Responding to the 'water crisis': The complementary roles of water governance and the human right to water

Journal of Water Law

Volumn 20, Issue 2-3, 2009, Pages 119-128

  Grimes, Hilary J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; GLOBAL PERSPECTIVE; GOVERNANCE APPROACH; HUMAN RIGHTS; IMPLEMENTATION PROCESS; MONITORING SYSTEM; POPULATION GROWTH; PUBLIC ACCESS; WATER AVAILABILITY; WATER PLANNING; WATER RESOURCE;

EID: 77954428353     PISSN: 14785277     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (156)

1. For example, International Water Management Institute report, available at http://www.iwmi.cgiar.org.
2. R Roach Dried Up, Drowned Out: Voices from the Developing World on a Changing Climate (Tearfund London 2005) p 15.
3. B C Bates and others (eds) Climate Change and Water Technical Paper of the Intergovernmental Panel on Climate Change (IPCC Geneva 2008) p 3.
4. ibid..
5. United Nations Development Programme (UNDP) publishes a Human Development Report annually.
6. UNDP Human Development Report 2006: Beyond Scarcity: Power, Poverty and the Global Water Crisis (Palgrave Macmillan New York 2006) p 2 http://hdr.undp.org/en/reports/global/hdr2006/(HDR 2006).
7. There are a number of definitions of 'domestic use' and some debate about what should and should not be included under this term. GC15 (n 16) states in para 2: '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'.
8. See J Bartram, G Howard Domestic Water Quantity, Service Level and Health; What should be the Goal for Water and Health Sectors (World Health Organization Geneva 2002).
9. This is based on domestic water supply figures; other sectors such as agriculture generally consume a higher percentage of water. World Resources Institute data on Freshwater Resources 2005 http:// earthtrends.wri.org.
10. ibid.. For example, although 14 of the 40 Sub-Saharan African countries reported domestic use as 10% or less of total withdrawals and the average for the region was 14%, three countries (Congo, Democratic Republic of Congo and Equatorial Guinea) had domestic use figures of over 50%.
11. It may appear perverse to focus on access to water for domestic uses when such uses consume only a small fraction of overall water resources (see nn 10 and 11). However, studies have shown that access to water for domestic uses is not only essential for survival but also a key component in breaking the cycle of disease, malnutrition and poverty, eg A Pruss-Ustiin and others Safer Wafer, Better Health: Costs, Benefits and Sustainability of Interventions to Protect and Promote Health (World Health Organization Geneva 2008) (WHO 2008).
12. The World Health Organization (WHO) estimates that at least 9% of the worldwide burden of disease could be prevented by water, sanitation and hygiene interventions, see WHO 2008 (n 12) p 10. It is essential to recognise the role of sanitation and hygiene in ensuring access to safe drinking water as well as the direct health benefits these interventions bring. However, for the sake of clarity and brevity, this article does not address sanitation and hygiene specifically, but attempts to integrate these essential aspects wherever possible.
13. Global Water Partnership Towards Water Security: A Framework for Action (GWP 2000) p 3, first announced at the 2000 World Water Forum and available at http://www.gwpforum.org/gwp/library/Execeng.pdf (GWP Framework).
14. For example, P Gleick 'The Human Right to Water' (1999) 1 Water Policy 487-503, p 498.
15. 'General Comment No 15 on the right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)' UN Doc E/C.12/2002/11 (26 November 2002) (GC15). http://www.unhchr. ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94/$FILE/G0340229. pdf.
16. There are a number of misconceptions regarding the right to water, such as that it entitles people to free water, or that the right to water and privatisation are mutually exclusive. Such misconceptions have polarised debate and discouraged some governments from exploring the issue further. For more details see A Khalfan and others Manual on the Right to Water and Sanitation (COHRE, AAAS, SDC & UN-HABITAT Geneva, 2007) ch 2.
17. It was at the 2000 World Water Forum that GWP stated that 'the water crisis is often a crisis of governance' GWP Framework (n 14).
