The Human Right to Water and International Economic Law

Roberta Greco

• Editorial: Routledge
• Año: 2022
• ISBN:
  9781000217469
• Edición: 1
• Categoría: Betriebswirtschaft
• Categoría: Wirtschaftsrecht

This book discusses the international right to water and the liberalization of water services. It is concerned with the harmonization of the right to water with the legal systems under which liberalization of water services has taken or may take place. It assesses paths of harmonization between international human rights law and international economic law in this specific field.

The issue of the compatibility between the fulfilment of the right to water and the liberalization of water services has been at the heart of a passionate public debate between opponents and advocates of the privatization of the utility. The book provides an unbiased analysis of different international legal regimes under which the liberalization of water services has occurred or is likely to occur, notably international investment law, international trade law and European Union law, in order to assess whether the main features of the right to water can be guaranteed under each of these systems of law and whether there is space for prospective harmonization.

The work will be an invaluable resource for academics, researchers and policy-makers working in the areas of International Human Rights Law, International Economic Law, International Water Law, International Trade Law and EU Law.

Chapter II THE HUMAN RIGHT TO WATER UNDER INTERNATIONAL LAW

Summary: 1. Introduction. – 2. The legal basis of the human right to water. – 2.1. Treaty legal basis. – 2.1.1. The right to water as a derivative right. – 2.2. The emergence of a customary human right to water. – 2.2.1. State practice. – 2.2.1.1. International treaties. 2.2.1.2. Regional instruments. – 2.2.1.3. Statements by States and conduct within international organizations. – 2.2.1.4. National constitutions and legislation. – 2.2.1.5. Domestic case law. – 2.2.2. States’ opinio juris. – 2.2.3. A right in statu nascendi or already born? – 2.3. General principles of international law. – 3. The content of the human right to water. – 3.1. The content of the right to water derived from Article 11 ICESCR. – 3.1.1. Subsequent agreement on the interpretation of Article 11 ICESCR. – 3.2. The content of the customary right to water. – 4. The obligations stemming from the human right to water. 4.1. The nature and content of the obligations. – 4.2. The subjects responsible for their implementation. – 4.3. The territorial extension of the obligations. – 5. The role of international judges and quasi-judicial compliance mechanisms in the identification and formation of the human right to water. – 5.1. International human rights mechanisms. – 5.2. Regional human rights tribunals and compliance mechanisms. – 5.3. International investment tribunals. – 6. Conclusion.

1. Introduction

Since water resources began to be perceived as scarce and a source of concern, different approaches have been taken to face water-related problems. On the one hand, water has been subjected to private appropriation, priced and treated as a market product. On the other hand, various declarations, resolutions, as well as expert documents, have begun to refer to safe drinking water in terms of human needs and subsequently as a human right.

The first instrument addressing the subject was the 1972 Stockholm Declaration, adopted at the end of the UN Conference on the Human Environment, which recognized that the natural resources of the earth, including water, must be safeguarded for the benefit of present and future generations.¹

¹ Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, Principle 2.

A few years later, the UN Water Conference² was held to address specifically water-related issues. Its final report includes the Mar del Plata Action Plan,³ namely the first instrument to declare that all people “have the right to drinking water in quantities and quality equal to their basic needs” and to recommend national policies to “give priority to the supplying of drinking water for the entire population”.⁴

² United Nations Water Conference, Mar del Plata, 14 — 25 March 1977. ³ General Assembly, Res. 32/158, 19 December 1977, UN Doc. A/RES/32/158. ⁴ Mar del Plata Action Plan, United Nations Water Conference, Mar del Plata, 14-25 March 1977, pp. 63-64.

Following the Action Plan recommendations, the General Assembly launched the International Drinking Water Supply and Sanitation Decade (1981-1990) with the aim of providing safe drinking water and sanitation to unserved urban areas by 1990,⁵ and proclaimed 22 March as the World Day for Water.⁶

⁵ General Assembly, Res. 35/48, 10 November 1980, UN Doc. A/RES/35/18. ⁶ General Assembly, Res. 47/193, 22 December 1992, UN Doc. A/RES/47/193, 22 February 1993.

