Abstract
The worldwide water crisis has become alarming in recent years due to factors including climate change, population growth and concomitantly increasing demands for water. This has made the world water situation challenging. In a large number of countries, water supplies are not adequate to satisfy even the minimum needs of the people. While international regulation of water has traditionally operated from the perspective of the State, recent human rights instruments have shifted the debate.
There is no universal treaty containing an explicit human right to water. Despite this lack, the UN General Assembly (UNGA) has adopted resolutions expressly recognising the human right to water, which has also been incorporated into the UN Sustainable Development Goals (SDGs). In this context, the aim of this paper is to examine the present status of the right to water in international law.
More and more countries are facing situations where their water supplies are unable to satisfy even the minimum needs of the people. Still, like air, water is essential to human life and thus for ensuring human wellbeing and dignity; education and development; and the healthy functioning of the environment and all of the world’s ecosystems. Lack thereof has severe effects on human health and exacerbates poverty. Over 800 million people live without access to safe water every day and every 20 seconds a child dies from a water-related illness due to inadequate access to safe water.
Water was for a long time, at best, a side issue on the international agenda. And as for the human rights agenda, even less mentioned. Fundamental human rights documents such as the Universal Declaration of Human Rights of 1948 (UDHR), 1 as well as the two covenants of 1966, 2 do not explicitly refer to a right to water.
This article seeks to identify the various attempts at establishing the human right to water under international law, regional regimes and State practice. It will address the question whether the existence of a human right to water can be considered as customary international law, as well as identifying the obligations such recognition would impose on States. The authors believe that access to water has been implicitly recognised as a human right by international mechanisms, regional agreements, State practice and various declarations. 35 However, these mechanisms have so far been unable to expressly establish the human right to water. As such, it is difficult to establish that it should be considered to be enshrined in customary international law. Accordingly, the human right to water has yet to achieve either international or local acceptance and applicability. In addressing these issues, this article considers two questions: (i) Is there a right to water? and (ii) What are the legal frameworks governing that right?
Background
Over a billion people in the developing world lack safe drinking water. Research has shown that nearly three billion people live without access to adequate sanitation systems, which are necessary for reducing exposure to water-related diseases such as typhoid fever, cholera and diarrhoea. Some societies provide no access to safe drinking water and sanitation facilities. Even vulnerable people living in rich countries often lack household-level access to safe water and sanitation facilities.
Average per capita water use ranges from 200–300 litres per person per day in most countries in Europe to less than 10 litres in countries such as Mozambique. People lacking access to improved water systems in developing countries consume far less, partly because they have to carry it over long distances and water is heavy. About 884 million people in the world rely on a water source that is more than one kilometre from their residence. Such people often use less than five litres a day of (possibly unsafe) water. Unfortunately, the basic water requirement for lactating women engaged in even moderate physical activity is 7.5 litres a day.
Depending on the context, “water” (and the water claims of States and people) has many different meanings. It can be defined in terms of quality, quantity, affordability, access, location and usage. To the extent addressed, the sustainable maintenance of water quality for future generations is primarily regulated by international environmental law. Humans claim water either individually (against other persons) or collectively (against States and other entities, including multinational corporations), often asserting their claims under the human rights legal regime. Traditionally, States have claimed rights to both non-navigational and navigational uses of water, encompassing both quality and quantity of water.
