, 108, 122–3recognition as human right, benefits of

213, 215, 228–9, 272respect, obligation to 244

Alston, Philip 76alternatives for realisation of right 154–5,

180, 208, 209, 280–1amenity and luxury use 7, 30, 35–6, 133,

146, 148, 202, 210, 284–5 American Convention on Human Rights

52–3, 57, 159, 182, 186, 189, 199, 267–8American Law Institute (ALI) Restatement

74–5Annan, Kofi 6, 260Arab Charter on Human Rights 57, 189,

259, 275–6Arabian peninsula 20, 21, 55, 66Aral Sea 23Arambulo, Kitty 119

Argentina 92, 253–5, 267–8arsenic 5, 134Asia-Pacific Water Summit 86Australia 31, 34, 146, 148availability of water 16–36, 107–9, 126–34,

139, 159–60, 244awareness raising 218, 284

Bangladesh 128, 134Banjul Charter see African Charter on

Human and Peoples’ Rights (Banjul Charter)

basic human needs 146–9availability of water 20competing demands 34–5core obligations 153informal settlements 34infrastructure 35low-income neighbourhoods 34–5personal and domestic use 153prioritisation 142–4, 146–7, 149, 280–1,

284quality, safety and acceptability 201recognition as human right, benefits of

214, 273sanitation 179

benefits of recognition as human right see recognition as human right, benefits of

Berlin Rules of the International Law Association (ILA) 93–5

beyond full realisation, level which is 153–4, 207

Bhopal disaster 33, 109Bielefeldt, Heiner 7Bilchitz, David 121binding nature of rights 14, 37, 40–1, 71–3,

104–7, 140biofuels 29Bonn Recommendations for Action 83Brand, Danie 236Brazil 18, 29, 164, 173, 220, 242Brownlie, Ian 100–1Burkina Faso 146, 148

Cairo Programme of Action 45, 83, 95, 176, 276

California, irrigation in 32Camdessus Report 137capacity-building 218, 284cash crops 29, 166caste discrimination 223CEDAW see Convention on the

Elimination of All Forms of Discrimination against Women (CEDAW)

ceiling of realization see full realization level

Index 327

charges 138–9, 168, 278charity 62–3, 214, 217, 224, 228, 272, 282–3 children 5–6, 56, 71, 186, 275 see also

Convention on the Rights of the Child (CRC)

China 22, 30–2, 34, 164cholera 5, 48cities 21–2 see also urban areas civil and political rights see also

International Covenant on Civil and Political Rights

Cold War 103European Convention on Human Rights

57individual complaint mechanisms

269–70, 283justiciability 233, 236–7legal nature of right to water 102–4, 140positive interventions 102–4precision, lack of 104progressive realisation, principle of 152respect, obligation to 243socio-economic rights 51–2, 101–4, 107treaties and conventions 57, 103

climate change 25–6clothing production 168–70, 203–6, 278–81Cold War 103collection and waiting time 2, 5–6, 61,

135–6, 139, 223Colorado river ecosystem 34colour, odour and taste 135, 278Commission on Human Rights 79, 88–9,

96, 259–60 Committee on Economic, Social and

Cultural Rights (CESCR) 38–41 see also General Comments (CESCR)

Concluding Observations 258–9core obligations 117–18, 121, 153cultural and religious practices 189–90direct applicability of international law

240–2 emergence of human right to water

10–11, 15exhaustion of local remedies 15health, right to 48judicial enforcement 273justiciability 233, 240–1life, right to 52–3non-discrimination 112–13, 114, 202, 258Optional Protocol to ICESCR 266prioritisation of water use 258productive uses 186sanitation 179state reports 39, 90, 241, 258, 273work 186

competing demands and availability 16–36complaints see individual complaint

mechanisms

compliance instruments 257–65confidential complaint procedures 270–1constitutions 90–3, 198, 238, 242–52, 277consumer goods 22–3contextualised approach 131, 133–4, 136,

166–7, 210–11Convention on the Elimination of All

Forms of Discrimination against Women (CEDAW)

accessions and ratifications 55–6, 60, 65, 276

adequate standard of living, right to 44, 55, 61, 65, 276

collection of water 61cultural and religious rights 189education, right to 61food, right to 159General Assembly (UN) resolution

78–9judicial enforcement 259legal foundations of right to water

98–9non-discrimination 112power generation 182productive uses of water186rural women 55, 61sanitation 173, 175, 176significance 60–1, 65universal coverage 65, 276urban women 61waiting time 61

Convention on the Rights of Persons with Disabilities (CRPD) 44, 56, 103, 112, 159, 186, 276

Convention on the Rights of the Child (CRC)

accessions and ratifications 55–6, 60, 62adequate standard of living, right to 44,

56, 62civil and political rights 103cultural and religious rights 189food, right to 159health, right to highest attainable

standard of 62judicial enforcement 259legal foundations of right to water 98–9life, right to 62non-discrimination 112productive uses of water 186quality 56, 62ratione personae scope 55–6, 62, 275sanitation 173significance 61–2socio-economic rights 103thought, conscience and religion,

freedom of 62conventions see treaties and conventions cooking 46, 132, 181–3

328 Index

core obligations adequate standard of living, right to

119, 121affordability 138allocation of water 148, 152, 280–1basic human needs 153clothing production 169, 205, 281Committee on Economic, Social and

Cultural Rights 117–18, 121, 153 criticism of approach 122–5cultural and religious practices 189–90,

205, 281dignity 153direct applicability of international law

241diseases 135food 119–20, 131, 153, 205, 209–10, 281fulfil, obligation to 249, 250–4fundamental rights 119–20General Comments (CESCR) 117–18, 153hunger, right to be free from 119–20, 131immediate realisation of rights 114–26,

