| Cite as: 4 Nw. U. J. Int'l Hum. Rts. 331 at http://www.law.northwestern.edu/journals/jihr/v4/n2/3 | JIHR Home > Volume 4 > Issue 2 (December 2005) |
"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."2
"By means of water, we give life to everything."3
¶ 1 Water is necessary for the survival of all life, yet, over one billion of the world's more than six billion people do not have available sources of clean water for drinking.4 An additional 1.6 billion people who have access to water for basic survival do not have sufficient water for health and hygiene.5 Over two million people die every year due to a lack of safe water.6 In some third-world countries, over fifty percent of the population does not have access to safe drinking water.7 The global population, now estimated at 6.4 billion people, is rapidly increasing. By 2050, the United Nations (UN) projects the world will hold an additional 2.5 billion people.8 The increasing population will create larger global demand for water, and greater numbers of people will have inadequate water supplies.
¶ 2 Types of water uses can vary based on the individual customs of a community. While all societies need water for drinking, cooking, hygiene, agriculture and livestock, some societies also use water for religious ceremonies, exercise, diversion, and even aesthetics.9 In addition to the obvious consequences created by the lack of an adequate water supply, there are secondary non-obvious effects, such as reducing school attendance or harming a family's ability to earn a living through livestock, farming, or other water-dependent livelihoods.10
¶ 3 The importance of water and its primacy for many cultures has prompted a movement to establish water as a human right and create governmental obligations to provide citizens with sufficient water resources.11 Human rights involve the protection of the rights of man.12 Human rights law has many sources including the UN, governmental bodies, and non-governmental organizations (NGOs).
¶ 4 Early human rights were written in general terms and did not explicitly define all possible implied rights. One of the basic rights represented in the initial human rights documents was the right to life.13 The right to life was originally read narrowly and did not include basic life necessities.14 Instead, it simply prohibited the arbitrary deprivation of life without details of what behavior would be prohibited.15 The right to life has been applied to preventing murder and wartime atrocities, and it has been linked to the abolition of capital punishment.16 The right to life is now read more broadly to include measures that increase life expectancy like personal health and hygiene.17
¶ 5 Early proponents of the right to water sought to include it as naturally implicit in the right to life.18 More recently, groups have endeavored to establish water as a separate and individual right of citizens.19 Although awareness regarding the human right to water has increased dramatically in recent times, the inclusion of water within the right to life or water as a stand alone right has not become customary international law.20
¶ 6 The purpose of this paper is to demonstrate the need to establish water as a human right and thereby raise the right to water to the status of customary international law. Human rights law is the best approach for ensuring people's access to water for many reasons. First, human dependency on water for life and health closely parallels those rights that are already considered customary international law. Seeking to create water as a human right also corresponds with the movement for increased rights and protections for women and children. Further, human rights is a powerful mechanism to establish obligations globally by including enforcement mechanisms within the right. If water becomes a human right, the right would be vested in all citizens in a more effective manner than if it were established through domestic or international law.
¶ 7 This paper will define the right to water and determine governmental responsibility once that right has been established.21 Part II provides a basic review of human rights, its major advances, and the treatment of human rights in international law.22 Understanding the basics of human rights law and its evolution is critical to recognizing the mechanisms available to develop water as a human right as well as to visualizing how human rights law can be applied to provide water for people in need.23
¶ 8 Part III reviews the historic introduction of water as an individual human right.24 This section applies several legal theories to the right to water and catalogues its development through declarations and treaties.25 Part IV defines the proposed right.26 The purpose of this section is to ascertain the extent of the right to water, assuming water is determined to be a human right in and of itself.27 This section reviews past documents and discussions in order to establish the minimal ways in which governments must provide for their citizens to be in compliance with customary international law.28 The conclusion indicates the need for further evaluation in this area and lays the foundation for the author's upcoming work on governmental responsibilities for providing water to their citizens, as well as like intergovernmental obligations. The conclusion also proposes how the right to water can reach the status of customary international law.
¶ 9 "Human rights are protected by internationally guaranteed standards that ensure the fundamental freedoms and dignity of individuals and communities."29 This definition is often reduced to the simple phrase, "the rights of man."30 These rights are generally held by citizens and enforceable against the state.31 Human rights are considered universal and can cover a range of services including civil, cultural, economic, political, and social rights.32
¶ 10 Human rights fall into two distinct categories: 1) welfare rights, defined as rights which assure the provision of certain goods or services considered necessary for human well-being; and 2) liberty rights, which include the right not to be interfered with or maltreated.33 Welfare rights include economic, social, and cultural rights. They are considered positive rights because they require affirmative action by governments.34 In contrast, a government generally secures liberty rights, which include civil and political rights, by ensuring noninterference with the right.35 The category in which a right is placed determines the governmental duties it imposes and defines whether a state must take affirmative steps to provide the right or simply guard against its deprivation.
¶ 11 Sometimes human rights are codified into a government document such as a Bill of Rights.36 These rights, called positive rights, are the easiest to enforce because the state has recognized their existence and incorporated their enforcement into the local law.37 More frequently, rights are unwritten and are only implicit requirements of society.38 These are called moral rights and their enforcement is much more difficult.39 Nevertheless, when a government does not explicitly recognize certain rights of its citizens, international law can provide a means to require the protection of those rights.