18. See P Rogers 'Water Governance, Water Security and Water Sustainability' in P Rogers, M Llamas and L Martinez-Cortina (eds) Water Crisis: Myth or Reality Proceedings of Marcelino Botin Water Forum 2004 (Taylor & Francis London 2006) p 33;
19. 'Water, a Shared Responsibility' 2nd United Nations World Water Development Report (WWDR2) 2006 p 45.
20. For example, B Metger 'Law and Development: An Essential Dimension of Governance' in 'Governance: Promoting Sound Development Management' 30th Annual Meeting of the Board of Governors' seminar (Fukuoka Japan 10 May 1997) p 13;
21. Governance and Development (World Bank Washington 1992) p 1 (WB 1992);
22. A Hunt, G Wickham Foucault and Law: Towards a Sociology of Law as Governance (Pluto Press London 1994) p 78.
23. Rogers 2006 (n 19) p 16.
24. A W Rivers (Earl) The dictes or sayenges of the philosophres 1477 (Caxton; repr 1877) Dictes 69, as recorded in the Oxford English Dictionary Online (Oxford University Press Oxford 2008).
25. Sub-Saharan Africa: From Crisis to Sustainable Growth (World Bank Washington 1989) p 60, attributed in F N Botchway 'Good Governance: the Old, the New, the Principle, and the Elements', (2001) 13 Florida J Intl L 159-210, p 162.
26. The use of the term governance became more widely used following WB 1992 (n 20) p 1.
27. Ministerial Declaration of The Hague on Water Security in the 21st Century p 1 http://www.worldwatercouncil.org/fileadmin/wwc/Library/ Official-Declarations/The-Hague-Declaration.pdf.
28. International Conference on Freshwater (Bonn 3-7 December 2001) Recommendations for Action p 2 http://www.water-2001.de/outcome/ BonnRecommendations/Bonn.Recommendations.pdf.
29. Held in Johannesburg, South Africa 2002. WSSD Plan of Implementation UN Doc A/CONF.199/20 p 8 http://www.un.org/jsummit/.
30. See http://go.worldbank.org/MKOGR258V0.
31. Governance for Sustainable Human Development A UNDP policy document (United Nations Development Programme January 1997) http://mirror.undp.org/ magnet/policy/.
32. These differing orientations reflect two of the three different modes of governance identified in P Rogers, A Hall Effective Water Governance Global Water Partnership Technical Committee (TEC) Background Paper No 7 (GWP Stockholm 2003) p 11 (GWP Paper No 7).
33. H Tropp 'Water Governance: Trends and Needs for New Capacity Development' in Special Edition of Water Policy, (2007) 9 Water Policy Supplement 2 19-30;
34. WWDR2 (n 19) p 83.
35. GWP was established in 1996 (see www.gwpforum.org).
36. GWP 'Introducing Effective Water Governance' (mimeo April 2002), as quoted in GWP Paper No 7 (n 29) p 7.
37. A Hildering International Law, Sustainable Development and Water Management (Eburon Academic Publishers Delft 2004).
38. Our Common Future Report of the World Commission on Environment and Development (Oxford University Press Oxford 1987) p 43.
39. 'Governance is ⋯ intensely political' CWP Paper No 7 (n 29) p 4.
40. New Delhi Declaration of Principles of International Law Relating to Sustainable Development Annex to UN Doc A/57/329 (6 August 2002).
41. Integrated Water Resource Management GWP Technical Advisory Committee (TAC) Background Paper No 4 (GWP Stockholm 2000) p 30 (GWP Paper No 4).
42. WWDR2 (n 19) Figure 2.1 p 46.
43. WWDR2 (n 19).
44. Tropp (n 30).
45. UNDP 1997 (n 28).
46. ibid s 1.
47. 'Governance: Sound Development Management' Asian Development Bank August 1995 (ADB Manila publ 1999) p viii.
48. GWP Paper No 7 (n 29) p 27.
49. ibid.. Institutions responsible for policy decisions should make information available and understandable to stakeholders.
50. ibid.. This should ensure the widest range of stakeholders are involved in policy formulation.
51. ibid.. Water governance arrangements must cut across sectoral boundaries traditionally used in government to ensure a coherent approach to water issues.
52. ibid.. Interests of all stakeholders should be considered in an equitable manner, safeguards put in place to ensure procedures for consultation are followed.