139–40, 215, 228, 241, 254, 278inability to realise minimum core 122indigenous water use 205, 281International Covenant on Economic,

Social and Cultural Rights 117–20, 125, 152

Limburg Principles 153Millennium Development Goals 215national plans of action 118non-discrimination 281normative content of right 119–20, 126,

139, 278personal and domestic use 121, 153, 205power generation 281prioritisation 14, 149, 152, 203–5, 207–10,

279–82productive uses of water 186–7progressive realisation, principle of

117–25, 140quality, safety and accessibility 135quantity of water 131, 134rationale of approach 118–19reallocation of resources 122–3sanitation 205, 281socio-economic rights 117–23, 125, 152starvation, prevention of 153subsistence farming 167, 205substitution 205, 279survival interests 121, 123, 153work 186–7

cotton 168–9, 170Council of Europe 45, 86cultural and religious practices

allocation of water 188–90, 203, 208–9, 278–81

core obligations 189–90, 205, 281

culture, definition of 189direct access 190, 206–7, 279–80full realisation level 188–90, 203, 206–9,

278–81indigenous water use 188, 190–2, 195,

279–80International Covenant on Civil and

Political Rights 188–9International Covenant on Economic,

Social and Cultural Rights 188–9pollution 207prioritisation 188–90, 203, 208–9,

278–81sanitation 177subsistence farming 188, 207thought, conscience and religion,

freedom of 62treaties and conventions 188–9

customary international law Berlin Rules on Water Resources Law

93–5 Commission on Human Rights 79, 96constitutions 90–3ecosystems 198emergence of customary law 69–70, 81,

277General Assembly (UN) resolution 76–9,

96Helsinki Rules on the Uses of Waters of

International Rivers 94–5Human Rights Council 79–81, 96–7ICJ Statute 65indigenous water use 194International Covenant on Economic,

Social and Cultural Rights 66, 68judicial enforcement 239legal foundations of right to water 37,

65–97, 99official statements 69–97opinio juris 66–95political declarations 81–7, 93, 95–7significance 65–6state practice 66–95treaties and conventions 93, 95–6Universal Declaration of Human Rights

71–6, 95

de Albuquerque, Catarina 11, 88–9, 174–5, 178, 261, 277

declarations 77, 81–7, 93, 95–7, 142–8, 198, 276

demand, increases in 22–4development 77, 201, 212–13diarrhoea 5–6, 48, 134, 135, 171 diet, changes in 22–3dignity 71, 76, 131, 133, 153, 176–7, 179direct access 110, 155, 163–4, 180, 190,

206–10, 277–80

Index 329

direct applicability of international law 239–42

disadvantaged groups or persons see non-discrimination and the marginalised, disadvantaged or vulnerable

disconnection 68, 108, 243, 269–70discrimination see non-discrimination and

the marginalised, disadvantaged or vulnerable

diseases 5–6, 48, 132–5, 148, 171distance to water source 3, 5, 61, 135–6,

139–40, 155, 216, 223, 278 diversification 166domestic use see personal and domestic

use drinking water 79–81, 126, 131–5, 142, 149,

157, 253 droughts 19, 26, 34, 204dualism 239Dublin Principles 82, 95, 143, 276due process 74–5duty-bearers and right-holders, concept of

13, 15, 217–18, 213, 272–3, 284

Economic and Social Council (ECOSOC) 39, 75, 259–60, 270

economic development 1–2, 8, 29–31, 36economic efficiency 143economic rights see International

Covenant on Economic, Social and Cultural Rights; socio-economic rights

ecosystems 27, 92, 196–201 see also pollution

climate change 25–6competing demands 30–1, 34constitutions 198customary international law 198declarations 198 Draft Principles on Human Rights and

the Environment 199 environmental flow 31Integrated Water Resource Management

143personal and domestic use 197prioritisation 31, 196–201, 203, 279, 285protect, obligation to 245–7Protocol of San Salvador 199quality 197–8quantity 196regional treaties 198–200Rio Declaration 83, 198 sanitation 179–80, 280Special Rapporteur on Human Rights

and the Environment 199Stockholm Declaration 198sustainable resource management 143

treaties 57, 198–200 Ecuador 33, 224education 5, 61, 136, 171, 218Eide, Asbjørn 107electricity 181–2, 203emergence of human right to water 8–11,

14–15, 38, 69, 71, 79, 81, 87, 93, 96emergencies 111, 133, 204, 254employment and livelihood 1–2, 185–7,

196, 206, 280empowerment 224–5, 228–9, 274, 284–5energy 29–30, 180–4, 203, 206, 209–10,

278–81 enforcement

compliance instruments 257–65exhaustion of local remedies 15, 230, 273individual complaint mechanisms

266–71, 283 international level, at 230, 256–74, 283–5judicial enforcement 229–55, 283, 285recognition as human right, benefits of

229–74Special Procedures 260–3, 283treaty-based mechanisms 256, 263, 270UN Charter-based enforcement

instruments 256–65, 271Engbruch, Katharina 43, 169, 182, 183environment see ecosystemsequality see non-discrimination and the

marginalised, disadvantaged or vulnerable

ethanol 29European Charter on Water Resources 86European Convention on Human Rights

52, 57, 269–70, 272European Union 29, 84–7eutrophication 25exhaustion of local remedies 15, 230, 273

fair hearing, right to a 268–70fertilisers 25floods 26, 158floor of realisation see core obligations flower production in Kenya 29fluoride 134food

adequate standard of living, right to 41–6

African Charter on Human and Peoples’ Rights 57

agriculture 28, 47, 158–60, 164–7, 210, 280

allocation of water 157–68, 203, 278–81availability of water 159–60contextualised approach 166–7cooking 46, 132, 181–3core obligations 119–20, 131, 205, 209–10,