International civil society (represented by the International Law Association and the International Law Commission (ILC)) has made efforts to create legal regimes for the use of water by States since the late 1960s. 3 Specifically, the ILC completed a project to develop principles for non-navigational uses of international watercourses in 1994. A Working Group of the UNGA’s Sixth Committee finished drafting articles on the topic in 1997 and then the UNGA itself adopted the Convention on the Law of Non-Navigational Uses of International Watercourses (the UN Watercourses Convention) in May 1997, although it entered into force only in 2014. 4 This treaty covers non-navigational uses of international watercourses, such as surface waters and groundwater, 5 and includes measures to protect, preserve and manage them. 6 In this arena, States claim their rights vis-à-vis other States. The treaty emphasises the equitable and reasonable utilisation of an international watercourse, 7 the obligation not to cause significant harm, 8 and the obligation for States sharing a given watercourse to cooperate. 9 Water has also been addressed by international environmental law, which emphasises the sustainable development of water resources with an emphasis on maintaining and improving the quality of water for future generations. A series of declarations and action plans since the 1970s - the Stockholm Declaration, the Rio Declaration, 10 the New Delhi Statement, 11 the Dublin Statement on Water and Sustainable Development (“Dublin Statement”), 12 and Agenda 21 13 - have all emphasised the scarcity of fresh water and environmentally sustainable development of water resources for future generations. In Europe, the 1992 United Nations Economic Commission for Europe Convention on the Use of Transboundary Watercourses and International Lakes (the UNECE Water Convention) 14 followed this tradition and codified the general environmental principles relating to international water, such as the precautionary principle, the polluter pays principle and sustainable development. 15
The range of legal regimes (human rights, international environmental law, law of the sea, law on international watercourses and international humanitarian law) relevant to research on this topic makes it difficult to clearly delineate the issue. Oceans and seas are regulated by, inter alia, the UN Convention on the Law of the Sea, while the Law of International Watercourses focuses on surface waters and groundwater. 16
Traditional Approaches to Definition
What are “water rights”? At the outset it is important to clarify what is meant by the term. There is no universally agreed definition. Depending on the context and jurisdiction in which it is used, the term may mean quite different things. Water law (and thus water rights) reflects economic, social and cultural perceptions of water. Such perceptions are in turn shaped by a range of factors including geography, climate and the availability of water resources, as well as the uses to which water is put.
In discussing water rights, it is important to clearly recognise that each country faces unique water issues. What is normal and reasonable in one country as regards both the use and regulation of water may appear quite strange or even irrational elsewhere.
At its simplest, a water right is frequently understood to be a legal right to abstract and use a quantity of water from a natural source such as a river, stream or aquifer. 17 But water rights frequently go beyond an entitlement to a mere quantity: the flow of the water is also an important component of a water right. 18 Consequently a water right may confer a legal right to impound or store a specified quantity of water in a natural source behind a dam or other hydraulic structure. This may be as a precursor to abstraction or, as in the case of hydropower generation, it may relate to the use of water within the watercourse. This type of use is usually known as a “non-consumptive” use. In addition, a range of other activities involving water and watercourses are generally regulated either as part of a water rights regime, or at least in close coordination with it.
International Water Law
As examined in this article, international water law focuses on non-navigational uses of water and the development of international watercourses, although the two areas of law are concerned with the same object (water resources) and sometimes overlap.
The UN Watercourses Convention
The UN Watercourses Convention addresses the obligation of States to use an international watercourse in an equitable and reasonable manner, with a view to attaining optimal and sustainable utilisation. 19 It specifically states that “conflict between uses of an international watercourse ... shall be resolved ... with special regard being given to the requirements of vital human needs”. 20 Obviously this clause does not amount to an explicit recognition of a right to water; however, according to a statement by the committee that negotiated the Convention, “in determining vital human needs, special attention is to be paid to providing sufficient water to sustain life, including drinking water ... ”. 21 Thus, it is nevertheless an implicit reference to the fundamental importance of access to water, which must constitute the basis of every decision that State Parties are making within the Convention’s application. Consequently, the principle of “equitable utilisation” in Article 5 of the UN Watercourses Convention is evaluated through the lens of “vital human needs”. 22
Uses of international watercourses are subject to regulation by the State but, in water-scarce areas, actions by or within one State may directly or indirectly affect individuals living in another State, including the realisation of their human rights. Examples could include pollution of an international watercourse by a State facility, construction of a dam that withholds water and so on. On this point, Article 7.1 of the UN Watercourses Convention stipulates that “[w]atercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States”.
