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 A HUMAN RIGHT TO ACCESS WATER?
A CRITIQUE OF GENERAL COMMENT NO. 15

STEPHEN TULLY*

Abstract

At the conclusion of its 29th session in 2002, the United Nations (UN) Committee on
Economic, Social and CulturalRights (hereinafterthe Committee) identified a human right to
access water uniquely straddling two provisions of the InternationalCovenant on Economic,
Social and Cultural Rights (the Covenant).' General Comment No. 15 novelly defined a
universal entitlement to sufficient, safe, acceptable, physically accessible and affordable water
for personal and domestic use.2 This article critiques that instrument for the phraseology
employed, the substantive omissions and the reasoning of the Committee. The article also
evaluates the broaderimplications of a human right to access water within a liberalisedmarket
context. Paragraph1 questions the legal basis identified by the Committee and considers the
existence of a right to access water under contemporary internationallaw. Paragraph2 assesses
the policy justifications which prompted a human rights orientation to the global challenges
confronting water resources including the treatment of water services under international
economic law. Most notable among the several omissionsfrom General Comment No. 15 is the
increasinglyprominent role and responsibilitiesof the privatesector as outlined in paragraph3.
Paragraph4 sceptically examines the prospectsfor implementing a human rights approach to
water resources in light of applicable economic and environmental principles. Finally, it is
argued that unreflective resort to the General Comment template for addressing individual
interests will render such instruments outdated or unhelpful as normative guides and several
solutions are offered in paragraph5.

1. THE LEGAL FOUNDATIONS FOR A HUMAN RIGHT TO ACCESS

WATER

Water resources are receiving increasing international attention. The 2 2 nd March

each year has been the World Day for Water since 1993 and 2003 was designated as
the International Year of Freshwater.3 Water features within multiple policy arenas
including food, agricultural pesticides, deforestation, fishing stocks, biodiversity,
climate change, industrial waste and transboundary or maritime pollution. It is

* Law Department, The London School of Economics and Political Science, United Kingdom.
International Covenant on Economic, Social and Cultural Rights (ICESCR), 993 United Nations
Treaty Series, p. 3 (1966).
2 United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR), General
Comment No. 15 (2002) on the right to water, UN Doc. E/C.12/2002/11.
3 UN General Assembly (GA) Resolutions 47/193 (1992) and 55/196 (2000).
4 UN Commission on Sustainable Development (CSD), Comprehensive Assessment of the Freshwater
Resources of the World, Final Report of the Secretary General to CSD-5, UN Doc E/CN.17/1997/9.

Netherlands Quarterly of Human Rights, Vol. 23/1, 35-63, 2005.

(@ Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 35
 Stephen Tully

scrutinised by no less than twenty-three UN bodies.5 However, some 1.5 billion

people worldwide (one in five) currently lack access to improved water supplies (80
percent are located rurally) and around four billion (or over half) lack access to
adequate sanitation.6 Non-governmental or anisations (NGOs) have called upon
States to recognise a human right to water including the European Council on
Environmental Law which proposed that no one may be deprived of the water
required to meet basic human needs.8 Inter-governmental organisations such as the
Organisation for Economic Coo eration and Development (OECD) have also
proved receptive to such requests.
In 1997 the UN Sub-Commission on the Protection and Promotion of Human
Rights requested Mr El-Hadji Guiss6 to investigate a 'right of access' to drinking
water and sanitation services for everyone.' 0 The Sub-Commission subsequently
appointed him as Special Rapporteur," thereby mandating him to compile periodic
reports on the topic drawing upon all available information and from which other
UN institutions such as the Committee may formulate their own views. However, the
UN Commission on Human Rights observed that the right to drinking water and
sanitation remained undefined, temporarily postponed that appointment and
requested further investigation.1 2 Mr Guiss6 was ultimately entrusted with promo-
ting the realisation of the right to drinking water and sanitation at the national and
international levels taking into account the right to development and defining the
content of a right to water in relation to other human rights.' 3 The Special
Rapporteur considered it desirable to identify an acceptable legal framework 'since
it would be im ossible for individuals to call for this right without a legal text to
support them'.
The Committee chose to locate a right to access water under two provisions of
the Covenant. First, Article 11(1) provides that State Parties 'recognize the right of
everyone to an adequate standard of living (...) including adequate food, clothing
and housing and to the continuous improvement of living conditions'. An
identically-formulated illustrative list also appears within the Universal Declaration

5 UN Secretary-General, Report on Activities undertaken in preparation for the International Year of

Freshwater 2003, UN Doc. A/57/132 (2002), para. 9.
World Health Organisation (WHO)/UN Children's Fund (UNICEF)/Water Supply and Sanitation
Collaborative Council (WSSCC), The Global Water Supply and Sanitation Assessment 2000, New York,
2000, p. 1.
E.g. Principles 1, 3 and 4, Resolution No. 16 (2000), Resolution on the Right to Water, European
Council on Environmental Law (CEDE), Resolutions and Declarations 1974-2000, Madeira, 2002.
o Articles 3, 7, 8, and 10, Resolution No. 11 (1999), Madeira Declaration on the Sustainable
Management of Water, CEDE, idem.
9 Organisation for Economic Cooperation and Development (OECD), Resolution on Potable Water,
28 April 2000.
io Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission) Resolution
No. 1997/18.
1 Ibidem, Resolution No. 1998/7.
12 UN Human Rights Commission (HRC), Decision No. 1999/108.
i3 Sub-Commission Resolution No. 2001/2; HRC, Decision No. 2002/105.
14 Sub-Commission, 'Sub-Commission begins Consideration of Economic, Social and Cultural Rights',
55"' Session, Press Release, 2003, p. 1.

36
 A Human Right to Access Water?

of Human Rights.1 5 In the Committee's view, the word 'including' 'indicates that
this catalogue of rights was not intended to be exhaustive'. 16
Although linguistically correct, the conclusion is problematic for several reasons.
First, 'including' is a self-evidently imprecise term leading one to speculate on the
number and nature of other characteristics essential to an adequate standard of
living but not explicitly guaranteed by the Covenant. Does General Comment No. 15
herald rights to access electricity, the internet or other essential civic services such as
postal delivery? The Committee's intention to render access to water an inherent
right and not merely a tangential one1 7 is ill-served by a process of inference. Since
claims to scarce resources are properly questions of resource allocation, a more
convincing textual interpretation to Article 11(1) could support an implied right to
access water necessary to grow food or satisfy housing needs.
Second, although the Committee's appreciation of what constitutes an adequate
standard of living is Tet to be fully articulated, it concluded that water 'clearly' fell
within this category. Food and housing as distinct rights are already subject to
specific General Comments. It can be anticipated that an adequate standard of
living will be further deconstructed into an all-encompassing concept containing
several novel rights. The Committee has already drawn criticism for interpretative
creativity. Its attempts to rewrite Article 11 'by resurrecting and adopting
alternatives' which were rejected by the original negotiators have not been well-
received by governments who prefer adherence to the Covenant language as
adopted rather than the Committee's 'revisionist views'. 19 General Comments are
intended to progressively but effectively realise those rights 'recognised' by the
Covenant. 20 It is therefore the responsibility of governments to pursue the Article 29
amendment procedure if the Covenant is adjudged (by them) to be inadequate. As
illustrated by General Comments with respect to older or disabled persons, the
Committee's approach 'undermines the principle of legal security by reading into a
legal text a content which simply is not there'.
Third, one construction of the travaux prdparatoiresconcludes that water was
deliberately omitted by the drafters as an explicit right on account of its nature: like
22
air, it was considered so fundamental that its formal inclusion was unnecessary.
Deliberate omissions in circumstances involving the voluntary assumption of legal
obligations by States must be given greater deference than arguments suggesting

15 Article 25, Universal Declaration of Human Rights (UDHR), UNGA Resolution 217A (III) (1948).
16 General Comment No. 15, supra note 2, para. 3.
17 CESCR, Summary Record of the First Part (Public) of the 50th Meeting, 29h Session, Geneva,
26 November 2002, UN Doc. E/C.12/2002/SR.50.
a General Comment 15, supra note 2, para 3.
19 Dennis, M.J. and Stewart, D.P., 'Justiciability of Economic, Social and Cultural Rights: Should there
be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and
Health?', Americanjournal of InternationalLaw, Vol. 98, 2004, p. 462, at pp. 493-495.
2o CESCR, Report to the Economic and Social Council, UN Doc. E/1989/22, Introduction to Annex
III.
2' HRC, 'Experiences with legal enforcement of the right to education as food-for-thought in
exploring models for an optional protocol to the International Covenant on Economic, Social and
Cultural Rights', Information provided by the Special Rapporteur on the Right to Education, Ms
Katarina Tomalevski, UN Doc. E/CN.4/2004/WG.23/CRP.4, para. 8.
22 Gleick, P.H., 'The Human Right to Water', Water Policy, Vol. 1, No. 5, 1999, p. 487.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 37

 Stephen Tully

that water 'was understood as a given which the drafters implicitly included'.
Article 11 was intended to 'form the kernel of concepts to be developed in detail
either through subse uent international agreements or by the activities of the
specialised agencies'.2 Article 24 of the Covenant further reinforces the expert role
of UN Specialised Agencies under their respective mandates. Since no intergover-
nmental organisation enjoys exclusive responsibility for water resources, the choice
of the appropriate lawmaking forum falls to governments.
The second (and relatively firmer) legal foundation for a right to access water -
Article 12(1) of the Covenant - provides that States Parties recognise the right of
everyone to the highest attainable standard of physical and mental health. The right
to health is not a novel means of ensuring water access.25 Indeed, the Committee has
itself interpreted that right as incorporating underlying factual determinants such as
'an adequate supply' of safe and potable drinking water and adequate sanitation.
The first point to note is that in the absence of a humanitarian emergency the
Committee only envisages governments ensuring equality of access to water. Second,
ensuring good health as the basis for a legal entitlement to drinking water is strictly
limited to children. 27 For example, States Parties to the African Charter on the
Rights and Welfare of the Child shall take measures to ensure the provision of safe
drinking water.2 8 Drinking water and sufficient sanitary installations should also be
29
available to juveniles deprived of their liberty.
General Comment No. 15 provides little indication of how a 'clean', 'reliable',
'sufficient' or 'minimum' water supply is measured. The Committee defers to
guidelines developed by the World Health Organisation (WHO) intended for
adoption as national standards.3 0 This is consistent with an earlier UN inter-Agency
decision nominating them as the singularly most authoritative normative position
on safe drinking water quality.3 1 General Comment No. 15 merely defines 'safe' as
free from micro-organisms, chemical substances or radiological hazards and
adequacy 'should not be interpreted narrowly by mere reference to volumetric
quantities'. However, these coverage measures are also being progressively
substituted by the technologically-driven concept of 'improved' water sources.

23 Pontifical Council for Justice and Peace, Water: An Essential Element for Life, Note to the Third World
Water Forum, Vatican City, 2003.
2 Statement of H.F.E. Whitlam, Australian representative, UN Doc. E/CN.4/SR.223 (1951), para. 4.
2 Kanaaneh, H., McKay, F. and Sims, E., 'A Human Rights Approach for Access to Clean Drinking
Water: A Case Study', Health and Human Rights: An InternationalJournal, Vol. 1, No. 2, 1995, p. 191.
26 CESCR, General Comment No. 14 (2000) on the right to the highest attainable standard of health,
UN Doc. E/C.12/2000/4, paras 11, 12, 15, 34, 36, 40, 43, 51 and 65.
27 Article 24(2)(c), Convention on the Rights of the Child, UN Doc. A/44/49 (1989).
28 Article 14(2)(c), African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/
24.9/49 (1990).
2 Rules 34 and 37, UN Rules for the Protection ofJuveniles Deprived of their Liberty, UN Doc. A/45/
49 (1990).
3 WHO, GuidelinesforDrinking-WaterQuality, Vols 1-3, WHO, Geneva, 3 d ed., 2003. See also European
Community Directive 80/778 (1980) Relating to the Quality of Water Intended for Human
Consumption (1980), OfficialJournal of European Communities Legislative Series, 229, p. 1.
31 UN Administrative Committee on Coordination (ACC), Report of the ACC Subcommittee on
Water Resources on its 21" Session, UN Doc. ACC/2000/18 (2001), para. 42.
-2 General Comment No. 15, supra note 2, paras 11 and 12(b). E.g. The FederalSafe Drinking Water Act
(US).

