A Human Right to Groundwater? more

INTERNATIONAL COMMUNITY LAW REVIEW International Community Law Review 13 (2011) 305–319 brill.nl/iclr A Human Right to Groundwater? Maria Gavouneli Assistant Professor of International Law, University of Athens, Greece Abstract Within a few months in 2010, both the UN General Assembly and the Human Rights Council affirmed a human right to safe drinking water. The present paper purports to identify the impact, if any, of these declarations of an existing or emerging right to water and its repercussions on the proper management of transboundary aquifers, which the ILC sought to regulate in its 2008 Draft Articles. Reviewing existing binding and non-binding instruments and related State practice, I argue that there exists today a mature right to clean water. Although the law of transboundary aquifers is in a nascent form, there is no reason not to import the polished quality requirements of the right to water in order to further identify and fulfil the basic human needs it has set out to address. The achievements of the human rights field may and must be transferred into the emerging water law. Keywords right to water; human rights; groundwater; ILC; draft articles on transboundary aquifers 1. Introduction On 28 July 2010 the UN General Assembly adopted a resolution on ‘The human right to water and sanitation’, paragraph 1 of which “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; . . .”.1 It was not the first time that the GA dealt with the issue of water, an element of primordial importance for the continued existence of life on earth. Ever since the first UN Water Conference in 1977 stated that: “all peoples . . . have the right to have access to drinking water in quantities and of quality equal to their basic needs.”,2 through several decades dedicated to enhanced action for access to water3 and assorted 1) UN GA resolution 64/292 “The human right to water and sanitation”, UN Doc. A/RES/64/292, 3.8.2010, available at: www.un.org. 2) Resolution II(a), Report of the UN Water Conference, Mar del Plata, 14–25.3.1977, UN Doc. E.77. II.A.12, as approved by UN GA resolution 32/158; available at: www.ielrc.org/ content/e7701.pdf. 3) Among which the International Drinking Water Supply and Sanitation Decade (1981–1990) approved by UN GA resolution 35/18, UN Doc. A/RES/35/18, 10.11.1980; the International Year of Freshwater (2003) approved by UN GA resolution 55/196, UN Doc. A/RES/55/196, 1.2.2001; the International Decade for Action ‘Water for Life’ (2005–2015) approved by UN GA resolution 58/217, UN Doc. A/ RES/58/217, 9.2.2004; all available at: www.un.org. © Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/187197311X582403 306 M. Gavouneli / International Community Law Review 13 (2011) 305–319 declarations of political goodwill and honourable intentions,4 the UN GA has demonstrated its commitment to the cause but failed to explicitly recognise an independent human right to water.5 The issue was considered best handled by the appropriate organs of the Organisation in Geneva, where the Human Rights Council had already embarked on a systematic attempt to forge such a right, “a fruit of a constructive process shaped by reality and experience”.6 Consequently, this apparent shift from a rights-discourse to a political discourse was commented,7 lauded or lamented, as a significant development in what could eventually become one of the most important problems of the 21st century: scarcity of water. In a parallel but not unrelated course, in 2008 the ILC had already delivered a complete set of draft articles on the Law of Transboundary Aquifers,8 and a generalised debate is scheduled in the Sixth Committee for 2011 on the future form these articles may take. Groundwater being the primary source of water available on earth today,9 the connection between a human right to water and the need to properly manage the scarce underground transboundary resources appears evident. In the following pages I will attempt to discuss the extent to which a right to water exists in international law today and, if posited, what would be the impact of its existence on the developing rules on aquifer management. 2. The Human Right to Water The importance of acquiring access to clean water and improved sanitation was long recognised in the international community: the Millennium Development 4) Among which the 1994 Cairo Population Conference: Principle 2, Programme of Action adopted by the International Conference on Population and Development, UN Doc. A/CONF.171/13/Rev.1, 15.9.1994; the 1996 Habitat Agenda: Istanbul Declaration on Human Settlements and the Habitat Agenda, paragraph 11, adopted at the Second UN Conference on Human Settlements, UN Doc. A/ CONF.165/14, 14.6.1996; the 2006 Abuja Declaration: Declaration of the First Africa-South America Summit, paragraph 18, adopted at the First Africa-South America Summit (ASA), Doc. ASA/Summit/ doc.01(I), 30.11.2006; the 2007 “Message from Beppu”: First Asia-Pacific Water Summit, Japan, 4.12.2007; the 2008 Delhi Declaration: paragraph 1, Third South-Asian Conference on Sanitation (SACOSAN III), 21.11.2008. 5) Edith Brown Weiss, “The Evolution of International Water Law”, 331 RCADI (2009), pp. 163–404, at pp. 308–346. 6) As per Ambassador Solón of Bolivia, UN Doc. A/64/PV.108, GA 64th session, 108th plenary meeting, UN GAOR, 28.7.2010, p. 5a, available at: www.un.org. 7) Joyeeta Gupta, Rhodante Ahlers & Lawal Ahmed, “The Human Right to Water: Moving towards Consensus in a Fragmented World”, 19 RECIEL (2010), pp. 294–305. 