281

330 Index

food cont.Council of Europe 86diets, changes in 22–3direct access 154–5, 163–4, 168European Charter on Water Resources

86flooding 158full realisation level 206General Comments (CESCR) 159, 163–4Geneva Conventions 46hunger 119–20, 131, 158–9imports 164, 210indigenous water use 191infrastructure 46International Covenant on Economic,

Social and Cultural Rights 45–7, 119–20, 159, 164irrigation 129–30liquid food 46, 89malnourishment 158, 165–6margin of discretion 163–4meat-intensive diets 22personal and domestic use 209pollution 46positive obligations 103poverty 158power generation 181–3precipitation 158prioritisation 148–9, 156–68, 203, 209–10,

278–81production 158–9quantity of water 167–8refrigeration 181–2saving water, potential for 167–8scarcity 19security 1–2, 28, 57, 161, 165, 276Special Rapporteur on Right to Food 89,

95, 263starvation, prevention of 153, 159subsistence agriculture 164–7, 168substitution 168, 209survival level 204, 210transport 164, 168treaties and conventions 57, 159 virtual water 164Voluntary Guidelines 160women and girls 57, 159, 276

France 98free provision of water 138–9, 278freedom of assembly 221freedom of speech 221freedom of thought, conscience and

religion 62fulfil, obligation to 107, 110–11, 243–4,

247–55, 277, 283full realization level

adequate standard of living, right to 206direct access 206

normative content of right to water 278prioritisation 148, 169, 183, 203–7,

209–10, 279–82 progressive realisation, principle of

115–16, 205–6resource allocation 278

Gandhi, Mahatma 35–6General Assembly (UN) resolution

adequate standard of living, right to 78–9

customary international law 76–9, 96emergence of human right to water 11,

14, 79food, right to 159, 163–4Human Rights Council 79–80International Covenant on Economic,

Social and Cultural Rights 78–9legal foundations of right to water 11,

14, 37, 98–9pre-existing right, right to water as 78–9sanitation 175, 178sponsors 77support 77–9, 275–6

General Comments (CESCR) Berlin Rules 94–5 binding nature, lack of 40–1core obligations 153direct applicability of international law

241–3effective remedy, right to an 229–30housing 181indigenous water use 192–5legal foundation of right to water 39–40,

88Non-Aligned Movement, 14th Summit

Conference of the 85–6non-discrimination 113–14, 281Optional Protocol 241participation 219power generation 181precision, lack of 104–5prioritisation 148–9, 152 productive uses 186quality, safety and accessibility 48, 135quantity of water 132recognition of right to water 276sanitation 174, 175–6soft law, as 41work 186

general principles of law 97–8Geneva Conventions and Additional

Protocols 38, 46, 59–64Germany 80, 87, 97, 134Ghana 35girls see women and girls glacier melt 26Global Water Partnership 142–3

Index 331

good faith 97–8gross violations of internationally

recognised human rights 74–6groundwater 23–4, 26, 32–3, 134Guinea 98Guissé, El Hadji 89, 262

hand-washing 127 health and human development, impact

on 5–6health, right to

accessibility 136Committee on Economic, Social and

Cultural Rights 48Convention on the Rights of the Child

62diseases 48drinking water 253Human Rights Council 275International Covenant on Civil and

Political Rights 38 International Covenant on Economic,

Social and Cultural Rights 47–9, 64, 125–6

life, right to 54normative content of right to water 125–6personal hygiene 132pollution 1, 5, 9, 33, 36, 134–5, 172, 200power generation 182, 183quality, safety and acceptability 48,

134–5, 278quantity of water 132–4sanitation 173Special Rapporteur on Right to Health

89, 95, 263survival level 204treaties and conventions 56, 58, 275–6World Health Organization 132–5

Helsinki Rules on the Uses of Waters of International Rivers 94–5

High Commissioner on Human Rights (UN) 11–12, 90, 95, 105, 149–50, 276–7

household water use 7, 30, 181–4, 208, 279, 285

housingadequate standard of living, right to

41–5fulfil, obligation to 245–6General Comments (CESCR) 181infrastructure 47International Covenant on Economic,

Social and Cultural Rights 47, 64positive obligations 103power generation 181, 183Special Rapporteur on Right to Housing

90, 95, 263HRC see Human Rights Council (HRC)

(UN)

human impacts 20–7human rights-based approach (HRBA)

212–13, 218, 220, 222–4Human Rights Council (HRC) (UN)

adequate standard of living, right to 11, 45

confidential complaints procedure 270–1customary international law 79–81establishment 256General Assembly (UN) resolution

79–80High Commissioner for Human Rights,

report of 90, 95Independent Expert on the issue of

human rights obligations related to access to safe drinking water and sanitation 88–9

International Covenant on Economic, Social and Cultural Rights 39–41, 48, 88, 94–5

international level, enforcement at 256legal foundations of right to water 11,

14, 37, 96, 98–9quality, safety and acceptability 79–81resolution 11–14, 37, 79–81, 96–9, 175,

178, 275–6 sanitation 79–81, 175, 178Special Procedures 11, 88, 271Special Rapporteur on the Human

Right to Safe Drinking Water and Sanitation 277

UN Charter-based instruments 256Universal Periodic Review 256, 257,

263–5humanitarian law 59–64hunger, right to be free from 119–20, 131,

158–9 Hunt, Paul 89–90hydrological cycle 25–6hydropower 180, 183–4, 206

ILO convention 191–3, 195immediate realisation of rights

core obligations 114–26, 139–40, 215, 228, 241, 254, 278

life, right to 54 progressive realisation, principle of

115–26, 139–40, 205–6, 228, 278imports 164, 170, 210, 280improvements in realization see

progressive realisation, principle ofincreasing demand 22–4Independent expert on the issue of

human rights obligations related to access to safe drinking water and sanitation 88, 174, 277

