The Human Right to Water and its Application in the Occupied Palestinian Territories

Amanda Cahill Ripley

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136804304
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Human Right to Water and Its Application in the Occupied Palestinian Territories provides an overview and examination of the human right to water as determined under international human rights law. This is a highly topical issue, with the UN General Assembly having passed a resolution which declares access to clean water and sanitation a human right (New York, Jul 28 2010), the recent appointment of the UN Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, and movement within the NGO community for an international water treaty. Amanda Cahill Ripley analyses the current legal status, substantive content, and obligations correlative to the right, and examines the relationship between other economic, social and cultural rights related to the right to water.

The book goes on to look more specifically at the application of the human right to water in the Occupied Palestinian Territories. Using innovative methodology, Cahill Ripley combines legal analysis with a qualitative social science empirical case study to explore the enjoyment of the right 'on the ground'. The wider implications of the case study findings are then considered, looking at what can be done to strengthen the right legally in terms of its status and codification, and what remedy can be found for violations of the right, both specifically in the Occupied Palestinian Territories and in a more general context.

The book will be of interest to students, academics and practitioners within the fields of international human rights law and international humanitarian law, as well as those concerned with international relations and conflict resolution within Israel/Palestine and the wider Middle East region.

1 The Historical Legal and Political Context of the Right to Water

A right to water has been recognised in a wide range of legal and political documents, including international, regional and bilateral treaties and soft law, binding and non-binding provisions under international law, international environmental law, international humanitarian law, development standards and declarations and other reports and announcements such as political statements, peace agreements and the work of non-governmental organisations²⁵ and international organisations such as the World Bank and UN Agencies, UNICEF and the WHO to mention a few. Although the focus for the fundamental basis for a human right to water is under international human rights law, the historical legal and political development of the right is traceable through an examination of the various approaches taken to deal with water issues. Prior to the adoption of the CESCR GC 15, the concept of water as a human right evolved under three areas of law: international law, international humanitarian law and international human rights law. Further, the idea of safe and sufficient water as a human right has also developed within the field of international and sustainable development policy.

International Law and Water

Water has been the subject of conflict and cooperation and legal agreements to govern such situations for hundreds of years. Water has served as boundary markers between communities; as a vital component of military strategy; as an important economic factor for regions; as a means of transport and also as facilitating communication between otherwise independent peoples.²⁶

In terms of international law pertaining to water, there is evidence of a wealth of historical legal agreements concerning water. Early agreements focussed on the use of water for navigational purposes, such as the Act of the Congress of Vienna 1815 ‘which established the principle of priority and freedom of navigation for all states sharing a river, on a reciprocal basis’.²⁷ Another example can be seen in one of the earliest known water treaties, the ‘Treaty of Limits between France and the Netherlands’, 28 March 1820 regarding use of the Rhine.²⁸

As industrialisation brought new modes of transport, the primacy of navigational uses of water declined and agreements developed, mostly taking the form of bilateral or trilateral treaties between states governing the sharing of common water resources such as rivers or basins.²⁹ This approach of cooperation and sharing of common water resources used is now encompassed in international law governing the use of water. However, one of the complexities with existing international water law is that it is an intricate system of codification based upon different categories of water resources, for example transboundary surface water, groundwater and confined groundwater or aquifers. This has resulted in several international water treaties based on differing types of water and water use.³⁰

In terms of the development of a human right to water, none of these standards or treaties addresses the issue of an individual’s right to water. Rather, they provide for water at the level of the state. However, certain treaties such as the legally binding UN Convention on the Law of the Non-Navigational Uses of International Watercourses 1997 do contain certain principles that can be seen as compatible with a human rights perspective, such as the obligation not to cause significant harm³¹ and obligations of equitable and reasonable utilisation and participation in Articles 5 and 6. The latter includes taking into account ‘the social and economic needs of the watercourse States concerned’³² and ‘the population dependent on the watercourse in each watercourse State’.³³ Furthermore, Article 10.2 is significant in that it prioritises water for human needs over other uses: ‘In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to Articles 5 to 7, with special regard being given to the requirements of vital human needs’.³⁴ This provision can be seen as harmonious with the human right to water.

Another example can be seen in the UN Economic Commission for Europe, Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992³⁵ and the Protocol on Water and Health 1999.³⁶ The Convention in itself does not deal with the right to water as such but includes principles which are related, such as equitable use of water resources, prohibition of pollution and quality control. Moreover, its Protocol on Water and Health has been seen as enabling the right to water through its application.³⁷ For example, Article 4, 2(a) states that parties shall take all appropriate measures for the purposes of ensuring ‘adequate supplies of wholesome drinking water’.³⁸ The Protocol also incorporates special protection for vulnerable groups,³⁹ comprehensive provision for adequate sanitation⁴⁰ as well as including common principles such as that of sustainable use of water resources⁴¹ and information access.⁴²

In parallel with these developments under international law, a right to water could be seen as emerging under the doctrine of international humanitarian law and under international human rights law itself. As the UN World Water Assessment Programme World Water Development, Report 2, notes, the Geneva Conventions and Additional Protocols (1949–77) can be seen as the first explicit and implicit provisions for the right in international law.⁴³ Although these treaties have not always been recognised as containing ‘rights’ as such (including a right to water), it is now widely accepted that they provide for protection of rights of individuals as well as defining rules governing state actions in times of conflict.