The Global Consultation on Safe Drinking Water and Sanitation for the 1990s assessed the experiences of the preceding decade. Its conclusions and recommendations, summarized in the New Delhi Statement,⁷ showed that notwithstanding the progresses made during the 1980s, one third of the developing countries’ populations still lacked safe drinking water and sanitation. Under the slogan “[s]ome for all rather than more for some”, the Statement called upon States to achieve universal coverage of safe drinking water and sanitation by the end of the century, suggesting principles for improving water management and increasing investments.⁸

⁷ New Delhi Statement, adopted at the Global Consultation on Safe Drinking Water and Sanitation for the 1990s, New Delhi, 10-14 September 1990, and then transmitted to General Assembly, UN Doc. A/C.2/45/3, 11 October 1990. ⁸ The four Guiding Principles read as follows: “1. Protection of the environment and safeguarding of health through the integrated management of water resources and liquid and solid wastes; 2. Institutional reforms promoting an integrated approach and including changes in procedures, attitudes and behaviour, and the full participation of women at all levels in sector institutions; 3. Community management of services, backed by measures to strengthen local institutions in implementing and sustaining water and sanitation programmes; 4. Sound financial practices, achieved through better management of existing assets, and widespread use of appropriate technologies”.

Further international conferences dealt with the need to optimize the use of fresh-water resources and to guarantee access to safe drinking water and sanitation to all. In 1992, two major conferences took place, the International Conference on Water and the Environment and the Rio Conference on Environment and Development, which respectively gave rise to the Dublin Statement on Water and Sustainable Development⁹ and to Agenda 21.¹⁰ Principle No. 4 of the Dublin Statement is often recalled for having affirmed, on the one hand, that “[w]ater has an economic value in all its competing uses and should be recognized as an economic good” and, on the other, that “it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price”.¹¹ In a similar way, Agenda 21 established that “[i]n developing and using water resources, priority has to be given to the satisfaction of basic needs and the safeguarding of ecosystems”.¹² The problem of freshwater scarcity was later addressed by the General Assembly in the Programme for the further implementation of Agenda 21, which underlined the urgent need for actions against the unsustainable use patterns of freshwater and increasing stress in water supplies.¹³

⁹ Adopted at the International Conference on Water and the Environment, 26-31 January 1992, Dublin. Note by the Secretary-General of the Conference transmitting the report of the Conference on Water and the Environment, UN Doc. A/CONF151/PC/112. ¹⁰ Agenda 21, Chapter 18, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, A/CONF.151/26/Rev.1, Resolution adopted by the Conference, resolution 1, annex II. ¹¹ Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment, Dublin, 26-31 January 1992. ¹² Agenda 21, para. 18.8 (n 10). See also para. 18.47. ¹³ General Assembly, Res. S-19/2, annex, Programme for the Further Implementation of Agenda 21, 19 September 1997. See Section III, paras. 34-35 and also Section III, para. 27(b) where the quest for eradicating poverty requires, inter alia, to provide universal access to basic social services including clean water and sanitation.

In the 1990s, water issues were often linked to the push for development. Principle No. 2 of the Cairo Principles, adopted at the end of the 1994 UN International Conference on Population and Development, recognised the right of all human beings to an adequate standard of life, including water and sanitation.¹⁴ The General Assembly affirmed, for the first time, that the promotion of the right to food and clean water “constitutes a moral imperative for national Government and for international community”.¹⁵ The Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Mr. El Hadji Guissé with the task of drafting a report on the promotion of the realization of the right to drinking water and sanitation. The Report ended up by recommending further in-depth study on the relationship between the enjoyment of economic, social and cultural rights, the right to development and the question of access to drinking water and sanitation.¹⁶

¹⁴ Programme of Action, Report of the United Nations International Conference on Population and Development, Cairo, 5-13 September 1994, chapter I, resolution 1, annex, UN publication, Sales No. E.95 XIII 18 See also the Habitat Agenda, issued at the end of the second UN Conference on Human Settlements. The Habitat Agenda Goals and Principles, Commitments and the Global Plan of Action, adopted at the II Habitat conference, Istanbul, 3-14 June 1996. ¹⁵ General Assembly, Res. 54/175, 17 December 1999, UN Doc. A/RES/54/175, 15 February 2000, para. 12(a). ¹⁶ Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, The realization of economic, social and cultural rights, The right of access of everyone to drinking water and sanitation services, working paper by Mr. El Hadji Guisse, Special Rapporteur, under Sub-Commission resolution 1997/18, UN Doc. E/CN.4/Sub.2/1998/7, 10 June 1998. By Decision 2002/105, 22 April 2002, the Comm...