Indiaallocation of water 109

332 Index

India cont.Bhopal disaster 33, 109 caste 223Constitution 90–3, 106, 244–5Delhi 35, 108environment, right to a healthy 106,

245–6fulfil, obligation to 255Ganges 25, 188informal settlements in Mumbai 3International Covenant on Economic,

Social and Cultural Rights 238life, right to 92low-income neighbourhoods 3, 35Mumbai 3pollution 1, 3, 25, 33, 109, 245–7redistribution 108rivers 1, 25sanitation 177–8subsistence agriculture 166wealthy households, consumption

patterns of 35indigenous water use

core obligations 205, 281cultural and spiritual significance 188,

190–2, 195, 279–80customary international law 194Declaration on the Rights of Indigenous

Peoples (UN) 193–5, 203direct access 196food, right to 191full realisation level 206, 207General Comment No 15 (CESCR) 192–5ILO convention 191–3, 195International Covenant on Civil and

Political Rights 195International Covenant on Economic,

Social and Cultural Rights 195Kyoto Water Declaration 190management 191, 193, 195personal and domestic use 194, 196prioritisation 190–6, 203, 208–9, 278–9, 281resource exploitation 193self-determination 195subsistence rights 166, 188, 192–3, 196,

279individual complaint mechanisms 265–72,

283Indonesia 137–8industry 7, 16–17, 23, 27–32, 36, 185, 187,

205inequalities in access see non-

discrimination and the marginalised, disadvantaged or vulnerable

informal settlements 3–4, 34 infrastructure 6–8, 35, 42, 46, 108, 111, 129,

135, 281–2

institutions 218, 224–6, 283Integrated Water Resource Management

(IWRM) 142–4interest groups 36International Conference on Freshwater

83–4, 96International Conference on Water and

Development 82–3International Conference on Water and the

Environment (Dublin Principles) 82, 95, 143, 276

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 112–13, 186, 189

International Court of Justice (ICJ) Statute 65, 97–8

International Covenant on Civil and Political Rights (ICCPR) 49–55

accessions and ratifications 275cultural and religious practices 188–9enforcement 259health, right to 38indigenous water use 195individual complaint mechanisms 269International Covenant on Economic,

Social and Cultural Rights 49–50, 102–3

legal foundations of right to water 37–8, 98

life, right to 49, 50–5, 98, 269minority rights 189non-discrimination 112, 202Optional Protocol 269participation 219, 221positive obligations 102–3socio-economic rights 50, 269

International Covenant on Economic, Social and Cultural Rights (ICESCR) see also Committee on Economic, Social and Cultural Rights (CESCR)

accessions and ratifications 55, 65–6, 275adequate standard of living, right to

38–47, 54–6, 64, 78, 98, 125–6, 184–5, 275–7

Berlin Rules 94binding nature 106–7clothing production 169Committee on Economic, Social and

Cultural Rights 38–41, 48, 88, 90, 104core obligations 117–20, 125, 152cultural and religious practices 188–9customary international law 66, 88dignity 176–7Economic and Social Council 39emergence of human right to water 9–11enforcement 257–9

Index 333

food, right to 45–7, 119–20, 159, 164General Assembly (UN) resolution 78–9General Comments 39–41, 48, 88, 94–5,

104–5health, right to 47–9, 64, 125–6housing, right to 47, 64Human Rights Council 64–5, 275hunger, right to be free from 119–20indigenous water use 195individual complaint mechanisms

265–7, 271–2, 283International Covenant on Civil and

Political Rights 49–50, 102–3interpretation 39–41, 48, 88, 94–5justiciability 231, 234, 237, 266legal foundation of right to water 37–49,

98–9levels of realisation of human rights

151–2life, right to 51–4non-discrimination 112–14, 202, 221normative content of right to water 125–6Optional Protocol 237, 265–7, 272, 283power generation 181–3precision, lack of 104–5productive uses 185, 187progressive realisation, principle of

115–17, 152, 278recreational use of water 196reservations 66resources 115–17Revised European Social Charter 58sanitation 175, 176–7Singapore 66Small Island Developing States (SIDS)

65–6universal coverage 65, 275Universal Declaration of Human Rights

71–2, 75, 106work 187Working Group 266–7

international human rights law in courts, invoking 238–42

International Labour Organization (ILO) convention 191–3, 195

international law and national law, relationship between 238–9

International Law Association (ILA), Berlin Rules of the 93–5

international level, enforcement at the 230, 256–74, 283–5

irrigation 23, 28, 31–2, 129–31, 165–8Israel 24Istanbul Habitat Agenda (UN) 45, 83, 95,

97, 176, 276

Johannesburg Plan of Implementation 83–4, 96, 144, 276

judicial enforcementaccountability 225–8, 283advocacy 273–4constitutions 238, 242–3customary international law 239direct applicability of international law

239–42empowerment 273fulfil, obligation to 243–4, 247–54, 255,

283Indian Constitution 243International Covenant on Economic,

Social and Cultural Rights 237–8, 241–2

international human rights law, invoking 238–42

justiciability 229, 230–7, 273last resort, as a 229monism/dualism 239national courts 229–30, 237–55, 283, 285national law 238–9primacy of national remedies 230prioritisation 284progressive realisation, principle of

241protect, obligation to 243–4, 245–7, 255quasi-judicial mechanisms 225–8, 283relationship between international law

and national law 238–9reliance on national guarantees of right

to water 242–4respect, obligation to 243–5, 255socio-economic rights 103, 105–6, 237–8

justiciabilitycapacity, lack of 232civil and political rights 233, 236–7Committee on Economic, Social and