Development Approaches to Water

Concurrent with the development of the right to water in these legal fields, another complementary approach to the realisation of safe and adequate water for all has been emerging in environmental and development policy, including in multilateral declarations. This is not a new occurrence but has been utilised more widely and in greater detail in recent years due to increasing concern regarding the environment and poverty eradication. Furthermore, the incorporation of a human rights approach to development activity and policy has furthered the convergence and complementarity between the ‘legal’ field of international human rights and international development. With the advent of ‘ethical foreign policy’, states have also had to become much more aware of their activities and policies in regard to the basic living conditions of people in other states; thus concern to meet basic human needs is firmly on the international agenda.

Integral to sustainable development is the emergence of two central ideas: the right to an adequate standard of living and sustainable use of water resources (as an element of basic needs). For example, the Stockholm Declaration of the UN Conference on the Human Environment 1972 states that man has the fundamental right to adequate conditions of life⁴⁴ and that man has a responsibility to safeguard the natural resources of the earth (including water) for the benefit of present and future generations.⁴⁵ A further example can be seen in the United Nations Development Programme New Delhi Statement 1990⁴⁶ which notes that ‘Safe water and proper means of waste disposal are essential for environmental sustainability and better human health, and must be at the centre of integrated water resources management …‘⁴⁷

Subsequently, a meeting of experts took place in Ireland which resulted in the drafting and adoption of the Dublin Principles 1992.⁴⁸ This statement provided recommendations for urgent action programmes concerning water and sustainable development, to be presented to world leaders assembled at the UN Conference on Environment and Development⁴⁹ in Rio de Janeiro in June 1992. It contained two notable provisions. The first, a guiding principle, recognised water as an economic good, but states that within this principle, ‘it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price’.⁵⁰ Furthermore, within its programme of action it recommends the provision of water for basic human needs as an aspect of poverty alleviation.⁵¹ It also notes the vulnerability and special needs of those in rural areas emphasising the need for provision of access to a potable water supply for rural areas.⁵²

The recommendations contained within the Dublin Principles expressly recognised a human right to water. However, the subsequent UNCED, Rio Declaration 1992 deferred express recognition of such a right noting only that human beings are entitled to ‘a healthy and productive life’ as a part of sustainable development.⁵³

The inconsistency between development declarations is evident if the UNCED, Agenda 21, also adopted in 1992, is considered.⁵⁴ Conversely, this document reiterated the approach of earlier declarations, noting the achievements of the Mar del Plata Declaration 1977 adopted by the UN Water Conference, where there is explicit reference to the right to drinking water: ‘all peoples, whatever their stage of their stage of development and social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs’.⁵⁵ Although the Mar del Plata Declaration is not a legally binding document, it is significant in that it provides explicit recognition of water as a human right and as a basic need.⁵⁶

Furthermore, Agenda 21 notes that despite the subsequent launching in 1981 of the International Drinking Water Supply and Sanitation Decade, with the target of the Decade being to provide safe drinking water and sanitation to underserved urban and rural areas by 1990, ‘even the unprecedented progress achieved during the Decade was not enough’.⁵⁷ As such, the aim of the Agenda was to continue to put pressure upon states to ‘make certain that adequate supplies of water of good quality are maintained for the entire population of this planet’.⁵⁸

To this end, Agenda 21 views safe and sufficient water as essential for human development, improving health, alleviating poverty and maintaining sustainable ecosystems. It states that ‘priority has to be given to the satisfaction of basic needs and the safeguarding of ecosystems’.⁵⁹ In this way, the Agenda reflects the content of the human right to water by prioritising water for personal and domestic use, even though it does not recognise a human right to water per se.

This was followed, inter alia, by the Report of the UN International Conference on Population and Development, Cairo, 1994⁶⁰ where a human being’s right to an adequate standard of living, ‘including adequate food, clothing, housing, water and s...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgements
• List of abbreviations
• Table of cases
• Introduction
• 1. The historical legal and political context of the right to water
• 2. The human right to water – legal status and normative content
• 3. Obligations correlative to the right to water
• 4. The right to water in the Occupied Palestinian Territories (West Bank) Part I – International legal sources
• 5. The right to water in the Occupied Palestinian Territories (West Bank) Part II – Bilateral and domestic legal sources
• 6. The right to water in the Occupied Palestinian Territories (West Bank) Part III – A case study in the Southern West Bank
• 7. Where do we go from here? Conclusions and recommendations for developing the right to water
• Appendix 1
• Appendix 2
• Bibliography/List of Treaties
• Index