8) UN GAOR, 63th session, Supp. No. 10, UN Doc. A/63/10, available at: www.un.org. 9) Almost 97% of the freshwater available for drinking and sanitation as well as for producing food both in agriculture and in raising livestock is stored underground; S. Burchi and K. Mechlem, Groundwater in International Law: Compilation of Treaties and Other Legal Instruments (2005). M. Gavouneli / International Community Law Review 13 (2011) 305–319 307 Goals (MDGs) included the commitment to “. . . halve by 2015 the proportion of the population without sustainable access to safe drinking water”.10 It is clear that the goal will not be achieved on time: almost a billion people today remain with limited access to poor-quality water with obvious repercussions to human health,11 development and dignity and the alleviation of poverty; whereas of those with access to improved12 water services a full 40%, amounting to 3 billion people, mostly women and girls, have to fetch water often over long distances. In that respect the formal endorsement by the UN General Assembly of the right to water appears both symbolic and timely. It may be read as purporting to reposition the discussion on water at the centre of public debate and reinforce the binding nature of the political commitment already undertaken. And yet far from marking the turning point of a mature right to water, the GA resolution has threatened to cause a rift in the norm-creation process. Adopted by 122 votes to none with 41 abstentions, Resolution 64/292 was considered at best a diversion from the ‘real work’ on the consolidation of the right to water carried out in the context of the Human Rights Council in Geneva and perhaps even detrimental to its proper development. The differing views were starkly evidenced in the statements of the sponsor States and the explanations of vote offered during the debate in the General Assembly. Bolivia, the primary sponsor of the draft resolution, insisted that: “[t]he rights to safe drinking water and sanitation are independent rights, which must be recognized as such”;13 whereas Germany and Spain, the co-sponsors of the similar yet different resolution before the Human Rights Council, reiterated that: [w]e consider access to safe drinking water and sanitation to be a component of the right to an adequate standard of living recognised in Article 11 of the International Covenant on Economic, Social and Cultural Rights, alongside food, housing and others.14 The US representative bluntly stated that: [t]his draft resolution describes a right to water and sanitation in a way that is not reflective of existing international law, as there is no right to water and sanitation in an international legal sense as described by the draft resolution.15 Target 7.C, available at: www.un.org/millenniumgoals. UN-Water Global Annual Assessment of Sanitation and Drinking-Water Report (GLAAS) 2010, UNICEF First Annual High-Level Meeting of Sanitation and Water for All, 23.4.2010, Washington, DC; available at: www.who.int/water_sanitation_health/glaas. 12) The term ‘improved’ refers to services that meet some minimum level of quality standards in keeping with human needs, dignity and safety; WHO/UNICEF Joint Monitoring Programme for Water Supply and Sanitation, Progress on Water and Sanitation – 2010 Update, available at: www.unicef.org. 13) UN Doc. A/64/PV.108, supra note 6, p. 5b. 14) Ibid., pp. 6a and 7a, respectively. 15) Ibid., p. 8a. 11) 10) 308 M. Gavouneli / International Community Law Review 13 (2011) 305–319 The difference is not simply academic. A stand-alone, ‘independent’16 right to water lacks the restraints attached to a right derived of a previously existing, composite right to an adequate standard of living or even another manifestation of the core right to life.17 Consequently, legal redress for a violation of the right to water would not depend on the nature of the primary right – by definition, a fragmented approach. Rather the recognition of a new right would allow for the development of a comprehensive system of protection,18 strengthening both the obligation of prevention addressed to all States, especially in view of climate change, and the possibility of redress, including compensation, for damage caused to water resources. Indeed, it could be argued that the multiplicity of declarations, resolutions and even conventional norms coupled with relevant domestic legislation and constitutional pronouncements19 may have already created a customary right to water.20 There is no doubt, however, that the more traditional approach may turn out to be more effective. An implicit right to water may already be read in Article 25 of the Universal Declaration of Human Rights as part of everyone’s “. . . right to a standard of living adequate for the health and well-being of himself and of his family, including food . . .”,21 although the first explicit reference appears in Principle 2 of the 1972 Stockholm Declaration on the Human Environment.22 The 1992 Rio Declaration did not refer to a human right to water23 but Agenda 21 reiterated that all people have the right to have access to water.24 Explicit declarations of a right to water are also to be found in (admittedly) a small number of human rights treaties with a specific scope of application: 16) Thus Erik Bluemel, “The Implications of Formulating a Human Right to Water”, 31 Ecology LQ 2004, pp. 957–1006. 17) For instance the right to water was considered part of the right to life enshrined in article 4 of the 1969 American Convention on Human Rights, 1144 UNTS 123: Villagrán-Morales et al. v. Guatemala (The “Street Children” case), 19.11.1999, IACtHR (ser. C) no. 63, 144. 18) Ling-Yee Huang, “Not just Another drop in the Human Rights Bucket: The Legal Significance”, 20 Florida JIL (2008), pp. 353–370; Stephen C. McCaffrey & Kate J. Neville, “Small Capacity and Big Responsibilities: Financial and Legal Implications of a Human Right to Water for Developing countries”, 21 Georgetown IELR (2008–2009), pp. 679–704; Marie Soveroski, “Environmental Rights versus Environmental Wrongs: Forum over Substance?”, 16 RECIEL (2007), pp. 261–273. 