Cultural Rights 233, 240–1, 266direct applicability of international law

241fulfil, obligation to 243, 247–8, 283International Covenant on Economic,

Social and Cultural Rights 231, 234, 237, 266

interpretation 237judicial enforcement 229, 230–7, 273legitimacy, lack of 232–3normative content of rights 236policy choices 232–5protect, obligation to 245recognition as human right, benefits of

229, 230–7, 254, 273, 283reliance on national guarantees of right

to water 242–3respect, obligation to 243, 245socio-economic rights 231–7vagueness of legal provisions on right to

water 236–7

334 Index

Kenya, flower production in 29Kothari, Miloon 90Kyoto Water Declaration 190

Latin America, constitutions in 92, 277latrines 128–9, 172, 177, 179, 206, 280 legal characteristics of right to water

100–40 legal nature of right to water 14, 100–7,

140normative content of right 14, 125–40obligations arising from right 14, 107–25

legal foundations of right to water 37–99binding status 14, 37customary international law 37, 65–97, 99General Assembly (UN) resolution 11,

14, 37, 98–9General Comments (CESCR) 88general principles of law 97–8Human Rights Council resolution 11, 14,

37, 96, 98–9International Covenant on Civil and

Political Rights 37–8, 98International Covenant on Economic,

Social and Cultural Rights 37–49, 98–9

treaties and conventions 37–65, 98–9legal nature of right to water 14, 100–7, 140

binding nature 100–1, 140civil and political rights 102–4, 140economic, social and cultural rights

(socio-economic) 100–7obligations arising from rights 100–1positive interventions 101, 102–4

legitimacy 14, 272, 274, 285levels of realisation of human rights see

also core obligations; full realization level; progressive realisation, principle of

beyond full realisation, level which is 153–4, 207

International Covenant on Economic, Social and Cultural Rights 151–2

non-discrimination 154normative content of right to water 126,

139obligations of states 126prioritisation 202–7, 279–82resources, availability and use of other

154–5survival level 14, 153, 205

legitimacy 232–3Libya 24 life, right to 49–57, 62, 75, 92, 98, 131, 269Limburg Principles 114, 151–3liquid food 46, 89livelihood and work 1–2, 185–7, 196, 206,

280

living standards see adequate standard of living, right to anlow-income neighbourhoods 3, 35, 108luxury and amenity use 7, 30, 35–6, 133,

146, 148, 202, 210, 284–5

malnourishment 158, 165–6management of water 7, 31, 142–4, 191,

193, 195Mar del Plata Action Plan 81, 82, 95, 142,

276marginalized groups and individuals

see non-discrimination and the marginalised, disadvantaged or vulnerable

Marrakech Declaration (World Water Forum) 84–5

meat-intensive diets 22mega-cities 21–2Meron, Theodor 74Message from Beppu 86Mexico 4, 31–2, 34–5, 108Millennium Development Goals (MDGs)

accessibility 216, 282affordability 216, 282core obligations 215human rights framework, lack of 276non-discrimination 4–5, 216–17prioritisation 216progressive realisation, principle of

215–17, 282recognition as human right, benefits of

218–19, 221–3, 228, 272safety 215–16, 282sanitation 172–3, 215Special Procedures 261–2Special Rapporteur on the Human

Right to Safe Drinking Water and Sanitation 89

targets 7–8, 215–16, 282universal rights 217

minimum core approach see core obligations

Ministerial Declaration of the Hague (World Water Fora) 84–5

minority rights 189monism 230monitoring 39, 224, 226–7 , 262, 269, 282

national courts, enforcement in 229–30, 237–55, 283, 285

national human rights institutions 224–6, 283

national laws 15, 98, 144–8, 238–9, 242–4national plans of action/strategies 111, 118,

142Netherlands 87Nigeria, Ogoni people in 33, 200, 268

Index 335

nitrogen-rich fertilisers 25Non-Aligned Movement, 14th Summit

Conference of the 85–6, 276non-discrimination and the marginalised,

disadvantaged or vulnerable see also women and girls

accessibility 8, 12, 68, 113–14, 178–9, 202, 221–3, 276–7, 281

allocation of water 154, 202, 210, 281amenity use 202beyond full realisation, level which is

207caste 223Committee on Economic, Social and

Cultural Rights 112–13, 114, 202, 222, 258, 281

core obligations 281de facto discrimination 112–13, 140, 154,

202, 277de iure discrimination 112–13, 202definition of discrimination 112direct and indirect discrimination 112–13General Comment No 15 (CESCR) 222, 281human rights-based approach 222–3humanitarian law 59informal settlements 3–4integrated approach 223International Covenant on Civil and

Political Rights 112, 202International Covenant on Economic,

Social and Cultural Rights 112–14, 202, 221

Millennium Development Goals 4–5, 216–17

obligations arising from right 112–15, 140

participation 220–1preferential treatment/affirmative

action 113, 222, 225prioritisation 202, 210, 222, 281racial discrimination 112–13, 186, 189recognition as human right, benefits of

218–19, 221–3, 228, 272resource availability 114, 222–3rural areas 4–5state practice 68subsistence farming 202treaties and conventions 112–14, 221–2urban areas 3–5, 68

non-sustainable use 23–4normative content of right to water 14,

125–40, 236, 278North Africa, population growth in 21

obligations arising from right to water 14, 107–25

accessibility 107–8availability of water 107–8, 109

de facto discrimination 140fulfil, obligation to 107, 110–11, 243–4,

247–55, 277, 283non-discrimination 112–15, 140progressive realisation 115–17, 140protect, obligation to 107–10, 243–7, 255respect, obligation to 107–8, 243–5, 255tripartite typology 107–11

odour, colour and taste 135, 278official statements 69–97 Olympics 32open defecation 170, 176opinio juris 66–97

participation 219–23, 228, 282people with disabilities 44, 56, 103, 112,

114, 136, 159, 186, 276, 278personal and domestic use 146–55

acceptability, accessibility and affordability 157, 134–9

adequate standard of living, right to an 127, 157

allocation of water 141, 148, 157, 203, 278availability of water 20, 127–9core obligations 121, 153, 205drinking water 79–81, 126, 131–5, 142,