38
 A Human Right to Access Water?

Opinions also differ on the quantity of water required to satisfy basic human
needs. Although water requirements vary with diet, climate, activity and gender,
human survival typically requires between three to five litres of clean water per
person per day. The WHO recommends at least twenty litres accessible from a
source located within one kilometre of the user's dwelling.3 3 This estimation has
since risen to 40 litres located within 200 metres of each household. It has also
been suggested that 50 litres will provide sufficient water for drinking as well as meet
the requirements of human hygiene including bathing, basic sanitation and food
preparation. 3 5 Basic requirements may also include water for subsistence uses such
as gardening or livestock watering.
Finally, adequate sanitation as an aspect of human health is superficially
addressed by General Comment No. 15. The Special Rapporteur considers it
'arguable' that a right to sanitation exists under human rights law but nevertheless
called for its authoritative affirmation and conceded that '[t]he more difficult
question remains the scope of the content of this right'. Living a human life with
dignity entails adequate sanitation.3 8 The physical and mental development of
children is particularly susceptible to its4rovision.3 9 Many diseases are associated with
lack of water and improper hygiene. Interestingly, access to basic amenities is
relevant to two questions addressed to State Parties during the completion of national
reports and concern implementation of the rights to health and housing. 4 1 Thus the
Committee's reliance upon the right to an adequate standard of living generally to
support an entitlement to sanitation is inconsistent with its prior monitoring practice.
General Comment No. 15 illustrates the challenge of formally situating water
resources within a human rights framework. Water could warrant separate and
generic treatment or be addressed within multiple, specific and pre-existing
contexts. In particular, water could have been located within the ambit of other
'inextricably-related' human rights.4 2 Water resources are essential for realising the
rights to life, 4 3 self-determination, 4 4 human development,45 a healthy environ-

3 WHO/UNICEF/WSSCC, [Link]. (note 6).

3 Smets, H., 'The Right to Water as a Human Right', Environmental Policy and Law Magazine, Vol. 30,
No. 5, 2000, p. 248, at p. 249.
3 Gleick, P.H., 'Basic Water Requirements for Human Activities: Meeting Basic Needs', Water
International, Vol. 21, 1996, p. 83, at p. 88. Although taking into account cultural and social
preferences, this estimate does not allow for natural ecosystem requirements or water required for
food production.
36 General Comment No. 15, supra note 2, para. 29.
3 HRC, Relationship between the enjoyment of economic, social and cultural rights and the
promotion of the realisation of the right to drinking water supply and sanitation, Final report of the
Special Rapporteur, El Hadji Guiss6, UN Doc E/CN.4/Sub.2/2004/20, paras 44 and 49-50,
3 UNICEF, Sanitationfor All: PromotingDignity and Hutman Rights, New York, 2000.
3 UNICEF, Sanitation and Hygiene: A Right for Every Child, 1998, p. 3; WHO, The Sanitation Challenge:
Turning Commitment into Reality, Geneva, 2004, Section 1.
40 Food and Agriculture Organisation (FAO), World Water Development Report, Rome, 2003, p. 102.
41 CESCR, Revised General Guidelines regarding the Form and Contents of Reports to be Submitted
by States Parties under Articles 16 and 17 of the ICESCR, UN Doc. E/C.12/1991/1.
4 General Comment No. 15, supra note 2, para. 3.
4 Article 6, International Covenant on Civil and Political Rights (ICCPR), 999 United Nations Treaty
Series, p. 171 (1966).
4 E.g. ICESCR, Article 1, [Link]. (note 1).
45 Article 2(1), UN Declaration on the Right to Development, UNGA Resolution 41/128 (1986).

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 39

 Stephen Tully

ment,4 6 education, culture, and even access to information or public participation

in governmental decision-making.47 Water is a collective right as much as an
individual one: Article 25 of the Covenant provides that the use of 'natural wealth
and resources' is an inherent right of peoples. Since a right to access water 'is an
explosive issue' with impacts upon socialjustice, political stability and regional peace
in the Middle East,4 8 one could propose that water supports a novel human right to
peace. Selecting between any one of them is a matter of considerable difficulty.
Indeed, European governments sim ly bundled together the rights to food, health
and an adequate standard of living. National legal systems including constitutional
instruments typically vest ownership of water resources (frequently only surface
rather than ground water) in the State to hold on trust. A review thereof evidences a
range of legal foundations (including health, food, housing, life, adequate living
conditions or explicit recognition of an individual right to water Per se) whose sum
enshrines the right to access water as 'a legally protected reality'. 0
Judicial tribunals have also inferred an individual entitlement to water arising
from various contexts including the field of environmental protection. The right to
protection against pollution can be juxtaposed with enjoying private property to
achieve an outcome equivalent to a right to drinking water. Indian courts, for
example, have identified water as an attribute of the right to life,5 necessary for
maintaining health or environmental protection,5 3 as ancillary to riparian rights5 4
or falling under the law of nuisance.5 5 A Belgian Court of Arbitration resorted to the
right to a healthy environment 56 and Argentinean courts to the right to be free from
pollution.5 7 Regional human rights commissions have considered water in relation

46 E.g. Article 11(1), Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (the Protocol of San Salvador), OAS TS, No. 69 (1988).
4 See also Articles 1, 2 and 3, 1992 Declaration of Amsterdam, Second International Water Tribunal,
The Case Books, International Books, Utrecht, 1994 and General Comment No. 15, supra note 2,
para. 12(c) (iv). See also the Tribunal de las Aguas established in 1960 composed of irrigators and
elected as judges by users of the Turia River in Valencia, Spain.
4 Assaf, K. et at, 'Water as a human right: the understanding of water in the Arab countries of the
Middle East - a four country analysis', Global Issue PaperNo. 11, Heinrich B611 Stiftung, Berlin, 2004,
p. 2.
4 Council of Europe, Recommendation (2001)14 on the European Charter on Water Resources,
paras 5 and 19.
5o HRC, 'Preliminary Report on the relationship between the enjoyment of economic, social and
cultural rights and the promotion of the realization of the right to drinking water supply and
sanitation', submitted by the Special Rapporteur on the right to drinking water supply and
sanitation, Mr. El Hadji Guiss6, in pursuance of Decision No. 2002/105 of the Commission on
Human Rights and Resolution 2001/2 of the Sub-Commission on Human Rights, UN Doc.
E/CN.4/Sub.2/2002/10, paras 24, 28 and 33; Working Paper on the right of access of everyone to
drinking water supply and sanitation services submitted by Mr. El Hadji Guiss6, Special Rapporteur,
under Sub-Commission Resolution 1997/18, UN Doc. E/CN.4/Sub.2/1998/7.
5 European Court of Human Rights (ECHR), Zandervs Sweden, Case No. 45/1992/390/468, paras 24
and 27.
52 Attakoya Thangalvs Union of India, 1990 KLT, p. 580; Subhash Kumarvs State of Bihar, (1991) AIR SC,
p. 420; Vellore Citizens Welfare Reform vs Union of India, (1996) AIR SC p. 2715.
5 LK Koolwal vs State of Rajasthan, (1988) AIR Raj, p. 2.
5 MC Mehta vs Union of India, (1988) AIR SC, pp. 1037 and 1115.
5 E.g. Municipal Council, Ratam vs Vardhichand, (1980) AIR SC, p. 1622.
56 Arret No. 36/98 (1998), Commune de Wemmel, Moniteur Belge.
57 CEDHA, 'The Right to Water in Argentina', Cordoba, 2003.

40
 A Human Right to Access Water?

to the riht to health5 8 and access to information or participation in decision-

making.5 Inter-State dispute settlement mechanisms have scrutinised the responsi-
bilities of occupying forces in ensuring continued access to water6 0 and the role of
governments to provide unpolluted water to dependent populations. 6 '
Water could have been comfortably accommodated within the right to food
under Article 11(1) of the Covenant given the nutritional benefits of drinking water
and the water requirements of agricultural irrigation. The availability of water rather
than land is the principal constraint upon food production.6 2 Food security entails
universal access to safe and nutritious food for maintaining healthy and active
lifestyles. 6 3 Although food supplies may be guaranteed through appropriate
incentives to national producers (self-sufficiency), 64 it may be cheaper for States
to reduce their water consumption and import their domestic food requirements
(trade). 6 5 General Comment No. 15 does not express the Committee's position on
this issue but merely mentions subsistence farming and indigenous livelihoods.
However, the Committee has indicated that the right to food includes a mix of
nutrients and that proper hygiene can prevent food contamination.6 6 Although
General Comment No. 15 reiterates these points,6 7 the Special Rapporteur on the
right to food has been mandated to identify emerging global issues pertaining to
that right.6 8 These issues include 'drinking water, taking into account the
interdependence of this issue and the right to food' .69 Although originally omitting
water from the right to food is understandable, rectifying this oversight means that
the Committee will in all likelihood revisit these issues and address water in a
piecemeal fashion. That said, efforts to realise a right to access water must not
impede the realisation of well-established ones, particularly if approximately 840
million people worldwide are undernourished.
In this regard the Special Rapporteur on water recommended focusing upon
pre-existing legal obligations. With the exception of the Convention on the
Elimination of Discrimination against Women, there are no 'hard' law instruments

5 African Commission on Human and Peoples Rights, Communications 25/89, 47/90, 56/91 and
100/93 with respect to Zaire, 18"' Session, 1995, para. 47.
5 Inter-American Commission on Human Rights, Report of the Situation of Human Rights in
Ecuador, OEA Doc. OEA/Ser.L/V/II.96 Doc. 10, Rev 1 (1997).
6o International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied
PalestinianTerritoy, (2004) ICJ Rep, para. 133.
61 Permanent Court of Arbitration, Arbitration in the Application of the 1976 Convention on the Protection of
the Rhine against Pollution by Chlorides and the Additional Protocol of 1991, 2004.
62 Serageldin, I., 'Comment resoudre la crise de l'eau' [How to resolve the water crisis], Notre
Planet,
Vol. 8, No. 3, 1996, p. 4.
63 FAO, 'Food Production: the Critical Role of Water', World Food Summit Technical Background
Paper
No. 7, Rome, 1996.
64 FAO, 'Reforming Water Resources Policy: A Guide to Methods, Processes and Practices', Irrigation
and DrainagePaperNo. 52, Rome, 1995.
65 Allan, J.A., 'Virtual Water - the Water, Food and Trade Nexus: Useful Concept or Misleading
Metaphor?', Water International, Vol. 28, 2003, p. 4.
6 CESCR, General Comment No. 12 (1999) on the right to adequate food (Article 11), UN Doc. E/
C.12/1999/5, paras 9 and 10.
67 General Comment No. 15, supra note 2, paras 6 and 12(a).
6 HRC, Resolution 2000/10, para. 11(c).
69 HRC, Resolution 2001/25, para. 9.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 41

