The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?

Beginning of article

Not until the UN Committee on Economic, Social and Cultural Rights ('CESCR') issued General Comment No 15 on the human right to water in 2002 was access to drinking and sanitation water authoritatively defined as a human right. The CESCR carved the right to water out of other related rights, an approach that has been criticised as 'revisionist'. Some argue that the CESCR went beyond state practice, inventing a previously non-existent right in an attempt to remedy a gap that states should have filled through treaty amendment. This article contends that the CESCR has in fact articulated a pre-existing right that had a prior autonomous, if latent, existence in the International Covenant on Economic, Social and Cultural Rights ('CESCR'). R also suggests that the CESCR approach to the analysis of the human right to water grounded the right on a narrowly defined legal basis, and that the CESCR inadvertently limited the scope of its scrutiny to the mainstream human rights regime. The article further argues that a meaningful analysis of the normative basis of the human right to water should read the ICESCR in conjunction with rules and principles of international environmental law and international water law. The combined use of these three legal regimes reveals that the right is not so much an 'invention' as a 'discovery ', since it has been recognised in the relevant rules of international treaties and is supported by growing state practice.

CONTENTS

I Introduction

II The Human Right to Water in the Texts of Human Rights Treaties

III Evolution through Interpretation: The CESCR General Comment No 15
    and Beyond
      A The Teleological Interpretation Approach
      B General Comment No 15 and Its Discontents

IV The Derivation Approach

V Recognition through the State Reporting Procedure: The CESCR
    Concluding Observations and States' Acquiescence
VI The Human Right to Water Outside the Human Rights Regime
      A Acceptance and Recognition in International Environmental
        (Soft) Law
      B The Human Right to Water in International Water Law

VII Conclusion

I INTRODUCTION

The birth of the human right to water has been both slow and controversial. Indeed, perhaps no other right in the catalogue of international socioeconomic rights has had its status and normative basis as contested as the human right to water. Not until after the UN Committee on Economic, Social and Cultural Rights ('CESCR') issued General Comment No 15 (1) on the human right to water (2) in 2002 has the right to drinking and sanitation water been authoritatively defined as a human right. (3) Save for some narrow exceptions, (4) the major UN human rights instruments do not make explicit mention of a fully-fledged human right to water. (5) Lacking comprehensive legal recognition in the major UN human rights instruments, the human right to water creates a hierarchy within a hierarchy, as it sits on the lowest rung of the already marginalised category of socioeconomic rights. The absence of a comprehensive guarantee for the human right to water in the universal human rights treaties has variously been dubbed 'odd, at best' (6) and 'startling'. (7) Humans can survive more than a month without food, but only about a week without water, as their bodies are between 60 and 80 per cent water by weight, depending upon the individual. (8) It is disquieting that a right so basic and fundamental for bare human survival has not been given explicit expression in the major UN human rights treaties.

Fresh attempts to establish the human right to water have been plagued by lack of legal articulation. (9) The CESCR has had to 'read in' (10) the right from the implicit terms of arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights ('ICESCR'), (11) which respectively provide for the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health. The CESCR thus broke new ground by unequivocally affirming that the ICESCR contains provisions that implicitly contain an autonomous human right to water. (12)

However, for all its innovative approaches to carving the human right to water out of other more explicit rights of the ICESCR, the CESCR and its General Comment No 15 have been criticised as 'revisionist', (13) and the CESCR's approach to the interpretation of arts 11 and 12 of the ICESCR has been criticised as 'unreflective'. (14) The CESCR has been admonished for inventing a novel right to water, (15) which has been referred to as a 'new-born thing', (16) in a way that--to these commentators--is at odds with or ahead of state practice or what states parties envisaged upon their ratification of or accession to the ICESCR. (17) The human right to water thus continues to be a favourite subject of academic controversy.

Arguments against the legal recognition of the right to water have taken two related approaches. To some, the right lacks an explicit and comprehensive expression in international human rights law, and does not exist as such. (18) To others, it can be derived from such rights as the right to health and the right to life, but its scope is limited. For example, it cannot be claimed except when the rights of which it is a component are threatened because of a lack of an adequate quantity or quality of water. (19) This is meant to imply that the right to water is a derivative or ancillary right, available only in the context of the other more explicit rights of the ICESCR. In this sense, the right to water is an auxiliary entitlement that is subservient to other explicitly protected rights, and is dependent on the main right in the interest of which access to water is guaranteed. (20) The right to water thus lacks an independent or free-standing status in its own right, and its realisation per se cannot be demanded. On this argument, access to drinking and sanitation water should be 'enveloped' with other rights and claimed as such.

