Ambition that overleaps itself? A response to Stephen Tully's critique of the general comment on the right to water

Netherlands Quarterly of Human Rights

Volumn 24, Issue 3, 2006, Pages 433-459

  Langford, Malcolm ^a  

^a Centre on Housing Rights and Evictions

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[No Author keywords available]

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EID: 36549038576     PISSN: 01693441     EISSN: None     Source Type: Journal    
DOI: 10.1177/016934410602400304     Document Type: Article

References (153)

1. Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (29th Session, 2003), UN Doc. E/C.12/2002/11 (2003).
2. Tully, S., 'A Human Right to Access Water? A Critique of General Comment No. 15', Netherlands Quarterly of Human Rights, Vol. 23, No. 1, 2005, pp. 35-63.
3. Ibidem, p. 35.
4. Dworkin argues that the ideal judge would seek to marry in each interpretation the principles of fairness, justice and due process: See Dworkin, R., Law's Empire, Balknap Press of Harvard University Press, Cambridge, 1986.
5. Dworkin's theory has been criticised, most notably for overlooking post-modernist concerns. See Fish, S., 'Working on the Chain Gang: Interpretation in the Law and in Literary Criticism', in: Mitchell, W. (ed.), The Politics of Interpretation, University of Chicago Press, Chicago, 1983, pp. 271-286;
6. and Dworkin, R., 'My Reply to Stanley Fish (and Walter Berm Michaels): Please Don't Talk about Objectivity Anymore', in: ibidem, pp. 287-313. Dworkin does acknowledge that law is essentially a 'social construction' and that individual judicial prejudice will influence legal interpretation. However, his central point, that judges mostly seek to, or should seek to, operate with a certain interpretive framework with a sufficient level of integrity, remains persuasive.
7. 23 May 1969, 1155 United Nations Treaty Series 331.
8. Economic and Social Council Resolution 1990/45, para. 10.
9. See, e.g., 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, Commission on Human Rights Resolution 2003/18, para. 11(a)(ii).
10. Tully also makes a passing claim that sanitation is only relevant to the right to health and that the effective inclusion of access to sanitation under Article 11 in General Comment No. 15 is a mistake. This argument can be dealt with briefly. The Committee has included sanitation under the cover of Article 11 as far back as 1991 in General Comment No. 4 on the Right to Housing, a document Tully approves of. Further, to argue that sanitation is simply a health issue ignores the fundamental issues of personal dignity and safety that surround the lack of adequate and accessible toilet facilities.
11. He states that 'a more convincing textual interpretation to Article 11(1) could support an implied right to access water necessary to grow food or satisfy housing needs'. Tully, loc.cit. (note 2), p. 37.
12. Ibidem, p. 43.
13. General Comment No. 15, op.cit. (note 1), para. 3.
14. The UNDP notes, 'Diarrhoea is a major killer of young children: in the 1990s it killed more children than all the people lost to armed conflict since the Second World War'; Human Development Report 1993, Millennium Development Goals: A compact among nations to end human poverty, Oxford University Press, New York, 2003, p. 9.
15. See, for example, Cranston, M., What are Human Rights?, Taplinger, New York, 1973;
16. and Alston, P., 'Conjuring Up New Human Rights: A Proposal for Quality Control', American Journal of International Law, Vol. 78, 1984, pp. 607-621. According to Cranston, there are three criteria: (1) the right can be universally enjoyed; (2) the entitlement is of paramount importance; and (3) can be ensured in practical terms. While these criteria were meant to preclude economic, social and cultural rights, an informed understanding of the current practice and jurisprudence on these rights would make one unhesitatingly accept that ESC rights, including the right to water, meet Cranston's criteria. Alston on the other hand, adopts a procedural methodology. Human rights, in international law at least, are those declared, after careful consideration, by the United Nations General Assembly. This approach is perhaps more compelling in terms of achieving clarity in the midst of competing claims. However, it is not relevant to the current discussion since the key issue is whether the right to water is contained in Article II of a particular treaty and not in the general principles or international law or emerging or solidified customary international law. Nevertheless, the human right to water was affirmed by a UN conference of States in 1977 but it was not under the specific mantle of the General Assembly.