 Stephen Tully

linking water with the right to an adequate standard of living. 70 Obligations

opposable against States to provide water to particularly dependent groups such as
civilian populations in occupied territory and prisoners temporarily arise during an
international or non-international armed conflict.7 ' Drinking water and satisfactory
sanitation are also to be provided to forced labourers.7 2 To extrapolate a self-
standing and continuing claim to personal and domestic water use the Committee
has relied upon a narrowly-formulated or temporally-limited right to the provision
of water for specifically-targeted beneficiaries and observable in only several
particular contexts.
Furthermore, the Committee concluded that water was so closely connected to
other human rights that it rendered 'insignificant' the question whether it was
merely a component of a pre-existing one. In its view, access to water 'deserved'
recognition as a human right through the distinctive General Comment template
and conflated two articles of the Covenant as the appropriate legal foundations.
However, elevating the rights to health and an adequate standard of living runs the
risk of neglecting or dislocating the water components of other human rights. For
example, NGOs who promote the right to housing contributed to the formulation
of General Comment No. 15. The Committee itself considers that beneficiaries of
that right should enjoy 'sustainable access' to safe drinking water, site drainage,
sanitation and washing facilities.7 4 Furthermore, evictions must be justifiable, legal
and executed in a manner compatible with other Covenant rights. What do the
preferred legal foundations for General Comment No. 15 imply for the right to
housing, particularly where the right to access water is defined as extending to
domestic (that is, household) use?
Commentators who argue that human rights law ought to be broadly construed
to encompass a right to access water concede that '[t]he question is not what is
logical but what States have accepted'. Although it is intuitive to affirm the
existence of such a right as critical for human survival, this reasoning ignores the
State-centric mechanics of the international legal system. It may be recalled that 'the
rules of law binding upon States (...) emanates from their own free will'. 7 7
Obligations in human rights treaties are owed to individuals and indeed the
International Court ofJustice has gone further to discern individual interests from

70 Article 14(2) (h), Convention on the Elimination of All Forms of Discrimination Against Women,
UN Doc. A/34/46 (1979).
71 E.g. Articles 20, 26, 29, 46, Geneva Convention (III) relative to the Treatment of Prisoners of War,
75 United Nations Treaty Series, p. 135 (1949); Articles 23, 55, 59, 85, 89 and 127, Geneva Convention
(IV) relative to the Treatment of Civilian Persons in Time of War, 75 United Nations Treaty Series, p.
287 (1949). See further International Committee of the Red Cross, 'Water in Armed Conflict',
Geneva, 1994.
72 Article 17(1) (c), International Labour Organisation Convention No. 29 (1930) concerning forced
or compulsory labour.
7 Centre on Housing Rights and Evictions (COHRE), 'The Right to Water and the ICESCR', Geneva,
2002.
74 CESCR, General Comment No.4 (1991) on the right to adequate housing (Article 11(1)), para. 8(b).
7 CESCR, General Comment No. 7 (1997) on the right to adequate housing and forced evictions
(Article 11(1)), para. 11.
76 E.g. McCaffrey, S.C., 'The Human Right to Water Revisited', in: Brown Weiss, E., Boisson
DeChazournes, L. and Bernasconi-Osterwalder, N. (eds), Water and InternationalEconomic Law,
Oxford University Press, Oxford, 2004.
7 Permanent Court oflnternationalJustice, SSLotus (Francevs Turkey), (1927) PCIJSeriesA, No. 10, p. 18.

42
 A Human Right to Access Water?

purely inter-State arrangements. 78 Be that as it may, the pertinent question is

whether States have already recognised an obligation to progressively realise a right
to access water under Articles 11 or 12 of the Covenant. For the reasons outlined
above, the legally accurate answer is no. One may moreover conclude from the
above review that an entitlement to access water for personal or domestic use
available to all does not exist under contemporary international law.
The additional possibility is that governments have since recognised a human
right to access water under general international law. A preliminary observation is
that the Committee does not possess authority to create human rights since its
principal function is to monitor implementation. Special Rapporteur Guiss6
considered that the Committee enjoyed the mandate to declare a right to access
water since governments had freely given their consent to a legally-binding
instrument. However, the scope of that consent is curtailed in several significant
respects. First, under Article 16(1) State Parties report on the measures adopted and
progress made in achieving those rights 'recognised' under the Covenant. Second,
the Committee may only make suggestions and recommendations of a general
nature with a view to assisting the Economic and Social Council (ECOSOC)
discharge its responsibilities under the Covenant.79
In 1987 ECOSOC invited the Committee to adopt General Comments to assist
State Parties fulfil their reporting obligations. 8 0 Since these Comments emanate
from the UN organ singularly responsible for overseeing implementation of the
Covenant, they are authoritative statements akin to jurisprudence indicative of the
Committee's likely position during the consideration of national reports. General
Comments thus provide interpretative clarity on the intent and content of particular
provisions and are not legally binding.81 The Committee cited the insufficiencies
disclosed in State Party reports as one reason for issuing General Comment No. 15.
Access to drinking water and sanitation has arisen in circumstances ranging from
water privatisation projects in Nepal to the close-and-siege policies of Israel within
occupied Palestinian territory. 82
Subsequent State practice need not reflect the Committee's aspirational
interpretation of the Covenant. Treaty provisions of a norm-creating character
may become generally binding provided that State practice is extensive and virtually
uniform, includes that of specially-affected States and is 'in such a way as to show a
general recognition that a rule of law or legal obligation is involved'. 3 Although the
North Sea Continental Shelf Case is not entirely apposite here, not least because the
position of non-State Parties is not at issue, the formulation provides useful indicia
in determining whether the emanations of a treaty-monitoring body have been
accepted by governments. Since those same governments are slow to define the
content of economic, social or cultural rights, dispute theirjusticiability and resist an

78 ICJ, The LaGrand Case (Germany vs US), (2001) IC] Reports, paras 77 and 89.
7 Economic and Social Council (ECOSOC), Resolution 1985/17, para. (f).
so ECOSOC Resolution 1987/5, para. 9; Rule 65, CESCR Rules of Procedure, UN Doc. E/C.12/1990/
4/Rev.1 (1993).
81 E.g. Alston, P., 'The Committee on Economic, Social and Cultural Rights', in: Alston, P., The United
Nations and Human Rights: A Critical Appraisal, Clarendon Press, Oxford, 1992.
82 E.g. CESCR, Report of the 25th 26 th and 27"h Sessions, UN Doc. E/2002/22, paras 168(c)
(Hong
Kong Special Administrative Region), 268 (Bolivia), 381 (Senegal), 396 (Syrian Arab Republic), 450
and 466 (Panama), 543 and 576 (Nepal), 704 (Israel) and 938 (Jamaica).
83 ICJ, North Sea ContinentalShelf Case(FRGvs Denmark, Netherlands), 1969 ICJReports,p. 3, paras 71 and 74.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 43

 Stephen Tully

international enforcement mechanism, 'there is a necessity for the Committee to

attempt to fill the void' through interpretations in abstracto.8 4 A General Comment
thus 'shapes the practice of States in applying the Convention and may establish and
reflect the agreement of the Parties regarding its interpretation'. 85
The Committee's expectation that State Parties will report on the progress made
in progressively realising the right to access water wrings the voluntariness ordinarily
assumed when creating substantive obligations under customary international law
from a narrow procedural device. Although there is a governmental interest in
clarifying their periodic reporting obligations, tacit consent to extending their
Covenant commitments cannot be assumed. Consider the position where a State is
unable to satisfy the minimum core content of the right to access water on account
of resource scarcity and the international community fails to meet its obligations. It
may be true that emphasising a right underscores the significant human need at
stake and when left unfulfilled the notion of rights, any declared violation thereof
and the appropriate remedy are devalued. However, the significance of General
Comment No. 15 as an interpretative aid should not be overstated: where
governments have not disclosed the 'progress' made or lack thereof then they are
properly characterised as having violated a reporting obligation. The possible
existence and independent development of a right to access water outside the forum
of the Committee are unaffected.
Governments have not expressed opposition to a human rights orientation but
their reaction has proven lukewarm. General Comment No. 15 is an incremental
step towards lawmaking by calling upon governments to recognise a human right to
access water under national law and to further develop international legal
87
instruments. 86 In response to information requests following its adoption, Austria
pointed to the importance of national initiatives, Bolivia identified the difficulties
confronting developing States and Azerbaijan, Mexico and Greece described their
legislation and policies for protecting water resources. Only Switzerland observed
that 'the absence of a specific mention of the right to drinking water' under
international human rights law 'did not preclude its existence as an autonomous
right' but recommended that 'a process of reflection be undertaken as to the
specificity of the right of access to water'. 8 8 More significantly, all States which
submitted reports for consideration at the Committee's 3 2 nd and 33 rd sessions
during 2004 addressed access to water and sanitation within the context of other
rights. 9 Indicative of institutional competition and duplication of effort within the

84 Craven, M., The International Covenant on Economic, Social and Cultural Rights: A Perspective on its
Development, Clarendon Press, Oxford, 2002, pp. 91-92.
8 Meron, T., Human Rights Law-Making in the UN- A CritiqueofInstruments and Process, Clarendon Press,
Oxford, 1986, p. 10.
86 General Comment No. 15, supra note 2, paras 26 and 35.
8 HRC Decision 2002/105; Sub-Commission Resolution 2003/1.
8 Final Report, supra note 37, para. 9.
89 Namely, health (Denmark E/C.12/4/Add.12), housing (Kuwait E/1990/5/Add.57; Spain E/C.12/
4/Add.11), housing and an adequate standard of living (Italy E/C.12/4/Add.13), housing and
health (Azerbaijan E/1990/6/Add.37; Chile E/1994/104/Add.26; Greece E/1990/5/Add.56),
health and food (Lithuania E/1990/5/Add.55) and health, housing and food (Malta, E/1990/5/
Add.58; Ecuador E/1990/6/Add.36). Although not explaining such wide variations between States,
this conclusion is partly attributable to governmental adherence to the reporting guidelines
discussed infra, and at supra note 41.

44
 A Human Right to Access Water?

UN system, the Food and Agriculture Organisation emphasised water as a

component of the right to food, the UN Environmental Programme promoted
environmental sustainability and WHO focused upon personal and domestic use.
Indeed, governments are yet to generally accept General Comment No. 15 as
constituting de legeferenda. At the World Water Council's Third World Water Forum
three UN human rights Special Rapporteurs recommended recognising the basic
human need to access water and sanitation.90 NGOs, public and private sector
organisations, UN Agencies and the World Bank had made a similar request at the
First World Water Forum.9 ' The UN High Commissioner for Human Rights
considered that General Comment No. 15 would meaningfully contribute to its
deliberative processes.9 2 An explicit reference would also reinforce awareness that
water was essential for realising other human rights. However, governments were
unresponsive to these pressures9 4 and it remains to be seen whether the Fourth
Forum scheduled for Canada during 2006 will mark a different outcome.

