Problems and Gaps in Provision 2: Defining the Scope and Core Content of the Right to Water

As has been ascertained, despite comprehensive guidelines within GC 15 regarding the normative content o f the right to water, the General Comment does not attempt to define which elements o f the normative content o f the right to water are core, i.e.

292 A sim ilar scenario w as also put forward by El -H ad j G uisse, Oral Subm ission to the D ay o f General D iscu ssion on the Right to Water, N o v 2002.

293 S ee GC 15, paragraph 16. 294 S ee forthcom ing d iscussion p.95.

those that are essential elements o f the right and which elements are part o f the wider

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scope o f the right but not as essential.

(i) Core content of the right

The difficulty with defining the core content o f the right to water was raised by Chapman. The difficulty arises from a conflict between elements o f the right, which leads to conflicting claims for water as a priority. Chapman held that GC 15 should address this and interestingly argued that the core obligations mechanism could address this issue.296 In Chapman’s view then, core obligations would have a direct correlation with the core content o f the right to water. The GC does note the core minimum obligations correlative to the right to water, but are these necessarily the

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same as the core content o f the right? In theory, the core elements o f a right should have directly correlative core obligations. Otherwise this may signify a gap in the provisions o f the right. Hence, if we study the core obligations, which are defined within the General Comment,298 we should then be able to identify the core content of the right. This exercise should also indicate any gaps in provision within the guidelines o f GC 15.

Ms. Franco o f Food First Information and Action Network International, also noted, ‘The core content of the right [to water] is not defined in the General Comment. This

295 S ee T oeb es, 1999, Chapter V for a discussion o f the concepts o f a scop e and core elem ent o f a human right, p p .2 4 3 -2 8 9 .

296 Chapman. A , R epresentative o f the A m erican A ssociation for the A dvancem ent o f Scien ce, Oral subm ission, D ay o f General D iscu ssion on the General C om m ent on the R ight to Water, U N C ESC R 2 9 th Session , N o v 2 0 0 2 , Geneva.

297 It w ould seem that at tim es the C om m ittee has d iscussed one term and in other instances the other. For exam ple in GC 12 on the Right to Food, para. 8, the term and concept used is ‘core content’, w hereas in GC 14 on the Right to Health, para. 43, the term and concept em p loyed is ‘core obligation s’ and there is no exp licit m ention o f a ‘core content’ w ithin the docum ent.

needs to be addressed as in the General Comment on the right to food’ .299 Similarly, GC 14 The right to the highest attainable standard o f health only mentions the concept o f core and scope under ‘core obligations’ and makes no reference to the core and scope o f the right itself This model has been continued with GC 15. This point was reiterated in the FIAN written submission to the Committee, which argued, ‘Within General Comment 12 the Committee introduced the concept of the core content. In the original draft GC 15 on the ‘Right to Drinking Water’ [sic], the concept o f the core content is not fully applied. ’ 300 For example, FIAN notes that within Paragraph 8 of the original draft, the minimum essential level o f water is defined as 2 0 litres whereas in paragraphs 28 and 29 the level is defined as ‘water indispensable for the prevention of dehydration and disease.’ FIAN’s view was that another paragraph should be added defining the core content of the right to drinking water and following the structure of previous General Comments. In the final draft the core content is still not defined in such terms but the minimum essential level is identified within GC 15 paragraph 12 (a) thus:

The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing o f clothes, food preparation, personal and household hygiene. The quantity o f water available for each person should correspond to World Health Organization (WHO) guidelines. Some individuals and groups may also require additional water due to health, climate, and work conditions.301

299 Franco. M, Food First Information and A ction N etw ork (H ereinafter referred to as F IA N ), Oral subm ission, D ay o f General D iscu ssion on the Right to Water, U N C ESC R 2 9 th S ession , N ovem b er 2 0 0 2 , G eneva.

300 FIA N , Written Subm ission to the D ay o f General D iscu ssion on the General C om m ent on the R ight to Water. U N C ESC R 2 9 th Session , N ovem b er 22nd 2 0 0 2 , G eneva, p.2.