¶ 12 Provisions and obligations included in international treaties are a frequent source of international law. An international treaty can be binding on a country in one of two ways. If a country ratifies a treaty, it is bound by its contents.40 Ratification is an affirmative step reflecting a state's consent and intent to be bound.41 Although a signature can construe consent, a more authoritative act is usually required.42 Ratification, in whatever form it takes in a particular government, is the most common.43
¶ 13 International law does not require a country to agree upon an idea for it to be bound.44 For example, non-signatory countries can be bound by a provision in an international treaty if the principle rises to the level of customary law.45 A principle is considered custom when there is a general acceptance of a rule. There are two requirements which evidence general acceptance: 1) state practice must be shown to be consistent with a rule; and 2) states must conform to a rule due to a sense of legal obligation or opinio juris.46 Once both of these are present, a doctrine qualifies as customary international law.47
¶ 14 In order for a doctrine to be considered customary international law, it must be extensive and virtually uniform. Additionally, only states that are particularly affected by the proposed norm are subject to this implicit customary international law.48 Time is not a necessary element to proving custom.49 It is also not necessary to show a rigorous conformity to the practice; however, if conduct was inconsistent, the government must consider the variation to be an infringement of state practice.50 For the second prong, opinio juris, one must show that adherence to a rule is the function of a legal obligation, not simply a moral one.51
¶ 15 Once this international custom has been established as law, it is recognized as obligatory.52 The Vienna Convention on the Law of Treaties expands this by stating that, "[i]f a new peremptory norm or general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates."53 These laws are obligatory, but not necessarily absolute. Within customary law, however, there are decrees that cannot be changed. These norms are referred to as jus cogens.54
¶ 16 Perhaps the most prominent human right to reach jus cogens status, and certainly the right most often linked to water, is the right to life. Generally speaking, man's greatest wish is to stay alive.55 Some scholars believe that "the right to life... is a guarantee against the arbitrary deprivation of life by the state."56 Under this theory, there is no requirement for a state's affirmative action towards these means.57 For example, a state that apathetically allows its citizens be deprived of adequate water supplies is not in violation of any human right. However, if these treaties and agreements are interpreted more proactively, a government's inaction in building water systems or otherwise interfering with the delivery of water to its people also violates its obligations.58
¶ 17 More recently, the emphasis has been to read the right to life more broadly and positively to include the pursuit of policy and legislation to support those means as well as the more traditional protection against arbitrary deprivation of rights.59 Even a broad interpretation raises questions as to what exact action is required. Perhaps the minimum requirement for governments is due diligence.60 Although due diligence has the disadvantage of being an undefined standard, it provides an adjustable criterion that depends on a particular government's capabilities and resources.61 The flexibility of the due diligence standard could also be its downfall in implementation. It raises several questions regarding who gets to determine a state's capabilities and who determines what diligence is sufficient. In spite of its drawbacks, the usefulness outweighs the uncertainty by providing a start that, in theory, can incorporate all countries.
¶ 18 Although human rights is an evolving area of international law, existing organizations and landmark documents must be considered in any human rights discussion. These groups and landmark documents broke ground by raising general awareness and generating voluminous support at the international level. Understanding these documents is the first step in comprehending how an additional right can be added to the foundation they have built.
¶ 19 The UN is one of the leading international organizations in the area of human rights. Its Charter, adopted in 1945, states that the UN shall promote "respect for, and observance of, human rights and fundamental freedoms," and it is the duty of all members to promote these goals.62 The UN Charter was the first attempt at comprehensive protection for individuals, but it lacked an explanation of the rights it included.63 Based on the goals listed in the Charter, the UN created the Commission on Human Rights in the following year.64 This commission drafted the concerns of the UN in the Universal Declaration of Human Rights (UDHR) in 1948.65 The purpose of the UDHR was to define the rights listed by the Charter.66
¶ 20 One of the critical ideas expressed by the UDHR is that human rights are universal and international.67 The preamble states that human rights "should be protected by the rule of law" such that man has a recourse to demand what is deserved.68 The Declaration provides for many important rights; perhaps the one most critical to the right to water is Article 3 which provides, "[e]veryone has the right to life, liberty and security of person."69
¶ 21 Although there is no specific definition of "life" in the UDHR, some clarification can be found in its later articles. For example, Article 25 states, "[e]veryone 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."70 It is important to note, that of the many specifics listed in this document as human rights essentials, water is not one of them.
¶ 22 The UN subsequently adopted two human rights covenants: the International Covenant on Civil and Political Rights (ICCPR); and the International Covenant of Economic, Social, and Cultural Rights (ICESCR) to further explain the rights listed in the Declaration of Human Rights.71 After twelve years of consideration, both covenants entered into force in 1976.72 Although the rights were divided into two separate covenants, they were seen by the General Assembly as interrelated and indivisible.73 Therefore, one covenant should not be given precedence over the other. Although all of the articles in these documents are not binding customary international law, the fundamental provisions, especially of the UDHR, can be considered customary or "an authoritative interpretation of relevant UN Charter provisions, or both."74 Even if the UDHR is not entirely customary international law, certain principles raise the level of awareness for moral and political standards.75
¶ 23 The ICCPR is primarily concerned with political rights; however, its declarations can be applied to other situations. This covenant contains strong language guaranteeing all people the right to life.76 Because the ICCPR does not define the limitations meant by the word "life," it is reasonable to infer that the deprivation of life-sustaining substances such as water violates the right to life, but the document does not specifically state this.77
¶ 24 The ICESCR addresses people's basic social rights, which include the right to "an adequate standard of living" as well as the right to "the highest attainable standard of physical... health."78 The ICESCR further explains that, to achieve these ends, a country should improve environmental hygiene and prevent disease.79 The covenant also provides that, "[i]n no case, may a people be deprived of its own means of subsistence" or adequate food.80 Both of these allowances could implicitly include water. Another important aspect to this document, in contrast to its sister document, is that the ICESCR attempts to protect "second generation rights," which are generally positive in nature and require the government to affirmatively provide the services defined.81
¶ 25 Other organizations have also contributed to the development of human rights law on a regional scale. Europe has the most developed regional system of human rights law.82 One of the leaders of this movement is the Council of Europe, a multinational agency created in 1949 that now has forty-nine member states.83 In 1950, the Council completed the Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights, which established the rights guaranteed to everyone within its jurisdiction.84 Subsequent protocols expanded the document with additional rights.85
¶ 26 Similar to the language seen in the UDHR and the ICCPR, the European Convention emphasizes that "[e]veryone's right to life shall be protected by law. No one shall be deprived of his life intentionally."86 Also, similar to previous documents, the convention does not define the perimeters of the right to life, though proponents have argued that water should fall under this purview.87 The Convention also established its own enforcement mechanism called the European Court on Human Rights.88 States and individuals can bring suit for an alleged violation that is guaranteed by the convention to this court.89 The court has jurisdiction over the parties to the Convention.90
¶ 27 There are corollary documents from the other side of the world. The first of these is the American Declaration of the Rights and Duties of Man (ADRDM). Predating the UDHR by six months, it was the first international human rights instrument of a general nature.91 This document was drafted by the ninth international conference of American States, held in Bogotá, Colombia in 1948.92 Similar to many other general rights documents, Article One of the ADRDM seeks to protect the right to life, liberty, and security of person.93
¶ 28 The American Declaration on the Rights and Duties of Man has been largely superseded by the more detailed American Convention on Human Rights (ACHR). This document was drafted in 1969 by the Inter-American Commission on Human Rights (IACHR) and entered into force in 1978.94 The preamble of the ACHR reaffirms the goal of the Americas to protect the essential rights of man which are intrinsic rights based on attributes of human personality.95 At present, the ACHR has been ratified by twenty-four of the Organization of American States member countries.96 Although the ACHR's right to life provision is more detailed than that of its predecessor, adding that no one should arbitrarily be deprived of their right to life, the article does not specifically include food, water, or health.97 Despite its lack of enumeration regarding all possible aspects of the right to life, the document is an important part of general human rights development.