2. POLICY JUSTIFICATIONS FOR ASSERTING A HUMAN RIGHT TO

ACCESS WATER

If water and sanitation could have been addressed through existing human rights, it
remains to be demonstrated that asserting an independent right is justified by
reference to considerations other than the failure to comprehensively realise them.
Amending General Comments with respect to health, food or housing would have
been as unprecedented as asserting an innovative right to access water. The
Committee's concerns reflect its particular agenda. Consider, for example, the
World Conservation Union (IUCN) which concluded that a right to water 'does
exist' but conceded that it 'has not been clearly defined in international law and has
not been expressly recognised as a fundamental human right'.9 5 The IUCN's policy
arguments supporting explicit recognition included reintegrating water use into
ecological health and environmental sustainability. The Committee for its part is
contributing a human rights perspective to economic issues such as housing and
property restitution, poverty, corruption, globalisation, trade agreements and
economic sanctions." The evident difficulty is identifying convincing links to a
human rights framework some four decades old.
Attempts to promote a human rights orientation within otherfora have not been
fruitful. In particular, governments must give special regard to 'the requirements of

9o UN, Joint Statement by the Special Rapporteurs on adequate housing, the right to food and the
right to health, Third World Water Forum, Press Release, Kyoto, 2003.
9 Marrakech Declaration, First World Water Forum, Morocco, 1997.
92 CESCR, 'High Commissioner for Human Rights Addresses Committee on Economic, Social and
Cultural Rights', Press Release, 29"' Session, 2002.
93 Statement by Sergio Vieira De Mello, UN High Commissioner for Human Rights, Third World
Water Forum, Kyoto, 2003, Press Release.
94 Ministerial Declaration of the Third World Water Forum, Kyoto, 2003, para. 17, reprinted in:
Environmental Policy and Law, Vol. 33, 2003, p. 172.
9 Scanlon,J., Cassar, A. and Nemes, N., 'Water as a Human Right?', EnvironmentalPolicy and Law Paper
No. 51, The World Conservation Union, Gland, 2004, at pp. 12 and 25.
96 E.g. CESCR, General Comment No. 8 (1997) on the relationship between economic sanctions and
respect for economic, social and cultural rights, UN Doc. E/C.12/1997/8.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 45

 Stephen Tully

vital human needs' when resolving conflicting uses for transboundary water-
courses.9 7 This entails sufficient water for sustaining human life including drinking
and food production.9 8 However, this formulation defines obligations upon States
and falls short of proscribing an individual claim per se.99 That said, European
Governments have recently agreed to pursue equitable access to drinking water and
10 0
sanitation for all to ensure good human health.
A right to access water may be expected to counter increasing global
consumption, intensified competition between users and the possibility of depleting
a finite natural resource. Of total global water volume, ninety-seven percent is
saltwater and three percent freshwater, of which one percent is available and the
remainder frozen. Of that one percent, over half has already been appropriated. 10 1
When competition over water intensifies, agricultural use (and hence food security)
declines, urban and industrial sectors inflate prices and ecosystem requirements are
neglected. 10 2 Concerted action to remedy regional and urban-rural disparities in
water consumption is incontrovertible. Global coverage for urban populations in
2000 exceeded that of rural populations in terms of both water supply (93 percent as
against 70 percent) and sanitation (85 percent as against 37 percent). Water supplies
are lowest in Africa, sanitation coverage lowest in Asia and Latin America and the
greatest urban-rural inequality is found in the Caribbean.
The reputed 'water crisis' is a consequence of fragmented governmental
oversight and competing private activity. The principal barriers to universal water
coverage are not absolute water scarcity or individual financial capacity but rather
improving international water governance and attracting the substantial expendi-
ture required to construct or upgrade water infrastructure.1 0 3 Merely continuing
present levels of investment will not achieve comprehensive water supply and
sanitation coverage within many developing countries.104 The current USD 80
billion per annum must rise to USD 180 billion per annum over the next two decades if
water security is to be attained by 2025. Although financing the rejuvenation of water
infrastructure will be partly offset by governments through consumer or taxpayer
contributions, the declining ability of households to afford water makes consumers
more sensitive to price increases. 1 0 5 Furthermore, firms have cautiously reduced

9 Article 10, 'New York Convention on the Law of the Non-Navigational Uses of International
Watercourses', InternationalLaw Magazine, Vol. 36, 1997, p. 713 (not in force).
98 Statement of Understanding accompanying the UN Convention on the Law of Non-Navigational
Uses of Watercourses, UN Doc. A/51/869 (1997).
McCaffrey, S.C., 'A Human Right to Water: Domestic and International Implications', Georgetown
InternationalEnvironmental Law Review, Vol. 3, 1992, p. 1, at pp. 17-24.
oo Articles 4, 5 and 6, London Protocol on Water and Health to the 1992 Helsinki Convention on the
Protection and Use of Transboundary Watercourses and International Lakes, (1996) ETS, No.
33207, UN Economic Commission for Europe (ECE), ECE Doc. [Link]/AC.1/1999/1.
101 Postel S.L., Daily, G.C. and Ehrlich, P.R., 'Human Appropriation of Renewable Freshwater', Science,
Vol. 271, 1996, pp. 785-788.
102 Stockholm International Water Institute, 'Water for the Next Thirty Years: Averting the Looming
Water Crisis', Proceedings of the 20 Year Anniversary Seminar, Stockholm, 1997, p. 8.
10 See generally Gleick, P.H. (ed.), Water in Crisis: A Guide to the World's FreshwaterResources, Oxford
University Press, New York, 1993.
10 UN Secretary General, Report on progress made in providing safe water supply and sanitation for
all during the 1990s, UN Doc. E/CN.17/2000/13, para. 69.
10 Smets, H., 'Implementing the Right to Drinking Water in OECD Countries', OECD Seminar Social
and Environmental Interface Proceedings, Paris, 1999.

46
 A Human Right to Access Water?

their water sector investment due to underestimated risks, overestimated profits and
contractual difficulties.1 0 6
The drive towards efficiency is assumed to be synonymous with water services
privatisation. Although concession contracts can increase coverage, overemphasi-
sing profit-making or cost-recovery impedes access for socially deprived groups and
diminishes operator accountability. For example, water privatisation in the UK
sparked consumer alarm for ever-increasing prices and exorbitant profits.108 Private
sector participation may also be a precondition for development assistance or
structural adjustment programmes.10 Most notoriously, in 1999 Bolivia granted a
water and sewer services concession to Bechtel, a single-bidder multinational water
corporation enjoying World Bank support. Popular unrest prompted the
government to re-acquire control.110 However, this rendered it potentially liable
for cancelling the concession.' Analogous proceedings were initiated against
Argentina by firms who resorted to the protections afforded under bilateral
investment treaties. 112 International arbitration can dislodge the primacy of
national courts over national resources.1 1 3 Paradoxically, revoking water licenses
without proper compensation may also contravene human rights legislation.1 1 4
Landowners and water supply companies claiming ownership over irrigation water
are also asserting that Mexico's diversion of the Rio Grande qualifies as expropria-
tion.115
Political support for (and profitability from) the right to access water favours
public utilities over the short term since water service provision is predominantly
publicly owned if not managed. The private sector is largely concentrated within
developed States and only serves approximately five to seven percent of all urban

1o6 UN Secretary-General, 'Report on Freshwater Management: Progress in meeting the goals,

targets
and commitments of Agenda 21, the Programme for the further implementation of Agenda 21 and
the Johannesburg Plan of Implementation', UN Doc. E/CN.17/2004/4, para. 63.
107 HRC, Report of the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, Mr Miloon Kothari, UN Doc. E/CN.4/2002/59, paras 56-57.
1os House of Commons Select Committee on the Environment, Seventh Report 1999-2000, 'Water
Prices and the Environment', HC 597, Introduction, para. 20.
10 CESCR, Statement on Globalisation and Economic, Social and CulturalRights, 1998.
110 Coalition for the Defence of Water and Life, The Cochabamba Declaration on the Right to Water,
Bolivia, 2000, para. 2.
" International Centre for the Settlement of Investment Disputes (ICSID), Aguas del Tunari S.A. vs
Republic of Bolivia, ICSID Case No. ARB/02/03.
112 ICSID, Lanco vs Argentina, International Legal Materials, Vol. 40, 2001, p. 457; ICSID, Aguas
Provinciales de Santa Fe S.A., Suez, Sociedad General de Aguas de Barcelona S.A., Interagua Servicios
Integrales de Agua S.A., Aguas Cordobesas S.A., Aguas Argentinas S.A, Vivendi UniversalS.A vs Argentine
Republic, ICSID Case Nos ARB/03/17-19; ICSID, Azurix Corp. vs the Argentine Republic, ICSID Case
No. ARB/01/12. See also ICSID, Compadia de Aguas del Aconquija S.A. and Vivendi Universal vs
Argentine Republic, ICSID Case No. ARB/97/3, (2001) 16 ICSID Review -FIL, p. 641, (2002) and 17
ICSID Review -HLJ, p. 168.
113 International Chamber of Commerce (ICC), International Court of Arbitration, Salini Costrutorri
SpA & ItalstradeSpA vs The FederalRepublic of Ethiopia,Addis Ababa Water and SewerageAuthority, Case
No. 10623/AER/ACS (2001).
1 United Kingdom Environment, Transport and Regional Affairs Committee, Report on the Draft Water
Bill, Ninth Report, HC 145-1, 2001, para. 7.
115 North American Free Trade Agreement (NAFTA), Notice of Intent to Submit a Claim to Arbitration
under Chapter 11 of NAFTA concerning Texas Water and the Rio Grande, 2004.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 47

 Stephen Tully

water consumers worldwide.' 1 6 However, the prevailing trend is towards the

incremental withdrawal of governments as exclusive water service providers. Several
European governments have legislatively entrenched a private sector role when
reorganising their national water industries.1 1 7 The optimal level of privatisation is
debatable: full privatisation (embracing both asset ownership and management) has
been adopted in the UK whereas the concession model (delegating authority and
permitting private control but retaining public ownership) is utilised elsewhere.1 1 8
Private investors also prefer relatively more affluent urban demand over poorer rural
applications. The Committee is attempting to redirect private capital outlay by
suggesting that investment should not 'disproportionately favour expensive water
supply services and facilities'." 9
The financial and managerial incentives for government to outsource water
service provision may impinge their primary responsibility to protect human rights
from interference. Although human rights can be operationalised by reposing an
implementation role in private hands, delegating functions does not absolve
governments of responsibility.1 2 0 First, the private sector cannot grant remedies
such as legislative or judicial measures which governments can be called upon to
provide. Second, democratic accountability is ensured when elected or appointed
officials are responsible for local water management decisions. Attention could
usefully be devoted to public-private partnerships where firms contribute resources
and governments satisfy public interest objectives.' 2 1 Such a model was proposed by
corporations at the Second World Water Forum12 2 and governments are willing to
support such arrangements. 2 3 The value of these partnerships has largely been
realised within high and middle-income States.12 4 The principal obstacles within
developing countries include long pay-back periods, low returns, unstable
regulatory regimes, uncertain future cash flows, foreign exchange premiums and
lack of political commitment.125 Popular mistrust is an additional issue since public-
private partnerships may be precursors to privatisation.
In formulating General Comment No. 15 the Committee acknowledged that 'it
was essential to concentrate on the human rights aspects' since 'all the problems of
the world could not be solved under the rubric of water'.127 A General Comment

116 Hamada, A-M.M., Interwies, E. and Kraemer, RA., 'Governance and Private Sector Participation',
in: OECD, Social Issues in the Provision and Pricing of Water Services, Paris, 2003, Chapter 4.
117 E.g. Decree-Laws 379/93 and 319/94 (Portugal); Laws 142/1990 and 36/1994 (Italy).
118 Hardoy, A. and Schusterman, R., 'New Models of Privatisation of Water and Sanitation for the
Urban Poor', Environment and Urbanisation,Vol. 12, No. 2, 2000, p. 63.
119 General Comment No. 15, supra note 2, para. 14.
120 ECHR, Costello-Roberts vs United Kingdom, (1993) ECHR, Series A, Vol. 247-C, para. 27.
121 OECD, 'Public-Private Partnerships in the Urban Water Sector', Policy Brief, 2003, p.
2.
122 World Water Forum Panel on Business and Industry, Joint Statement to the Ministerial Conference
on Water Security, The Hague, 2000.
Final Declaration, International Conference on Water and Sustainable Development, Paris, 1998.
124 OECD, Global Trends in Urban Water Supply and Waste Water Financingand Management: ChangingRoles
for the Public and PrivateSector, Paris, 2000.
125 OECD/International Bank for Reconstruction and Development (IBRD), 'Private Sector Participa-
tion in Municipal Water Services in Central and Eastern Europe and Central Asia', Conference
Proceedings, Paris, 2002.
126 E.g. Water Investment Act 2002 (section 1961) (US).
127 CESCR, Summary Record of the 46"' Meeting, 29"' Session, Geneva, 22 November 2002, UN Doc.
E/C.12/2002/SR.46, para. 50.