19) Thus Vassiliki-Maria Tzatzaki, The Right to Water, Ph.D. thesis, University of Athens, 2011 (in Greek, on file with the author); Knut Bourqauin, Freshwater Access from a Human Rights Perspective: A Challenge to International water and Human Rights Law (2008). 20) Rebecca Bates, “The Road to the Well: An Evaluation of the Customary Right to Water”, 19 RECIEL (2010), pp. 282–293, at p. 288. See also Jordan Paust, “The Complex Nature, Sources and Evidences of Customary Human Rights”, 25 Georgia JICL (1995–1996), pp. 147–164. 21) Adopted by GA resolution 217 (III), 10.12.1948. 22) See also Recommendation 51, Recommendations for action at the international level, Report of the UN Conference on the Human Environment (UNCHE), UN Doc. A/CONF.48/14/Rev.1, 16.6.1972. 23) Rio Declaration on Environment and Development, 14.6.1992, Report of the UN Conference on Environment and Development (UNCED), UN Doc. A/CONF.151/26/Rev.1, vol. 1, annex I. 24) Agenda 21, paragraph 18.47, ibid., annex II. M. Gavouneli / International Community Law Review 13 (2011) 305–319 309 Article 14(2) of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) links water supply to the right of all women to enjoy adequate living conditions;25 Article 24(2) of the 1989 Convention on the Rights of the Child (CRC) prescribes the provision of clean drinkingwater as a means to combat disease and malnutrition;26 Article 28 paragraph 2(a) of the 2007 Convention on the Rights of Persons with Disabilities27 sets the right to water on a non-discrimination basis. A more robust foundation for a general human right to water is available in Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights,28 as authoritatively29 suggested by General Comment no. 15 of the Committee on Economic, Social and Cultural Rights, which states: The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, . . . The right to water is also inextricably related to the right to the highest attainable standard of health (art.12, para. 1), and the rights to adequate housing and adequate food (art. 11, para.1).30 It proceeded to set out the ‘core obligations’ attached to a right to water,31 both substantive and procedural. It identified its normative content as consisting of freedoms and entitlements:32 the former would include both the right to maintain access to existing water supplies and the right to be free from arbitrary disconnection or contamination of water supplies; the latter include the right to a system of water supply and management ensuring equality of opportunity to enjoy such a right. Both are subject to five criteria:33 availability, accessibility, quality, affordability and acceptability, with five more horizontal factors to be 25) Approved by UN GA resolution 34/46, UN Doc. A/RES/34/46, 18.12.1979, 1249 UNTS 13; see also Bates, supra note 20, at pp. 285–286. 26) Approved by UN GA resolution 44/25, UN Doc. A/RES/44/25, 20.11.1989, 1577 UNTS 3; see also Bates, supra note 20, p. 286. 27) Concluded on 13.12.2006; 189 UNTS 137. 28) Adopted by UN GA resolution 2200A (XXI), 16.12.1966. 29) It is, however, significant that the Committee was not created by the ICESCR itself but rather by ECOSOC resolution 1985/17, 28.5.1985, available at: ap.ohchr.org/documents/E/ ECOSOC/ resolutions/E-RES-1985–17.doc. Consequently, the general comments and resolutions produced by the CESCR are not binding upon the States parties to the Covenant; Stephen C. McCaffrey, “The Human Right to Water”, in Edith Brown Weiss, Laurence Boisson de Chazournes & Nathalie Bernasconi-Osterwalder (eds.), Fresh Water and International Economic Law (2005), pp. 93–117. 30) General Comment no. 15 (2002), The Right to Water (arts. 11 and 12 ICESCR), CESCR, 29th session, UN Doc. E/C.12/2002/11, 20.1.2003, available at: www2.ohchr.org/english/ bodies/cescr/comments. 31) M. Fitzmaurice, “The Human Right to Water”, Fordham ELR (2007), pp. 538–586; Stephen Tully, “A Human Rights to Access Water?: A Critique of General Comment No. 15”, 23 Netherlands HRQ (2005), pp. 35–63. 32) GC no. 15, supra, paragraph 10. 33) Ibid., paragraphs 11–12. 310 M. Gavouneli / International Community Law Review 13 (2011) 305–319 taken into account:34 non-discrimination, participation, accountability, impact, sustainability. The obligations are further distinguished in three major categories: ■ ■ ■ obligations to respect, which require States to refrain from interfering directly or indirectly with the enjoyment of the right to water;35 obligations to protect, which require States to prevent third parties, including individuals and corporations, from interfering in any way with the enjoyment of the right to water;36 and obligations to fulfil,37 further distinguished into the obligations of the State to take positive measures to assist in the enjoyment of the right (obligations to facilitate), to ensure appropriate education on the proper use of water resources and methods to minimize wastage (obligations to promote) and, finally, to provide water to individuals or groups, when for reasons beyond their control they are unable to do so themselves (obligations to provide).38 The essence of this detailed construction of a right to water is reflected in resolution 15/9 of the Human Rights Council, adopted in the aftermath of the UN GA resolution 64/292, upon a proposal by Germany and Spain. The former recalls the latter but it clearly reflects the objections several States had raised in the GA discussion. It is firmly based on an incremental human right to safe drinking water . . . derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity;39 and it clearly views the implementation of such a right as an on-going process. Indeed, that was the original approach adopted by the HRC when it appointed in 2008 an Independent Expert on human rights obligations related to access to safe drinking water and sanitation40 with the mandate to further clarify41 the content of human rights obligations, including non-discrimination obligations, Ibid., paragraphs 13–16. Ibid., paragraphs 21–22. 