¶ 29 The development of human rights is a new and quickly evolving source of international law. In a historically short period of time, many protections, such as the right to life, have been established as a right from which there can be no derogation.98 These rights are protected by international custom and can be considered obligatory regardless of whether the protection is codified by local law.99 Although this type of right has important consequences for individuals, existing rights do not guarantee the right to water. Nevertheless, present documents provide the underpinning for the creation of the human right to water.100
¶ 30 Establishing water as a human right is a changing process that finds its foundation in a dependent human rights past and that seeks an independent future. Early discussions focused on whether water should be an independent human right. Many developmental theories support this conclusion. A rights-based approach, environmental justice theory, and sustainable development proponents all agree that water must be a right, each advancing different but related assertions to support this need.
¶ 31 Past discussions and documents must be reviewed to understand the right to water's current status and extent. Its impact and obligations depend on whether water will be implicitly included in other human rights or will be a stand-alone right. Human rights debates have attempted to establish water as an independent right to ensure maximum benefits and enforcement mechanisms for citizens. Although global recognition of this need is increasing, it has not reached the level of customary international law as a separate right. This issue aside, great strides have been made in the global recognition of the basic right to water and the need to ensure widespread access.
¶ 32 At first blush, the importance of water seems simple; life cannot exist without it. However, the implications of this life-sustaining quality are more complicated. Even recognizing its importance, some argue that it is not necessary to establish the right to water as a separate human right.101 This issue becomes especially complex if water is incorporated into the right to life.
¶ 33 Simply assuming that water is included in the right to life will not create the recognition or enforcement that is necessary to help people who are in need of the resource.102 The importance of water in the daily life of the world's population raises its importance beyond academic conjecture and into action. Past sustainability efforts have shown that shining a light directly on an issue is often the best way to bring it out of the shadows.103 Providing rules and creating accountability through enforcement mechanisms is often the only way to ensure change.
¶ 34 Establishing water as a right puts people in the center of development as opposed to passive recipients.104 The method of incorporating norms and principles with policy is called the "rights-based approach."105 This approach focuses on empowerment: "approaching development from a rights perspective informs people of their legal rights and entitlement and empowers them to achieve those rights."106 The rights-based approach also serves to level the playing field for gender and economic divisions.107 In the context of water, establishment of a right provides an enforcement mechanism. Once this mechanism is in place, governments are held accountable when they take no tangible steps towards the right's protection or satisfaction.108
¶ 35 This recognition of water as a right has also been tied to the sustainable development movement that links human rights to the environment.109 There is an interrelation between social and environmental rights, creating a chain reaction if one is considered independent from the other:110 "the link between social well-being and environmental health will become increasingly important and securing social well-being without acknowledging the environmental realities will ultimately fail."111 Proponents argue that human rights must be supported in both spheres simultaneously for success to occur because "[h]uman rights cannot be secured in a degraded or polluted environment."112 Following this logic, the explicit inclusion of water is an integral factor in the elimination of poverty and ensuring a better environment for the future.113 Although the right to a healthy environment is not customary international law, this theory is still useful because it links the right to water to existing poverty eradication efforts and other environmental movements.
¶ 36 On the international level, sovereignty issues limit the types of actions that can be used to enforce a global initiative.114 The most effective action to overcome this limitation is to promote the cause in such a way that it rises to the level of customary international law.115 Once this occurs, both the countries that ratified existing declarations or treaties, as well as non-parties are bound to adhere to their requirements. Without this movement to identify water as a human right, there would be no means to protect those who struggle to live each day without access to the minimum water necessary for life: "ensuring that access to sufficient safe water is a human right constitutes an important step towards making it a reality for everyone."116
¶ 37 Establishing water as a human right also finds support in the relatively new theory of environmental justice. Environmental justice is a theory which started in the United States during the late 1970s and is now recognized around the world.117 President Clinton described it as "disproportionately high and adverse human health or environmental effects ... on ... low-income populations."118 The United States Environmental Protection Agency later expanded that definition to require the fair treatment of people of all races, cultures, incomes, and educational levels with respect to the development and enforcement of environmental laws, regulations, and policies. It described "fair treatment" as meaning that no population should be forced to shoulder a disproportionate share of exposure to the negative effects of pollution due to lack of political or economic strength.119
¶ 38 The primary foci of environmental justice are "fairness" and "justice".120 Justice is further broken down to include: distributive, procedural, corrective, and social justice.121 Distributive justice means that all citizens have an equal right to goods and opportunities.122 This includes equal distribution of environmental hazards as well as protections.123 Some advocates argue that the duty imposed is the overall reduction in environmental risks.124 Among the goods included in distributive justice are environmental benefits, such as safe drinking water.125
¶ 39 More advantaged communities often receive greater environmental protections as a result of their ability to participate in regulatory decisions.126 Procedural justice provides for equal treatment of citizens in procedural aspects to ensure that everyone has a voice.127 Many agencies have attempted to achieve this through public participation, creating an open forum that is free from economic favoritism.128
¶ 40 Corrective justice, also called compensatory or restorative justice, looks at the punishment mechanism of non-compliant governments.129 Finally, social justice looks to the better ordering of society so that people's needs are fully met.130 This merge of socialism and the environmental movement broadens the focus of environmental justice, viewing it as part of the greater problem of disparity that needs to be addressed.131
¶ 41 Although environmental justice finds its roots at a national level in the United States, this theory has been applied in an international context and has applications to the human right to water because "[w]ater is a major part of the human environment."132 The lower socio-economic brackets, women, and children are most often affected by the consequences of an inadequate water supply.133 Similar disparities can be seen between urban and rural areas.134 For example, "some 80% of those who have no access to improved sources of drinking-water are the rural poor."135 Excessively poor shanty towns located on the edges of large cities, such as Mexico City, are often not recognized by city authorities, so support infrastructures are not extended into these areas.136
¶ 42 Environmental justice will have increased application as water becomes more scarce.137 The American southwest is already facing the challenge of rich businessmen trying to buy water for resale at a large profit.138 The ability of the rich to take water from the poor for a profit violates the idea of distributive justice. International documents, such as the UN's General Comment No. 15 (Comment 15), attempt to remedy this disparity by stating that although everyone has a right to water, "[s]tates parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees."139
¶ 43 Environmental justice is intertwined with human rights and sustainable development.140 Intrinsic to the sustainable development approach is the protection of vulnerable members of society.141 This method of evaluation examines the relationship "between the social and environmental aspects of economic development."142 As commodity production increases, with the effect of benefiting the wealthy, pollution and resource depletion that is necessary for manufacturing victimizes poor communities and nations.143 Working from the premise of an international economy and shared ownership of the world environment, a shift towards risk minimization in commodity production will have positive benefits on long-term global protection and sustainability.144 Increasing human rights, including the right to water, will assist in the reduction of poverty by bringing poor people's living conditions to a higher standard that is more comparable to that of people with greater means.145 This argument becomes particularly applicable in the north/south debate.