48
 A Human Right to Access Water?

concerning water has reputedly been 'contemplated for many years'. 12 8 However,
the UN Sub-Commission on Human Rights recently identified an 'urgent and
persistent need for increased attention and commitment by all decision-makers to
the right of everyone to drinking water supply and sanitation'. 1 29 With intergover-
nmental consensus on agriculture and trade in services expected in 2005,13o the
Committee intends to raise the profile of human rights and remind governments of
their Covenant obligations. It is hoping that a right to access water will constitute a
counterweight to foreign direct investment and international trade regimes on a par
with the right to food which was invoked by Mauritius during negotiations for the
Agreement on Agriculture at the World Trade Organisation (WTO). 13s
Water can be packaged, subjected to market conditions and exchanged as a
tradable commodity. 13 2 NGOs argue that resources essential to life should not be
commodified.1 3 3 Friends of the Earth also suggests that manipulating the trade in
134
water can suppress economic development and deny agricultural self-sufficiency.
As a national resource water should moreover be democratically controlled by those
dependent upon its use. 13 5 However, international economic agreements may
prohibit governments from preventing its export.1ss
The General Agreement on Trade in Services (GATS) requires the progressive
liberalisation of service markets.1 3 7 GATS-specific obligations apply to any of 17
sectors voluntarily scheduled by WTO Members. Government commitments
138
become permanent in the absence of any environmental or health exception.
States could violate the national treatment obligation of Article XVII where
universal service obligations are only imposed upon foreign service providers and
not their domestic counterparts. The market access rules under Article XVI(2) also
prevent governments from introducing or maintaining regulatory instruments such
as monopolies, exclusive service providers, quotas, economic needs tests, restrictions
on legal types or joint venture requirements. If service sector regulations are
contestable then national regulatory autonomy is further curtailed.1 3 9 Governments

128 CESCR, 'Committee on Economic, Social and Cultural Rights holds discussion on right to water',
29"' Session, Press Release, 2002, p. 1.
129 Sub-Commission Resolution 2002/6, Preamble.
1s World Trade Organisation (WTO), Ministerial Declaration, 4h Ministerial Conference, Doha,
WTO Doc. WT/MIN(01)/DEC/1 (2001), para. 15.
s3 WTO Committee on Agriculture Special Session, Note on Non-Trade Concerns, Developing
Countries and Non-Trade Concerns (prepared by Mauritius), WTO Doc. G/AG/NG/W/36/Rev.1
(2000), Attachment 5, para. 14.
1 General Agreement on Tariffs and Trade (GATT 1994), Marrakech Agreement Establishing the
WTO, Annex 1A, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade
Negotiations 17, (1999) 1867 United Nations Treaty Series, p. 187, Tariff Heading 22.01.90; Sporhasevs
Nebraska ex rel Douglas, 458 US, p. 941 (US Sup Ct 1982).
E.g. International Civil Society, 'Water Statement from the WSSD', Johannesburg, 2002.
134 Friends of the Earth, 'Stealing our Water: Implications of GATS for Global Water Resources', 2001.
3 Declaration of the P7 Summit, 'Water: a right to life in the 21st Century', Brussels, 2000.
136 E.g. Article 309, NAFTA, InternationalLegal Materials,Vol. 32, 1993, pp. 289 and 605.
1 Article 19, 1994 General Agreement on Trade in Services (GATS), The Legal Texts, supranote 132,
Annex IB, 284 (1999) 1869 United Nations Treaty Series, p. 183.
138 Article 14(b), GATS ibidem. See also Article XX GATT 1994 permitting the adoption of trade-
restrictive measures to protect public health and the environment: GATT 1994, The Legal Texts,
supra note 132.
139 Ibidemu, Article 6(4).

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 Stephen Tully

must demonstrate under Article VI(4) that there were no alternatives reasonably
available to them and that national regulations are not more trade restrictive than
ncsa140 to achieve public policy objectives such as protecting human life or
necessa10
health.
Developed States first proposed that water services should be subject to GATS to
enable their national industries export environmental services.1 4 2 Environmental
services include sewage, sanitation, wastewater treatment and other water services.
The US, EU and Japan account for 87 percent of a market dominated by waste
management and water treatment services. NGOs once again called upon
governments to exclude essential public services including water from trade
disciplines.1 44 Analogies were made with the common heritage concept such that
international opinion could temper sovereign discretion.14 5 The WTO secretariat
argues that GATS does not require deregulation and that no Member has yet made
any voluntary commitment on water distribution.1 4 6 That said, some thirty-eight
governments had made commitments with respect to other environmental services
including sanitation.
GATS and the Covenant could be applied consistently: the former can be
directed at achieving universal water access or safeguarding human health and the
latter does not require water service provision exclusively from the public sector.
Indeed, General Comment No. 15 could be conducive to water service provision
under international trade law and spelling the demise of monopolistic public
utilities. Without service delivery a right to access water becomes ephemeral. To
discharge their 'new-found' Covenant obligations through public procurement,
governmental demand for and technical dependency upon water recycling and
purification services increases. Governments may sub-contract water services to a few
leading multinationals whose principal concerns are barriers to foreign participa-
tion. However, continuing trade liberalization could undermine the governmental
responsibility to guarantee human rights without discrimination. The High
Commissioner for Human Rights proposed that reversing prior decisions on water
service delivery or resisting market access requests is compatible with the obligation
to ensure universal access to basic human needs.1 4 7 General Comment No. 15
similarly calls for realising the right to access water uninhibited by trade
agreements. Although the 'setback' observed at the WTO's Fifth Ministerial

14 Neumann, J. and Turk, E., 'Necessity Revisited-Proportionality in WTO Law after Korea-Beef, EC-
Asbestos and EC-Sardines', Journalof World Trade, Vol. 37, No. 1, 2003, p. 199.
141 WTO, EC-Measures affecting Asbestos and Asbestos ContainingProducts,WTO Doc. WT/DS/135/AB/R,
para 172.
42 See WTO Services Negotiating Proposals of 24 October 2001 by the US (WTO Doc. S/CSS/W/25),
EU (WTO Doc. S/CSS/W/38), Canada (WTO Doc. S/CSS/W/51) and Switzerland (WTO Doc. S/
CSS/W/76). See further the EU's Water Initiative and Fund.
143 WTO Council for Trade in Services, Environmental Services, Secretariat Note, WTO Doc. S/C/W/
466 (1998), paras 13, 15, 27, 46 and 56.
1 E.g. World Development Movement, Call to Cancun: Halt the GATS negotiations. Take essentialservices
such as water out of the WFO, Civil Society Submission, 2003.
1 E.g. Ghana National Coalition against the Privatisation of Water, The Accra Declarationen the Right to
Water, Ghana, 2001.
146 WTO, Misunderstandingsand scare stories: The WTO is not after your water, Geneva, undated.
1 UN High Commissioner for Human Rights, Report on the liberalizationof trade in services and human
rights, UN Doc. E/CN.4/Sub.2/2002/9, paras 61 and 69.
148 General Comment No. 15, supranote 2, para. 35.

50
 A Human Right to Access Water?

Conference during 2003149 is explicable for reasons other than human rights, the
roles and responsibilities of the private sector are left unclear.

3. COMMERCIAL ROLES AND RESPONSIBILITIES FOR

IMPLEMENTING A HUMAN RIGHT TO ACCESS WATER
Universal water coverage will not be realistically achieved by benchmarking access
against the Covenant. Like other economic, social and cultural rights, implementa-
tion of the right to access water is subject to the overriding principle of progressive
realisation. Access to water therefore remains a long-term programmatic objective
of governments. However, the attractive simplicity of governmental guarantees has
been a demonstrable failure since the 1970s. The last four decades are a legacy of
unfulfilled political ambitions, continually deferred deadlines and a progressively
smaller number of beneficiaries. The objective of the International Drinking Water
Supply and Sanitation Decade was to provide universal water and basic sanitation by
1990.1M1 In 1992 governments agreed to ensure that all urban residents enjoyed
access to 40 litres of water per day and that 75 percent would have on-site or
communal sanitation facilities by 2000.152 Most recently governments have pledged
to halve by 2015 the proportion of people 'unable to reach or to afford' drinking
water and basic sanitation. 5 3 Universal access to water and sanitation is currently
envisaged for 2025.154 Overall, governments are improving access to drinking water
but lagging behind on their sanitation objectives.
The 'old thinking' which characterises political negotiations is also true for
the Committee. The General Comment template is symptomatic of continued
reliance upon an increasingly obsolete State-centric model. Novel collaborative
arrangements herald the decline of exclusive reliance upon the public sector. For
example, the Water Supply and Sanitation Collaborative Council, composed of
governments, NGOs, academics and international organisations, enjoys a UN
mandate to attain universal coverage in water and sanitation services. The World
Water Vision of the World Commission for Water envisages the 'institutional
renewal' of government as custodians for the environmental and social dimensions
of water resource management.15 The 'single most immediate and important

149 WTO, Ministerial Statement, 5th Ministerial Conference, Cancun, WTO Doc. WT/MIN(03)/20
(2003), para. 6.
150 Article 2(1) ICESCR.
151 UNGA Resolution 35/18 (1980).
15 UN Conference on Environment and Development (UNCED), Report of UNCED, Rio de Janeiro,
UN Doc. A/CONF.151/26/Rev.1 (1992), Volume I, Resolution 1, Annex II, Agenda 21, paras 6.12,
18.26 and 18.47.
153 Millennium Declaration, UNGA Resolution 55/2 (2000), para. 19; Johannesburg Political
Declaration, Report of the World Summit on Sustainable Development (WSSD), Johannesburg,
South Africa, UN Doc. A/CONF.199/20 (2002), para. 25.
154 WSSCC, 'Vision 21: A People's Approach to Hygiene, Sanitation and Water Supply Services', 2000.
155 WHO/UNICEF, 'Meeting the MDG drinking-water and sanitation target: A mid-term assessment of
progress', Geneva, 2004.
156 Biswas, A.K., 'From Mar del Plata to Kyoto: An Analysis of Global Water Policy Dialogue', Global
Environmental Change, Vol. 14, 2004, pp. 81 and 86-87.
157 World Commission for Water, A Water Secure World: Vision for Water, Life and the Environment, World
Commission for Water, Marseille, 2000.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 51

 Stephen Tully

measure' recommended by it 'is the systematic adoption of full-cost pricing for water
services (...) to attract first class service providers who can be paid for the costs of
their services and provide users with high quality services'.
In a market context ownership rights over natural resources creates commercial
opportunities. Governments have been called upon to formulate well-defined and
stable user rights, permit their negotiated transfer and structure the water trade
within open markets.1 5 Individuals as newly-endowed recipients of a valuable asset-
a right to access water - become market participants who may assert that right to
increase consumption or opt to trade their surplus. One danger of conferring a right
to access water for personal use is the possibility that it may be bargained away,
thereby leaving basic needs unsatisfied. Explicitly recognising water access rights
could inadvertently prove to be the first step towards commercialisation, valuation,
rationing use and enabling trade: in short, endowing market logic with human
rights legitimacy. Market mechanisms are important tools provided they are
accompanied by enhanced regulatory capacity for governments.
By way of illustration, dam construction has become associated with destroyed
natural ecosystems, loss of agriculturally-productive land, human resettlement,
social dislocation and loss of economic livelihoods. It is therefore increasin ly
difficult for the sector to establish new or retain existing water storage facilities.
The World Commission on Dams espouses a 'rights-and-risks' approach which
identifies human rights as an appropriate reference point. 16 1 However, the
'legitimate claims and entitlements' of individuals are evidenced in practice as
formal consultative opportunities for 'stakeholders' to negotiate project-specific
side agreements with respect to benefit-sharing, resettlement and compensation. An
explicit human right to access water therefore becomes susceptible to bargaining
power inequalities to legitimate dam construction. It would be regrettable if the
dialogue between water users and providers endorsed by General Comment No. 15
similarly demoted rights-holders and limited their entitlement to participation in
decision-making.
Corporations are unlikely to dispute the emergence of novel human rights if
realisation is dependent upon the infrastructure created by them, sunk investment
costs are profitably recouped by charging consumers and the costs of supplying basic
services to the poor are met through government subsidies or development
assistance. The desalination sector, for example, improves water quality and
advances economic development. 1 62 Performance expectations are typically defined
contractually to include political risk guarantees or protection against currency
devaluation. Furthermore, control over water resources ensures a strong renegotia-
ting position. Embedding a right of access empowers consumers vas-a-vis
governments and encourages demand for improved water quality or conveniently