Consequently, the normative terrain underlying the human right to water remains muddied. Academic literature on the human right to water has added to the prevailing confusion, and has given some credence to the reticence of many states to recognise and implement the right domestically. For instance, the UN General Assembly resolution that recognised water as a human right was passed with a positive vote of 122 states, but saw as many as 41 states abstaining in the belief that they did not owe a legal obligation to ensure the right towards their respective residents. (21) This is a doubly dangerous trend. For one, it allows states wide wriggle room to evade responsibility for realising the right. Indeed, General Comment No 15 of the CESCR came about because the Committee was alarmed by the fact that it was 'confronted continually with the widespread denial of the right to water in developing as well as developed countries'. (22) In the absence of formal recognition of the right, the correlative obligations of states to respect, protect and fulfil the right do not apply. (23) For another, fight holders would not be able to have their rights addressed or violations thereof remedied. Unless the right is firmly established, lack of access to basic drinking and sanitation water would give rise to a scenario where 'there is no breach of obligation, nobody at fault, nobody who can be held to account, nobody to blame and nobody who owes redress'. (24) In a situation of worsening scarcity of fresh water resources, and the increasing number of people without basic access to the same, (25) the analysis of the uncertainty surrounding the legal basis and status of the human right to water is not merely of academic interest. It is also part of addressing the practical problems of ensuring right holders' access to water for survival needs through its contribution to the clarification of the legal basis of the right and related state obligations. It may help relevant right holders, activists and litigants, policymakers and duty bearers in the interpretation, application or remedying of the right in question. (26)

This article argues that a free-standing human right to water has been an implied and latent component of other, more explicitly guaranteed, socioeconomic rights of the ICESCR and other water-related treaties. It demonstrates that General Comment No 15 of the CESCR has simply articulated a pre-existing right that had a prior autonomous existence and a firm legal basis in the ICESCR, supported by state practice and international environmental law and international water law. It also suggests that the CESCR approach to the analysis of the human right to water has grounded the right on a narrowly defined legal basis, as the scope of CESCR's analysis in General Comment No 15 was limited to the human rights regime. The article contends that a comprehensive analysis of the normative basis of the human right to water requires reading the ICESCR in conjunction with the rules and principles of international water law and environmental law. The combined use of these three legal regimes reveals that the right has been latently, as well as patently, recognised in the relevant rules of international treaties and that it has been supported by an increasing body of state practice.

Part II charts the normative basis of the human right to water in the texts of relevant human rights treaties. Parts III-V analyse three approaches to the 'discovery' of the human right to water, through which the CESCR grounded the human right to water in the latent corpus of international human rights law in general and the ICESCR in particular. Part VI analyses parallel developments beyond the human rights regime. It highlights that there has been rising recognition of the human right to water as part of debates on principles of international environmental law and international water law. Part VII draws the threads together and concludes that the human right to water is an independent entitlement, with its legal basis scattered in the ICESCR, international water law and environmental law regimes.

II THE HUMAN RIGHT TO WATER IN THE TEXTS OF HUMAN RIGHTS TREATIES

Notwithstanding the relative marginalisation that has characterised their implementation as compared to their civil and political counterparts, (27) international socioeconomic rights have passed the stage in their normative development where questions are asked as to whether they are rights per se, or mere aspirations of moral character, devoid of legal bite. (28) Legal protections of socioeconomic rights emerged much later than those afforded to civil and political rights whose standards have gone through long processes of progressive development, norm clarification and judicial scrutiny. (29) Indeed, socioeconomic rights came into full prominence only in the late 20th century. (30) As a consequence, the ambit, core content and attendant state duties relative to socioeconomic rights are still evolving. (31) Nevertheless, since these rights have been formally consecrated in international human rights treaties, the identification of a specific legal basis for the majority of socioeconomic rights guarantees has generally become an easier matter of locating a specific provision in the relevant human rights treaties. Even staunch critics of the international legal protection or justiciability of socioeconomic rights agree that this group of rights has now attained universal recognition. (32) The principal questions that arise in relation to these rights now pertain instead to how to enhance their justiciability and enforceability as well as the normative content of the entitlements and the corresponding state duties that their international recognition entails. As Martin Scheinin noted, '[t]he problem relating to the legal nature of social and economic rights does not relate to their validity but rather to their applicability'. (33) But as they are set out in explicit provisions in human rights treaties, questions about the very existence of the rights seldom arise. (34)

The same cannot be said about the human right to water. As noted at the outset, the human right to water is still vying for a status similar to the other, explicitly recognised, socioeconomic rights. A human rights treaty that mentions the right to water by name is more an exception than the norm. This temporarily stopped the UN Sub-Commission on the Protection and Promotion of Human Rights from appointing a Special Rapporteur on the right to water. The Commission, observing that the human right to water was undefined, had to temporarily postpone the appointment of its first Special Rapporteur on the human right to water. (35) It requested a Senegalese jurist, Mr El-Hadji Guisse, to investigate the status of the right to water for drinking and sanitation purposes. (36) Mr Guisse submitted his report on the right to water, (37) and was subsequently entrusted with the promotion and protection of the right as a Special Rapporteur on the same. (38)

The right to water has been such a 'great unknown' in the human rights catalogue that some have even asked 'if it is proper to name it [as a human right]'. (39) This has meant that questions are raised about the propriety of the use of a definite article before the right, as 'the' right to water as opposed to 'a' right to water. (40) The argument is that the human right to water cannot be accorded the same legal status and recognition as the other, more explicitly guaranteed, socioeconomic rights within the existing corpus of the international human rights regime. Some have even called for the adoption of a global convention that accords the right to water the status of a right per se. (41) Thus, any meaningful …