¶ 44 The north/south debate argues that more developed nations environmentally exploit less developed nations.146 Less developed regions are distinguished by "historically determined social and economic conditions resulting from their colonial and imperial past," creating a "'qualitative dividing line'" between them.147 The economically powerful northern countries have focused on the environmental issues that are more important to them, but the rise of environmental justice would obligate a shift in priorities to ensure that the needs of southern countries are met.148 The question then becomes whether the northern countries have an obligation to assist the southern countries in achieving their goals. If world maintenance is viewed as a global responsibility, cooperation and implementation of policies would be the duty of all nations, especially those with greater resources.149
¶ 45 Environmental justice is not without criticism. One complaint is that the movement focuses more on procedure, such as public participation, than on improving the environmental effects on human health.150 Because the movement focuses more on politics than public health, improvements to health standards are often secondary to political advocacy.151 Another complaint is that the shift from a health or risk focus to one of nondiscriminatory prioritization actually endangers those it seeks to protect.152 Despite the possible weaknesses of environmental justice in enforcement and policy implementation, its strength is its ability to empower and mobilize people at a grassroots level.153 The focus on social and political power, as opposed to economics, make it a powerful tool at the international level by giving less fortunate states leverage to demand equality in environmental and distributive matters, including the demand for sufficient quantities of water.154
¶ 46 The first recognition that water should be a human right sought to attach it to the existing rights of health or life. Many of the earlier treaties and declarations now used to support the premise that water is fundamental do not explicitly mention such a claim. Although it is unclear why water was not specifically listed, its presence might have been assumed based on water's obvious relation to life.155 This is supported by the necessity of water to fulfill the existing goals that are listed.156 More support is raised for this theory when it is considered that other, lesser rights were listed in those treaties and declarations.157 If the UDHR made an effort to protect against unemployment, surely it intended something as fundamental as water to be implicitly included in naturally related provisions.158 Even if the drafters did intend to include it, its physical absence in the provisions makes enforcement difficult.
¶ 47 More recently, groups have recognized the importance of establishing water as an independent right. The IUCN expressed this goal well when it stated, "[f]ormally acknowledging water as a human right, and giving content and effect to this right, may be a way of encouraging the international community and governments to enhance their efforts to satisfy basic human needs."159 Although reference and even inclusion of water as a human right has increased awareness in the international community, this has not yet raised the right to water to the level of customary international law.160
¶ 48 One of the indications that the right to water has not risen to the level of customary international law is the lack of a clear scope.161 Most human rights documents do not mention water and those that do provide little to no indication of the extent of the right. It is often unclear if the obligation is limited to drinking water or if it also includes water for agriculture and hygiene. Various human rights documents also conflict on whether a government fulfills its duty by not interfering with access to water or whether the obligation requires more affirmative action for compliance. For instance, some merely require the right to access162 while others place the burden on the state to provide adequate drinking water.163
¶ 49 The first official debate on the right to water occurred in 1977 at the Mar del Plata Conference in Argentina.164 The Conference's Resolution II on "Community Water Supply" made the landmark declaration that all peoples have a right to access of sufficient quantity and quality of drinking water.165 This resolution linked these needs to the necessity of human life and provided the basis for subsequent documents that sought to confirm and delineate the right.166 Although it did not define the right to water, it recognized a need and set a precedent for future discussions.
¶ 50 In the short time since the Mar del Plata Conference introduced the idea of water as a human right, several important documents have attempted to explicitly establish the right. Similar to human rights generally, these treaties and agreements are the result of work by the UN, NGOs, and individual governments. Although these documents have greatly increased the recognition of the importance of water, there are lingering questions about enforceability and the scope of the right.
¶ 51 As in the movement for human rights overall, the UN has been instrumental in promoting water as a human right. The UN has made efforts to raise awareness of both the need for water and other related issues. For example, the UN declared 2003 the International Year of Freshwater.167 The goal was to raise awareness and implement the work of previous conferences such as the Millennium Declaration, which established a goal to reduce the proportion of people unable to reach or afford safe drinking water by one half before 2015.168
¶ 52 In addition to raising awareness, the UN has drafted several important documents. The first human rights treaty to explicitly mention the right to water was the Convention for the Elimination of all Forms of Discrimination against Women (CEDAW) in 1979. This convention obligates states to "take all appropriate measures ... [to] ensure" the right "to enjoy adequate living conditions particularly in relation to ... water supply."169 The express inclusion of water in the treaty may have stemmed from the fact that women are generally responsible for gathering water.170 Women are also the group most negatively affected by lack of adequate water for hygiene.171
¶ 53 A second, equally important document was the 1989 Convention on the Rights of the Child, entered into force in September 1990. The preamble to this document recognized that "childhood is entitled to special care and assistance ... [and] children should be afforded the necessary protection and assistance."172 To achieve these ends, states are to ensure, among other things, that an infrastructure exists to provide an accepted standard of health care.173 A familiar edict is found in Article 6, stating "[s]tates Parties recognize that every child has the inherent right to life."174 Unlike the UDHR, which provided no clarification of this idea, Article 6 of the convention document goes on to explain that states are required to ensure survival of the child to the "maximum extent possible."175 This broad phrasing may be sufficient to create an affirmative duty on the state to protect the survival of children and would implicitly include water. However, this interpretation may be unnecessary because a direct duty regarding water is already placed on the state.