We can assume then, that water for personal and domestic uses must be an element of the core content o f the right to water. In addition GC 15 paragraph 6 states:

Water is required for a range o f different purposes, besides personal and domestic uses, to realise many of the Covenant rights. For instance, water is necessary to produce food (right to adequate food) and ensure environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain a living by work) and enjoying certain cultural practices (right to take part in cultural life). Nevertheless, priority in the allocation of water must be given to the right to water for personal and domestic uses. Priority should also be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations o f each of the Covenant rights.302

This clearly states that priority o f water uses should go to water for survival and basic needs.303 This concept o f ‘survival water’ is also evident within international humanitarian law,304 where the term ‘sufficient water’ is used in the main.305 This would seem to support the role of water as an element of the right to life. Thus, the core content o f the right would certainly include water for survival as a bare

302 Original footnote om itted. Paragraph 6, m y em phasis.

303 Chapman also concluded that ‘water for survival has to take precedence over production o f food for n on-essential fo o d stu ffs’ (Oral Subm ission to the C ESC R D ay o f General D iscu ssion , 2 0 0 2 ). S ee also M cC affrey in G leick, 1999, p.489.

304 S ee further details o f provisions under international humanitarian law see Chapter 3, Section 3.3, p. 167.

305 A lthough it should be noted that certain provisions w ithin international humanitarian law state that sufficien t water must consist o f water required to maintain go o d health. For exam ple, G eneva C onvention (III) relative to the Treatment o f Prisoners o f War, 1949, A rticle 46: ‘The D etaining Power shall supply prisoners o f war during transfer with sufficient food and drinking w ater to keep them in go o d h e a lt h ...’. H ow ever, during high intensity con flict water resources are often scare or under lim itation. A s such, water for survival must take priority.

minimum, even during times o f conflict. However, would a core content based upon a ‘survival’ model necessarily include sufficient water to keep one healthy, for example, free from mild dehydration? It can be argued that this would require more than just water for survival, rather a ‘basic needs’ model. Gleick argues that studies o f human needs of water and development research regarding sustainability have led to the conclusion that ‘a human right to water should only apply to basic needs for drinking, cooking and fundamental domestic uses.’ This would result in the core content o f the right being based upon a basic needs model rather than a very limited ‘survival’ model.

Conversely, Dr Bartram argues that water for household use and work are interdependent and that as such it is not possible to prioritise water uses such as drinking water, rather only conclude that the right to water encompasses water necessary for survival and dignity.307 If the core content of the right to water is as Bartram envisages, it could be conceptualised thus: If we take the water necessary for survival and multiply this very basic provision by the three principles o f quality, quantity and accessibility, we have water for basic needs, i.e. water that ensures survival with an acceptable level o f health, through quantity and safety but also maintains human personal dignity through meeting hygiene needs, independence and equal access.308

306 G leick, 1999, p.8.

307 Bartram, Oral Subm ission to the D ay o f General D iscu ssio n on the R ight to Water, N o v 2 0 0 2 . 308 S ee Fig. 1.1

SURVIVAL WATER x the 3 principles o f QUALITY, QUANTITY AND

ACCESSIBILITY = BASIC NEEDS WATER MODEL

Fig.1.1309

Younis raises the question as to whether the division o f water into these categories is useful for clarifying the human right to water; ‘Water is a natural resource. Do we say the right to water means water for drinking and sanitation only or water for other uses? The General Comment may devise the issue where as it was something seen as indivisible before. ’ 310 By attempting to identify the scope and core o f the right are we prioritising water uses when in practical terms it cannot be done so? It is true, for example that if there is no water for growing essential foodstuffs this will lead to food shortages and thus the right to food will be violated and people will suffer from malnutrition and in the worst cases, starve. However, without water for drinking, death would be even more imminent. Therefore, surely the right to water for survival must take precedence. 311 As Riedel states, ‘Survival rights are core elements and these will take precedence. ’ 312 However, it is disappointing that this clear statement was not enshrined within the GC 15 by outlining the core elements o f the right within a categorical framework o f the scope and core content. The purpose o f identifying a core and further scope o f a right is to identify which elements o f the right are most

309 T his ‘basic n e e d s’ m odel for water serves as a m inim um standard for the right to w ater and does not im ply that the right to water is m erely a need, rather like any other human right it is an entitlem ent. 310 Y ou n is, R epresentative o f the W orld Bank, Oral Subm ission, D ay o f General D iscu ssio n on the General C om m ent on the Right to Water, C ESC R 2 9 th Session, N o v 2 0 0 2 , G eneva.

311 It is important to also to note that the former scenario results in a violation o f the right to food primarily and water secondly. A gain then, this illustrates that the right to water should address elem ents w here it is the right to water that w ould be violated primarily and not those already protected under other related rights.

312 R iedel. E, C om m ittee Expert and Rapporteur on the R ight to W ater for the C om m ittee on E conom ic, Social and Cultural Rights, Statem ent on D ay o f General D iscu ssion on the General C om m ent on the Right to Water, C ESC R 2 9 th Session , N ovem ber 2 0 0 2 , G eneva.

essential. These therefore can then be translated in core obligations for state parties. As such, water for survival and dignity, in other words, basic needs, is evidently the most essential primary element o f the core content o f the right to water.

