A Human Right to Access Water? A Critique of General Comment No. 15
| DOI | 10.1177/016934410502300103 |
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| Author | Stephen Tully |
| Subject Matter | Part A: Article |
A HUMAN RIGHT TO ACCESS WATER?
A CRITIQUE OF GENERAL COMMENT NO. 15
STEPHEN TULLY*
Abstract
At the conclusion of its 29th session in 2002, the United Nations (UN) Committee on
Economic, Social and Cultural Rights (hereinafter the Committee) identified a human right to
access water uniquely straddling two provisions of the International Covenant on Economic,
Social and Cultural Rights (the Covenant).
1
General Comment No. 15 novelly defined a
universal entitlement to sufficient, safe, acceptable, physically accessible and affordable water
for personal and domestic use.
2
This article critiques that instrument for the phraseology
employed, the substantive omissions and the reasoning of the Committee. The article also
evaluates the broader implications of a human right to access water within a liberalised market
context. Paragraph 1 questions the legal basis identified by the Committee and considers the
existence of a right to access water under contemporary international law. Paragraph 2 assesses
the policy justifications which prompted a human rights orientation to the global challenges
confronting water resources including the treatment of water services under international
economic law. Most notable among the several omissions from General Comment No. 15 is the
increasingly prominent role and responsibilities of the private sector as outlined in paragraph 3.
Paragraph 4 sceptically examines the prospects for implementing a human rights approach to
water resources in light of applicable economic and environmental principles. Finally, it is
argued that unreflective resort to the General Comment template for addressing individual
interests will render such instruments outdated or unhelpful as normative guides and several
solutions are offered in paragraph 5.
1. THE LEGAL FOUNDATIONS FOR A HUMAN RIGHT TO ACCESS
WATER
Water resources are receiving increasing international attention. The 22
nd
March
each year has been the World Day for Water since 1993 and 2003 was designated as
the International Year of Freshwater.
3
Water features within multiple policy arenas
including food, agricultural pesticides, deforestation, fishing stocks, biodiversity,
climate change, industrial waste and transboundary or maritime pollution.
4
It is
Netherlands Quarterly of Human Rights, Vol. 23/1, 35-63, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 35
* Law Department, The London School of Economics and Political Science, United Kingdom.
1
Treaty Series, p. 3 (1966).
2
United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR), General
Comment No. 15 (2002) on the right to water, UN Doc. E/C.12/2002/11.
3
UN General Assembly (GA) Resolutions 47/193 (1992) and 55/196 (2000).
4
UN Commission on Sustainable Development (CSD), Comprehensive Assessment of the Freshwater
Resources of the World, Final Report of the Secretary General to CSD-5, UN Doc E/CN.17/1997/9.
36
scrutinised by no less than twenty-three UN bodies.
5
However, some 1.5 billion
people worldwide (one in five) currently lack access to improved water supplies (80
percent are located rurally) and around four billion (or over half) lack access to
adequate sanitation.
6
Non-governmental organisations (NGOs) have called upon
States to recognise a human right to water
7
including the European Council on
Environmental Law which proposed that no one may be deprived of the water
required to meet basic human needs.
8
Inter-governmental organisations such as the
Organisation for Economic Cooperation and Development (OECD) have also
proved receptive to such requests.
9
In 1997 the UN Sub-Commission on the Protection and Promotion of Human
Rights requested Mr El-Hadji Guisse´ to investigate a ‘right of access’ to drinking
water and sanitation services for everyone.
10
The Sub-Commission subsequently
appointed him as Special Rapporteur,
11
thereby mandating him to compile periodic
reports on the topic drawing upon all available information and from which other
UN institutions such as the Committee may formulate their own views. However, the
UN Commission on Human Rights observed that the right to drinking water and
sanitation remained undefined, temporarily postponed that appointment and
requested further investigation.
12
Mr Guisse´ was ultimately entrusted with promo-
ting the realisation of the right to drinking water and sanitation at the national and
international levels taking into account the right to development and defining the
content of a right to water in relation to other human rights.
13
The Special
Rapporteur considered it desirable to identify an acceptable legal framework ‘since
it would be impossible for individuals to call for this right without a legal text to
support them’.
14
The Committee chose to locate a right to access water under two provisions of
the Covenant. First, Article 11(1) provides that State Parties ‘recognize the right of
everyone to an adequate standard of living (...) including adequate food, clothing
and housing and to the continuous improvement of living conditions’. An
identically-formulated illustrative list also appears within the Universal Declaration
Stephen Tully
5
UN Secretary-General, Report on Activities undertaken in preparation for the International Year of
Freshwater 2003, UN Doc. A/57/132 (2002), para. 9.
6
World Health Organisation (WHO)/UN Children’s Fund (UNICEF)/Water Supply and Sanitation
Collaborative Council (WSSCC), The Global Water Supply and Sanitation Assessment 2000, New York,
2000, p. 1.
7
E.g. Principles 1, 3 and 4, Resolution No. 16 (2000), Resolution on the Right to Water, European
Council on Environmental Law (CEDE), Resolutions and Declarations 1974-2000, Madeira, 2002.
8
Articles 3, 7, 8, and 10, Resolution No. 11 (1999), Madeira Declaration on the Sustainable
Management of Water, CEDE, idem.
9
Organisation for Economic Cooperation and Development (OECD), Resolution on Potable Water,
28 April 2000.
10
Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission) Resolution
No. 1997/18.
11
Ibidem, Resolution No. 1998/7.
12
UN Human Rights Commission (HRC), Decision No. 1999/108.
13
Sub-Commission Resolution No. 2001/2; HRC, Decision No. 2002/105.
14
Sub-Commission, ‘Sub-Commission begins Consideration of Economic, Social and Cultural Rights’,
55
th
Session, Press Release, 2003, p. 1.
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