¶ 54 Analogous to what was frequently seen in previous human rights documents, this document discusses the right to health, but the Convention on the Rights of the Child also included a specific provision for clean drinking water.176 The document directs the state to take appropriate means to provide adequate, clean drinking water to combat disease and malnutrition.177 Interestingly, this clause does not specify whether the state holds this obligation for children, expectant mothers, or society at large. Together, CEDAW and the Convention on the Rights of the Child are the only two human rights treaties that refer directly to a right to water.178
¶ 55 Perhaps the greatest victories to date for those seeking to establish water as a human right were the 2000 and 2002 General Comments to United Nations Committee on Economic, Social, and Cultural Rights. In 1987, a committee was invited to create general comments on the ICESCR.179 Comments are released to clarify rights given in the source document in order to assist states' implementation of the Covenant and its articles.180 Comments are not binding per se, can only elucidate existing rights, and cannot create new rights or expand existing ones. Therefore, support for all conclusions must be present in existing documents.181
¶ 56 The first important comment for this discussion was General Comment No. 14 (Comment 14) released in 2000. Comment 14 linked the need for potable water with the right to health by explaining that Article 12 of the ICESCR included things that contribute to health, including "access to safe and potable water."182 Comment 14 also places immediate obligations on governments in relation to the right to health, but limits expectations by the resources available to the governments.183 Obligations include access, as well as protection of water resources from contamination.184 This specific enumeration of water established a right that previously existed only by implication.
¶ 57 The obligation to provide water was further clarified in 2002's Comment 15 where the Committee recognized water as a separate right included within the ICESCR, stating it was "one of the most fundamental conditions for survival."185 Analogous to Comment 14, this Comment not only recognized that water is a limited resource, but also linked the right to other human rights including the right to life, health, an adequate standard of living, and adequate food.186 The central hypothesis behind Comment 15 is summarized in the second paragraph, which states:
The 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.187
¶ 58 The right is divided into three categories: availability, quality, and accessibility, each of which creates separate requirements for compliance.188 Availability includes quantities for continuous personal and domestic uses.189 Comment 15 further defines quantity by listing the World Health Organization's (WHO) minimum water requirement, but allows for flexibility depending on location-specific circumstances.190 The quality condition attempts to ensure the water is free of disease-causing contaminants.191 The accessibility prong is the most developed, including the subcategories of physical accessibility, economic accessibility, and non-discrimination.192 The basic premise is that water should be physically available to all people and free of economic encumbrances.193 The scope of all these requirements is conditioned on local settings.194
¶ 59 One of the important effects of Comment 15 was to bring the sanction model of the ICCPR to the ICESCR and give the Committee the power to require action from the states.195 States must implement their obligations in a manner that is "deliberate, concrete and targeted towards the full realization of the right to water."196 This means that state's protection against the arbitrary deprivation of water would not be adequate to satisfy the obligation. The obligations to respect, protect, and fulfill the right to water extend the duty to providing access, ensuring that access is not cost prohibitive, and protecting the access against interference by third parties.197 Although circumstances differ based on regional characteristics, Comment 15 provides minimal duties that must be achieved in all locations.198 This lowest duty must include the supply of water needed for personal and domestic survival, access to the water on a non-discriminatory basis, equitable distribution of the water, governmental awareness including a national water strategy, monitoring of the local water situation, and efforts towards water sanitation.199 Efforts should be implemented at a national level, and violations can occur by acts of commission or omission.200
¶ 60 Although it is not binding authority, there are several important impacts of Comment 15.201 First, it creates strong support for water as a human right by explicitly incorporating the right into the ICESCR and recognizing its existence in other documents such as CEDAW. Second, because of its level of detail Comment 15 commands "considerable state responsibility and action" by extending the requirement to include uses other than drinking water.202 Perhaps most important, in addition to defining who has the obligation, the Comment takes a major step toward defining the extent of the right to water regarding quantity, quality, and accessibility.203 These documents create a solid base for establishing the right to water. Together with increased global awareness and government enforcement, change is possible.
¶ 61 Around the world, NGOs204 strive to promote the goals they were formed to advance.205 Similarly, human rights organizations, including those attempting to establish water as a human right, have struggled to achieve their objectives.206 At a minimum, NGOs raised global awareness of the issue. However, it could be argued that they also placed pressure on governments to create policy and even assisted in defining the right to water.207 "Above all, human rights NGOs bring out the facts .... They provoke and energize."208 The UN's Economic and Social Council and Human Rights Committee have repeatedly recognized NGOs' ability to reach out to large groups of people and assist in human rights efforts.209 NGOs were invited to participate in the implementation of the ICESCR by submitting written statements to help the ICESCR realize its goals.210
¶ 62 NGOs are particularly effective because they operate under different mandates than other entities involved in these discussions, allowing for a range of information and viewpoints.211 While governments are often concerned with political posturing, an NGO can supply independent information.212 Although human rights are enforceable by a citizen against his or her state, it is sometimes difficult for an individual to have the strength or the knowledge of the system in order to bring a claim. NGOs assist by informing people of their rights and facilitating the judicial process.213 The influence achieved by NGOs has not been without criticism. However, they remain a great mechanism to assist citizens and create governmental accountability.214
¶ 63 A simple internet search with the terms "water" and "human rights" quickly reveals the involvement of NGOs in this debate. Well known human rights NGOs such as Amnesty International recognize the importance of water as a right.215 Green Cross International released its own Fundamental Principles on the right to water.216 This petition reflects an "inalienable and universal right" to water.217 The document defines the right as a "fundamental right of access to... water of a quality, quantity and accessibility sufficient to satisfy [ ] basic human needs."218 It goes on to discuss the obligations created by the right to water and the specific actions that states must perform to comply with the right.219 Green Cross explains the basis of the responsibility through theoretical concepts such as sustainable development and social justice.220 Although documents like these are not binding, they provide valuable tools in constructing more enforceable models.