(ii) Scope of the right

The scope o f the right should include all elements o f the right, which are not considered core, as well as the core content itself. This by no means implies that the wider scope is not important and should not be realised by state parties, but rather that it is o f a lesser priority in realisation than the core elements. As argued previously, if core obligations and the core content are directly correlative, there should be no element included in the wider scope alone that is provided for under core obligations, as these elements should be a part o f the core content. Neither should elements be included which, are more easily derived from and justiciable under any other related economic and social right.313 In the case of the right to water, establishing priorities for water use is difficult, especially in areas o f water scarcity. However, it is essential if we are to determine a de facto right to water. The varying priorities o f water use have been analysed in order to determine the core elements o f the right to water. Similarly the same must be done with the overall scope o f the right in mind. These elements, together, constitute the substantive content o f the right. Issues that arise concerning the scope o f the right to water include water for agriculture and food production, sanitation, water for industry, equitable and fair water management and sustainability with regard to the environment.

Langford questioned whether the right to water should be extended beyond household uses to include water for food production and cultural uses. 314 He gave the example o f Ethiopia where water is essential for livestock and farming crops. Lack o f water has led to famine as 80% o f water use is for agriculture. As such there is competing uses for scarce water. This point was also raised by the FAO, who also argued that the content o f the right to water for agriculture be further clarified, especially accounting

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for increasing water scarcity. In the opinion o f the FAO ‘Without sufficient water for food production, food security cannot be achieved.’ However, they also note that water is a limited resource. As such, ‘The sheer volume o f water needed for agriculture may necessitate more limitations on its use than for drinking water, which

in the FAO’s opinion, should not be compromised by other uses. ’317

Evidently, water for agriculture is very important but if seen as an element within the core, it could be to the detriment of survival or basic needs water. As such it should be advocated that water for agriculture (except for in special cases o f an agrarian society,

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where water for agriculture would be within the core o f the right to water) is an element within the scope of the right to water. This should also be in line with the framework o f overlapping rights, as it is a core element o f the right to food.

314 Langford, Oral Subm ission to the D ay o f General D iscu ssion on the General C om m ent on the Right to Water, N o v 2 0 0 2 . Texier, M em ber o f the C ESC R for France also argued that water for agriculture as it relates to A rticle 11 (2 ) a, the right to food and irrigation should be included in the scop e o f the right to w ater (Oral Subm ission to the D ay o f General D iscu ssion on the General C om m ent on the R ight to Water, N o v 2 0 0 2 ).

315 Food and A griculture Organisation o f the U N (FA O ), ‘Draft General C om m ent N o 15(2002), The Right to Water (A rticles 11 and 12 o f the IC E SC R )’. Contribution to the U N C ESC R D ay o f General D iscu ssion on the Draft General C om m ent on the Right to Water. N ovem b er 2 2 nd 2 0 0 2 , p.2.

316 FAO , N ovem b er 2 2 nd 2 0 0 2 , p.2. 317 FAO , N ovem b er 2 2 nd 2 0 0 2 , p.2.

In addition to water for agriculture, the issue o f sanitation was widely discussed and deliberated at the Day o f General Discussion on GC 15. Questions were raised whether sanitation should be included within the scope o f the GC 15, and whether it should actually comprise an element within the core o f the right. One Member o f the Committee, Mr Texier, noted that there was a ‘need to extend the scope o f the GC to include definitely sanitation [...] Therefore the scope o f the right to water should be

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broader than that in the draft GC.’ Chapman also held that:

The GC should be broadened to encompass the right to water including water for cooking, washing and sanitation. The current draft320 does not address sanitation adequately. Safety is part o f the normative content o f the right to water but safety is not possible without sanitation. There is a need to broaden the scope o f the right to water and broaden the core o f the right to water. Health, agriculture and fishing should be within the broader scope but then the GC 15 should address the core elements in more detail.321

The question raised is whether provision o f adequate sanitation can be separated from realisation o f the right to water? Practically, is it possible to have a clean and safe water supply without adequate sanitation? Bartram, convincingly argues that, ‘WSSD

2 0 0 2 millennium development target is to halve the number o f people who do not

have access to sanitation. Sanitation is a prerequisite to clean drinking water and you

319 T exier, M em ber o f the C ESC R for France, Oral subm ission, D ay o f General D iscu ssio n on the