Resolving the paradigmatic gap between the human right to water in a transboundary context, and the transboundary water management regime.
Public International Law Research Master (LL.M) Thesis University of Amsterdam
Written by Mariana Simón Cartaya (11780495) Supervised by mw. mr. dr. Catherine Brölmann
(24 July, 2019)
Abstract: The present paper sets out to shed light on the gap between the two international paradigms surrounding freshwater governance: the inter-state paradigm, and human right to water paradigm. The approximation of these two is important in the context of shared transboundary waters, insofar as actions in one state can preclude the human right to water of individuals in a second, co-riparian state. Furthermore, the harmonization of principles and priorities is imperative to the aims of legal certainty. The tensions between the two are illustrated and attempted to be reconciled ‘on paper’, and ‘in practice’. This is done through a series of methods such as the practice of regime harmonization. Finally, a series of case studies are used to illustrate the interaction between the paradigms, and how the existing law can be used to address situations where they clash. The findings of the paper call for increased consideration of the extraterritorial applicability of the human right to water in transboundary waters, or alternatively, the creation of a hybrid paradigm through the use of institutions.
Contents
I. Introduction 3
A. Background B. Research design
II. The Transboundary Water Governance Regime 9 A. Origins
B. Normative content
III. The Human Right to Water Regime 20 A. Origins
B. The Content of the Right C. Extraterritorial Application
IV. Resolving the Tensions: On Paper 33
A. Theoretical Tensions B. Practical Approaches
V. The Models for Resolution: In Practice 44
VI. Conclusions 69
Bibliography 71
I. Introduction
A. Background
A search in databases chronicling transboundary freshwater conflicts worldwide will lead to such results as “Assyrian king dries up enemy’s wells (669-626 BC)”, “Spain attempts to re-route Rhine River to harm Dutch (1626-1629)”, “Ethiopia and Somali nomads fight for desert water (1963-1964)” and “11 deaths attributed to ongoing conflict between herdsmen and farmers (2018)”.1 What this dataset illustrates is that just as freshwater is the essential source for animal and plant life, it has also always been a source of conflict. On the basis of natural and manmade phenomena, water scarcity and ensuing desertification plagues huge swathes of humanity and is credited with some of the bloodiest conflicts in recent history. The need to increasingly protect access to freshwater comes from a place of water scarcity in certain parts of the world. Freshwater scarcity is calculated on a population-water equation, and it can range from ‘water stress' to ‘water scarcity' to ‘absolute water scarcity'. According to FAO country-level analyses, 22 countries experience water stress greater than 70%, while 15 countries withdraw more than 100% of their renewable freshwater resources. It is important to note that there is not a generalized or global situation of water scarcity with the world average water stress percentage at 12.7%2. However, the problems surrounding water scarcity are not always linked to hydrological levels but also with water quality and availability. Part of the issue is linked to poor management, and this is in part due to the disconnect between global and local water priorities, which due to a narrow interpretation of the human right to water affects how it is allocated.3 Further, in 2007 The World Bank expressed that the most water-scarce region on the planet, the Middle East and North Africa suffer from a scarcity of the physical resource, as well as a scarcity of organizational capacity, and of accountability for achieving sustainable outcomes.4 These are all recognitions that proper water
1 The Pacific Institute, ‘Water Conflict Chronology’ (2018), available at <http://www.worldwater.org/conflict/map/> accessed 20 June 2019.
2 UN-Water, ‘Water Scarcity', available at
<https://www.un.org/waterforlifedecade/scarcity.shtml>
3 Barbara Van Koppen, ‘Water Allocation, Customary Practice and the Right to Water: Rethinking the Regulatory Model in Malcolm Langford and Anna F. S. Russell (eds), The
Human Right to Water Theory, Practice and Prospects (CUP 2017)
4 The World Bank ‘MENA Development Report: Making the Most of Scarcity Accountability for Better Water Management in the Middle East and North Africa’ (Washington DC, 2007)
management is key to addressing inequities of freshwater distribution; including across borders.
Due to many factors, inequities in water access often lie across a state border, or miles upstream on a river. Nevertheless, water allocation and management are largely done at a domestic level, with little external influence or concern for other states. However, much of the world’s increasingly scarce and valuable freshwater is found in transboundary river basins or aquifer systems. In such cases when a freshwater resource is shared across national boundaries, it can become an international concern for states and individuals. The implication, therefore, is that whilst water management is often left to sovereign discretion, actions in one state can often affect freshwater availability in a co-riparian state.