¶ 64 Human rights are present in two forms. First, many governments have sought to include the right to basic needs among their state policies.221 Second, human rights have been extensively recognized through international documents or treaties similar to those described above.222 Although some governments include basic human rights in their legal systems, very few include detailed rights, such as water. A stark contrast to this practice can be found in the South African Bill of Rights. South Africa is one of a handful of countries to include the human right to water in its rights afforded to all citizens.223 Section 27 of their Bill of Rights states that "[e]veryone has the right to have access to ... sufficient food and water."224 The Water Services Act passed in 1997 gives effect to Section 27.225 It echoes the Bill of Rights' sentiment that everyone has a right to a basic water supply and provides a protocol for the discontinuation of service.226 This protocol requires that the discontinuation of service be fair and equitable, and that reasonable notice be provided.227 It also states that service cannot be denied if the person proves to the utility company that she cannot pay.228
¶ 65 South African courts have been successful in enforcing this right, proving that the inclusion of water as a right can empower citizens who normally might not be heard.229 In Residents of Bon Vista Mansions v. Southern Metropolitan Local Council, residents of Bon Vista Mansions claimed the Local Council had unlawfully discontinued their municipal water supply for lack of payment.230 The court held that the citizens' constitutional right to water was infringed upon because the Council's procedures for disconnection were not fair and equitable.231 Specifically, the court was concerned with the lack of reasonable termination notice.232 The court went further to say that, even in the event of nonpayment, service could not be terminated if the person proved to the satisfaction of the utility company that she was unable to pay.233 Interestingly, the court's opinion did not require the government to provide access to water services, but limited the responsibility to the non-affirmative obligation to respect the right to access.234 Other cases in South Africa have been less successful in protecting access to water, supporting the concept that the right to water must be carefully defined to ensure proper application and maximum protection.235
¶ 66 In India, water is not an explicit right listed in the constitution. However, courts at the state and federal levels have interpreted the constitutional right to life to include the right to safe and sufficient water.236 In one Indian case, a group raised concerns that the pumping of groundwater was increasing the salinity of the resource, causing long-term detriment.237 The judge, stating that the right to water should be afforded to citizens as an extension of the right to life, ordered more research to understand the effects that pumping may have on a water source.238
¶ 67 Most United States citizens are familiar with the phrase, "all men are ... endowed ... with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."239 The full understanding of the rights included in the phrase is somewhat less clear. Generally, the rights implied through the U.S. Constitution and accompanying documents are not evident in the document itself, but are established through legislation and case law.240 Although the United States does not specifically list a right to water in government documents, there is evidence its importance is recognized.
¶ 68 During the 108th Congress, Representative Janice Schakowsky of Illinois submitted a resolution titled "Expressing the sense of the Congress with respect to the world's freshwater resources."241 This resolution recognizes the critical situation of the world's water supply and states that Congress shall consider water a public trust, a public good, and not a private commodity.242 The resolution also recognizes that policies should be implemented to ensure all individuals have sufficient access to meet their basic human needs and prohibits denial of access to water based on economic restraints.243 Other goals of the resolution include: organizational involvement in local water management, sustainable agricultural practices, commitment to the UN's Millennium Development Goals, consideration of water issues in financial and trade agreements, and accountability for pollution of a water resource.244 Although this resolution is not yet approved, it indicates increased awareness of the importance and need to protect U.S. Citizens' right to water.245 Regional recognition of the right to water is a significant step in establishing local accountability and detailing the extent of that right.
¶ 69 Although establishing water as a separate human right would be significant, many questions would still remain. Assuming water reaches this status, its mere presence as a right provides little guidance regarding the behavior it seeks to require. As seen in the prior section, official and unofficial documents have attempted to define the right to water by listing specific expectations with little consistency. Comment 15 defines the right as "sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses."246 The IUCN's opinion of what should be included is vaguer, stating, "The content of the right to water should be defined as a right to access water of adequate quality and in sufficient quantity to meet basic human needs."247 Other experts reduce it even further, to "a sufficient supply of safe drinking water to sustain life."248 An additional obstacle to understanding the right to water is the frequently seen caveat that conditions requirements on local situations.249 Although, this provides a more flexible standard, it may also provide an avenue for states to evade requirements by claiming circumstantial limitations.
¶ 70 The requirements enforceable on a state depend on how a right is categorized. A liberty right, such as the right to life, requires protection from interference, as opposed to a welfare right, which requires the provision of certain services or goods.250 In order for a state to comply with a liberty right, it must only guard against interference with the right and would not have any positive obligation to provide water.251 In contrast, if water is viewed as part of the right to sustenance, it would qualify as a welfare right.252 Categorizing the right to water as a welfare right would require governments to take a more proactive role in the provision of the right to water.253 The drawback to including water as a welfare right is that liberty rights have received more international recognition and effective enforcement than social rights.254 Therefore, were water a liberty right, a government would have fewer positive obligations regarding the right, but the right might be applied more readily.255
¶ 71 Although water is not yet an individual right under customary international law, the amount of attention it has received indicates that it is moving in that direction.256 If water is determined to be included within the right to life, it would qualify as a liberty right, obligating governments to prevent interference with access. On the other hand, if water becomes an individual right, it will likely be a welfare right similar to other social rights.257 A welfare right usually imposes affirmative duties and therefore guarantees greater rights for the public.258 Violations can occur through acts of commission, direct acts by states in violation of the right, or by acts of omission including "the failure to take appropriate steps towards the full realization of everyone's right to water."259 The extent of these duties remains a question. Defining details of the right is a dynamic process, but a few certainties do exist: these essential requirements form the basis for the new, developing right to water.
¶ 72 To define the responsibilities created by the right to water, the first question to be answered concerns the source of water. Is a government simply required to protect access to a water source or do they need to ensure its delivery to its citizens? The WHO stated the ultimate goal is to provide in-home service for all citizens.260 Due to the restrictive expense of installing indoor plumbing, accessibility becomes the minimum goal.261 Comment 15 defines physical accessibility as "safe physical reach for all sections of the population."262 The "immediate vicinity" stipulation of paragraph 12(c)(i) indicates that household delivery is not required. However, delivery should be accomplished whenever possible.263
¶ 73 Comment 15 states that all are entitled to physically accessible water without discrimination.264 This implies that only non-interference is required. However additional provisions imply greater obligations. Paragraph ten of Comment 15 implicates a duty exceeding access by stating that citizens have an "entitlement ... to a system of water supply and management."265 There is also the general obligation to take deliberate and concrete steps "towards the full realization of the right to water."266 Access is a critical element of that right.