53. ibid.. Institutions must take responsibility for, and be able to justify, the decisions and actions they take.
54. ibid.. That is, efficient not only in an economic sense, but in terms of time and resources; governance arrangements should not be so burdensome as to hinder progress.
55. ibid.. Policies should be demand-driven, respond to identified needs and implemented in a proportionate manner at the appropriate level; governance institutions and their policies must operate in a manner that meets current needs without jeopardising the needs of future generations.
56. ibid p 37.
57. ibid..
58. WB 1992 (n 20) p 12.
59. A Allan, P K Wouters 'What Role for Water Law in the Emerging "Good Governance" Debate?' (2004) 15 Journal of Water Law p 85.
60. WB 1992 (n 20) p 32.
61. Tropp (n 30) Table 1.
62. ibid s 4.2.
63. For example, J Plummer, T Slaymaker 'Rethinking Governance of Water Services' Overseas Development Institute Working Paper 284 (ODI London 2007).
64. The World Water Council was established in 1996, see http://www. worldwatercouncil.org/.
65. For example, at Fifth World Water Forum (5th WWF) 2009, see http://www.worldwaterforum5.org.
66. GWP Paper No 7 (n 29) p 37.
67. The Water Governance Facility (WGF) is a joint programme of UNDP and the Stockholm International Water Institute (SIWI), see www.watergovernance.org.
68. Global Water Partnership 'Effective Water Governance: Learning from the Dialogues' Status Report for 3rd World Water Forum Kyoto, Japan (16-23 March 2003) (CWP Dialogues).
69. The United Nations has promoted the Millennium Development Goals (MDGs) as the principal aims which should be achieved. However these are broad and mainly intermediate goals primarily designed to motivate states into action, see UN Millennium Declaration UN Doc A/ Res/55/2 (18 September 2000). It has also been suggested that Integrated Water Resource Management (IWRM) 'encapsulates' the necessary reforms required for good water governance, but again, this is a process rather than a defined end, see GWP Paper No 4 (n 37).
70. P Moriarty and others 'The EMPOWERS Approach to Water Governance: Background and Key Concepts' (Inter-Islamic Network on Water Resources Development and Management (INWRDAM) Jordan August 2007) p 31.
71. GC15 (n 16).
72. For clarity, the term used in GC15 'the right to water' is used hereinafter and should be taken to mean the human right to water, as distinct from other water rights which may arise through property rights, by means of a licence or other legal mechanism. See D Caponera Principles of Water Law and Administration: National and International (Balkema Rotterdam 1992).
73. GC15 (n 16) para 6. See also UN Commission on Human Rights 'Report by Special Rapporteur Miloon Kothari on Adequate Housing as a Component of the Right to an Adequate Standard of Living' UN Doc E/CN.4/2002/59) and 'Report by the Special Rapporteur Jean Zigler on the Right to Food' UN Doc E/CN.4/2002/58.
74. GC15 (n 16).
75. ibid para 12 defines the 'factors' required to ensure the 'adequacy' of the right and other 'elements' that are required in order to realise the right to water.
76. The legal standing of GC15 remains a contentious issue. However, the International Council on Environmental Law submitted a statement to the United Nations Human Rights Council in 2006 stating that: 'The right to water, i.e. the right of access to drinking water and to sanitation, is generally considered as being protected under the International Covenant on Economic, Social and Cultural Rights (1966)'. UNGA UN Doc A/HRC/Sub.1/58/NGO/1 * (4 August 2006) para 1.
77. International Covenant on Economic, Social and Cultural Rights (ICESCR) UNGA Res 2200, 21 GAOR Supp 49, UN Doc A/6316 (1967), reprinted in (1967) 6 ILM 360.