158 CSD, Strategic Approaches to FreshwaterManagement, Secretary-General Report, UN Doc. E/CN.17/

1998/2, para. 31.
159 'Priceless: A Survey of Water', The Economist, 19 July 2003.
160 Gleick, P.H., 'The Changing Water Paradigm: A Look at Twenty-First Century Water-Resources
Development', Water Intemationa4 Vol. 25, No. 1, 2001, p. 127.
161 World Commission on Dams, Dams and Development: A New Frameworkfor Decision-Making,Earthscan
Publications Ltd., London, 2000, pp. 21-22.
162 Coulomb, R., 'The Water Challenges for the 21st Century: the Role of Desalination', International
Conference on Nuclear Desalination: Challenges and Options, World Water Council, Marrakesh,
2002.

52
 A Human Right to Access Water?

abstracting water from household mains connections. For these reasons NGOs
163
assert that a right to access water is conducive to corporate welfare.
That said, corporations will object to prescriptive methods for implementing
human rights since this distorts market mechanisms. For example, several
Committee members argued that the Committee had a duty to ensure that
governments guaranteed universal water availability since individuals unable to
afford the prices established by firms were effectively denied access. The World Bank
representative observed that water required an appropriate delivery structure which
164
governments could assign to firms if they lacked the necessary capability. Suez
cautioned against unpredictable government intervention into the marketplace as a
deterrent to private operator entry. The company ultimately persuaded the
Committee to adopt a neutral position on whether public, private orjoint initiatives
165
were the preferred mechanisms for water service delivery. In all likelihood the
Committee will revisit this question when assessing whether governments have
discharged their regulatory responsibility to ensure that privately-allocated water
resources achieve universal accessibility.
The Committee's expectations are unimaginatively skewed against governments.
First, State Parties to the Covenant have a 'special obligation' to provide water to
those lacking sufficient means including a lengthy list of the most socially-
marginalised groups.1 6 6 The obligation to fulfil the right to access water includes
67
reducing inequitable allocations and greater public expenditure.' Second, and
more onerously, governments must ensure universal affordability by providing free
or low-cost water and income supplements.1 6 8 Water is estimated to be
'unaffordable' if the cost exceeds two percent of household expenditure or 1.25
percent for poorer households.' 6 9 Third, the obligation to protect requires
70
regulating water services operated by third parties.1 This extends to 'discrimina-
tory or unaffordable' price increases instituted by private water service providers.' 7 '
Corporations continue to evade legal responsibility commensurate with their
prominent implementing role. Whereas national courts commonly sheet home the
72
costs of remedying water pollution to companies at fault,' intergovernmental
organisations can only encourage firms to pursue, for example, environmentally
sound management practices.' Although direct corporate legal responsibility for
human rights violations remains underdeveloped, there are discernable trends away
from the orthodox paradigm of State responsibility. The Norms on the

163 Ninan, A., Private Water, Public Misery, Corpwatch, 2003; Barlow, M. and Clarke, T., Blue Gold - The
Battle Against Corporate Theft of the World's Water, Stoddart Publishing Co. Ltd, Toronto, 2002.
164 See also Brook Cohen, P.J., The PrivateSector in Water and Sanitation - How to Get Started, Public Policy
for the Private Sector, IBRD Note No. 126, Washington DC, 1997.
165 General Comment No. 15, supra note 2, paras 24 and 27.
166 Ibidem, paras 15 and 16.
17 Ibiden, para. 27.
168 lbidem, paras 12(c) and 27.
169 US Environmental Protection Agency, Information for States on Developing Affordability Criteria
for Drinking Water, Washington DC, 1997.
170 General Comment No. 15, supra note 2, para. 23.
171 Ibiden, paras 27 and 44(a).
172 Indian Council for Enviro-LegalAction vs Union of India, (1996) AIR SC, p. 1446.
173 Secretariat of the Basel Convention on the Control of Transboundary Movement of Hazardous
Wastes and their Disposal, What does the Basel Convention mean for Water, Geneva, 2004.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 53

 Stephen Tully

Responsibilities of Transnational Corporations and Other Business Enterprises with

regard to Human Rights envisages commercial contributions to realising the right to
drinking water.1 74 These norms have been criticised by several business groups
notwithstanding corporate participation in their formulation.
Since a comprehensive universalisation of human rights entails significant
structural changes within the international system, the Committee does not
elaborate any duties for the private sector. Corporations are merely called upon
to maintain the operational status quo: not to intentionally impede access, gradually
increasing service coverage, to apply differential or progressive pricing policies,
establishing responsible disconnection strategies and refraining from pollution. 176
Only rarely are 'fair' charging systems introduced which distinguish between water
use dedicated to satisfying basic needs and other applications. n Firms moreover
expect economic incentives from government if water supplies or sanitation is to be
extended to unprofitable communities. This entails governments assuming the
financial risk of unpaid household water bills.' 7 8 Does this cursory treatment of the
private sector have any implications for the future implementation of General
Comment No. 15?

4. THE PROSPECTS FOR REALISING A HUMAN RIGHT TO ACCESS

WATER

Prospective implementation of a right to access water portends considerable

challenges. The pragmatic edge of human rights discourse is occupied by the
frequently-ignored economic questions of financial cost, revenue generation and
service delivery. In other words, who pays to realise them (questions of access), how
much is paid (affordability) and whether measures such as subsidies are desirable
(ensuring social equality).
Although everyone nominally enjoys human rights without discrimination, their
realisation frequently incurs a cost which inevitably excludes particular individuals.
With the exception of primary education, all economic, social and cultural rights
must be affordable but not necessarily free.1 7 9 Similarly, exercising the right to
access water will be preconditioned by levying a payment to recoup the economic
costs of extraction, purification and distribution. Ancillary rights to financial
assistance or a socially-acceptable charge may also be provided. 8 0 General

17 Sub-Commission Resolution 2003/16, Norms on the Responsibilities of TransnationalCorporations

and
Other Business Enterprises with regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2
(2003), para. 12.
175 E.g. US Council for International Business, 'Talking Points on the draft Norms on the
responsibilities of transnational corporations and other business enterprises with regard to human
rights', 2003.
176 General Comment No. 15, supra note 2, paras 23, 27 and 44.
177 United Kingdom Government, A Better Quality of Life: A Strategy for SustainableDevelopment
for the
United Kingdom, Cm Paper 4345, 1999, para. 8.30.
178 CSD, 'Water: A Key Resource for Sustainable Development, Secretary-General Report', UN
Doc. E/
CN.17/2001/PC/17.
1 Article 13(2)(a) ICESCR. See e.g. CESCR, General Comment No. 12 (1999), supra note 66, para. 13.
180 Sub-Commission, The Right of Access to Potable Water and Sanitation Services, Secretariat
Note,
UN Doc. E/CN.4/Sub.2/2000/16, Annex, para. 2.

54
 A Human Right to Access Water?

Comment No. 15 only intends to protect individuals from 'arbitrary' exclusion since
they may be justifiably deprived of their right in the event of non-payment.18 ' This is
because failure to pay compromises the ability of water service providers to supply
other users through cross-subsidisation. However, disconnection 'must' take into
account financial capacity and '[u]nder no circumstances shall an individual be
deprived of the minimum essential level of water'. 182
The South African model offers useful insights. Section 27(1) (b) of the
Constitution provides that everyone has the right to access sufficient water.
Disconnection is only permissible following the application of fair and equitable
procedures.1 8 3 Government agencies must provide reasonable notice of their
intention and afford genuine opportunities for consumers to make representa-
tions.18 4 Consumers unable to afford water can only have their supply restricted to
basic levels rather than disconnected completely.' 8 5 Beyond this minimum
threshold the principle of user pays regulates water consumption such that
consumers reimburse all the economic costs associated with supplying water.
One practical consequence of the link between access and affordability is
segmented water markets where governments satisfy the basic needs of the poor and
private firms cater to the remainder. Alternatively, water services privatisation in
Manila lead to one company distributing water in the wealthy districts at less than
half the price at which another sold water in the poorer ones.1 8 6 Increased water
coverage was also associated with deteriorating quality.18 7
The most prominent mechanism for allocating water resources and managing
demand is price. Effective water resource management balances full cost pricing
against equitable considerations such as the interests of particularly vulnerable
social groups.188 Historically the failure to accurately value water contributed to
inefficient or wasteful use and encouraged polluted discharges into local water
systems. Similarly, a 'sound' water pricing policy recognises the economic value of
water and acknowledges its social dimensions.' 8 9 Once again, the full cost of
supplying water was rarely charged with industrial tariffs frequently averaged and
public externalities (wastewater disposal, pollution and opportunity costs) ignored.
A human rights orientation establishes a minimum expectation of quality (fit for

181 E.g. CESCR, General Comment No. 7 (1997) on the right to adequate housing (Article 11(1)):
forced evictions, 161h Session, 1997, para. 11.
' General Comment No. 15, supra note 2, para. 56. E.g. Water Industry Act 1999 (UK).
' Residents of Bon Vista Mansions vs Southern Metropolitan Local Counci4 Boston College Law Review, Vol. 6,
2002, p. 625 (W), para. 27(1).
184 Water Services Act 107 of 1998 (South Africa).
185 Kidd, M., 'Not a Drop to Drink: Disconnection of Water Services for Non-payment and the Right of
Access to Water', South African journal of Human Rights, Vol. 20, 2004, p. 119, at p. 131.
18 Petrella, R., Le manifeste de l'eau:pour un contrat mondial, Editions Page Deux, Lausanne, 1999, p. 21.
1 Roseman, N., 'The human right to water under the conditions of trade liberalisation and
privatisation - a study on the privatisation of water supply and wastewater disposal in Manila',
Friedrich Ebert Foundation, Occasional Papers: International Development Cooperation, 2003. The
consequences of Suez leaving Manila on account of insufficient revenue are currently under
consideration by the Court of Arbitration of the International Chamber of Commerce.
188 Ministerial Declaration on Water Security in the 21" Century, Second World Water Forum, The
Hague, 2000, para. 3.
' Paris Declaration, Acad6mie de l'Eau/UN Education, Scientific and Cultural Organisation's
(UNESCO's) International Hydrological Programme, Symposium on Water, the City and Urban
Planning, 1997.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 55