Thus far, transboundary water management has squarely been governed by inter-state treaties, operating under the maxim of permanent sovereignty over natural resources. The key instruments to manage transboundary waters are the 1997 UN Watercourses Convention5 and the UNECE Water Convention6. However, these are not clear regulatory and institutional frameworks to the degree of being able to regulate basin-specific conflicts. Simultaneously, the human right to water has in the last decades been solidifying as an actionable and recognized international human right, underpinned by Cosmopolitan notions of universality. In particular, the potential extraterritorial applicability of the human right to water is relevant in the present context and will be addressed at length. These two paradigms interact in cases where unsustainable, irresponsible, and generally poor water management in an upstream riparian for example, can preclude the enjoyment of the human right to water of the citizens of a downstream co-riparian. The inter-state paradigm, however, is not concerned with the notion of human rights in a second state, and contrarily is concerned with the freedom to freely exploit national resources. This has created a situation wherein the two paradigms concerned with freshwater governance can be at odds.
The clash between the two paradigms, and the need to address it has recently <http://documents.worldbank.org/curated/en/353971468280764676/pdf/411130was390400En glishoptmzd.pdf> 21
5 Convention on the Law of the Non-navigational Uses of International Watercourses (adopted 21 May 1997, entered into force 17 August 2014) UNTS 2998
6 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1992, entered into force 6 October 1996) 1936 UNTS 269 (Water Convention)
begun to be treated in the literature. This interaction was recently acknowledged in the 2017 Report by the Global High-Level Panel on Water and Peace.7 The panel outlined that whilst the purpose of international water law and its principal conventions aim to take social and economic needs into account8, there is a need for specific human rights concerns such as equitability of distribution, to be addressed inter alia by international human rights bodies.9 The novelty, in this case, pertains to international human rights law's generally accepted domestic scope, which through such suggestions is being extended to transboundary waters, due to the extraterritorial reach of violations. Addressing such violations and harm however is not squarable due to the tension between the paradigms, which, though pertaining to similar subject-matter, operate under differing rationalities. The tensions present between the paradigms pertains in part to the fact that each is concerned with different ‘norm-addressees’ and each places different importance of territoriality that is attached with sovereignty.10
The paradigm interaction, including dealing with the above tensions is the essential subject-matter of this paper, which will attempt to reconcile both paradigms in the context of shared waters, for two purposes. The first normative aim of this paper is for the law on transboundary freshwater to accommodate the reality of transboundary violations of the human right to water. The second essential imperative of this paper and ideally future work is the interest of international water law, and its notoriously disaggregated practice to become coherent in the interests of the international rule of law. Particularly, the need for legal certainty is absent in the context of international watercourses due to the fragmented content of the law and its sparse use. Whilst there is a normative recognition that international water law in transboundary contexts should acknowledge its concurrent human right to water paradigm, the aims of this paper are equally concerned with legal cohesion in the interests of certainty for both rights bearers and duty holders.
7 The Geneva Water Hub, ‘Report of the Global High-Level Panel on Water and Peace: A Matter of Survival’ Blue Peace Initiative (14 September, 2017) available at <https://www.genevawaterhub.org/resource/matter-survival> 37
8 Supra, (n 5)
9 Report of the Global High-Level Panel on Water and Peace, (n 10) 37
10 Catherine Brolmann, ‘Sustainable Development Goal 6 as a Game Changer for
International Water Law’ 7(5) ESIL Reflections (2018) available at
B. Research Design
Research question(s)
In light of the above, the main research question is ‘How can the law governing
transboundary water management accommodate and address the human right to water in cross-boundary violations?'. To answer this, I have devised a set of
sub-questions and methodology, outlined below.
1. What are the differences between the human right to water and inter-state transboundary water management paradigms?;
2. What effect do these differences have for the protection of human needs in a transboundary water context?; and
3. How can the two paradigms interact to best address human needs in transboundary situations?
Methodology and Approach
To address the research questions, the paper will to a degree consist of empirical research into the content and effect of the law governing transboundary freshwater. However, the aims of the research are overtly normative, in particular with regards to exposing and critiquing the gaps in the law which at present do not acknowledge human needs in transboundary settings. The normative goal is, therefore, to bridge such gaps, following the underlying theoretical desire for an international rule of law, in light of its assumed positive attributes; particularly legal certainty. Furthermore, the paper follows a Cosmopolitan line of reasoning, through its advocacy that the requisite sacrifices of sovereignty to satisfy human needs, are desirable.