17. Recommendation 14 (2001), para. 5.
18. Idem.
19. The recommendation, idem, also states in paragraph 5: 'Social measures should be put in place to prevent the supply of water to destitute persons from being cut off. Paragraph 19 sets out a user pays system subject to the right to water: 'Without prejudice to the right to water to meet basic needs, the supply of water shall be subject to payment in order to cover financial costs associated with the production and utilisation of water resources.'
20. See quotation in note 10 supra.
21. Cf. McCaffrey, S., 'A Human Right to Water: Domestic and International Implications', Georgetown International Environmental Law Review, Vol. V, No. 1, 1992, pp. 1-24;
22. Gleick, P., 'The Human Right to Water', Water Policy, Vol. 1, No. 5, 1999, pp. 487-503;
23. Smets, Henri, 'Le Droit de chacun a l'eau' [The right of everyone to water], Revue européenne de droit de l'environnement, No. 2, 2002, pp. 123-170;
24. Vidar, Margret and Mekouar, Mohamed Ali, 'Water, Health and Human Rights', WHO, Geneva, 2001;
25. Salman, S. and McInerney-Lankford, S., The Human Right to Water: Legal and Policy Dimensions, World Bank, Washington DC, 2004;
26. McCaffrey, S., 'The Human Right to Water Revisited', in: Brown Weiss, E., Boisson De Charzounes, L. and Bernasconi-Osterwalder, N. (eds), Water and International Economic Law, Oxford University Press, Oxford, 2005.
27. Dennis, M. and Stewart, D., 'Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?', American Journal of International Law, Vol. 98, 2004, pp. 462-515.
28. See discussion supra at note 6.
29. See Commission on Human Rights, Experiences with legal enforcement of the right to education as food-for-thought in exploring models for an optional protocol to the International Covenant on Economic, Social and Cultural Rights, Information provided by the Special Rapporteur on the Right to Education, Ms Katarina Tomaševski, UN Doc. E/CN.4 /2004/WG.23/CRP.4, para. 8.
30. Committee on Economic, Social and Cultural Rights, General Comment No. 5, Persons with disabilities, 11th session, 1994, UN Doc. E/1995/ 22, at 19 (1995), para. 2. In particular see the World Programme of Action concerning Disabled Persons, adopted by the General Assembly by its Resolution 37/52 of 3 December 1982, para. 165; and Commission on Human Rights in Resolutions 1992/48, para. 4, and 1993/29, para. 7.
31. See discussion at notes 7-8 supra.
32. See Commission on Human Rights, Summary Record of the Two Hundred and Seventh Meeting, 7th Session, 19 April 1951, UN Doc. E/CN.2/SR.207;
33. Commission on Human Rights, Summary Record of the Two Hundred Ninth Meeting, 7th Session, 20 April 1951, UN Doc. E/CN.4/SR.209;
34. Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Second Meeting, 7th Session, 2 May 1951, UN Doc. E/CN.4 /SR.222;
35. Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Third Meeting, 7th Session, 2 May 1951, UN Doc. E/CNA/SR.223;
36. Commission on Human Rights, Summary Record of the Two Hundred and Ninety-Sixth Meeting, 7th Session, 15 May 1952, UN Doc. E/CN.4/ SR.296; Third Committee of the General Assembly, 6th Session, 369th Meeting, 18 December 1951, UN Doc. A/AC.3/SR.369; Third Committee of the General Assembly, 11th Session, 739th Meeting, 23 January 1957, UN Doc. A/AC.3/SR.739; Third Committee of the General Assembly, 11th Session, 740th Meeting, 24 January 1957, UN Doc. A/AC.3/SR.740; Third Committee of the General Assembly, 11th Session, 742nd Meeting, 25 January 1957, UN doc. A/AC.3/SR.742; Third Committee of the General Assembly, 11th Session, 739th Meeting, 28 January 1957, UN Doc. A/AC.3/SR.743.