149, 157, 253 ecosystems 197full realisation level 206household water use 7, 30, 181–4, 208,

279, 285 indigenous water use 194, 196infrastructure 129irrigation 129–30personal hygiene 131–2, 157prioritisation 141, 147–8, 150–1, 157, 203quality, safety and acceptability 30, 157,

197quantity of water 131–3, 155rural areas 5, 61, 111, 129, 258–9substitution 150–1, 155, 157survival level 157, 204universal coverage 215

personal hygiene 121, 131–3, 157personal transport 184–5, 203, 279Peru 224physical proximity to water 135–6, 139–40,

216, 223, 278physical safety 136, 171, 177policy choices 165–6, 247–8, 232–5, 255, 283political declarations 77, 81–7, 93, 95–7,

142–8, 198, 276 political enforcement mechanisms 225–8,

283political rights see International Covenant

on Civil and Political Rightspollution see also ecosystems

agriculture 25

336 Index

pollution cont.arsenic 5, 134Bhopal disaster 33, 109causes 5, 25, 134competing demands 16, 27, 31, 33fertilisers 25food, right to 46fulfil, obligation to 253full realisation level 207groundwater 32, 134health 1, 5, 9, 33, 36, 134–5, 172, 200human impacts 24–5, 27industry 30, 32protect, obligation to 109, 245–7rivers 1, 25sanitation 25, 172, 180sewage treatment 25sustainable development 245–6third parties 245–7, 277toxic waste 79urban areas 24–5wastewater purification 24–5

population growth 20–1, 31Porter, Bruce 273positive obligations 50–4, 75, 102–4, 110–11poverty 4–5, 7, 12, 108, 111, 138–9, 158, 185,

278power generation 29–30, 180–4, 203, 206,

209–10, 278–81 cpower relations 7, 12, 222, 272, 281, 284precipitation 19, 25–6, 158, 168precision, lack of 104–5pre-existing right, right to water as a 78–9preferential treatment/affirmative action

113, 222, 225prioritisation 6–8, 143, 144, 147, 148–55,

202, 203, 206, 207–11accountability 284agriculture 146, 156–7allocation of water 141–2, 146–211,

278–82, 284alternatives for realisation of other

human rights 280–1amenity uses 146, 149, 210, 284–5 basic human needs 142–4, 146–7, 149,

280–1, 284 beyond full realisation, level which is

207clothing production 168–70, 203, 278–81competing demands 14, 27, 35–6contexualised approach 210–11core obligations 149, 152, 203–5, 207,

209–10, 279–82cultural and religious practices 188–90,

203, 208–9, 278–81direct access 208, 209–10diseases 148drinking water 149

ecosystems 31, 196–201, 203, 279, 285food production 148–9, 156–68, 203,

209–10, 278–81framework 150–5, 203–4, 211, 279–82,

284full realisation 148, 169, 183, 203–7,

209–10, 279–82General Comments (CESCR) 148–9, 152,

258 High Commissioner for Human Rights

report 12, 149–50household use 208, 279, 285indigenous people 190–6, 203, 208–9,

278–9, 281infrastructure 6–7, 281–2Integrated Water Resource Management

143–4Johannesburg Plan of Implementation

144judicial enforcement 284levels of realisation 202–7, 279–82Limburg Principles 151–2luxury use 148, 210, 284management 7, 143–4 Mar del Plata Action Plan 142Millennium Development Goals 216national legislation 144–8non-discrimination 114, 202, 210, 222–3personal and domestic use 141, 145–8,

157, 203, 208–9, 278, 284–5personal transportation 184–5, 203,

279power generation 180–4, 203, 209–10,

278–81productive uses 185–7, 203, 278–80progressive realisation, principle of

150–1recreational uses 196, 279resources 154–5, 208, 210–11, 280–2sanitation 170–80, 203, 210, 278–81saving water 208, 279survival level 203–5, 207, 209–10, 279–82

privacy 177, 179private sector 4, 139, 245, 277productive uses of water 185–7, 203, 206,

278–80progressive realisation, principle of

accessibility 136adequate standard of living, right to

116, 139civil and political rights 152continuous improvement of living

conditions 116core obligations 117–25, 140fulfil, obligation to 245, 254full realization 115–16, 205–6immediate realization 115–26, 139–40,

205–6, 228, 278

Index 337

International Covenant on Economic, Social and Cultural Rights 115–17,152, 278

judicial enforcement 241Millennium Development Goals 215–17,

282normative content of right to water 126,

139obligations arising from right 115–18,

120–1, 123, 125, 140, 245, 254levels of realisation of human rights 152life, right to 55quantity of water 133–4sanitation 179socio-economic rights 125universal coverage 215work 187

protect, obligation to 107–10, 243–7, 255 Protocol of San Salvador (American

Convention on Human Rights) 159, 182, 186, 189, 199, 267–8

quality, safety and acceptability see also pollution

African Charter on the Rights and Welfare of the Child 56

Arab Charter on Human Rights 57arsenic, groundwater contaminated by

134availability of water 107–8chemicals 134–5colour, odour and taste 135, 278competing demands 16, 17–27, 36Convention on the Rights of the Child

56, 62core content 135diseases 5, 134, 139drinking water 79–81, 134–5ecosystems 197–8fluoride 134General Comments (CESCR) 48, 135health, right to 48, 134–5, 278household use 30human impacts 20–7Millennium Development Goals 215–16,