To approach the research, the thesis will firstly take an internal perspective on the inter-state transboundary water management and human right to water paradigms, respectively. This will involve looking at the legislation, and the theoretical underpinnings of both paradigms, in sections II and III. This will in part be done to elucidate on the differences between the paradigms.
Secondly, the tensions ‘on paper' will be addressed in section IV. This will be a rehashing of the theoretical underpinnings of both paradigms, and what they entail vis à vis some prevalent conversations surrounding international law, such as its moralization and the international rule of law. This discussion is important to identify how the paradigms square up in light of the normative aims of the paper, which
ultimately revolve around the interests of a substantive international rule of law, as well as the values of cosmopolitanism espoused by human rights. In this section on tensions, I will also address how, if both legal paradigms were reduced to their norms and merged (notwithstanding the theoretical hurdles), whether the solution of ‘regime harmonization' would be feasible. The main goal of this is to address the hurdles of paradigm harmonization when norms clash and thus address the second sub-question.
Thirdly, in section V, the aim is to take a practical approach at resolving the tensions which arise when the two paradigms meet in the context of transboundary violations. The aim is to answer the third sub-question. I will address six international freshwater conflicts, each illustrating different scenarios. The practical aim of the illustration is to move beyond theory and understand how the law can accommodate for such interactions. In particular, the position taken in this paper is that the extraterritorial application of the human right to water, in transboundary violations, can fill a legal and practical void.
Lastly, the paper will conclude by reflecting on the interaction between the paradigms, in particular on the lessons learned through the practical exercise
Literature review and originality
This paper will rely on a vast array of secondary resources available on international water law and the human right to water. Special regard is to be given to Professor Soboka Bulto’s 2014 publication,11 which is by far the most narrowly acquainted piece of literature, due to his extensive treatment of the extraterritoriality of the human right to water. Further, Langford and Russell’s collection12 provides the most thorough and recent look at a wide range of issues surrounding the human right to water. In particular, contributions by El-Jaiziri on the right to water in Palestine. In the realm of inter-state water law, Professor Brown Weiss’ book on international law for a water-scarce world13 is highly thorough, providing critiques of current international water law, to include challenges such as ‘virtual water’, which will be
11 Takele Soboka Bulto, The extraterritorial application of the human right to water in Africa (CUP 2014)
12 Malcolm Langford and Anna F. S. Russell, The Human Right to Water Theory, Practice
and Prospects (CUP 2017)
13 Edith Brown Weiss, International Law for a Water-Scarce World, vol 7 (Hague Academy of International Law monographs, Martinus Nijhoff Publishers 2013)
addressed in Section V. Further, Boisson de Chazournes14 provides a valuable contribution to alternate views of freshwater, namely the economization, environmentalization, and institutionalization of the law applicable to freshwater, as alternate perspectives to the humanization of the law applicable to freshwater. Finally, Schrijver’s doctoral monograph on natural resource sovereignty15, provides an insight into the more challenging theoretical debates with regards to balancing these rights and relevant duties.
The above resources, many basin-specific research papers, as well as a brief study of hydrology, have all been invaluable and important contributions to the continuously relevant study of the management of shared freshwater. However, a specific application to the trans-boundary freshwater context, through the juxtaposition of the obligations from the inter-state paradigm with the extraterritorial element of the human right to water, is not something broadly reflected in the literature. This is, therefore, my statement of originality, that the niche has not been sufficiently considered.
14 Laurence Boisson de Chazournes, Fresh Water in International Law (OUP 2013)
15 Nicolaas J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties in
II. The Transboundary Water Governance Paradigm
The first paradigm to be considered to address water scarcity and needs in a transboundary context is the existing inter-state paradigm, wherein cooperation is encouraged, but permanent sovereignty over natural resources (PSNR) is the ultimate maxim. The theoretical origins and underpinnings of the inter-state resource management paradigm will firstly be outlined before an analysis of the most relevant normative content in the field of transboundary water governance.