37. The debates do not clearly indicate whether those proposing the simplified versions viewed food, clothing and housing as merely component elements or independent rights. The Australian representative thought that housing did not require specific mention since he remarkably hoped the problem would soon disappear. See Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Second Meeting, 7th Session, 2 May 1951, UN Doc. E/CN.4/SR.222, p. 20.
38. See Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Second Meeting, 7th Session, 2 May 1951, UN Doc. E/CNA/SR.222;
39. Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Third Meeting, 7th Session, 2 May 1951, UN Doc. E/CN.4/SR.223.
40. Gleick, loc.cit. (note 19), makes this argument.
41. Third Committee of the General Assembly, 11th Session, 742nd Meeting, 25 January 1957, UN Doc. A/AC.3/SR.742, para. 39. Mrs Mehta, representative of India stated that 'the idea of an adequate standard of living could be expanded to include education, health and so on. In the article under discussions essentials only should be included. The three most important were housing, food and clothing.' Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Third Meeting, 7th Session, 2 May 1951, UN Doc. E/CN.4/SR.223.
42. Mr Cassin, representative of France, stated that the 'standard of living was fundamentally a very general concept' and 'The Commission should have the courage to make a selection because it could not hope to include all economic and social rights in the Covenant'. Commission on Human Rights, Summary Record of the Two Hundred and Twenty-Second Meeting, 7th Session, 2 May 1951, UN Doc. E/CN.4/SR.222. The Danish representative noted the difficulty of drafting a Covenant 'which would deal with the whole gamut of human rights'.
43. See Commission on Human Rights, Summary Record of the Two Hundred and Seventh Meeting, 7th Session, 19 April 1951, UN Doc. E/CN.2/SR.207, p. 9.
44. UN Water was established in September 2003 to promote coherence in, and coordination of, UN actions aimed at the implementation of the agenda defined by the Millennium Declaration and the World Summit on Sustainable Development. It coordinates 23 different United Nations agencies working on the topic. See Terms of Reference - UN Water, available at: www.unwater.org (last accessed 28 July 2006).
45. The WHO and FAO made detailed submissions to the Committee's Day of Discussion on the right to water. See also WHO, Right to Water, WHO, Geneva, 2003;
46. and contributions of UNICEF, UNHabitat and WHO in: Roaf, V., Khalfan, A. and Langford, M., Monitoring Implementation of the Right to Water. A Framework for Developing Indicators, Global Issue Papers, No. 14, Heinrich Böll Foundation, Berlin, 2005.
47. Committee on Economic, Social and Cultural Rights, General Comment 12, Right to adequate food (20th session, 1999), UN Doc. E/C.12/1999/ 5 (1999).
48. General Comment on the Right to Water, op.cit. (note 1), para. 7.
49. See Report of the Special Rapporteur on the right to food, Mr. Jean Ziegler, Commission on Human Rights, UN Doc. E/CN.4/2005/47, 24 January 2005;
50. Report submitted by the Special Rapporteur on the right to food to the General Assembly, 27 September 2004, UN Doc. A/59/385;
51. Report submitted by the Special Rapporteur on the right to food, Mr. Jean Ziegler, Commission on Human Rights, 9 February 2004, UN Doc. E/ CN.4/2004/10;
52. Report submitted by the Special Rapporteur on the right to food to the General Assembly, 28 August 2003, UN Doc. A/58/330;
53. Report submitted by the Special Rapporteur on the right to food, Jean Ziegler, Commission on Human Rights, 10 January 2003, UN Doc. W/CN.4/ 2003/54;
54. Report submitted by the Special Rapporteur on the right to food, Mr. Jean Ziegler, Commission on Human Rights, 10 January 2002, UN Doc. E/ CN.4/2002/58;
55. Report by the Special Rapporteur on the right to food, Mr. Jean Ziegler, Commission on Human Rights, UN Doc, E/CN.4/2001/53;
56. Report submitted by the Special Rapporteur on the right to food to the General Assembly, 23 July 2001, UN Doc. A/56/210;
57. and Report submitted by the Special Rapporteur on the right to food to the Commission, UN Doc. E/CN.4/2001/53.