282normative content of right to water

134–5, 139–40personal and domestic use 30, 157, 197physical water availability 17–20, 26–7sanitation 79–81waste water 36WHO Guidelines for Drinking Quality

134–5quantity of water 20–1, 131–6, 155, 167–8,

196, 278

rainfall 19, 25–6, 158, 168

rainwater harvesting 168ratione loci scope 37, 55–8, 64–5, 98, 275ratione personae scope 37, 55, 62, 64–5, 98,

275rationing 35reallocation or redistribution 23, 31–2, 108,

122–3recognition as human right, benefits of

212–74accessibility 212, 214–15, 224–7accountability 218–19, 229, 273, 282–3,

285–6allocation of water 213, 215, 228–9, 272basic human needs 214, 273Convention on the Elimination of All

Forms of Discrimination against Women 61

development cooperation 212–13empowerment 228–9, 274, 284enforcement 229–74general benefits 214–229General Comments (CESCR) 276human-rights based approach (HRBA)

212–13international level, enforcement at the

230, 256–74, 283–5judicial enforcement 229–55, 273–4, 283,

285justiciability 229, 230–7, 254, 273, 283 legitimacy 14, 272, 274, 285Millennium Development Goals 215–17,

228, 272, 282, 285non-discrimination 218–19, 221–3, 228,

272participation 218–21, 228, 282procedural dimension 214, 220, 282rights-holders and duty-bearers, concept

of 13, 15, 213, 217–18, 272–3, 284substantive dimension 197–8, 214, 220,

272universal right 214–15, 218–19, 272, 282

recreational use 196, 207, 279Red Cross, International Committee of

the 63–4refrigeration 181–2regional courts 272regularity of supply 136regulation 13, 110, 139religion see cultural and religious practicesrenewable resources 17–20reporting procedures 257–9, 271–2, 283reservations to treaties 66, 93resolutions see also General Assembly

(UN) resolutionCommission on Human Rights 79ECOSOC 75Human Rights Council 11–14, 37, 79–81,

96–9, 175, 178, 275–6

338 Index

resources 245–9accountability 225adequate standard of living, right to 125alternatives for realisation 154–5core obligations 122–3direct access 155fulfil, obligation to 247–9, 252, 255full realisation level 278indigenous water use 193infrastructure 281International Covenant on Economic,

Social and Cultural Rights 115–17levels of realisation of human rights

154–5participation 221prioritisation 154–5, 208, 210–11, 280–2progressive realisation, principle of

115–17, 125quantity of water 155respect, obligation to 108, 243socio-economic rights 103, 115–17, 232–4use of other resources 154–5

respect, obligation to 107–8, 243–5, 255Revised European Social Charter (Revised

ESC) 57–8, 186, 259right to a fair hearing 269–70right to adequate standard of living see

adequate standard of living, right torights-holders and duty-bearers, concept

of 13, 15, 213, 217–18, 272–3, 284Rio Declaration 83, 198Rio Summit 82–3, 144rivers 1, 25, 30–1, 34, 94–5rural areas 4–5, 31–2, 55, 61, 128–9, 165–6,

258–9

safety see physical safety; quality, safety and acceptability

saltwater intrusion 23–4, 26sanitation 127–9

adequate standard of living, right to an 173–4, 175–6

allocation of water 170–80, 203, 210, 278–81

Arab Charter on Human Rights 57availability of water 127–9basic access 179Cairo Programme of Action 176Committee on Economic, Social and

Cultural Rights 179constitutions 173–4Convention on the Elimination of All

Forms of Discrimination against Women 173, 175, 176

Convention on the Rights of the Child 173

core obligations 205, 281culture 177

definition 178–9dignity 176–7, 179direct access 180diseases 171ecological sanitation 179–80, 280education 171full realisation level 206funding 127General Assembly resolution 76, 77–8,

96, 175, 178, 275–6health, highest attainable standard of 173Human Rights Council resolution 175,

178International Covenant on Economic,

Social and Cultural Rights 175, 176–7Istanbul Habitat Agenda 176latrines 128–9, 172, 177, 179, 206, 280Millennium Development Goals 172–3,

215on-site solutions 179–80open defecation 170–1, 176pollution 25, 172, 180 prioritisation 170–80, 203, 219, 278–81privacy 177, 179progressive realisation, principle of 179rural areas 128separation from right to water 127–9sewage 1, 25, 170–2, 179–80, 253–5 survival level 179, 204urban slums 128wastewater 24, 25, 36, 172women and girls, physical security of

171, 177saving water 167–70, 187, 208, 279scarcity 7, 18–19, 22, 27Schachter, Oscar 74–5, 177sector, water uses by 27–31self-determination 195separation of powers 231, 232, 234, 247–8Sepúlveda, Magdalena 151sewage 1, 25, 170–2, 179–80, 253–5 Shue, Henry 107Small Island Developing States (SIDS)

65–6Social Covenant see International

Covenant on Economic, Social and Cultural Rights

social protection 56, 276socio-economic rights see also International

Covenant on Economic, Social and Cultural Rights

affordability 137binding nature of rights 104–6civil and political rights 50–2, 101–4,

107, 269core obligations 121–3direct applicability of international law

241–2

Index 339

European Convention on Human Rights 269–70

fulfil, obligation to 252, 255individual complaint mechanisms 267–70International Covenant on Civil and

Political Rights 50, 269judicial enforceability 103, 105–6justiciability 231–7legal nature of right to water 100–4life, right to 51–2positive interventions 101–4precision, lack of 104–5procedure 260progressive realisation, principle of 125resources 103, 232–4treaties and conventions 57–8, 103, 269–70Universal Declaration of Human Rights

73, 75–6, 103sources of water 17South Africa

affordability 138Basic Human Needs Reserve 146–8, 201 Constitution 91, 122–3, 231, 233–5,