This Convention also reflects the so-called “no-harm rule”, as previously developed within international environmental law. 23 The no-harm rule is not an absolute prohibition on transboundary harm, rather a call for due diligence. The obligations of prevention of environmental harm and compliance are thus determined by consideration of a State’s reasonable conduct to avoid the harm. This was confirmed in the Pulp Mills case, in which Argentina and Uruguay argued before the International Court of Justice (ICJ) over the use of the Uruguay River. 24
The no-harm rule, however, does not provide legal grounds on which affected people could claim violations of their human rights, for one simple reason: the subject of the UN Watercourses Convention is the relation between co-riparian States and not between any State and individuals. In the Pulp Mills case, the ICJ referred to the rights of the riparian States rather than individuals; however, it went further to note that the “environment is not an abstraction but represents the living space, the quality of life and the very health of human beings”. 25 The fact that the court emphasised the need to protect the environment and the water of the river shows how strongly international water law, international environmental law and human rights law are connected. Thielbörger even argues that the statement of the court constitutes an indirect reference to the right to water. 26
The UNECE Water Convention
On the European level, although not an explicit recognition of the right to water, the 1999 Protocol on Water and Health 27 to the UNECE Water Convention is an example of the indirect incorporation of the right to water into treaties. For example, the Protocol specifically states, inter alia, that “[t]he Parties shall, in particular, take all appropriate measures for the purpose of ensuring ... adequate supplies of wholesome drinking water ... and [a]dequate sanitation of a standard which sufficiently protects human health and the environment”. 28 It also includes among the 14 “principles and approaches” that should guide Parties in implementing the Protocol that “ ... equitable access to water, adequate in terms of both quantity and of quality, should be provided for all members of the population, especially those who suffer a disadvantage or social exclusion”. 29 Regarding access to water and sanitation services, Article 6.1 provides that the Parties shall pursue the aims of “(a) Access to drinking water for everyone; [and] (b) Provision of sanitation for everyone within a framework of integrated water-management systems aimed at sustainable use of water resources, ambient water quality which does not endanger human health, and protection of water ecosystems”.
A year after adoption of the Protocol, a non-governmental organisation of environmental lawyers, the Conseil Européen du Droit de l’Environnement (European Council of Environmental Law or CEDE), adopted its own resolution 30 proposing recognition of a right to water. 31 The CEDE resolution considers that access to water is a part of a sustainable development policy which cannot be regulated by market forces alone and also that the right to water cannot be dissociated from the rights to food and housing, which it describes based on excerpts from the International Covenant on Economic, Social and Cultural Rights (ICESCR) 32 as recognised human rights, along with “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health closely linked to the right to health”, from all of which, the resolution states, the “right to water cannot be dissociated”. 33 On this basis, the first clause of the CEDE proposal states that “[e]ach person has the right to water in sufficient quantity and quality for his life and health”.
Human Rights and the Right to Water
Water is essential for the survival of mankind and a most basic need. Consequently, the enjoyment of the human right to water is a prerequisite for the enjoyment of life itself. The human right to water has been a subject of controversy over the decades. Several attempts have focused on the question of whether water, being a natural resource, should be considered a public good (giving everyone access to it) or privatised (making it a commodity). Bearing in mind the several international water meetings seeking to address this issue, coupled with attempts by nation-States to ascertain this concern, it can be stated that the mechanisms put in place have not been able to expressly recognise the human right to water. 34
Is There a Right to Water?
Article 25.1 of the 1948 UDHR declares that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food ... ”. 36
As noted above, the ICESCR, too, has been thought by some to provide the basis for a human right to water. In Article 11(1), it states “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. 37 This clause leaves it unclear whether the right to an adequate standard of living also includes a right to water. 38
In addition, Article 2(1) of the ICESCR, states that
[e] ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
According to McCaffrey in 1993, this provision signified that States were not under obligation to give an immediate effect to this right, as it was progressive in nature. 39 The interpretation of the provisions of the ICESCR, however, has taken a significant turn since the 2002 adoption of the General Comment No. 15 on the ICESCR, 40 in which the Committee stated its position that the human right to water falls within the category of guarantees under Article 11, which are essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions of survival. 41
General Comment No. 15 begins by calling on States to “adopt effective measures to realize, without discrimination, the right to water, as set out in this general comment”. 42 Article 2 states that, for the purpose of that document, “[t]he human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements”. 43
A valid question one may ask is “why push for recognition of a human right to water and sanitation now?” Catarina de Albuquerque, the former Special Rapporteur on the human right to safe drinking water and sanitation, posited that, although this human right could have been explicitly recognised when the ICESCR was designed and adopted by the UNGA in 1966, “[m]any countries whose populations suffered from a lack of access to water and sanitation were not directly represented at the negotiating table”. 44 More recently, the human right to water and sanitation has been referred to by some as a “strategy”, “approach” 45 or “idea”, 46 while others have focused on its internationally established foundation as a sort of transcending truth or value that must necessarily inform politics. 47