58. Article 27(1)(b) states that 'Everyone has the right to have access to sufficient food and water'.
59. The right to water and the right to sanitation are contained in all official draft constitutions being considered.
60. See 'Referendum Gives Resounding 'No' to the Privatisation of Water, Inter Press Service News Agency, 1 November 2005, available at: www.ipsnews.net/print.asp?idnews=26097 (last accessed 3 August 2006).
61. FK Hussain vs Union of India, High Court of Kerala OP 2741/1988, 26 February 1990.
62. See, for example, Olga Tellis vs Bombay Municipality Corporation [1985], 2 Supp SCR 51 (India); (1987) LRC (Const) 351;
63. Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan & Ors (1997), 11 SCC 121;
64. and Mohini Jain vs State of Karnatak (1992), 3 SCC 666.
65. See Picolotti, R., 'The Right to Safe Drinking Water as a Human Right', Housing & ESC Rights Quarterly, Vol. 1, No. 4, 2005, p. 1, available at: www.cohre.org/litigation.
66. See Arrêt no. 36/98 du 1 Avril 1998, Commune de Wemmel, Moniteur Belge, 24 April 1998. This Belgian Court of Arbitration recognised the right of everyone to a minimum supply of drinking water utilising Article 23 of the Constitution: the right to the protection of a healthy environment.
67. See Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health, 22nd Session 2000, UN Doc. E/C.12/2000/4 (2000).
68. See Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing, 6th Session 1991, UN Doc. E/1992/23, annex III, at 114 (1991), para. 8(b).
69. See Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Paul Hunt, Commission on Human Rights, 11 February 2005, UN Doc. E/CN.4/2005/51;
70. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Paul Hunt, Commission on Human Rights, 16 February 2004, UN Doc. E/CN.4/2004/49;
71. The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report of the Special Rapporteur, Mr. Paul Hunt, Addendum, Mission to the World Trade Organization, 1 March 2004, UN Doc. E/CN.4/2004/49/Add.1;
72. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Paul Hunt, Commission on Human Rights, 13 February 2003, UN Doc. E/CN.4/2003/58.
73. See Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, Commission on Human Rights, 3 March 2005, UN Doc. E/CN.4/ 2005/48;
74. Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Commission on Human Rights, 8 March 2004, UN Doc. E/CN.4/2004/48;
75. Women and adequate housing, Study by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Mr. Miloon Kothari, in accordance with Commission Resolution 2002/49; Commission on Human Rights, 3 March 2003, UN Doc. E/CN.4/2003/5;
76. Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Mr. Miloon Kothari, Commission on Human Rights, 26 March 2003, UN Doc. E/CN.4/2003/55;
77. Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, Commission on Human Rights, 1 March 2002, UN Doc. E/CN.4/2002/59;
78. and Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, Commission on Human Rights, 25 January 2001, UN Doc. E/CN.4/ 2001/51.
79. McCaffrey, comments that, '[t]hus far states parties to the Covenant have not objected to the interpretation contained in the General Comment', loc.cit. (note 19).
80. Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment: Development Issues for the 21st Century, UN Doc. A/CONF.151/PC/112 (1992).
81. Agenda 21, Report of the United Nations Conference on Environment and Development 1992.
82. Principle No. 2, Programme of Action of The United Nations International Conference On Population and Development.
83. See Ministerial Declaration of the Third World Water Forum, Kyoto, 23 March 2003;
84. Ministerial Declaration of The Hague on Water Security in the 21st Century, The Hague, the Netherlands, 22 March, 2000;
85. Final Declaration, International Conference on Water and Sustainable Development, Paris, 21 March 1998.
86. European Parliament, Resolution on water management in developing countries and priorities for EU development cooperation, 4 September 2003.