36) Ibid., paragraphs 23–24. 37) Ibid., paragraphs 25–29. 38) Ibid., paragraph 25. Dinah Shelton, “Human Rights and the Environment: What Specific Environmental Rights have been Recognized?”, 35 Denver JILP (2006), pp. 129–171, at pp. 151–153. 39) HRC resolution 15/9, Human rights and access to safe drinking water and sanitation, UN Doc. A/HRC/RES/15/9, 6.10.2010, available at: daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/166/33/ PDF/G1016633.pdf ?OpenElement. 40) HRC resolution 7/22, 41st meeting, 28.3.2008, available at: ap.ohchr.org/documents/E/HRC/ resolutions/A_HRC_RES_7_22.pdf. 41) See also HRC resolution 2/104, Human Rights and Access to Water, 31st meeting, 27.11.2006. 35) 34) M. Gavouneli / International Community Law Review 13 (2011) 305–319 311 in relation to access to safe drinking water and sanitation.42 HRC resolution 15/2 builds upon the substantive elements of CESCR General Comment no. 15 and calls upon States to take action according to a specific list of detailed obligations, which is both measurable and verifiable.43 There is no doubt that the clarification of the normative content of the right to water and its foundation on generally recognised as existing human rights would facilitate both the theoretical impact and the practical implementation of such a right – and the Special Representative was right in pointing out that: . . . for the UN the right to water and sanitation is contained in existing human rights treaties and is therefore legally binding. . . . The right to water and sanitation is a human right, equal to all other human rights, which implies that it is justiciable and enforceable.44 Indeed, the association of this emerging right with the monitoring mechanisms already in place under other instruments becomes a major advantage in the hands of the UN organs and may eventually lead to a uniform approach to protection in sharp contrast to the fragmented regime thus far experienced. Not that all UN review mechanisms are by definition effective: the complex system of State reports, inter-state reports and individual complaints available to human rights instruments has been notorious in its superficiality and lack of any meaningful sanctions – and has been repeatedly subjected itself to reviews.45 On the other hand, the persistent scrutiny to which each State is periodically subjected cannot but influence both the letter and eventually the application of the law in the domestic field. And it is in this spirit that in her renewed mandate46 the Independent Expert is also encouraged to monitor the implementation of the right. There is no doubt that we are today closer than ever to the realisation of a clearly defined right to water, primarily but not solely based upon pre-existing relevant rights and still subject to the continuous accretion of State practice both in the domestic and the international field. It befalls the international community to decide whether they would opt to consistently go down the road of normcreation or rather contend themselves with the flexibility offered by the heretofore HRC resolution 7/22, supra note 40, paragraph 2(b). HRC resolution 15/9, supra note 39, paragraphs 8–9. 44) Statement of Ms Catarina de Albuquerque, UN Independent Expert on human rights obligations related to access to safe drinking water and sanitation, 1.10.2010, available at: www.ohchr.org?EN/NewsEvents/Pages/DisplayNews. See also Michael J. Dennis & David P. Stewart, “Justiciability on Economic, Social and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?”, 98 AJIL (2004), pp. 462–515. 45) See, among many others, Michael Bowman, “Towards a Unified Treaty Body for Monitoring Compliance with UN Human Rights Conventions?: Legal Mechanisms for Treaty Reform”, 7 HRLR (2007), pp. 225–249. 46) HRC resolution 16/2, The Human Right to Safe Drinking Water and Sanitation, UN Doc. A/HRC/RES/ 16/2, 8.4.2011, available at: daccess-dds-ny.un.org/doc/UNDOC/GEN/G11 /124/85/PDF/G1112485. pdf ?OpenElement. The change in the title is also significant. 43) 42) 312 M. Gavouneli / International Community Law Review 13 (2011) 305–319 present fragments of a right. In that respect it is also the most opportune moment to consider what, if any, would be the implications of a right to water on the emerging system of groundwater management. 3. Access to Water in Transboundary Aquifers The regulation of transboundary aquifers is based on another premise: underground water, especially water found in transboundary aquifers, is a scarce but shared resource, access to and utilization of which must be regulated in order to avoid overexploitation and pollution. Inevitably emphasis is placed not simply on the right to access such a resource but mostly on the modalities of ownership and equitable benefits-sharing. In producing its Draft Articles on the Law of Transboundary Aquifers,47 the ILC set its codification and progressive development task in such a context. This tension is also true for water, on and below surface. The proper management of scarce resources must avoid over-extraction, a condition occurring most frequently in arid areas where even manual boreholes may destabilize a fragile resource.48 Clean water, wherever found, is essential to human survival: environmental degradation does not only render a scarce resource unusable; it also destroys natural ecosystems that support food production and biodiversity with obvious repercussions for human health and eventually environmental security.49 Water therefore is – and is treated as – both as an economic good and as a public