General Comment No. 15 notes that other uses of water have also been protected as elements of other human rights. For example, water is necessary to produce food (the right to food), to ensure environmental hygiene (the right to health) and to secure one’s livelihood (right to gain a living by work). Priority must be given both to water for personal and domestic uses and the water needed to meet the most essential aspects of each of these other human rights. 48
The justifications of a human right to water are drawn primarily from General Comment No. 15 and the Guidelines for the Realization of the Right to Drinking Water Supply and Sanitation (adopted by the UN Sub-Commission on the Promotion and Protection of Human Rights), 49 which taken together provide the most detailed account of the right to water and sanitation in international law. General Comment No. 15 also makes reference to other international standards that are relevant to specific components of the right to water. States should follow such standards, but should also interpret them in a manner consistent with the right to water set out in General Comment No. 15. 50
According to Stephen Tully, “the committee’s intention to render access to water an inherent right and not a mere tangential one is ill-served by a process of inference”. 51 He asserts that, since claims to scarce resources are properly questions of resource allocation, a more convincing textual interpretation to Article 11(1) could support an implied right to access water which is necessary for food growth or satisfaction of housing needs. 52 To him, water is a collective right as much as it is an individual right. 53
Specific Clauses of International Conventions and Agreements
The following are international instrument citations relevant to the concept of a human right to water: The 1979 Convention on the Elimination of all Forms of Discrimination against Women
54
stipulates at Article 14.2(h) that “States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right ... to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply”. By its terms, this right applies to rural women. Notwithstanding its restricted scope, however, it signifies a noteworthy development with regard to the advancement of the human right to water.
55
The 1989 Convention on the Rights of the Child stipulates at Article 24(2)(c) that “States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures ... [t]o combat disease and malnutrition ... through, inter alia, ... the provision of adequate nutritious foods and clean drinking-water ... ”.
56
As noted above, the UN Watercourses Convention also addresses basic human needs. Specifically, at Article 10(2), it stipulates that “in the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7,
57
with special regard being given to the requirements of vital human needs”. In the 2002 Report of the ILC to the UNGA, there are numerous commentaries on the provisions of the UN Watercourses Convention, prepared under the ILC’s Agenda item “Shared Natural Resources” in that year. Its commentary on Article 6 (“Factors relevant to equitable and reasonable utilization”), noted,
It should be recalled that, during the elaboration of the 1997 Watercourses Convention, the Working Group of the Whole took note of the following statement of understanding pertaining to “vital human needs”: In determining “vital human needs”, special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation.
58
The 1949 Geneva Convention relative to the Treatment of Prisoners of War includes four explicit references to the need that prisoners of war be provided sufficient access to water and sanitary facilities.
59
Article 28(2a) of the Convention on the Rights of Persons with Disabilities which came into force in 2008 stipulates that State Parties shall adopt measures, inter alia, “[t]o ensure equal access by persons with disabilities to clean water services ... ”.
60
In 2002, Article 11 of the ICESCR (which formalises the right to food) was formally interpreted by the Committee on Economic, Social and Cultural Rights
61
as follows:
Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The 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. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see general comment No. 6 (1995)). The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.
62
From a review of the instruments mentioned above, there appears to be no generalised guarantee of the human right to water, although specific rights to water have been enunciated as applying to certain categories of people such as persons with disabilities, women, etc. Even in these instances, according to McCaffrey, none of these agreements casts the corresponding entitlement in human rights terms but rather they place a duty on governments to ensure that water, as well as other things necessary to life and good health, are provided to members of groups that have been identified as requiring a special provision. 63 He also believes that the premise upon which governments have this obligation is supported by case laws pertaining to certain regional treaties. 64
By contrast, Razzaque believes that, quite apart from the human rights treaties, the UN Watercourses Convention enunciates an explicit right to water. 65 On this point, she observes the statement of understanding attached to the Convention which states that “special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for the production of food in order to prevent starvation”. 66 To further this view, Razzaque posits that, by virtue of the ECOSOC Comment on the right to water, the right to safe drinking water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is the most fundamental condition for survival. 67
Further Developments
Additional movement has been seen on the right-to-water issue during the past 12 years. In March 2008, the Human Rights Council (HRC) adopted a resolution expressing deep concern about the fact that over one billion people lack access to safe drinking water. This resolution was the beginning of the so called “Geneva Process” and led the HRC to mandate the three-year engagement of “an independent expert on the issue of human rights obligations attached to access to safe drinking water and sanitation”. 68 On the basis of this work, further significant developments occurred, including a UNGA resolution in July 2010 69 and another HRC resolution, 70 both expressly recognising the human right to water and sanitation. The initial role of the independent expert was renewed and given the new name “Special rapporteur on the human right to water and sanitation”. This was a major step as the title is expressed in direct human rights language.