A. Theoretical Origins
Freshwater is an intrinsically valuable natural resource, which serves as both an economic good, and an essential resource for human survival. This duality has implications for the ownership and the allocation of the resource. Due to its ‘common' and transboundary presence and vague ownership status, it bears the brunt of being the center of ownership conflict. This is partially the reason for a need to regulate the common good, as well as for resource quality preservation.16 The avoidance of the ‘tragedy of the commons' is one of the basic justifications for dividing up natural resources by border allocation, regardless of the equitability, exploitation or arbitrariness that it may eventually entail. It follows, therefore, that state control plays and should play a central role in regulating natural resources. However, the role of the state is increasingly limited through interdependence, which is exalted in transboundary situations. Collective regulation of internal state behavior is, therefore, a logical response to interdependence.17 Such collective regulation however has been read to be at odds with elements of state sovereignty - a necessary condition for international peace and security which extends to include the territorial integrity of any state.And whilst sovereignty, in general, is not a disputed concept, permanent sovereignty over natural resources is necessarily challenged of insofar as it presents a hurdle for the fulfillment of human needs.
In terms of the satisfaction of human interests in this realm, it is undoubtedly necessary to have a center of power with a certain degree of power and capacity for resource distribution. Nevertheless, in transboundary situations, where the control
16 Garrett Hardin, ‘The Tragedy of the Commons’, 162 Science, 1243 (1968)
17 Mahmood Monshipouri, Neil Englehart, Andrew J. Nathan, and Kavita Philip (eds),
element is exerted by a co-riparian state, or a home state is unwilling or unable to provide freshwater to their population, strict natural resource sovereignty may be prejudicial. Furthermore, it is also arguable that PSNR is only legitimated when citizens accepting to be governed, benefit from ‘their' resources. In this vein, an alternative trend consists of reworking natural resource sovereignty into ‘popular sovereignty over natural resources'. This ‘rethinking' of sovereignty from a constructivist perspective can be particularly important in an attempt to be more inclusive of third world or heterodox narratives that challenge state-centric governance. One can analogize the ‘social contract' theory to the ‘sovereignty as trusteeship' idea for the preservation of environmental integrity or to seek a balance between individual liberty and community interests, for the ultimate goal of future resource concerns.18 The idea of ‘popular sovereignty' was reinforced in the 1962 UNGA Resolution 1803 in light of debates around economic development and the right of self-determination in a postcolonial context.19 The resolution calls for the exercise of sovereignty in the interest of the well-being of citizens, and that the right to exercise such sovereignty over natural resources must be furthered by other states.20 The language used in the resolution implies ownership of natural resources by both the state and its citizens, implying a duty to exercise for the benefit of citizens, supporting the custodianship argument. Dr. Tunbi Onifade agrees with this stance, however, comments that the rights contained in the resolution could only possibly be held by states by virtue of their sovereignty and that it is the lack of state recognition of the citizens' entitlements which has resulted in socio-political problems.21 Onifade addresses the issue with the term ‘peoples-based permanent sovereignty over natural resources' (PPSNR) and studied the limits to the applicability of this principle in domestic jurisdictions. PPSNR can be traced back to common ownership and trusteeship arrangements during the enlightenment and was later underscored by the idea of the need to regulate and simultaneously liberalize global commons such as the high seas, and lastly justified by the right to
self-
18 Terry W. Frazier, ‘Protecting Ecological Integrity Within the Balancing Function of Property Law’, 28 Environmental Law, 53 (1998)
19 UNGA, ‘Permanent Sovereignty over Natural Resources’ UNGA Res 1803 (XVII) (14 December 1962)
20 Ibid, principles 1 and 5
21 Temitope Tunbi Onifade, ‘Peoples-Based Permanent Sovereignty over Natural Resources: Toward Functional Distributive Justice?’, 16 Human Rights Review (2015) pp 343-368
determination.22 His characterization of the inequity of natural resource distribution directly points at the state’s role of custodian, problematizing resource inequities as a matter of distributive justice, contrary to the economic development framework espoused by the UNGA.23
A contrary challenge to the critique on PSNR is the special imperative that resource wealthy states have to maintain permanent sovereignty over natural resources, to avoid disenfranchisement, exploitation, and to ensure self-governance.24 This has led several previously colonized states to be some of the strongest defenders of the Westphalian system.25 Solidifying or relaxing the concept of PSNR, therefore, presents specifically difficult hurdles with regards to transboundary freshwater. On the one hand, permanent sovereignty must be upheld to ensure self-sufficiency and non-exploitation. However, on the other hand, if one were to talk about a water-scarce or arid state, whose citizens' right to water is prejudiced by their neighbors, the co-riparians natural resource sovereignty should be challenged by the imperatives of human rights and freshwater's status as a public good.