¶ 74 Positive and negative requirements are also placed on states under the listed obligations to respect, protect, and fulfill the right to water.267 The right to respect and protect are primarily negative rights, requiring protection against interference. However, the right to fulfill explicitly imposes positive measures on governments to "facilitate, promote and provide" water.268 Pairing Comment 15 with other water rights conventions, it can be inferred that in locations where water is currently available only at a central access point, states should implement a delivery plan prioritized by need.269 This obligation can also arise as part of the human right to health because a positive correlation exists between hygiene and location of a water source.270
¶ 75 In locations with indoor plumbing, other problems arise because accessibility is often dictated by cost.271 Affordability must be included in right to water discussions because it is often the poor who have the lowest service of water.272 This is particularly applicable in areas where water is not collected from a freely available central location, but is only accessible through in-home delivery.273 Comment 15 links the access requirement with the word "affordable" explaining that charges associated with water delivery must be such for all.274 The Comment also explains that states have a "special obligation to provide those who do not have sufficient means with [] necessary water."275 The IUCN defines the right to water as the "right to access sufficient water, with the term 'access'[] including economic accessibility."276 The resolution introduced in the U.S. House of Representatives also included the requirement for governments to provide equitable access to water and stated that no one should be denied water due to economic constraints.277 This is not a recommendation for free water, which may encourage waste.278 Instead the obligation is that water pricing should not be cost prohibitive to the individual user.279
¶ 76 Applying the court's reasoning in Bon Vista Mansions, lack of payment cannot be a reason to deny service and disconnections of service must be fair and equitable.280 The court in that case directed the utility company to review and approve the customer's reason for nonpayment.281 It is unclear if the utility provider would be accountable to local government for their decision to discontinue service after review.282 The accountability of the utility provider would depend on whether it is a government entity or private contractor.283 As a state actor a government agency would be liable under the state law.284 On the other hand, a private company would not be liable under a state's constitution, but could commit a permit violation depending on the applicable contract.285 If the utility company's decisions are not subject to review by courts or contract, the ruling in Bon Vista Mansions may lose its impact by allowing the service provider to deny service without accountability.
¶ 77 Reviewing existing right-to-water documents and recommendations, the minimum requirement is access.286 This must be done in a non-discriminatory manner and may entail positive and negative requirements.287 The state must protect against any threat to existing water sources and must create a source if none is available.288 If the state has the economic capacity to deliver water, it must do so. All water must be affordable to be considered accessible.289 This limits the price that can be charged for water delivery and likely imposes a prohibition on discontinuation of service for economic reasons.290
¶ 78 It seems obvious that to the extent a right to water exists, it would include drinking water; however, other included uses are less clear.291 Water needs vary according to many factors including climate, lifestyle, diet, and wealth, but some minimum requirement must be established for human rights purposes.292 One method to determine need is to consider the ways in which water is used for survival.293 In addition to drinking, water is also required for human hygiene, sanitation services, and food preparation.294 A similar but more detailed tactic attempts to define the right as including those purposes for which water is needed to meet basic human needs. The IUCN recommends the inclusion of "drinking, bathing, cleaning, cooking, and sanitation" in this approach.295 A more conservative methodology is to consider average household or domestic uses. Domestic water has been described as "water used for all usual domestic purposes including consumption, bathing and food preparation."296 Although similar to the prior procedures because this amount is dependent on culture and standard of living, this method differs in that it does not specifically include hygiene (besides bathing) or sanitation needs. Neither approach incorporates agricultural needs.297
¶ 79 Sanitation and bathing requirements, although secondary to drinking water for survival, have significant impacts on human health.298 The quantity needed for hygienic purposes is variable, spanning from the amount of water necessary for regular hand washing to water needed for waste removal.299 Quantities used also vary depending on technology and local resources.300 Similarly, water for cooking has a direct affect on human hygiene.301 At a minimum, states should provide sufficient water to facilitate basic cleanliness and regular hand-washing.302
¶ 80 The omission of agricultural water can have significant impacts on poor communities.303 Many populations depend on locally-grown food for their survival. However, including agriculture in the human right to water has many drawbacks.304 Agricultural uses are generally water intensive, but it is difficult to quantify the water that supports these practices because usage varies depending on local food practices.305 Unlike drinking water, other alternatives exist to meet agricultural needs. Water-scarce regions can import agriculture from water-rich areas, allowing limited water resources to be used for more critical needs.306 Because alternatives are available and agriculture is water intensive, ensuring its availability should be secondary to meeting basic human needs.307 This hierarchy of usage may conflict with a nation's sovereignty; water requirements may infringe on the state's ability to make the ultimate decision in water allocation and could reduce self-sufficiency in food production. However, the importance of human life has been well established in international law and must take precedence.308
¶ 81 Other water needs not included in the "basic" category deserve recognition. Basic water needs generally do not include environmental requirements such as minimum stream flow.309 Although environmental needs may appear secondary, significant impacts can occur to fish populations which ultimately affect human survival.310 Industrial and commercial uses of water, such as in electric and power plants, can be distinguished from basic needs for water.311 Although these economic needs are secondary to survival needs, they may be considered as part of a governmental obligation if sufficient quantities of water meet higher priority uses first.312 This tiered approach prioritizes use and provides governments with structure to create a water supply strategy for their citizens. In this scheme, sufficient drinking and cooking water is the first goal, water for sanitation and hygiene is the second, and agricultural, industrial, and environmental water is the final obligation, provided prior goals are met.313
¶ 82 A state's obligation is to ensure the sustainability of water for its people.314 The uses for which a government must provide water are contingent on the human right that creates the obligation. Under the right to life, it could be argued that only drinking water is required. However, water for hygiene is closely related, as it protects against disease. Hygienic and sanitation water would certainly be included in the right to health. The uses of an independent right to water are arranged by priority and depend on local conditions.315 This prioritization of use is an important step in implementation, but more guidance is needed to fully define the human right to water.
¶ 83 Establishing the uses of water to be included in the human right to water is an important step in the right's development, but the water must be quantified to be most useful to states. Prior discussions illustrate that a lack of a water supply is a violation of the human right to water. However, an expectation of unlimited access is unrealistic.316 Therefore, the requirement must be a compromise between these two theories, although this provides little guidance for states. Comment 15 indicates that quantity is dependent on minimum daily needs and must be sufficient for continuous and regular use.317 The Comment's use of the phrase "an adequate amount" provides little clarification for the amount of water a government must provide for each of its citizens.318 Recommendations of what should be included in the human right to water must be read together with scientific research: this approach quantifies the right in a way that is most useful for guidance and enforcement.