 Stephen Tully

human consumption) and quantity (sufficient for satisfying basic needs).1 90 These
are effectively price floors located at the comparatively expensive end of water
markets. Accurately valuing the resource to enable the purchase of water rights
could pit environmentalists against human rights advocates or encourage
compensation by way of substitute to their realisation. However, the inaugural
World Water Development Report observed that economic measures were rarely
operationalised and overly complex.1 9 1
General Comment No. 15 espouses the opinion that water 'should be treated as a
social and cultural good and not primarily as an economic good'. 9 2 The social
imperatives of affordability and equality of access will need to be balanced against
economic considerations (including the full cost recovery and user pays principles)
which motivate users to conserve water and generate investment capital. For
example, the OECD will apply the user pays principle 'unless there are good reasons
for implementing other policies, such as favouring particular groups of consumers
or regions'.1 9 3 To ensure that water is within safe physical proximity, water facilities
should be located 'within, or in the immediate vicinity' of households, educational
institutions and workplaces.1 9 4 Although the Committee does not envisage
conveniently-piped household connections, water-intensive flushing toilets or
expensive water-borne sewerage systems, rendering public taps redundant is
economically sound since it decreases wastage and facilitates revenue collection.
To ensure long-term system sustainability all financial costs associated with
supplying water must be recovered while safeguarding the interests of low-income
users.1 9 5
Effective water resource management also requires a holistic approach which
links socio-economic development with environmental protection.19' The rationale
of integrated water resource management (JWRM) allocates water by reference to
efficiency and sustainability.1 9 7 It is defined as the co-ordinated management of
water, land and related resources with a view to maximising socio-economic welfare
in an equitable manner without compromising ecosystem sustainability.' 98 Such a
process is employed, for example, by European Governments with respect to river
basins.199 Within this framework competing demands are reconciled and 'hard

190 Howard, G. and Bartram, J., Domestic Water Quantity, Service Level and Health, WHO, Geneva, 2003.
191 UNESCO, World Water Assessment Programme, The UN World Water Development Report: Water for
People, Water for Life, Paris, 2003.
192 General Comment No. 15, supra note 2, para. 11.
OECD Council Recommendation concerning Water Resource Management Policies, OECD Doc.
C(89)12/Final (1989).
General Comment No. 15, supra note 2, paras 12(c) and 16(c). See also 'reasonable distance' in
para. 37(c).
1 UNESCO, Declaration of the International Conference on Water and Sustainable Development,
Paris, 1998.
1 E.g. Principle One, Dublin Statement on Water and Sustainable Development, International
Conference on Water and the Environment: Development Issues for the 21st Century, UN Doc. A/
CONF.151/PC/112 (1992).
197 CSD, Report of the Expert Group Meeting on Strategic Approaches to Freshwater Management,
Harare, 6 'hSession, New York, UN Doc. E/CN.17/1998/2/Add.1, paras 25, 27 and 54(b).
1 Global Water Partnership, Towards Water Security: A Frameworkfor Action, Stockholm, 2000.
19 Article 1, Directive 2000/60/EC of the European Parliament and of the Council establishing a
framework for Community action in the field of water policy (the European Union's Water
Framework Directive), (2000) OJEC L327, p. 1.

56
 A Human Right to Access Water?

choices can be made'. 200 It is unclear how a human rights orientation to water as a
social resource will interact with an ecosystem approach to water as an
environmental resource, thereby entailing inter alia the application of the
precautionary and polluter pays principles. Environmental legislation which
employs pollution abatement schemes and economic incentives for water conserva-
tion or recycling could usefully complement a human rights framework.
To summarise, the impact of a human rights approach upon global water
resource allocation will be marginal. General Comment No. 15 is modestly limited to
'sufficient and continuous' water for personal and domestic use. 20 1 Household use
constitutesjust six percent of global water consumption with industrial applications
20 percent and agriculture some 74 percent. That said, recognition of a human right
to access water is inevitable. For example, the European Parliament in 2003 declared
that 'access to drinking water is a basic human right'.202 NGOs are currently
collaborating with governments to enact national legislation and implement
programmes of action. 203 The particular contours of a right to access water will
vary between States and their practical impact will come too late to achieve the
millennium development goals. NGOs have also proposed an international
convention204 as contemplated under Article 23 of the Covenant which may offer
swifter solutions and more concrete outcomes.

5. REVISITING THE TEMPLATE FOR GENERAL COMMENTS

In light of the policy concerns originally motivating the Committee, one wonders to
what extent General Comments which omit the essential private sector role account
for the poor prospects for implementing the right to access water. Special
Rapporteur Guiss6 considered that each right posed unique problems and
suggested that the Committee should be free to depart from any prior model. He
elucidated the normative content of the right to access water somewhat differently:
simpler tiers of obligation with respect to providing water, refraining from
interrupting water connections and ensuring equality of treatment between
different users. 20 5 Although omitting a role for local authorities, the draft General
Comment also discussed subsistence farming and agriculture at greater length. 206

200 CSD, Report of the Expert Group, supra note 197, para. 13.
201 General Comment No. 15, supra note 2, para. 12(a).
202 European Parliament, Resolution on water management in developing countries and priorities for
EU development cooperation, 4 September 2003. Cf European Council on Environmental Law,
Resolution on the Recognition of the Right to Drinking Water in the Member States of the
European Union, 17January 2004.
203 COHRE, 'Legal Resources for the Right to Water: International and National Standards', Geneva,
2004.
20 World Assembly ofWater Wisdom, Fundamental Principles for a Global Convention on the Right to
Water, Barcelona, 2004 ([Link]/Tools/petition/principes [Link]) (ac-
cessed 1 December 2004).
25 HRC, The right to drinking water and sanitation, Interim Report of the Special Rapporteur, Mr El
Hadji Guiss6, submitted in the application of Resolution 2002/6 of the Sub-Commission on the
Promotion and Protection of Human Rights and Decision 2002/105 of the Commission on Human
Rights, UN Doc. E/CN.4/Sub.2/2003/WP.3, para. 84.
20 See also CESCR, Draft General Comment No. 15 (2002) on the right to water, future UN Doc. E/
C.12/2002/11 (29 July 2002).

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 Stephen Tully

Consistent with previous practice, the Committee conducted a one-day

preliminary public discussion and privately deliberated.207 The draft Comment
was criticised during the discussion for unnecessarily deviating from the form of
earlier ones. 208 Consultation with experts (including the Special Rapporteurs for
food and housing), international organisations, NGOs and corporations is
commendable provided no single actor receives disproportionate attention. The
private water sector is not homogenous but includes multinational corporations,
dam builders, plumbers, well-diggers, water treatment specialists and sanitation
service providers. It is disconcerting that Suez, a French multinational alleged to
engage in anti-competitive behaviour, participated when it is favourably-positioned
to benefit from the economic consolidation accruing from water industry
restructuring. This is moreover true when model instruments such as General
Comments are intended to enhance regulatory capacity. That said, non-State actors
2 09
also enjoy a role in shaping national water resources legislation.
This article proposes that it is opportune to revisit the template for General
Comments utilised by the Committee. Little of substance is contributed by repeating
verbatim expressions familiar to other Comments or transplanting concepts without
appropriate modification. Artificially shoehorning the exceptional human value to
be protected into a consistent technical vocabulary does not meaningfully inform
governments and others of the Committee's performance expectations with respect
to that right as distinguished from others. General Comment No. 15 offers the
impression that access to water is subject to the same non-specific obligations as
expected of, for example, the rights to education, housing or culture. Such a
conclusion is desirable for the universality of human rights but it is contextually
misleading and inaccurate.
The Committee pursues a formulaic approach when preparing General
Comments.2 10 It considers basic principles, the travauxprparatoiresto the Covenant,
the broader human rights context, international and regional human rights
instruments, pertinentjurisprudence and relevant documents from the Committee
and other UN organs. In one lengthy footnote General Comment No. 15 cites a
range of materials to support the proposition that a human right to access water has
been internationally recognised. Selected treaty provisions, political declarations
and standards are listed without apparent appreciation for their narrowly
circumscribed ambit, qualified nature or particular context. Such materials warrant
differentiation by reference to their legal quality, whether water and/or sanitation
are mentioned explicitly and what scope of the right is envisaged.
Accelerating the development of emergent human rights is more credible if
preceded by an accurate depiction of international law, perhaps detailed within an
accompanying commentary. Inferring a human right from documents other than
the Covenant presupposes that textual cross-pollination, including from self-
contained or unrelated fields, is permissible. The problem of permeability - when

207 CESCR, 'Committee on Economic, Social and Cultural Rights adopts General Comment on Right
to Water', 291h Session, Press Release, 2002.
208 CESCR, Discussion, supra note 128.
200 Pichyakorn, B., 'Involvement of Non-State Actors in the Development of Water Law in Thailand: A
Role that is Ignored?', Non-State Actors and InternationalLaw, Vol. 3, 2003, p. 231.
210 CESCR, Outline for drafting General Comments on Specific Rights of the ICESCR, 21" Session,
1999.

58
 A Human Right to Access Water?

norms contained in one instrument are used to interpret norms located in another -
multiplies the prospects for normative inconsistency, encourages 'significant
confusion' as to the 'correct' interpretation of a right and undermines the
credibility of treaty bodies. 21 1 Albeit consistent with prior practice, the Committee
self-referentially cites earlier Comments as equally authoritative sources notwithstan-
ding their reliance in turn upon formally non-legally binding materials. 2 1 2
The problem of permeability is amplified by the indivisibility and interdepen-
dence of human rights. The predicament can be addressed through greater policy
coherence within the UN human rights machinery and closer co-ordination
between different organs. This is particularly true of the timing and execution of the
Committee's programme of work with the mutating mandates and sporadic outputs
of numerous Special Rapporteurs. For example, General Comment No. 15 cites
without reconciling the differing opinions of Special Rapporteurs who consider
water to fall within their respective mandates.2 1 3 The Special Rapporteur on
adequate housing has consistently construed his mandate broadly such that access to
water and sanitation are essential elements of that right. He is moreover minded to
explore 'linkages with other related rights' including the 'path-breaking develop-
ment' with respect to water.2 1 4 Similarly, the Special Rapporteur on the right to food
maintains that water is a component of that right notwithstanding General
Comment No. 15.215 That said, he supports institutionalising water as a distinct
right and intends to promote it when discharging his functions.2 1 6 Finally, the
recently appointed Special Rapporteur on the right to health also considers that this
right can be deconstructed into more specific entitlements including the right to
access safe and potable water.2 1 7
Informative perspectives would be unproblematic provided that indicia were
available to resolve different claims by competing rights. Although governments are

211 Alston, P., Effective Implementation of UN Human Rights Instruments, UN Doc. A/44/668 (1989), para.
128.
212 See also UNGA Resolution 46/91 (1991) concerning UN Principles for Older Persons and CESCR,
General Comment No. 6 (1995), paras 5 and 32; UN Secretary General, Review of the
Implementation of the World Programme of Action concerning Disabled Persons and the UN
Decade of Disabled Persons, UN Doc. A/47/415 (1992), para. 5 and CESCR, General Comment
No. 5 (1994), para. 1.
213 See also HRC, Report by the Special Rapporteur on the right to food, [Link] Ziegler, submitted in
accordance with Resolution 2001/25, UN Doc. E/CN.4/2002/58, paras 25, 130 and 137; Report of
the Special Rapporteur on adequate housing as a component of the right to an adequate standard
of living, Mr. Miloon Kothari, submitted in accordance with Resolution 2001/28, UN Doc. E/CN.4/
2002/59, para. 56.
214 Cf HRC, Report of the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, and on the right to non-discrimination, Miloon Kothari, submitted in
accordance with Commission Resolution 2002/21, UN Doc. E/CN.4/2003/5, para. 43; HRC,
Report of the Special Rapporteur on adequate housing as a component of the right to an adequate
standard of living, Mr Miloon Kothari, UN Doc. E/CN.4/2004/48, para. 4.
215 HRC, Report submitted by the Special Rapporteur on the right to foodJean Ziegler, in accordance
with Commission on Human Rights Resolution 2003/25, UN Doc. E/CN.4/2004/10, para. 54.
216 HRC, Report submitted by the Special Rapporteur on the right to food, Jean Ziegler, in accordance
with Commission on Human Rights Resolution 2002/25, UN Doc. E/CN.4/2003/54, para. 38.
217 HRC, The right of everyone to the enjoyment of the highest attainable standard of physical and
mental health: Report of the Special Rapporteur, Paul Hunt, submitted in accordance with
Commission Resolution 2002/31, UN Doc. E/CN.4/2003/58, para. 25.

