The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?
Bulto, Takele Soboka, Melbourne Journal of International Law
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
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. …