¶ 84 As the minimum requirement of any right to water, drinking water is the first quantity that must be established. A minimum requirement needed to avoid dehydration varies according to climate.319 The WHO estimates an average male in average conditions requires a minimum of 2.9 liters of drinking water per day and up to 4.5 liters in hot areas.320 These numbers vary depending on personal needs.321 For example, a lactating or pregnant woman needs more water to maintain hydration.322
¶ 85 In addition to drinking water, the daily amount of water required per person depends on the uses included in the right to water. Water needs also vary depending on climate and the state's level of development.323 Due to the inclusion of different variables, several estimates for minimum daily water requirements have been made.
¶ 86 Applying the different theories of what the human right to water includes yields a range of total daily water needs. The survival analysis estimates average daily needs at 50 liters per person per day.324 In contrast, South Africa's compulsory national standard is only 25 liters per person per day.325 It is unclear which uses are included in that amount. However, if the amount is based on the Bill of Rights' water obligation, it includes drinking water and basic sanitation.326 The WHO's domestic-use projection is even lower, estimating 5 to 7.5 liters per capita per day depending on the user.327 This basic access estimate is significantly lower because it only includes essential hydration and cooking needs.328 Including hygiene would increase this number from 5 to 100 liters per capita per day depending on the location of the water source and the goals of usage.329 Although hygiene is not part of minimum human needs, due to its importance to health, a minimum allowance for sanitation should be included in the human right to water.330
¶ 87 Any quantity of water is meaningless if its quality causes it to be unfit for use or consumption. Contaminated water can increase health risks, causing illness and death.331 Providing low quality water would vitiate the intent behind the right to water. Therefore, "[t]he water required for each personal or domestic use must be safe ... free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person's health."332 Quality also extends to aesthetics, such as odor and color, to encourage consumption of a healthy source over less healthy alternatives.333 The WHO recognized that a "zero-risk" scenario is not realistic. Therefore the goal is "tolerable risks." Minimum contaminant levels can be defined by local drinking water quality standards or, if none exist, states can adopt the WHO guidelines.334 The state bears the responsibility of implementing these standards as part of the human right to water.335
¶ 88 The minimum requirement the human right to water imposes on states is a "sufficient supply of safe drinking water to sustain life."336 For greatest protection, states should use liberal estimates of their climate to ensure basic needs are being met.337 The total amount of water required per capita per day depends on local conditions and priority of usage.338 All water supplied or accessed must be of acceptable quality to protect public health.339 As the obligations created by the right to water are further understood, the right will be clarified until its consistent and absolute nature raises it to the level of customary international law, empowering citizens to demand their survival needs.
¶ 89 Water is critical to the survival of all living things, yet a large portion of the world does not have access to sufficient quantities of clean water.340 Lack of water has severe health consequences including dehydration and hygiene-related disease.341 One method proposed to assist people in gaining access to water is to establish water as a human right.342
¶ 90 Human rights law is an appropriate avenue to establish this right for many reasons. First, the necessity of water and humans' dependence on it for basic health and hygiene is similar to existing human rights such as the right to life. Second, human rights are rights held by citizens and are enforceable against the state.343 A government can be bound by a right if it is included in local law, if the state signs or ratifies a treaty including the right, or if the right rises to the level of customary international law.344 Some human rights, such as the right to life, have reached the status of jus cogens, making them obligatory.345 Thus, establishing water as a human right will actually satisfy human needs as opposed to simply encouraging the passage of local law.
¶ 91 Although it was originally argued that water was to be included in the right to life or health, recent debates have illustrated the importance of establishing water as an independent right.346 It can be argued that water is implicit in existing rights. However, the absence of water in these documents creates problems of enforcement.347 As an explicitly defined right, accountability and a structure of enforcement will be placed on states, and citizens will be afforded more rights.348
¶ 92 Assuming that a human right to water is established, determining its inclusions is an evolving process with few constants. However, a few rules can be discerned. For example, the extent of the right is dependent on local conditions and it should be read as broadly as circumstances will allow.349 At the very least, citizens should have the right to access enough water to survive.350 This water should meet existing quality standards.351 Access to water should be protected and can be extended depending on availability.
¶ 93 The human right to water is ineffective in a vacuum. To function properly, someone must be entitled to demand water and some entity must be obliged to provide it, once the right to water is established and defined. If the world shares a finite amount of water that is constantly recycled through the hydrologic cycle, then perhaps all countries share responsibility for the distribution and maintenance of water resources.352 In a general sense, governments are obliged to protect the rights of the citizens within their jurisdiction.353 This would include the provision of water if water becomes a human right.
¶ 94 Of the many relationships states may have, a simple one between a government and its citizens is rare. For example, a belligerent occupier still has obligations toward citizens within their control. In more complex situations, such as the presence of international shared water or economic disparities between neighboring states, governments may also have duties towards citizens of other countries. This duty increases when the parent government cannot provide the necessary resources.354 International law and human rights precedent provide some direction in this area, but upon examination of global situations, such as conditions along the United States-Mexico border, it is apparent that no current international precedent is available to establish responsibilities for water between sovereigns.
¶ 95 While not considered customary international law, the increased recognition of the right to water in the international community and water's importance to life and health indicate that citizens are closer to empowerment to demand this critical resource. To achieve that goal, there should be a binding document that encompasses the ideas of Comment 15. Comment 15 is an excellent guideline for what should be included in the human right to water, but its non-binding nature is problematic. NGOs must continue to promote Comment 15's concept through their publications and to generate public pressure so states agree to be bound when a treaty is drafted. Once this right is codified in a global instrument or is the practice of a significant number of states, it will finally reach the status of customary international law that it deserves.355
a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Id. In order for the ICJ to hear disputes, a state must first accept its jurisdiction. The International Court of Justice, at http://www.icj-cij.org/icjwww/igeneralinformation/icjgnnot.html (last updated Sept. 17, 2004).
| © Copyright 2005 by Northwestern University School of Law, Northwestern University Journal of International Human Rights | Volume 4 Issue 2 (December 2005) |