87. 'Explanation of Vote', Statement Delivered by Joel Daniels, US Delegation to the 61th Commission on Human Rights, 15 April 2005 (on file with author).
88. Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, Commission on Human Rights Resolution 2004/17, UN Doc. E/CN.4/RES/2004/ 17.
89. The resolution passed in 2005 carried similar language, Commission on Human Rights Resolution 2005/15, UN Doc. E/CN.4/RES/2005/15.
90. 'Belgium: government recognises water as a human right, more development aid for water', 20 April 2005, available at: www.irc.nl/page/17853 (last accessed 28 July 2006).
91. Idem.
92. Code de l'eau de la région Wallonne, Livre II du Code de l'environnement, décret du 27 mai 2004 [Wallonia Code for Water, Book II of the Environmental Code].
93. See discussion at notes 38 supra and 93 infra.
94. Tully, loc.cit. (note 2), p. 50.
95. Indeed, it would be rather pointless to measure the value of human rights by the current level of compliance by States. It is preferable to appreciate human rights for their non-consequentialist embodiment of universally-held values as well as their instrumental ability to improve human and institutional behaviour. See, generally, Booth, K., 'Three Tyrannies', in: Dunne, T. and Wheeler, N. (eds), Human Rights in Global Politics, Cambridge University Press, Cambridge, 1999.
96. See Centre on Housing Rights and Evictions, Progress on the Human Rights to Water? A Year in Review, 22 March 2005, p. 1, available at: www.cohre.org/water (last accessed 28 July 2006).
97. See Fairstein, Carolina and Khalfan, Ashfaq, Community Empowerment and Access to Water in Buenos Aires, available at: www.cohre.org/ water (last accessed 28 July 2006).
98. The Center for Legal and Social Studies, The Civil Association for Equality and Justice (ACIJ), Consumidores Libres Cooperativa Ltda. de Provisión de Servicios de Acción Comunitaria, Unión de Usuarios y Consumidores, and the Center for International Environmental Law (CIEL), Media release, 28 June 2005.
99. See Picolotti, loc.cit. (note 41), p. 1.
100. Idem.
101. Tully, loc.cit. (note 2), at p. 46, states, for example, that the 'principal barriers to universal water coverage are not absolute water scarcity or individual financial capacity but rather improving international water governance and attracting the substantial expenditure required to construct or upgrade water infrastructure'.
102. See, generally, Langford, M., 'The UN Concept of the Right to Water: New Paradigm for Old Problems?', International Journal of Water Resources Development, Vol. 21, No. 2, 2005, pp. 273-282;
103. and Khalfan, Ashfaq, 'Implementing General Comment No. 15 on the Right to Water in National and International Law and Policy', Discussion Paper, Bread for the World Germany and Centre on Housing Rights and Evictions, March 2005, available at: www.cohre.org/water (last accessed 28 July 2006).
104. On a rights-based approach to development, see Darrow, M. and Tomas, A., 'Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation', Human Rights Quarterly, Vol. 27, No. 2, 2005, pp. 471-538.
105. Filmer-Wilson, E., 'Human Rights-Based Approach to Development: The Right to Water', Netherlands Quarterly of Human Rights, Vol. 23, No. 2, 2005, pp. 213-241.
106. Ibidem, pp. 232-240.
107. For example, see Comments of the European Roma Rights Centre and Centre on Housing Rights and Evictions on the occasion of the Article 16 Review of Greece, Hungary and Turkey under the European Social Charter supervision cycle XVII-1, 1 December 2003, available at www.errc.org/ db/01/25/m00000125.doc (last accessed 28 July 2006).
108. For example, in the Romani settlement Slavko Zlatanoviæ in the southern Serbian town of Leskovac, many Roma have reportedly contracted skin diseases as a consequence of poor housing conditions and lack of clean water. The settlement is within the range of the Leskovac municipal water supply system and several foreign foundations have reportedly offered financial support for building infrastructure. However, local authorities have stated that this is not possible since the streets were built without legal permission, and because building a new water supply system would be too complicated and costly. See The Protection of Roma Rights in Serbia and Montenegro, prepared by the European Roma Rights Centre (ERRC) in association with the UN Office of the High Commissioner for Human Rights, Human Rights Field Operation in Serbia and Montenegro, UN OHCHR, 2003.