good. Providing clean water to any population requires a major capital investment to infrastructure and continuously maintained distribution networks. This is a cost that must be paid – by somebody. Proponents of market-based solutions argue that putting a price to water and allowing the private sector to provide water services would be the most effective way to ensure sustainable exploitation of water resources and redress the tragedy of the commons.50 The purists emphasize the pivotal role of water and draw from the experience acquired from several market failures to provide water services to the poor at an affordable price51 in Draft articles on the Law of Transboundary Aquifers, with commentaries, text adopted by the ILC at its 60th session, YBILC II-2 2008, available at: untreaty.un.org/ilc/texts/instruments/english/ commentaries/8_5_2008.pdf. 48) Thus in Africa UNICEF, Code of Practice for Cost-effective Boreholes, 2010, available at: www.unicef .org/wash/files/Code_of_Practice_FINAL.pdf. 49) J. Brunnée & S.J. Troope, “Environmental Security and Freshwater Resources: A Case for International Ecosystem Law”, YBIEL (1994), pp. 41–52. 50) For the authentic proposition and a Nobel prize for economics see Elinor Ostrom, Governing the Commons (1990). 51) The experience has led to a significant number of arbitral awards, mostly in the context of ICSID foreign investment arbitration: Aguas del Tunari S.A. v. Republic of Bolivia, ICSID case no. ARB/02/3, Decision on Objections to Jurisdiction, 21.10.2005; Aguas Cordobesas S.A., Suez v. Argentine Republic, ICSID case no. ARB/03/18 (settled); Biwater Gauff (Tanz.) Ltd. v. United Republic of Tanzania, ICSID 47) M. Gavouneli / International Community Law Review 13 (2011) 305–319 313 order to argue that water constitutes a natural monopoly and as such it should remain in the hands of the State.52 The draft articles build upon the earlier ILC work on international watercourses, resulting in the adoption of the 1997 UN Convention on the law of the non-navigational uses of international watercourses53 – indeed, to the extent that the scope of application of the Watercourses Convention covers also groundwater,54 there is no doubt that the two sets of rules would have to coexist in yet another jurisdictional and normative millefeuille, of which international law is so enamoured.55 In that respect, the present proposal benefited from the evolution of international watercourses law56 and the slow but evident shift from an exercise in apportioning sovereign rights over a purely economic resource to the management with a view to preservation of integral ecosystems,57 vital for the human survival as they are fragile, taking also into account social factors. The draft articles themselves do not provide for a human right to clean water. As with the Watercourses Convention, their backbone is structured on what should happen once a State has acquired access to the resource. The primordial rule then mandates its equitable and reasonable utilization, as further described in draft Article 3. The principle of equitable and reasonable utilization, as first case no. ARB/05/22, Award, 24.7.2008; Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID case no. ARB/97/3, Award, 20.8.2007; Azurix Corp. v. Argentine Republic, ICSID case no. ARB/01/12, Award, 14.7.2006; Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v. Argentine Republic, ICSID case no. ARB/03/17 (pending); Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID case no. ARB/03/19 (pending); Azurix Corp. v. Argentine Republic, ICSID case no. ARB/03/30 (pending); SAUR Int’l v. Argentine Republic, ICSID case no. ARB/04/4 (pending); Impregilo SpA v. Argentine Republic, ICSID case no. ARB/07/17 (pending); Jacobs Gibb Ltd. v. Hashemite Kingdom of Jordan, ICSID case no. ARB/02/12 (settled); Branimir Mensik v. Slovak Republic, ICSID case no. ARB/06/9 (discontinued); ATA Construction, Industrial and Trading Co. v. Hashemite Kingdom of Jordan, ICSID case no. ARB/08/2 (pending); Urbase SA and Consorcio de Aguas Bilbao Biskaia, Bilbao Biskaia Ur Partzuergoa v. Argentine Republic, ICSIC case no. ARB/07/26 (pending). Jorge Viñuales, “Access to Water in Foreign Investment Disputes”, 21 Georgetown IELR (2008–2009), pp. 733–759. 52) Jona Razzaque, “Trading Water: The Human Factor”, 13 RECIEL (2004), pp. 15–26; Fabrizio Marrella, “On the Changing Structure of International Investment Law: The Human Right to Water and ICSID Arbitration”, 12 RECIEL (2010), pp. 335–359. 53) Adopted by UN GA resolution 51/229, 21.5.1997, UN GAOR, 51st session, supplement no. 49, UN Doc. A.51/49, available at: untreaty.un.org/ilc/texts/instruments/english/ conventions/8_3_1997.pdf. 54) Article 2(a) of the Watercourses Convention, ibid. 55) See also Tomer Broude & Yaval Shany (eds.), Multi-sourced Equivalent Norms in International Law (2011). 56) See, among many others, Stephen C. McCaffrey, The Law of International Watercourses (2nd ed., 2007); Katak Malla, “Current State of the Law of International Watercourses: Progress and Paradigm Shifts (1815–2008)”, 77 Nordic JIL (2008), pp. 461–508; Joseph W. DellaPenna & Joyeeta Gupta (eds.), The Evolution of the Law and Politics of Water (2009); Malgosia Fitzmaurice-Lachs, “Protection of International Watercourses”, in: Serving the Rule of International Maritime Law. Essays in Honour of Professor David Joseph Attard (2010), pp. 32–53. 57) Owen MacIntyre, “The Emergence of an ‘Ecosystem Approach’ to the Protection of International Watercourses under International Law”, 13 RECIEL (2004), pp. 1–14. 