Professor Schrijver discusses the need for regulation of the commons, in particular, whilst striking a balance between a state's rights and their duties towards their citizens.26 The rights he claims that states have are to dispose freely of natural resources; explore and exploit natural resources freely; regain effective control and compensation for damage; use natural resources for national development; manage them pursuant to national environmental policy; regulate and expropriate foreign investment; and to an equitable share in the benefits of transboundary natural resources.27 Schrijver expresses optimism for an increase in bilateral treaties for equitable utilization of transboundary resources28, and this is certainly an option for water flows, though it comes with its inherent flaws. The duties he attributes to the state are to exercise permanent sovereignty for national development and the well-being of the people; respect the rights and interests of indigenous peoples; cooperate
22 Ibid, 350 23 Ibid, 351
24 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58, art. 21
25 Christopher Clapham, ‘Sovereignty and the Third World State’, 47 Political Studies, 522 (1999)
26 Supra, (n 15) 27 Ibid, 260 28 Ibid, 262
for international development; conserve and use natural resources sustainably, and to respect international law and treat foreign investors fairly. He also includes the duty to equitably share transboundary natural resources, taking the deterritorialized stance that “boundaries of States do not exist for water [...]”29 noting the tension between permanent sovereignty over natural resources and transboundary obligations. He concludes that the state of the art at the time of writing did not yet imply a shift from territorial sovereignty to shared jurisdiction or common management, only an obligation to recognize the rights of other states and consult with them. This stance is the only rational conclusion in the context which he writes in, that is not solely related to freshwater sources, including fish, oil, and gas, which do not have an entailing human right. The final outlook on permanent sovereignty in an interdependent world is that there has been a shift between permanent sovereignty over natural resources being centered on peoples' rights as stemming from self-determination, to state rights.30
The management of transboundary freshwater due to its deterritorialized nature and the competing interests vested within it will continue to cause a divide in both theory and practice. However, the international community has come a long way in pushing towards regulating commons based on equitability, as reflected in the content of the relevant law.
B. Normative content
The inter-state paradigm dealing with freshwater is at its essence fragmented and occasionally vague as it draws from environmental law, with limited specialized treaties. This precise quality is one of the reasons hindering the development of a comprehensive and invocable process to address water scarcity and human needs in transboundary settings.
Codified water law has been traced back to the Code of Hammurabi (17238 BCE) and included provisions for communal management and liability, and evolved to the competing riparian approach and the priority approach to water rights.31 However, the origins of international water law were first found in customary
29 Ibid, 321 30 Ibid, 369
31 Joseph W Dellapenna and Joyeeta Gupta, ‘The Evolution of Water Law Through 4,000 Years’ (Villanova University School of Law, Working Paper No. 2013-3041, 2013). Available at <http://ssrn.com/abstract=2265029> 9
international law from the late eighteenth century, stemming from freedom of navigation, and evolving to allocation regimes at the advent of the industrial revolution. The three main principles of customary international water law today are the principle of limited territorial sovereignty over national waters; the no-harm principle stemming from the Roman maxim sic utero tuo ut alineium non laedes; and the obligation to settle disputes peacefully.32
One of the principal tenets of the transboundary water paradigm, as in environmental law, is the obligation not to cause significant transboundary harm, which the International Court of Justice helped develop throughout the twentieth century.33 The early case law on the no-harm rule was mostly evolved by the Trail
Smelter Arbitration34, and Corfu Channel35 cases. Before Trail Smelter, the only case cited regarding transboundary harm was a Swiss case from 1878 regarding cross-canton hazards.36 In the following years, soft law began to emerge and was inspired by the no-harm principle. The effect of these cases was to present a shift from strict territorial integrity, to a focus on environmental protection.37 Aside from the no-harm principle, the ICJ also pronounced their opinion on shared resources in the Fisheries
Jurisdiction Case38, which regarded the Icelandic fisheries jurisdiction, partially on the basis that the Icelandic population was dependant on those resources for economic development and livelihood. The court stated that it was pleased with the prospect of increased regulation of maritime resources and that a shift to a recognition of a duty to have due regard to other state's rights "and the needs of conservation for the benefit of all."39. Whilst the Court did not pronounce on the development of the law, it did express that shared resources and common property fell outside the exclusive control of one state.40 Today the no-harm rule and the idea of limited territorial sovereignty
32 Ibid, 13
33 Marte Jervan, ‘The Prohibition of Transboundary Environmental Harm: An Analysis of the Contribution of the International Court of Justice to the Development of the No-harm Rule’ (PluriCourts Research Paper No. 14-17, Pluricourts 2014) available at <http:/ssrn.com/abstract=2486421>
34 Trail Smelter Case (United States v Canada) (1941) 3 RIAA 1905 35 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4
36 Miller R A, Trail Smelter Arbitration, (MPEPIL 2007) available at <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1612> para 7
37 Supra, (n 33) 26
38 Fisheries Jurisdiction (the United Kingdom v. Iceland), Judg. 25 July. [1974] ICJ Rep 3 39 Ibid, para 31
are codified in the treaties and conventions set out below.