More directly, in 2015, the UNGA adopted a new set of 17 sustainable development goals (SDGs), as successor to the previous millennium development goals (MDGs), recognising that, despite their political strength, the MDGs fell short of realisation of human rights, particularly in leaving 800 million people still without sustainable access to water. Unlike the MDGs, the SDGs are drafted to have universal applicability and contain clear targets, written in clear direct human rights language.
That December, the UNGA adopted another resolution, reaffirming and clarifying its earlier resolution on the human rights to water and sanitation. This resolution discussed water and sanitation as separate rights, apparently making a distinction between them while acknowledging that they are dependent on each other. 71 This resolution was followed by a HRC resolution in September 2016 reaffirming the statement on the right to water and right to sanitation as separate rights, while also extending the mandate of the special rapporteur for another three years. 72
Even after these developments, the basic legal questions still remain: What legal implications do all these various instruments have? Can one now say that an independent human right to water exists in international law?
National Legislation and Judicial Decisions
As noted above, some suggest that the State has a duty to protect the right to water and sanitation by ensuring that third parties do not interfere with any person’s access to water and sanitation, such as through pollution or inequitable extraction of water. Where the private sector controls the water supply and sanitation services, the State is required to regulate, establish independent monitoring, enable genuine public participation and adopt penalties for non-compliance in order to ensure that equal, affordable and physical access to sufficient, safe and acceptable water and basic sanitation is maintained for all.
Several national legal systems have developed legislation that recognises the right to water. 73 On the African continent, the constitutions of Kenya 74 and South Africa 75 explicitly provide for the right to water. In South America, the Bolivian 76 and the Uruguayan 77 constitutions also stipulate that access to water is a human right.
In various contexts throughout the past few decades, national judges have increasingly, although indirectly, recognised the human right to water, citing the inter-related nature of access to water with other human rights, even where no human right to water has even been formally recognised in the relevant country’s legislation. For example, in the 1999 case of Ademar Manoel Pereira x Companhia Catarinense de Água e Saneamento (CASAN), 78 it was judged that the disconnection of a resident’s water supply for non-payment amounted to a reprehensible, inhuman and illegal act; it stated that the water supply was a fundamental public service, essential and vital for human beings; and stated that such a service cannot be suspended for late payment of respective fees, as the public administration has reasonable means to recover debts. 79
Several other judicial decisions in the past three decades, in addressing the right to life, have implied the existence of a right to water. An example in international law was enunciated in connection with the ICJ’s Gabcikovo-Nagymaros case 80 where Judge Weeramantry, in a separate opinion, stated that “[t]he protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself”. 81
In similar vein, in the case of Perumatty Grama Panchayat v. State of Kerala, India, the High Court of Kerala held that the “State has got a duty to protect against excessive [groundwater] exploitation and the inaction of the State in this regard will [sic] tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India”. 82
These cases lead the author to conclude that States have specific, core and general obligations to respect the right to water both internationally and nationally, as well as a general obligation to realise it progressively. 83
Conclusion
As discussed above, water is an important and integral part of several different areas of law that in many cases intertwine and connect to human rights law. The core human rights instruments do not recognise a human right to water explicitly, but it can be implied in already recognised rights. The documents containing provisions that do explicitly recognise the right to water have only limited applicability.
A universal right to water may be implied in the ICESCR under the right to an adequate standard of living and the right to health. Whether this provision represents an independent or derived right has been debated, although the majority supports the view that the right to water is a derived right. This academic debate, however, needs to move beyond the prevailing controversy surrounding the existence or absence of the human right to water. Although such a right would be an important accomplishment, it can be argued that the ICESCR provision is insufficient to achieve this, since the true value of a human right lies in its effective implementation. Although 171 States have ratified the ICESCR, it is a “soft” covenant. Not all States have agreed to it or to its statement of the right to water.