314 M. Gavouneli / International Community Law Review 13 (2011) 305–319 stated in Article 5 of the Watercourses Convention, is already considered part of customary law58 and as such it comes to regulate this new area considerably elaborated and tested, most recently in the Pulp Mills case.59 Its content for the purposes of transboundary aquifers is further detailed in draft Article 5, which enumerates a number of pertinent factors to be taken into consideration in order to decide what constitutes equitable and reasonable utilization at a specific place and time. They include physical elements, such as the role of the aquifer in the related ecosystem60 or the need to develop, protect and conserve its natural existence (and the cost of measures to be taken to that effect),61 as well as social factors, such as the population dependent upon it62 and the present and future economic and other needs of the aquifer State.63 Significantly, however, draft Article 5 does not create a hierarchy of factors or actors or principles. The only such indication may be found in the last phrase of the relevant provision: The weight to be given to each factor is to be determined by its importance with regard to a specific transboundary aquifer or aquifer system in comparison with that of other relevant factors. In determining what is equitable and reasonable utilization, all relevant factors are to be considered together and a conclusion reached on the basis of all the factors. However, in weighing different kinds of utilization of a transboundary aquifer or aquifer system, special regard shall be given to vital human needs.64 Is this formulation compatible with the increased acceptance of a human right to water and the requirements such recognition entails for the legal system? At first sight, no – even taking into account the fragmentation of international law discourse.65 A closer inspection, however, may not find the two possibilities mutually exclusive. ICJ, Case concerning the Gabčíkovo-Nagymaros Project, Hungary v. Slovakia, Judgment of 25 September 1997, available at: www.icj-cij.org. See also Alex Grzybowski, Stephen C. McCaffrey & Richard K. Paisley, “Beyond International Water Law: Successfully Negotiating Mutual Gains Agreements for International Watercourses”, 22 Pacific McGeorge Business & Development LJ (2009–2010), pp. 139–154, at pp. 140–142. 59) ICJ, Case concerning Pulp Mills on the River Uruguay, Argentina v. Uruguay, Judgment of 20 April 2010, supra; see also Ilias Plakokefalos, The Pulp Mills case, 26 TIJMCL (2011), pp. 169–183. 60) Draft article 5 paragraph 1(i), supra note 47. 61) Draft article 5 paragraph 1(h), ibid. 62) Draft article 5 paragraph 1(a), ibid. See also Stan Bernstein, “Freshwater and Human Population: A Global Perspective” , in Karin M. Krchnak (ed.), Human Population and Freshwater: US Cases and International Perspectives, Yale Bulletin 107, (2002), pp. 149–157, available at: environment.yale.edu/ documents/. 63) Draft article 5 paragraph 1(b), supra note 47. 64) Ibid. (emphasis added). See also article 10(2) of the Watercourses Convention, supra note 53. 65) Martii Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 13.4.2006, available at: daccess-dds-ny.un.org/doc/UNDOC/LTD/G06/610/77/ PDF/G0661077.pdf ?OpenElement. 58) M. Gavouneli / International Community Law Review 13 (2011) 305–319 315 It is true that although the ILA 1966 Helsinki Rules, a non-binding precursor, did not grant “any inherent preference over any other use or category of uses”,66 the revised 2004 Berlin Rules on Water Resources, applicable to national and transboundary surface and ground-waters, do provide for such a preference among uses: 1. In determining an equitable and reasonable use, States shall first allocate waters to satisfy vital human needs. 2. No other use or category of uses shall have an inherent preference over any other use or category of uses;67 to which is added for good measure a comprehensive article on the right of access to water, stating that: “1. Every individual has a right of access to sufficient, safe, acceptable, physically accessible and affordable water to meet that individual’s vital human needs”.68 Neither the Helsinki nor the Berlin rules, however, are binding. If illumination needs be sought elsewhere, one could turn to the 1999 Protocol on Water and Health69 to the 1992 UNECE Convention on the Use of International Watercourses and Transboundary Lakes,70 which has the advantage of being both binding and in force,71 albeit at a regional level72 – although almost all UNECE conventions include an open clause, which allows the rest of the world to accede thereto, thus raising their provisions to the level of world standards.73 Yet, nowhere may be found in the Protocol any reference to a human right to water. One of the declared targets of the Protocol is to provide for Article V, The Helsinki Rules on the uses of the waters of international rivers, 20.8.1966, Report of the Fifty-second Conference, Helsinki 1966. 67) Article 14, The Berlin Rules on water resources, approved by ILA resolution 2/2004, 21.8.2004, Report of the Seventy-first Conference, Berlin 2004, pp. 337–411 (emphasis added). For an overview see Salman M.A. Salman, “The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law”, 23 Water Resources Development (2007), pp. 625–640, also available at: www.internationalwaterlaw.org/bibliography/articles/general/Salman-BerlinRules.pdf. 68) Article 17, supra. 69) London, 17.6.1999, UN ECOSOC Doc. MP.WAT/2000/1EUR/ICP/EHCO 020205/8Fin, 18.10.1999, available at: www.unece.org/env/documents/2000/wat/ mp.wat.2000.1.e.pdf. 70) Helsinki, 17.3.1992, available at: www.unece.org/env/water/ pdf/watercon.pdf. 71) The Protocol entered into force in August 2005; information available at: www.unece.org/env/water/ status/lega_wh.htm. 72) Another excellent regional example is the EU Water Framework Directive: Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L32, 1, available at: www.europa.eu. See also Elli Louka, Water Law and Policy: Governance without Frontiers (2008); Alistair S. Rieu-Clarke, “The Role and Relevance of the UN Convention on the Law of the Non-navigational Uses of International Watercourses to the EU and its Member States”, 78 BYBIL (2007), pp. 389–428. 