[IntLawProfessors] GA Res. 64/292 - The Human Right to Water andSanitation

Tue Nov 9 09:09:06 EST 2010

I find it particular interesting that the HRC asserted that the HR to water is derived from the right to an adequate standard of living rather than under the right to life. I understand the justifications related to negative and positive rights, and I completely applaud the approach. And yet I can’t help but think of the practicalities that so many governments will seek to avoid/deny the responsibility of affirmatively ensuring adequate access to water. Moreover, there are still some nations (e.g., the US) who continue to deny the existence of these so-called second generation rights. I would have thought that more nations would support the “shall not deprive” or “shall not prevent” approach to a water right rather than the “shall ensure” rubric. The implications and consequences are considerable. So as not to rehash my critique of the UNGA Resolution and assessment of the human right to water in general, allow me to refer to my blog archive on the topic (http://www.internationalwaterlaw.org/blog/?cat=8).

Best regards,

gabriel …..

Gabriel Eckstein 

Professor of Law, Texas Wesleyan University School of Law = www.law.txwes.edu

Director, International Water Law Project – www.InternationalWaterLaw.org <http://www.internationalwaterlaw.org/> 

Treasurer, International Water Resources Association – www.iwrahome.org <http://www.iwrahome.org/>  

Senior Fellow, Texas Tech Center for Water Law & Policy = www.law.ttu.edu/waterlaw

Tel: 817-212-3912

Em: geckstein at law.txwes.edu

SSRN: http://ssrn.com/author=359622

From: intlawprofessors-bounces at mailman.anu.edu.au [mailto:intlawprofessors-bounces at mailman.anu.edu.au] On Behalf Of Don Anton
Sent: Thursday, October 28, 2010 1:01 PM
To: intlawprofessors at mailman.anu.edu.au
Subject: [IntLawProfessors] GA Res. 64/292 - The Human Right to Water andSanitation

Greetings colleagues,

For those following human rights and the environment issues, I note that the General Assembly Resolution on "The Human Right to Water and Sanitation" -- adopted 122-0-41 -- has recently become available on the UN website: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/479/35/PDF/N0947935.pdf?OpenElement

The three operative paragraphs provide:

The General Assembly,

. . .

1. Recognizes the right to safe and clean drinking water and sanitation as a
human right that is essential for the full enjoyment of life and all human rights;

2. Calls upon States and international organizations to provide financial
resources, capacity-building and technology transfer, through international
assistance and cooperation, in particular to developing countries, in order to scale up
efforts to provide safe, clean, accessible and affordable drinking water and
sanitation for all;

3. Welcomes the decision by the Human Rights Council to request that the
independent expert on human rights obligations related to access to safe drinking
water and sanitation submit an annual report to the General Assembly, and
encourages her to continue working on all aspects of her mandate and, in
consultation with all relevant United Nations agencies, funds and programmes, to
include in her report to the Assembly, at its sixty-sixth session, the principal
challenges related to the realization of the human right to safe and clean drinking
water and sanitation and their impact on the achievement of the Millennium
Development Goals.

108th plenary meeting
28 July 2010

The Office of the High Commissioner on Human Rights followed up on the GA Resolution in its own work at the end of September.  The OHCHR explained in its own press release on the subject:  

GENEVA (1 October 2010) – In a historic meeting of the Human Rights Council, the UN affirmed yesterday by consensus that the right to water and sanitation is derived from the right to an adequate standard of living, which is contained in several international human rights treaties. While experts working with the UN human rights system have long acknowledged this, it was the first time that the Human Rights Council has declared itself on the issue.

According to the UN Independent Expert on human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, “this means that for the UN, the right to water and sanitation, is contained in existing human rights treaties and is therefore legally binding”. She added that “this landmark decision has the potential to change the lives of the billions of human beings who still lack access to water and sanitation.”

On 28 July 2010, the General Assembly took a first critical step by recognising this fundamental right. However, that resolution did not specify that the right entailed legally binding obligations. The Human Rights Council – the main UN body competent in the area of human rights – in a resolution tabled by the Governments of Germany and Spain, with support from dozens of countries, has closed this gap by clarifying the foundation for recognition of the right and the legal standards which apply.

The Human Rights Council's Resolution and Access to Safe Drinking Water and Sanitation, U.N. Doc A/HCR/15/L.14 (24 Sept 2010) is here

http://daccess-dds-ny.un.org/doc/UNDOC/LTD/G10/163/09/PDF/G1016309.pdf?OpenElement. See in particular paras. 8 and 9. 

I am interested to learn if anyone has started thinking about the application of the right to water in the context of arid states?  I am aware, of course, of General Comment 15 and the work UN Habitat has done.  I am also aware of the periodic literature and work available on SSRN that is of general relevance, but is anyone (other than what Erik Bluemel accomplished earlier and recent work by McCaffery and Neville) investigating key challenges of and constraints on fulfilling the right to water in arid states -- the problem of capacity aside -- and the implications it raises for transboundary relations?  I'd be interested in discussing offline.

Kind regards,
Don

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