109. Filmer-Wilson, loc.cit. (note 68), pp. 225-226. She also importantly notes that donors might need to extend their time horizons for projects and not focus on 'concrete' results in the short-term.
110. For example, if a development practitioner asked a community 'how are we going to build a well or sanitation block?', then a certain set of answers might be expected, particularly relating to costs and location. This might be good enough if the well draws from a clean water source, land ownership issues are clear, official corruption is minimal, women are sufficiently included in the decision-making process and the system can be maintained by the community in the medium to long-term. Yet, none of this is axiomatic. A rights-based approach would address all of them. But if the question is asked 'how do you think you should achieve your right to water?', then different and perhaps troubling answers might be forthcoming. For example, in Kibera, the largest slum in Africa, residents pay 3 to 30 times the price paid by the middle class for water. Otherwise, they are forced to drink unclean water from a nearby polluted dam or river. When the community were made aware of the extent of money they were paying for water and health care, which often concerned diarrhoea and the existence of a 'water mafia' that had essentially shut down water booths established by some donors, then the possible solution to the problem involved a much wider range of actions. It included, for example, negotiating with the local water company for their right to receive more forms of direct access to water, addressing corruption in the informal water sector and local government structures and organising themselves to exploit their greater numbers and construct their own street-level water and sanitation systems that would link up to a wider system. All of this would of course take time but is likely to prove a more durable solution to some of the temporary development solutions that have been brought to Kibera.
111. See Langford, M., Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, COHRE, Geneva, 2003.
112. See Langford, M., Khalfan, A., Fairstein, C. and Jones, H., Legal Resources for the Right to Water: International and National Standards, COHRE, Geneva, 2004.
113. The Minister for Water Affairs and Forestry in his 2003 budget speech acknowledged that the monthly rate of disconnections in the three largest municipalities was 17,800 households. While the Minister argues that many of the disconnections were only for short periods and the method for extrapolating the figures nation-wide has been the subject of fierce debate, the number of disconnections is undoubtedly significant.
114. Manqele vs Durban, Transitional Metropolitan Council 2002, (6) SA 423D, 427D-E.
115. See De Visser, J., 'Manquele v. Durban: Disconnection of Water Supply', Local Government Law Bulletin, Vol. 3, No. 1, 2001, available at: www.communitylawcentre.org.za/localgov/bulletin2001/ 2001_1_manquele.php#manquele (last accessed 28 July 2006).
116. 2000 (11) BCLR 1169 (CC).
117. Residents of Bon Vista Mansions vs SMLC 2001, High Court, Application No. 12312 (South Africa).
118. Ibidem, para. 20.
119. Ibidem, para. 35.
120. See for example, FIAN International and Bread for the World, Right to Water in India, Fact Finding Mission Report, FIAN, Heidelberg, March 2004;
121. Center on Economic and Social Rights, Thirsting for Justice: Israeli Violations of the Human Right to Water in the Occupied Palestinian Territories, Submission to the Committee on Economic, Social and Cultural Rights, 1 May 2003, available at: www.cesr.org/palestine (last accessed 28 July 2006);
122. Assaf, K. et al., Water as a Human Right: the Understanding of Water in the Arab Countries of the Middle East - a Four Country Analysis, Global Issue Paper, No. 11, Heinrich Böl1 Foundation, Berlin, 2004;
123. Report of the International Fact-Finding Mission on Water Sector Reform in Ghana, 1 August 2003, available at: www.cesr.org/reports (last accessed 28 July 2006).
124. Task Force on Water and Sanitation, Health, dignity, and development: what will it take? UN Taskforce Report (Millennium Development Library, June 2005), p.178. I am indebted to Ashfaq Khalfan for pointing out this reference.