73) Decision III/1 of the Meeting of the Parties, Amendment to the Water Convention, UN Doc. ECE/ MP.WAT/14, 12.1.2004, available at: www.unece.org/env/documents/2004/wat/ ece.mp.wat.14.e.pdf. 66) 316 M. Gavouneli / International Community Law Review 13 (2011) 305–319 (a) Access to drinking water for everyone; . . . within a framework of integrated water management systems aimed at sustainable use of water resources, ambient water quality which does not endanger human health and protection of water ecosystems.74 without any further guidance as to how this could be achieved without a functioning right to water. The Protocol does contain, however, a general clause, which explicitly creates a hierarchy of sorts and allows a subsequent right to water to enter its normative context and even partake of its emergent compliance control system:75 “The provisions of this Protocol shall not affect the rights and obligations of any Party to this Protocol deriving from the Convention or any other existing international agreement,”76 presumably including Articles 11 and 12 ICSECR, as interpreted by General Comment no. 15 and further developed in HRC resolutions 15/9 and 16/2. Thus the human rights acquis may enter a water management system and inform its choices.77 Indeed, the notion that the priorities set out in water instruments may be used in order to educate the implementation of a potential right to water had not gone unnoticed by the drafters of GC no. 15: setting out the general obligations incumbent upon States, they ‘noted’ that social and human needs must be taken into account in determining the equitable utilization of watercourses.78 In the intervening period this obligation was mostly perceived as a balance-of-interests exercise, eventually ensuring the sustainability of the resource.79 I could argue, though, that in view of the current panegyric recognition of a human right to safe drinking water, the priority accorded in almost all relevant instruments to “vital human needs” must be taken on board literally and construed as “safe and clean drinking water . . . essential for the full enjoyment of life and all human rights”.80 In essence, this definition would prioritize the utilization of water resources, including transboundary aquifers, for the provision of “drinking water and water required for the Article 6 paragraph 1 of the Protocol, supra note 69. Decision I/2 of the Meeting of the Parties, Review of compliance, UN Doc. ECE/MP.WH/2/Add.3 & EUR/06/5069385/1/Add.3, 3.7.2007, text available at: www.unece.org/env/documents/2007/wat/ wh/ece.mp.wh.2_add_3.e.pdf; Cesare Pitea, “Procedures and Mechanisms for Review of Compliance under the 1999 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes”, in Tullio Treves, Laura Pineschi, Attila Tanzi, Cesare Pitea, Chiara Ragni, Francesca Romanin Jacur (eds.), Non-compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (2009), pp. 251–262. 76) Article 4 paragraph 9 of the Protocol, supra note 69. 77) Attila Tanzi, “Reducing the Gap between International Water Law and Human Rights Law: The UNECE Protocol on Water and Health”, 12 RECIEL (2010), pp. 267–285. 78) Paragraph 31, ft. 25, supra note 30. 79) Attila Tanzi & Maurizio Arcari, The UN Convention on the Law of International Watercourses: A Framework for Sharing (2001). See also Malgosia Fitzmaurice, “The Relationship between the Law of International Watercourses and Sustainable Development”, in Malgosia Fitzmaurice, David M. Ong & Panos Merkouris (eds.), Research Handbook on International Environmental Law (2010), pp. 605–636. 80) See paragraph 2, HRC resolution 15/9, invoking GA resolution 64/292; supra note 39. 75) 74) M. Gavouneli / International Community Law Review 13 (2011) 305–319 317 production of food in order to prevent starvation”;81 general economic activities would not be excluded ab initio but rather subjected to the scrutiny of economic and environmental sustainability.82 Would that also preclude private individuals and corporations from taking part into a major economic sector, the water industry? I suggest not. There is nothing inherent in the notion of a human right to water that would invest the State with a monopoly of action in the water field. The only State monopoly in the system is one of obligations: . . . States have the primary responsibility to ensure the full realisation of all human rights and . . . the delegation of the delivery of safe drinking water . . . services to a third party does not exempt the State from its human rights obligations.83 It is a primary obligation further specified in paragraph 9 of HRC resolution 15/9, where “. . . [t]he provision of a regular supply of safe, acceptable, accessible and affordable drinking water . . . of good quality and sufficient quantity;”84 is ascribed both to non-State service providers and the State regulatory authorities in great detail. The programmatic character of the general obligation is thus complemented by practical steps of implementation, quantifiable and consequently verifiable. This contribution to a level playing field may go some way in allaying the fears of those reticent in accepting the infinite wisdom of the markets.85 Human rights bodies would be able to monitor and review not just the regulatory obligation attached to the State but also its minimum content. The required elements of transparency, non-discrimination and accountability86 would also facilitate the operation of a market mindful of the human element involved and the primordial importance of the goods traded.87 It would naturally be impossible to secure the fulfilment of the right to safe drinking water forthwith – but that constitutes an inherent limitation of all human rights instruments. It is particularly pertinent in that respect to be reminded of the nature of the rights enshrined in the ICSECR: rather than being stipulated as individual claims against the State, they are constructed as broadly formulated The term was included in a Statement of Understanding approved by the UN General Assembly and attached to the UN Watercourses Convention; UN Doc. A/51/869, 11.4.1997. 