Article 10

10.1.1 Vital human needs


Although, in the absence of agreement to the contrary, no use of an international watercourse has inherent priority over others, where a conflict over competing uses between riparians occurs, the terms of Articles 5-7 are to be applied, with ‘special regard being given to the requirements of vital human needs.’ The fundamental question arising with regard to Article 10 is: are minimum individual water requirements therefore protected under the Convention?

The UN Watercourses Convention was the first water-related agreement introducing the term ‘vital human needs,’ which has been defined as ‘sufficient water to sustain human life, including both drinking water and water required for the production of food in order to prevent starvation.’ Thus, it seems reasonable to assume that what is intended by using the term ‘vital human needs’ is to give special attention only to the most essential needs in order to prevent death from dehydration or starvation.241 This represents a much narrower approach than the 2002 General Comment on the Right to Water attached to the 1966 UN International Covenant on Economic, Social and Cultural Rights, which uses the term ‘personal and domestic uses’ comprising drinking water, personal sanitation, washing of cloths, food preparations, and personal and household hygiene.242

By using the term ‘special regard’ in Article 10(2), it has to be presumed that water to meet vital human needs will almost certainly take precedence over other uses. While a contrary argument seems highly unlikely, the issue of quantifying the actual amount of water required per person per day is still contested and figures range between 50 and 100 litres per person per day as a minimum threshold for drinking water, sanitation and/or hygiene.243

The comparison with Article 14 of the 2004 ILA Berlin Rules is worthy of note. In the latter instrument the priority for vital human needs has been determined much more forcefully as states, in determining an equitable and reasonable use, are under an obligation to ‘first allocate waters to satisfy vital human needs.’244 This wording leaves much less room for debate than the UN Watercourses Convention. However, in any case it will be difficult to see how some uses will be deemed ‘equitable’ if they impede the satisfaction of vital human needs. Possibly the only scenario where vital human needs may not take precedence within a particular watercourse is where it could be argued that those vital human needs could be satisfied by alternative supplies of water. Pursuant to the need to account for ‘the availability of alternative’ under Article 6 of the UN Watercourses Convention, a scenario may therefore exist where a state could satisfy vital human needs from a domestic water source, if it was in close proximity to the international watercourse in question.

241 1994 Draft Articles, Art 10 at 110, para 4.

242 UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 15, The Right to Water, International Covenant on Economic, Social and Cultural Rights’ (29th Session, 26 Nov 2002) UN Doc E/C 12/2002/11. The General Comment is an interpretive statement adopted by the Committee on Economic, Social and Cultural rights, an independent body of experts, which monitors the implementation of the International Covenant on Economic, Social and Cultural Rights. While general comments can therefore be described as ‘non-legally binding’, they may have significant influence in the interpretation of the provisions of existing legal agreements (see C Blake ‘Normative Instruments in International Human Rights Law: Locating the General Comment’, Centre for Human Rights and Global Justice Working Paper, 17 Nov 2008, available at <http://www.chrgj.org/publications/docs/wp/blake.pdf>, accessed 30 April 2012.

243 Gleick suggests 50 l/p/d; Falkenmark and Widstrand 100 l/p/d. See M Falkenmark and C Widstrand, ‘Population and Water Resources: A Delicate Balance’ (1992) 47 Population Bulletin 1; PH Gleick, ‘Basic Water Requirements for Human Activities : Meeting Basic Needs’ (1996) 21 Water International 83.

244 Art 14 (1) of the 2004 ILA Berlin Rules.

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