78. ICCPR UNGA Res 2200, 21 GAOR Supp 52, UN Doc A/6316 (196A reprinted in (1967) 6 ILM 368.
79. Adopted and proclaimed through UNGA Res 217A (III) (10 December 1948) UN Doc A/64.
80. Established pursuant to the Economic and Social Council Resolution 1985/17.
81. ECOSOC Res 1987/5; Rule 65 CESCR Rules of Procedure (1 Sept. 1993) UN Doc E/C.12/199O/4/Rev.1.
82. S McCaffrey 'The Human Right to Water Revisited' in E Brown-Weiss and others (eds) Water and International Economic Law (Oxford University Press Oxford 2004) p 94;
83. P Alston, H Steiner International Human Rights in Context (2nd edn Oxford University Press Oxford 2000) p 265.
84. Report on CESCR Fourth Session E/1990/23 para 39.
85. ICESCR (n 73) art 11 states: '1. 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. The States Parties will take appropriate steps to ensure the realization of this right⋯'.
86. ibid art 12 states: '1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.
87. CC15 (n 16).
88. The right to the highest attainable standard of health (ICESCR art 12 (n 81) and General Comment No 14 (2000) on the right to the highest attainable standard of health paras 11,12 (a), (b) and (d), 15, 34, 36,40, 43 and 51).
89. The rights to adequate housing and adequate food (ICESCR art 11 (n 80), General Comment No 4 (1991) para 8 (b) and General Comment No 6 (1995) paras 5 & 32) respectively.
90. The UN Common Understanding on HRBA, adopted by the UN Development Group (UNDG) in 2003, aims to ensure that all UN programmes further the realisation of human rights, see www.undg.org.
91. S McCaffrey, 'A Human Right to Water: Domestic and International Implications' (1992) 5 Georgetown Intl Environmental L Rev 1. A Special Rapporteur on the right of access of everyone to drinking water supply and sanitation services was appointed in 1997 (UN Doc E/ CN.4/SUB.2/RES/1997/18 27 August 1997).
92. Sub-Commission on the Promotion and Protection of Human Rights Res 2001/2 (10 August 2001) UN Doc E/CN.4/SUB.2/RES/2001/2.
93. Commission on Human Rights Decision 2002/105 (22 April 2002) UN Doc E/CN.4/DEO2002/105.
94. Preliminary Report to the Sub-Commission on the Promotion and Protection of Human Rights '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' UN Doc E/CN.4/Sub.2/2002/10.
95. ibid para 658.
96. GC15 (n 16).
97. ibid para 11: 'The elements of the right to water must be adequate for human dignity, life and health, in accordance with articles 11, paragraph 1, and 12'.
98. The reliance on a specific quantity as the primary determinant of 'adequate' access is counselled against in Bartram (n 9).
99. Also, by implication, not justiciable.
100. ICESCR (n 73) art 2 (1).
101. 'The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights' (1987) 9 Human Rights Quarterly 125;
102. also reproduced in UN Doc E/CN.4/1987/17 Annex para 21.
103. Also, P Alston, G Quinn 'The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights' (1987) 9 Human Rights Quarterly 156-229, p 166.
104. ICESCR (n 73) art 2 para 2.
105. ibid art 2 para 1.
106. The term 'necessary measures' is used several times in GC15, eg paras 26-27.
107. ICESCR (n 73) art 2 para 1 states: 'Each State Party to the present Covenant undertakes to take steps ⋯ to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant⋯'. ICESCR art 11 para 1 states: The States Parties will take appropriate steps to ensure the realization of this right, [to an adequate standard of living]⋯'. ICESCR art 23 states: The States Parties to the present Covenant agree that international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations ⋯'.
108. CC15 (n 16) para 37: 'In the Committee's view, at least a number of core obligations in relation to the right to water can be identified, which are of immediate effect⋯'.
109. For example, in para 37(a): To ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease' and 37(c) To ensure physical access to water facilities or services that provide sufficient, safe and regular water⋯' there appears to be no direct link between the 'key factors' articulated in para 12 and the obligations in para 37. McCaffrey expresses it this way: The wild card regarding implementation is, however, the ESC Committee's concept of "core obligations"⋯'. McCaffrey (n 78) p 108.
110. GC15 (n 16) para 12.
111. ibid paras 20-29.
112. See P Jones and R Ordu A Bibliography of Primary and Secondary Sources of Law on the Human Right to Water Unitarian Universalist Service Committee Environmental Justice Program, Cambridge MA (March 2007) http://www. righttowater.info/pdfs/lawbibliography0607.pdf.
113. See http://www.righttowater.info/code/HR-approach.asp.
114. McCaffrey (n 78) p 95.
115. Gleick (n 15) p 489.
116. H Koh 'Why do Nations Obey International Law?' (1997) 106 Yale Law Journal 2599-2659, pp 2656-57.
117. For example, the Third South Asian Conference on Sanitation (SACOSAN III) held in New Delhi from 18 to 21 November 2008 with the adoption of the Delhi Declaration, available at http://www.ddws. nic.in/infosacosan/home.htm.
118. The number of states recognising the right to water in national legislation increased from 10 to 25. T Kiefer et al Legal Resources for the Right to Water and Sanitation: International and National Standards COHRE Sources Series No 8 (2nd edn Centre on Housing Rights and Evictions Geneva 2008).
119. CC15 (n 16).
120. P Birnie 'International Environmental Law: Its Adequacy for Present and Future Needs' in A Hurrell, B Kingsbury (eds) The International Politics of the Environment (Clarendon Press Oxford 1992) p 52.
121. Tropp (n 30) p 46.
122. Hildering (n 33).
123. Rogers (n 19).
124. GWP Paper No 7 (n 29) p 27. For definitions of the characteristics see nn 45 to 51.
125. Figure 2.1 WWDR2 (n 19) p 46.
126. GC15 (n 16).
127. GC15 (n 16) para 12(a) Availability and footnote 12 state that continuity of service must be sufficient for 'personal and domestic uses'.
128. ibid paras 13-16 Non-discrimination and equality.
129. ibid paras 12(c)(ii) Economic accessibility.
130. ibid para 11 and footnote 11, referring specifically to the need for the right to water to be realised in an environmentally sustainable manner.
131. Both safety and acceptability are important: World Health Organisation Guidelines for Drinking Water Quality (3rd edn WHO Geneva 2004) p 7.
132. GC15 (n 16) para 12(c)(i) Physical accessibility. Suitability means culturally appropriate and sensitive to gender, age, disability etc.
133. ibid..
134. ibid paras 53-54 urges the use of indicators for the monitoring of progress in the implementation of the right to water.
135. Natural Resources and Ethical Trade Programme 'What are Criteria, Indicators and Verifiers?' NRET Theme Paper No 3 (Natural Resources Institute University of Greenwich undated) http://www.nri. org/projects/NRET/nret.htm.
136. 'General Comment No 14 on the right to the highest attainable standard of health' UN Doc E/C.12/2000/4 (11 August 2000).
137. 'Report of the Special Rapporteur Paul Hunt on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health' UN Doc E/CN.4/2006/48 (3 March 2006) paras 51-61.
138. Structural indicators are used to ascertain whether or not the necessary institutional structures and mechanisms that enable or promote the realisation of the right are in place.
139. Process indicators are used to measure the actions that a state takes towards realisation of the right.
140. Outcome indicators are used to measure the impact of a state's actions on the realisation of the right.
141. The case study is covered in detail in the author's MPhil thesis (n 1). South Africa was a natural choice for a case study for a number of reasons. The 19% constitution included a Bill of Rights (Republic of South Africa Constitution Act 108 (1996) Ch 2 Bill of Rights) which enshrined the right of access to water, among many other rights, and led to sweeping reforms in the water sector. However, South Africa still struggles to overcome inequality and high levels of poverty (UNDP's South Africa Statistical Update 2008 http://hdrstats.undp.org/ en/countries/country-fact-sheets/cty-fs-ZAF.html).
142. Note 48.
143. GC15 (n 16) para 12(c)(iii).
144. ibid..
145. Note 50.
146. GC15 (n 16) para 12(c)(ii).
147. Note 45.
148. GC15 (n 16) para 12(c)(iv).
149. Note 47.
150. HDR 2006 (n 7) p 2.
151. GWP Dialogues (n 64).
152. GC15 (n 16).
153. ibid para 12.
154. ibid paras 11 and 48.
155. ibid paras 20-29.
156. Official guidance is limited to the UN draft guidelines: The Realization of the Right to Drinking Water and Sanitation Report of the Special Rapporteur El Hadji Guisse (Draft Guidelines)' UN Doc E/CN.4/ Sub.2/2005/25 (11 July 2005).