125. See Alston, P., 'Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals', Human Rights Quarterly, Vol. 27, No. 3, 2005, pp. 755-829.
126. General Comment No. 15, para. 34, states: 'Depending on the availability of resources, States should facilitate realization of the right to water in other countries, for example through provision of water resources, financial and technical assistance, and provide the necessary aid when required. In disaster relief and emergency assistance, including assistance to refugees and displaced persons, priority should be given to Covenant rights, including the provision of adequate water'.
127. See discussion supra at notes 52 and 55 respectively.
128. Tully, loc.cit. (note 2), at p. 51.
129. See ibidem, p. 63.
130. The Committee stated, 'Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question'. Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties' obligations, 5th Session, 1990, UN Doc. E/1991/23 (1990), annex III, at 86, para. 8.
131. See, generally, Langford, loc.cit. (note 67).
132. General Comment No. 15 on the Right to Water, op.cit. (note 1), at p. 51.
133. World Bank, 'Project Appraisal Document on a proposed credit in the amount of SDR 71 million (USD 103 million equivalent) to the Republic of Ghana for an Urbanwater Project', 1 July 2004, available at: www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2004/07/12/ 000090341_20040712101848/Rendered/INDEX/285570GH.txt (last accessed 28 July 2006).
134. Salman and Lankford, op.cit. (note 19).
135. See discussion in Roaf, V., After Privatisation: What Next?, Global Issue Paper No. 28, Heinrich Böll Foundation, Berlin, March 2006.
136. See news report at supra note 38.
137. Case No. 1277/2001 (unreported).
138. Kinley, D., 'South Africa Policies Challenge the Constitutional Right to Water', Defend the Global Commons, January 2005.
139. Tully, loc.cit. (note 2), p. 57, states for example that, 'It is unclear how a human rights orientation to water as a social resource will interact with an ecosystem approach to water as an environmental resource, thereby entailing inter alia the application of the precautionary and polluter pays principles.'
140. 'Environmental legislation which employs pollution abatement schemes and economic incentives for water conservation or recycling could usefully complement a human rights framework.' Idem.
141. In particular see paragraphs 21, 23 and 28 which comprehensively address the duty of States parties to respect, protect and fulfil the environmental aspects of the right to water: General Comment No. 15 on the Right to Water, op.cit. (note 1).
142. Tully, loc.cit. (note 2), p. 62.
143. General Comment No. 15 on the Right to Water, op.cit. (note 1), paras 28(f) and (g) respectively.
144. Tully, loc.cit. (note 2), p. 53.
145. Ibidem, p. 57.
146. Final report of the Special Rapporteur 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, 14 July 2004, UN Doc. E/CN.4/Sub.2/2004/20.
147. See Centre on Housing Rights and Evictions, Listening to the Poor: Housing Rights in Nairobi, Kenya, Final Report, COHRE, Geneva, 2006;
148. Leckie, M., When Push Comes to Shove: Forced Evictions and Human Rights, Habitat International Coalition, 1995;
149. and Sheridan Bartlett, Urban Children and the Physical Environment, City University of New York and the International Institute for Environment and Development (London), available at: www.araburban.org/childcity/Papers/English/Sheridan%20Barlett.pdf (last accessed 28 July 2006).
150. For example, the most quoted phrase of General Comment No. 15 is 'The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.' See General Comment No. 15 on the Right to Water, op.cit. (note 1), para. 2.
151. See ibidem, paras 55 and 56.
152. For an overview of some of the arguments, see Chapman, A. and Russell, S., 'Introduction', in: Chapman, A. and Russell, S. (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights, Intersentia, Antwerp/Oxford, 2002, pp. 8-19. Chapman and Russell, however, strongly support the minimum core obligations approach.
153. See Porter, B., 'The Crisis of ESC Rights and Strategies for Addressing It', in: Squires, J., Langford, M. and Thiele, B. (eds), Road to a Remedy: Current Issues in Litigation of Economic, Social and Cultural Rights, Australian Human Rights Centre and University of NSW Press, Sydney, 2005, chapter 4.