242–53core obligations 148, 249–53Free Basic Water Policy 111, 138, 251–2 fulfil, obligation to 111, 245–54housing, right to 245–6Human Rights Commission 225–6indigenous water use 148International Covenant on Economic,

Social and Cultural Rights 66justiciability 231, 233–5personal and domestic use 146–8prioritisation 146–7, 148, 150, 208progressive realisation, principle of 245quantity of water 132reasonableness review 245–54resources 249respect, obligation to 243socio-economic rights 123, 233–4

Spain 80, 87, 239, 266Special Procedures 261–2, 271, 283, 285Special Rapporteur on Human Rights and

the Environment 199Special Rapporteur on Right to Food 89,

95, 263Special Rapporteur on Right to Health 89,

95, 263Special Rapporteur on Right to Housing

90, 95, 263Special Rapporteur on Right to Safe

Drinking Water and Sanitationestablishment 277Human Rights Council 277implementation of rights 89Independent Expert 88–9, 262mandate 261, 285

Millennium Development Goals 89reports 88–9sanitation 174–5, 178

Sphere Standards 132–3standard of living see adequate standard of

living, right to anstarvation 148–9, 153, 159state practice and opinio juris 66–97 statements of recognition 81–7Stockholm Declaration 198Sub-Commission on the Promotion and

Protection of Human Rights (UN) 89, 174, 262–3

subsistence farming 129–30, 164–7, 188, 192–3, 196, 202–7, 279

substitution 154–7, 167–8, 170, 205, 208–9, 279

suppliers 109–10survival obligations

clothing production 169, 204core obligations 121, 123, 153, 204–5emergencies 204food 204, 210health, right to 204levels of realisation of human rights 14,

153personal and domestic needs 157, 204power generation 183, 204quantity of water 131–2sanitation 204, 179subsistence farmers 204

tariff schedules 138Total Actual Renewable Water Resources

(TARWR) index 18–20taste, odour and colour 135, 278temperature changes 30thermal power generation 30third parties, interference from 108–10, 277 thought, conscience and religion, freedom

of 62Tomuschat, Christian 76trachoma 6, 48training 218transport 164, 168, 170, 184–5, 203, 279–80treaties and conventions see also individual

treaties adequate standard of living, right to

42–4, 56–7, 61–2, 65, 71–3, 276accessions and ratifications 66, 93, 275civil and political rights 57, 103cultural and religious practices 188–9customary international law 93, 95–6denunciation or withdrawal 66, 93ecosystems 57, 198–200food 57, 159guarantees 65–6health 56, 58, 275–6

340 Index

treaties and conventions cont.legal foundations of right to water

37–65, 98–9non-discrimination 112–14, 221–2objections 66opinio juris 93participation 219ratione loci scope (territorial scope) 37,

55–8, 64–5, 98, 275ratione personae scope (personal scope)

37, 55, 64–5, 98, 275regional treaties 198–200reporting procedures 256, 257, 259, 271,

273, 283reservations 66, 93socio-economic rights 57–8, 103, 269–70Vienna Convention on the Law of

Treaties 38, 42–4typhoid 5

United Kingdom 80, 87United Nations (UN) see also General

Assembly (UN) resolution; Human Rights Council (HRC) (UN); Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation

Charter-based enforcement instruments 256–65, 271, 283, 285

Commission on Human Rights 79, 88–9, 96, 259–60

Economic and Social Council 39, 75, 259–60, 270

High Commissioner for Human Rights 11–12, 90, 95, 105, 149–50, 276–7

Human Development Report (UNDP) 137indigenous people, declaration on

193–5, 203Special Procedures 88–90, 262 Special Rapporteur on Right to Food

89, 95Special Rapporteur on Right to Health

89, 95Special Rapporteur on Right to Housing

90, 95 Sub-Commission on the Promotion

and Protection of Human Rights Guidelines 174, 262–3

Treaty-based mechanism 256United States 34, 55–6, 66, 77universal coverage

Convention on the Elimination of All Forms of Discrimination against Women 65, 276

core obligations 119, 228 fulfil, obligation to 111 International Covenant on Economic,

Social and Cultural Rights 65, 275Millennium Development Goals 217

personal and domestic needs 215progressive realisation, principle of 215recognition as human right, benefits of

214–15, 218–19, 272, 282Universal Declaration of Human Rights

71–6, 95, 103, 106, 275Universal Periodic Review (UPR) (HRC)

256, 257, 263–5 urban areas 3–5, 21–5, 31–5, 61, 68, 108, 128

victims 218, 228–9, 284–5 Vienna Convention on the Law of Treaties

38, 42–4virtual water 28–9, 164vulnerable persons see non-discrimination

and the marginalised, disadvantaged or vulnerable

waiting and collection times 2, 5–6, 61, 135–6, 139, 223

waste 24–6, 79wastewater 24–6, 36, 172water-borne diseases 5–6, 171water quality see quality, safety and

acceptabilitywater scarcity 7, 18–19, 22, 27water stress, definition of 18–19water-washed diseases 6, 132wealthy households, consumption

patterns of 34–5women and girls see also Convention on

the Elimination of All Forms of Discrimination against Women (CEDAW)

accessibility 136, 223African Charter on Human and Peoples’

Rights, protocol to 56–7, 182, 276distance to water source 223education, right to 136, 171food, right to 57, 276non-discrimination 223open defecation, safety and 171participation 223physical safety 136, 171, 177rural areas 5sanitation 171, 177urban areas 61

work and livelihood 1–2, 185–7, 196, 206, 280World Health Organization (WHO) 132–5World Summit on Sustainable

Development (WSSD) 83–4, 96, 144, 172

World Water Day 86, 87World Water Fora (World Water Council)

84–5, 87, 96, 276World Water Forum declarations 84

Ziegler, Jean 46, 89