An independent right to water enshrined in customary law would have universal applicability and thus effectively bind all States regardless of whether they have ratified the ICESCR. Such a norm may also allow courts to directly apply the right to water, without having to refer to and be bound by other human rights. This would further allow for the development of a more comprehensive system of protection. 84 Despite three decades of international development, an independent right to water has not yet been developed either as a new interpretation of existing rights or as a new customary norm. At present, the right to water is still only considered as, at most, implicit in the ICESCR.
The next step is legal – the determination whether such a right has become a customary rule of international law. In this connection, there are certain factors that need to be taken into account such as uniformity, consistency, duration and the generality of State practice. To date, it appears evident that the practice of UN Member States regarding the right to water is, at minimum, not uniform.
While it is clear that challenges lie ahead, it is important to also see the progress that has been made in recent decades, potentially accelerating international recognition, discussion and reflection on the subject of a right to water. Elements within this study indicate that the right to water could be the subject for a future customary norm or even a general principle of law and thus, become an independent human right. Ultimately, although there are signs of the right to water evolving, it cannot be said to have developed fully through the instruments described in this article, even if the international community is starting to respond to the right to water more and more positively.
Footnotes
UN General Assembly, “Universal Declaration on Human Rights”, 10 December 1948, UN Doc. Res 217 A (III).
International Covenant on Civil and Political Rights, 16 December 1966, UNTS, Vol. 999; and International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS, Vol. 993.
See International Law Association, “The Helsinki Rules on the Uses of the Waters of International Rivers”, UN Doc. A/CONF. 52/ 484 (1967).
Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention), Articles 9 and 21 (opened for signature 21 May 1997, entered into force 17 August 2014). Report of the Sixth Committee, UN Doc. A/51/869 (11 April 1997).
The treaty did not expressly cover aquifers.
Supra, note 4, Article 1.
Ibid., Articles 5 and 6.
Ibid., Article 7.
Ibid., Article 8.
United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, June 3-14, 1992, Rio Declaration on Environment and Development, Principle 3. UN Doc symbol A/CONF.151/5/Rev.1, 31 I.L.M. 874 (1992).
Global Consultation on Safe Water and Sanitation, New Delhi Statement, A/C.2/45/3 (1990).
Ibid., Vol. II.
The Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992 (entered into force, 1996). UNTS Reg I-33207; 1936 U.N.T.S. 269.
Ibid.
McCaffrey, S.C. 1993. “A Human Right to Water: Domestic and International Implications”. Georgetown International Environmental Law Review 5(3): 1–24.
Ibid.
Ibid.
Supra, note 4, at Article 5.
Ibid., Article 10.2 (emphasis added).
UN Convention on the Law of the Non-Navigational Uses of International Watercourses – Report of the sixth Committee Convening as the Working Group of the Whole, UN Doc symbol A/51/869, 11 April 1997.
de Vido, S. 2012. “The Right to Water: From an Inchoate Right to an Emerging International Norm”. Revue belge de droit international 2: 517–564, at 524.
Brownlie, I. 2008. Principles of Public International Law. 7th edition, at 275–285. Oxford University Press.
Case concerning the Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006; and Case concerning the Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, I.C.J. Reports 2010, p. 14.
Ibid., Order of 13.
Thielbörger, P. 2014. The right(s) to water – The multilevel governance of a unique human right, at 64. Berlin/Heidelberg: Springer Verlag.
UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, London, 17 June 1999 (entered into force 4 August 2005). UNTS Ref. A-33207.
Ibid., Article 4.2(a) and (b).
Ibid., Article 5(l).
CEDE Resolution, adopted on 28 April 2000. Reproduced in full in Environmental Policy and Law 30(5): 265.
Ibid., Preamble.
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 January 1976).
Smets, H. 2000. “The Right to Water as a Human Right”. Environmental Policy and Law 30(5): 248–250.
Razzaque, J. 2004. “Trading Water: The Human Factor”. Review of European Community & International Environmental Law 13(1): 15–26.
Ibid.
Universal Declaration of Human Rights, UNGA Resolution 217/1948. UN Doc. symbol A/64. [Article 25.1 in full: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. Ed.]
Supra, note 32, Article 11(1).
Supra, note 16.
Ibid.
United Nations Committee on Economic, Social and Cultural Rights. 26 November 2002. “General Comment No. 15, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights”. Adopted 20 January 2003 at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights. UN Doc symbol E/C.12/2002/11. Available at 
.
