Article 10

10.1.2 The human right to water

There are a number of global instruments related to human rights, including the 1948 Universal Declaration of Human Rights;245 the 1966 International Covenant on Civil and Political Rights (ICCPR);246 the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR);247 the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);248 and the 1989 Convention on the Rights of the Child;249 There are also regional human rights instruments which contain similar provisions. With regard to freshwater, two provisions of the ICESCR (Article 11 on the right to an adequate standard of living and Article 12 on the right to the highest attainable standard of physical and mental health) are the most relevant – recognising the right to water ‘implicitly’; there are explicit references to water in Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women, and the Article 24 of the Convention on the Rights of the Child.In 2002, the UN Committee on Economic, Social and Cultural Rights adopted the General Comment on the Right to Water in order to provide greater interpretative clarity as to the intent, meaning and content of the Covenant.250 According to the General Comment, the 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.’ 251 What is envisaged in the definition contained in the General Comment is arguably much broader than the interpretation of ‘vital human needs’ under Article 10 of the UN Watercourses Convention. This therefore begs the question whether the entitlement to water under the General Comment takes precedence in the context of international watercourses. Or in other words, is sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses always afforded priority when determining what is equitable and reasonable? In this regard, the General Comment observes that ‘international cooperation requires states parties to refrain from actions that interfere with the enjoyment of the right to water in other countries’.252 Additionally the General Comment explains that, ‘any activities undertaken within the state party’s jurisdiction should not deprive another country of the ability to realise the right to water for persons in its jurisdiction’.253 Regardless of the nuances here, it would appear consistent with the principle of equitable and reasonable utilisation under Article 5 of the UN Watercourses Convention that water for personal and domestic uses takes priority over other uses, unless it can be argued that these needs can be satisfied from an alternative water source.

The legal recognition of a human right to water must be distinguished from the global effort to promote this recognition and develop the definition of the right to water under international law. This is due to the fact that no legal obligations derive from a political acknowledgement like, for instance, UN General Assembly resolutions. However, their resulting political pressure should not be underestimated. In 2006, a first step was taken in this process by the former United Nations Sub-commission on Human Rights, whose guidelines led to the United Nations Human Rights Council establishing an independent expert on the issue.254 Eventually, 122 states formally acknowledged the ‘right to water’ in the UN General Assembly on 28 July 2010.255 In September of the same year, the UN Human Rights Council adopted a resolution which recognises the human right to water and sanitation as being part of the right to an adequate standard of living.256

245 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

246 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976) UNTS Vol 999, at 171.

247 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966 (entered into force 3 January 1976) UNTS Vol 993, at 3.

248 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979 (entered into force 3 September 1981).

249 UN General Assembly, Convention on the Rights of the Child, 20 November 1989 (entered into force 2 September 1990).

250 CESCR, General Comment No. 15, 2002, para 2.

251 Ibid.

252 Ibid, para 31.

253 Ibid, para 57.

254 UN Sub-Commission on the Promotion and Protection of Human Rights, Subcommission guidelines on the realisation of the right to drinking water and sanitation, Report of the Special Rapporteur El Hadji Guissé, UN Doc E/CN.4/Sub.2/2005/25, 2006.

255 UNGA resolution (Ref. A/64/L.63/Rev.1)

256 Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘UN united to make the right to water and sanitation legally binding’ (1 October 2010).

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