Netherlands Quarterly of Human Rights, Vol. 23/1 (2005) 59

 Stephen Tully

reluctant to conclude a 20/20-type compact identifying priorities for humanity, 2 1 8

the non-substitutability of water is a peculiar characteristic of its use. General
Comment No. 15 requires the satisfaction of personal and domestic water use before
any other competing one. 19 The Special Rapporteur on the right to food believes
that '[w] hile irrigation water is clearly important, it is fundamental to set priorities to
meet drinking water needs as a first condition'. 220 It is probable that the Special
Rapporteurs with respect to health and housing would also concur that water for
human survival enjoys priority. The Human Rights Commission has recently
affirmed that 'access to a sufficient amount of safe and clean water for personal and
domestic use is fundamental to the realisation of the right of everyone to the
enjoyment of the highest attainable standard of health' .221 A comparable resolution
with respect to the rights to food or housing as an adequate standard of living are yet
to eventuate. The Commission's preference for situating water in the context of
health would be consistent with prioritising water for drinking purposes.
Furthermore, good quality water within the food chain free from contamination
also links the right to health with food.
One challenge when formulating an emergent human right is discerning with
precision the contours of a concomitant government obligation.2 2 2 The task is all
the greater where such commitments are relatively underdeveloped or to
accommodate unforeseen eventualities. General Comment No. 15 employs the
expression 'right to water' interchangeably with the less demanding concepts of
'right to access' water and 'equality of opportunity'. These differences are more than
semantic. First, a right to water per se entails individual ownership: '[t]o have a right
to x is to be entitled to x. It is owed to you, belongs to you in particular'.2 2 3 The
International Law Association, for example, only considers that States must ensure a
'right of access to water' on a non-discriminatory basis. 224 Second, a right to water
supports demands for its provision. This is inconsistent with the principle of
progressive realisation if required immediately and exacerbates rather than tempers
competition between uses. Notably the Conventions on the Rights of the Child and
the Elimination of Discrimination against Women envisage, albeit conditionally, the
actual provision of water. Third, a right to water may entail its supply for free, an oft-
made proposal but largely abandoned as uneconomical by governments during the
1980s. Fourth, a right of access elevates issues including freedom of movement at the
expenses of others such as quality or quantity which would ordinarily be

UN Development Programme, Human Development Report 1994: New Dimensions of Human Security,
Oxford University Press, New York, 1994.
219 General Comment No. 15, supra note 2, para. 6.
220 Preliminary Report of the Special Rapporteur of the Commission on Human Rights on the right
to
food, Jean Ziegler, UN Secretary-General Note on the right to food, UN Doc. A/56/210 (2001),
para. 63.
HRC Resolution 2004/27, para. 12.
E.g. Special Rapporteur Eide of the Sub-Commission on the Prevention of Discrimination and
Protection of Minorities, The Right to Adequate Food as a Human Right, UN Doc. E/CN.4/Sub.2/
1987/23 (1987).
223 Donnelly, J., Universal Human Rights in Theory and Practice, Cornell University Press, Ithaca, nd ed.,
2
2003, p. 8.
2 International Law Association Water Resources Law Committee, Revision of the Helsinki Rules and
Other International Law Association Rules on Water Resources, Fourth Report, Berlin, 2004,
Article 17(2).

60
 A Human Right to Access Water?

incorporated within a right to water per se. One should heed a South African
judgement which opined that without legislative guidance defining the extent of a
right of access the content of that right is incomplete and accordingly
unenforceable.2 2 5
Although its expectations verge on vagueness and ambiguity, the core obliga-
tions proscribed by the Committee must be carefully construed since many specify
'access to water' only.2 2 6 This caveat faithfully reflects the terminology of numerous
political commitments within the sustainable development context. The ground-
breaking Mar Del Plata Declaration stated that 'all peoples, whatever their stage of
development and their social and economic conditions, have the right to have access
to drinking water in quantities and of a quality equal to their basic needs'. 227 In 1992
the basic right of all human beings to access water and sanitation 'at an affordable
price' was acknowledged. 2 States have also been called upon to 'undertake, at the
national level, all necessary measures for the realisation of the right to development
and shall ensure, inter alia, equality of opportunity for all in their access to basic
resources'. 229 Furthermore, governments have affirmed that 'the rights to food and
clean water are fundamental human rights and their promotion constitutes a moral
imperative both for national governments and for the international community'. 23o
At the Johannesburg World Summit on Sustainable Development 'most' gover-
nments accepted that water was a human right but there was less consensus 'on how
to put this right into practice'.
The Committee considers publicity to be essential for translating political
recognition of the human need to access water into practical results. However,
asserting an individual entitlement unmatched by any concomitant government
obligation undermines the Committee's stature, discourages governments from
adopting General Comments and ignores other avenues for participating in a global
dialogue with other actors.2 3 2 In particular, the World Bank considers that a central
and irreducible goal of development is creating the conditions for attaining human
rights. 233 Its water-related development activity accounted for sixteen percent of
total lending over the past decade and the current strategic plan considers 'the
rights and risks of those directly and indirectly affected'.2 Vivendi, a corporate
claimant in the investment disputes mentioned above, participates in the Business
Partnership for Development programme on water resources in conjunction with
the World Bank.

2 Manqele vs Durban TransitionalMetropolitan Council 2002, (6) SA 423D, 427D-E.

226 General Comment No. 15, supra note 2, para. 37.
227 Mar Del Plata Declaration and Plan of Action, Report of the UN Water Conference, Argentina, UN
Publication No. [Link].A.12, Part One, Chapter 1 (1977).
228 Principle Four, Dublin Statement, supra note 196.
2 Article 8(1), Declaration on the Right to Development, supra note 45.
230 UNGA Resolution 54/175 (2000).
231 Report of the WSSD, supra note 153, Chapter III, Partnership Plenary Meeting on Water and
Sanitation, para. 38.
232 E.g. CESCR, Statement to the WTO Third Ministerial Conference, Seattle, UN Doc. E/C.12/1999/
9.
233 IBRD, 'Development and Human Rights: The Role of the World Bank', Washington DC, 1998.
2 IBRD, 'Water Resources Sector Strategy: Strategic Directions for World Bank Engagement',
Washington DC, 2003, Messages 1 and 5.

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 Stephen Tully

Water resource use is clearly a development issue given gross inequalities of

consumption between States. However, the wisdom of subsuming human rights
objectives within sustainable development and benchmarking their realisation
against the millennium development goals is not foreclosed. Should the right to
access water mask the intrusion of Northern corporations into developing countries
through trade in services much like climate change is a convenient gloss for
redefining energy policy? Although the principle of progressive realisation is
consistent with a rights-based development agenda, it should be recalled that the
minimum core content of each economic, social and cultural right must be realised
immediately and the needs of particularly vulnerable social groups satisfied.
Whereas economic growth can exacerbate water shortages through greater
pollution and thermally-generated electricity, 235 sustainable development is
ultimately devoted to increasing living standards. Interestingly the development
dimension within the Special Rapporteur's reports have diminished over time.
While devoting particular attention to developing countries, NGOs and
international institutions should not overlook the responsibilities of other actors.
Universal water coverage remains an objective of industrialised States whose legal
systems commonly recognise a right of access. However, water access is not yet
universal within five members of the OECD and no State within that organisation
can claim universal coverage for basic sanitation. Tariff structures for domestic and
industrial applications are increasingly reflecting the full marginal costs of providing
water services.237 Indeed, prices have risen in all but one State (five exceeded six
percent per annum) and increased metering is occurring for all water uses with the
exception of agriculture.2 3 8 Finally, General Comment No. 15 ignores the
responsibility incumbent upon individuals to minimise wastage since tariff systems
which discourage over-consumption can finance universal water access.2 3 9
Irrespective of how General Comment No. 15 falls short, the contemporary
challenge is to promote, implement and ultimately realise the right to access water.
The Special Rapporteur's final report suggested resort to guidelines for water service
providers, indicators and model legislation.2 4 0 To this may be added awareness-
raising, promoting access to information, legal assistance and encouraging best
commercial practices. The UN Sub-Commission recommended that all the Special
Rapporteur's reports be issued in the UN's official languages. 241 Water is likely to
follow the pattern established for food. The Final Declaration of the World Food
Summit + 5 recognised the right of access to food and called for voluntary guidelines
to be negotiated under FAO auspices. 2 4 2 Since there is no free-standing UN

25 UN Industrial Development Organisation, Industry, Sustainable Development and Water

Programme Formulation, 'Global assessment of the use of freshwater resources for industrial
and commercial purposes', UNIDO Doc. ISED/R.53 (1996).
236 E.g. Pax Romana/International Catholic Movement for Intellectual and Cultural Affairs, Submis-
sion on the Right to Drinking Water to the Sub-Commission, 54h Session, 2002; UN, 'Former IMF
Director Camdessus: 1.1 Billion People in World are without Clean, Safe Water', Press Release,
2003, UN Doc. SAG/130.
237 OECD, Improving Water Management: Recent OECD Experience, Policy Brief, March 2003, pp. 12-13.
2 OECD, The Price of Water: Trends in OECD Countries,Paris, 1999.
2 OECD, Water: Performance and Challenges in OECD Countries, Paris, 2003, p. 61.
240 Final report of the Special Rapporteur, El Hadji GuissE, supra note 37, para. 61.
241 Sub-Commission Resolution No. 2004/6, paras 2, 3 and 5.
242 UN Secretary-General, Note en the Right to Food, UN Doc. A/57/356 (2001), para. 10.

62
 A Human Right to Access Water?

institution with responsibility for water, the WHO is the most qualified candidate for
furthering the right to access water.

6. CONCLUSIONS

The Committee is attempting to accelerate the crystallisation of numerous political

commitments acknowledging a basic human need for water into a recognisable
human right. An appreciation of the Covenant's terminology, prior interpretations
by the Committee and its current monitoring practice suggest that a right to access
water would be more convincingly grounded in the context of health, food or
housing rather than the general rubric of adequate living standards. Furthermore,
emphasising a right of access downplays complementary questions such as water
provision and the mode of service delivery. General Comment No. 15 may not
initiate the necessary investment expenditure insofar as it is limited in application
(to governments rather than the private sector) and scope (personal and household
use rather than industrial or agricultural applications). Legal accountability is
disproportionately skewed towards governments notwithstanding the delegation of
functional responsibility. However, recent experiences with privatisation within
developed and developing States caution against over-reliance upon corporations
and public-private partnerships may be one solution.
Successfully implementing a human rights orientation depends upon the
interaction between social equity objectives (universal access and affordability) with
economic concepts (namely, the user pays and full cost recovery principles).
Additional challenges include managing competing demands, ensuring fair price-
setting and accurately valuing water resources. The provision of financial capital or
water services pursuant to international regimes with respect to investment or trade
in services should not hinder the ability of governments to exercise regulatory
oversight, protect social welfare and support particularly vulnerable social groups.
The principal consumers of General Comment No. 15 are governments. By
imposing human rights responsibilities upon them the Committee prefers
mechanisms of governance and not markets for ensuring universal water access.
In practice individuals will be either economically empowered or the passive
recipients of subsidies and monopolistic public utilities or private water service
providers may be the unintended financial beneficiaries. For these reasons the
template employed by the Committee should be more carefully crafted in terms of
content, style and drafting process for subsequent General Comments.

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