Ibid., at para. 3.
Supra, note 36, Article 1.
Ibid., Article 2.
de Albuquerque, C. 2014. Realizing the human rights to water and sanitation: a handbook by the UN Special Rapporteur Catarina de Albuquerque. Lisbon: UN.
Gupta, J., Ahlers, R. and Ahmed, L. 2010. “The human right to water: moving towards consensus in a fragmented world”. Review of European Community and International Environmental Law 19(3): 294–305.
See CESCR General Comment No. 15: The Right to Water (Articles 11 and 12 of the Covenant), 20 January 2003, UN Doc. E/C.12/2002/11, para. 6.
Guidelines for the Realization of the Right to Drinking Water and Sanitation (in Realization of the Right to Drinking Water and Sanitation, Report of the Special Rapporteur, El Hadji Guissé, United Nations Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-seventh session, Economic, Social and Cultural Rights). UN Doc symbol E/CN.4/Sub.2/2005/25. [Subsequently adopted in UNGA Resolution 2006/10, “Promotion of the Realization of the Right to Drinking Water and Sanitation, Report of the Sub-Commission on the Promotion and Protection of Human Rights”, Fifty-eighth session, UN Doc symbol A/HRC/Sub.1/58/L.11]. Available at .
Supra, note 48.
Tully, S. 2005. “A Human Right to Access Water? A Critique of General Comment No. 15”. Netherlands Quarterly of Human Rights 23(1): 35–63.
See supra, note 37.
Supra, note 51.
United Nations Convention on the Elimination of All Forms of Discrimination against Women. Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979, entry into force 3 September 1981, in accordance with Article 27(1). Available at . Accessed 20 January 2020.
[Articles 5 through 7 of the UN Watercourses Convention are titled “Equitable and reasonable utilization and participation”, “Factors relevant to equitable and reasonable utilization” and “Obligation not to cause significant harm” respectively. Ed.]
[As it describes itself, this committee “is the body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its States parties. The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the United Nations Economic and Social Council (ECOSOC) in Part IV of the Covenant”. Ed.]
Supra, note 40, para. 3. (Citations omitted).
Supra, note 16.
Ibid.
Supra, note 34.
Ibid.
Ibid.
HRC Resolution 7/22, Human Rights and Access to Safe Drinking Water and Sanitation, 28 March 2008, UN Doc. A/HRC/RES/7/22, para. 2.
UNGA Resolution, The Human Right to Water and Sanitation, 28 July 2010, UN Doc. A/RES/64/292.
HRC Resolution, Human Rights and Access to Safe Drinking Water and Sanitation, 30 September 2010, UN Doc symbol A/HRC/RES/15/9.
UNGA Resolution, The Human Rights to Safe Drinking Water and Sanitation, 17 December 2015, UN Doc symbol A/RES/70/169.
HRC Resolution, The Human Rights to Water and Sanitation, 29 September 2016, UN Doc. A/HRC/RES/33/10.
Centre on Housing Rights and Evictions (COHRE). 2004. “Legal Resources for the Right to Water: International and National Standards”. COHRE Sources 8.
The Constitution of the Republic of South Africa, 1999. Available at . Article 27(1)(b) states that “everyone has the right to have access to ... sufficient ... water”. It has also been stated that when it comes to implementing the right to water, South Africa is one of the pioneers. Supra, note 55. South Africa implements its human right to water in the form of a free basic water policy based on the provisions of the Water Services Act of 1997 and the Water Services Regulation of 2001.
Superior Tribunal de Justiça (STJ). Recurso Especial n 201.112 SC(99/0004398-7). 1999 April.
Ibid.
Ibid.
Perumatty Grama Panchayat v. State of Kerala (2004) 1 KLT 731. See also the cases of Charan Lal Sahu v. Union of India, AIR (1990) 1480; Subhash Kumar v. State of Bihar (1991) 1SCS 598; M.C. Mehta v. Union of India (1998) 9 SCC. 598, particularly at 607; and F.K. Hussain v. Union of India (1990) Kerala 321, at 340.
Pejan, R. 2004. “The Right to Water: The Road to Justiciability”. George Washington International Law Review 36(5): 1181–1210, at 1186.
Supra, note 22.