The ILA Helsinki Rules on the Uses of the Waters of International Rivers41 set out the general rules on the international law applicable to the use of waters of international rivers and drainage basins, including groundwater if flowing to a common terminus. They state that “Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin”42. The commentary rejects the unlimited sovereignty position, and that a state would not have a right to demand continued flows. The conditioning of equitable sharing is elaborated in article V to include ‘beneficial use’ by the parties, as well as several factors such as the contribution of each state to the shared resource43, historical use44, the availability of other sources45, the economic and social needs of each state46 and the population dependent on the waters of the basin in each state47. However, the phrasing is state-centric, and there is no clear guideline for the method of co-management of the basin, rather broad principles to be considered. The rules stipulate for a system wherein violations of the pollution provisions would engage in responsibility and the obligation to cease the wrongful conduct and compensate for injury.48 Whilst the Helsinki rules arguably codified custom and defined best practices, they bear the burden of being soft law and have been criticized for creating too informal and imprecise of a system, lacking enforcement mechanisms.49
Following the Helsinki Rules, The Declaration of the United Nations Conference on the Human Environment50 (Stockholm Declaration) was the first internationalized action to regulate state behavior concerning the environment. The Stockholm declaration uses the language of intergenerational concerns, and specifically mentions water, paying heed to non-renewable resources to "ensure that
41 Committee on the Uses of the Waters of International Rivers, ‘Helsinki Rules on the Uses of the Waters of International Rivers’ in International Law Association Report of the Fifty-Second Conference (London, 1967) (International Law Association, London 1967) 484 42 Ibid, art. IV
43 Ibid, art. V(b) 44 Ibid, art. V(d) 45 Ibid, art. V(h) 46 Ibid, art. V(e) 47 Ibid, art. V(f) 48 Ibid, art. XI
49 Joseph W. Dellapenna, ‘The Berlin Rules on Water Resources: A New Paradigm for International Water Law’ (Conference Paper: World Environmental and Water Resources Congress 2006) available at <https://ascelibrary.org/doi/10.1061/40856%28200%29250> 50 Report of the United Nations Conference on the Human Environment, Stockholm, 5 to 16 June 1972 (A/CONF.48/14 and Corr.1)
benefits [...] are shared by all mankind."51 Further, most pertinently to transboundary obligations, the declaration states in its Principle 21 that “States have [...] the
sovereign right to exploit their own resources [...], and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or areas beyond the limits of national jurisdiction.”52 The prohibition of transboundary harm was at the time controversial as it had not solidified as a general principle of international law. It importantly provides for an obligation concerning liability and compensation for transboundary harm and the ambition that the law in this field ought to be further developed for scenarios of cross-jurisdictional damage.53 The obligation to cooperate on transboundary resources and the no-harm principle was later supported by the General Assembly in 1974.54
The Stockholm Declaration was followed twenty years later by the Rio Declaration on Environment and Development55. The Rio Declaration states out that the precautionary approach56 and the ‘polluter pays’ principle57 apply, and that the right to development should be interpreted through an intergenerational lens58, with human beings at the center of the concerns by virtue of their “entitle[ment] to a healthy and productive life.”59. The declaration reiterates states’ sovereign rights to exploit their own resources, as well as the responsibility to not cause damage to the environment of other states beyond their jurisdiction.60 This declaration therefore somewhat picks up where Stockholm left off, adding the obligation to prevent the ‘relocation and transfer to other states’ activities and substances that can either harm the environment or human health.61 Furthermore states are tasked with giving timely notification on activities that could have adverse transboundary environmental effect, and that consultation should be done early on, in good faith. 62 Lastly, the declaration
51 Ibid, Principle 5 52 Ibid, Principle 21 53 Ibid, Principle 22
54 UNGA ‘Charter of Economic Rights and Duties of States’ UNGA Res 39/163 (17 December 1984)
55 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3 to 14 June 1992 (A/CONF.151/26)
56 Ibid, Principle 15 57 Ibid, Principle 16 58 Ibid, Principle 3 59 Ibid, