Expectation of Plenty: Response to Stephen Tully
| Author | Malcolm Langford |
| DOI | 10.1177/016934410602400306 |
| Published date | 01 September 2006 |
| Date | 01 September 2006 |
| Subject Matter | Part A: Article |
EXPECTATION OF PLENTY: RESPONSE
TO STEPHEN TULLY
MALCOLM LANGFORD
Here’s a farmer, that hanged himself on the expectation of plenty
Macbeth, Act 2, Scene III
Stephen Tully remains largely wedded to the idea that the general comment cannot be
legally or practically justified and that it lacks political acceptance. But his more recent
arguments, featured in his response to my rebuttal of his critique of General Comment
No. 15 on the Right to Water, falter on a number of factual and conceptual
misunderstandings, and, more deeply, on excessive and unwarranted expectations of
legal interpretive method and the role of law in social change.
Tully concedes that the drafting debates, the travaux pre
´paratoires of the
International Covenant on Economic, Social and Cultural Rights, cannot be used as
an argument for or against the implication of the right to water in the Covenant.
1
It is
a vain exercise, both legally and pragmatically. But he takes up a new cudgel by
contending that the Committee has exceeded the parameters of Article 11 – which
contains ‘the right of everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing’ – by also deriving the right to
water from Article 12, the right to health. He suggests that even if water can be classed
in the same grouping as ‘food, clothing and housing’, by virtue of the word’ including’,
the Committee’s concurrent derivation of the right to water from the right to health
expands the scope of the right to water beyond the parameters of the right to an
adequate standard of living. The result would be that the derived right was larger than
its parent.
A glance at the opening of the general comment reveals the erroneousness of this
assertion. After defining the right to water in paragraph 2, the Committee states that
this right can be derived from Article 11 and is also inextricably related to the right to
the highest attainable standard of health, and presumably given the title of the General
Comment, also derived from the right to health. There is nothing following in the text
of the document to suggest that the Committee’s rather circumscribed definition of
Netherlands Quarterly of Human Rights, Vol. 24/3, 473-479, 2006. 473
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
1
For an interesting discussion of the apparent silence of the Covenant with respect to water, see
Craven, M., ‘Some Thoughts on the Emergent Right to Water’, in: Riedel, Eibe and Rothen, Peter
(eds), The Human Right to Water, Berliner Wissenschafts Verlag, Berlin, 2006, Chapter 2.
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