82) Thus also the commentary to article 14 of the ILA Berlin Rules, supra note 67, p. 364. 83) Paragraph 6, HRC resolution 15/9, supra note 39. 84) Article 4, paragraph 9 of the Protocol, supra note 69. 85) Adam D. Link, “The Perils of Privatization: International Developments and Reform in Water Distribution”, 22 Pacific McGeorge Business & Development LJ (2009–2010), pp. 379–399; Violeta Petrova, “At the Frontiers of the Rush for Blue Gold: Water Privatisation and the Human Right to Water”, 31 Brooklyn JIL (2006), pp. 577–613. 86) Paragraph 7, HRC resolution 15/9, supra note 39. 87) OECD, Innovative Financing Mechanisms for the Water Sector (2010). See also the reaction of the private sector: Aquafed – The International Federation of Private Water Operators, News, 22 April 2011, available at: www.aquafed.org. 81) 318 M. Gavouneli / International Community Law Review 13 (2011) 305–319 governmental programmes. The principle of progressive realisation requires that States parties take steps to the maximum of their available resources to progressively achieve the full realisation of Covenant rights by all appropriate means.88 They are also subject to a continuous duty to move as “expeditiously and effectively as possible” towards the realisation of such rights.89 A process of incremental equalisation is thus put in place whereby resources are redistributed in order to provide for the eventual satisfaction of the basic needs of everyone.90 This is a system perfectly attuned to the peculiarities of a shared resource.91 Some obligations (e.g., non-discrimination, accountability) would have to be implemented directly and fully to the extent that there is a system of groundwater access in place. Others, such as the obligation to secure universal access to water of good quality and sufficient quantity, would be necessarily subjected to the incremental approach reality requires.92 It is clear, however, that the final level of implementation must be the same to all. 4. The End of the Beginning? In the preceding pages I tried to use recent developments in the UN General Assembly and the Human Rights Council in order to ascertain whether and to what extent a human right to water has emerged in international law and what use it could be for the proper implementation of the aquifer regulations. In doing so, I opted for a snapshot of international law rather than an in-depth analysis of underlying rules. It was a decision instigated by the interesting dialogue developed between two parts of the United Nations, the political aspect of a New-York GA process and the human-rights aspect of a Geneva process. I expected to find both a fragmented field with snippets of regulation lying about without the inherent coherence of a system of law and the first attempt at regulation in an area lying literally and figuratively beneath layers of State sovereignty. I was not entirely right – but neither was I entirely wrong. There is a system of law supporting a human right to safe drinking water, which, after several false turns, is on the brink of maturity. The wildly all-encompassing generalisations of the past have largely disappeared and a balanced new right, appertaining both to the traditional concept of individual human rights and the novel manifestations Article 2(1) ICSECR; supra note 28. CSECR, General Comment no. 3, Nature of States Parties’ Obligations (Art. 2(1)), 14.12.1990, paragraph 9, UN Doc. E/1991.23; text available at: www.unhchr.ch/ tbs/doc.nsf/(Symbol)/94bdbaf59b43a4 24c12563ed0052b664?Opendocument. 90) Matthew Craven, The International Covenant on Economic, Social and Cultural Rights. A Perspective on its Development (1995) (reprint 2002), pp. 154–161. 91) Stephen R. Tully, “The Contribution of Human Rights to Freshwater Resource Management”, 14 YBIEL (2004), pp. 101–137. 92) GC no. 3, paragraph 5, supra note 89. 89) 88) M. Gavouneli / International Community Law Review 13 (2011) 305–319 319 of market actions and comfortable with both, has appeared. It has acquired the sophistication required to operate in the market and it has kept the versatility of the primordial cry for survival. It is feted by both consumers, the billions of people in the world dependent on water, and providers, both the States and the private sector operating under its regulatory and supervisory powers. And it will come useful, when the new branch of groundwater regulation becomes a reality. For there, we are simply in statu nascendi. Aquifers are strange new beasts for international-law purposes. Neither simply watercourses on land nor just shared resources at sea, they draw heavily on existing areas of regulation without having found, for the time being, a distinctive niche to call their own. As the scarcity of water on earth advances and our technological skills proliferate, the bare rules we are presented with today would no doubt be fleshed out and filled in. In the meantime, there is no reason why the mature quality standards of the human right to water should not be transferred into the emerging system for aquifers, in order to educate its development, help formulate its concepts and ensure the eventual cohesion and effectiveness of the system. Awaiting the clarification of the legal status of the new rules, we are truly on the brink of a rising, novel world – underground.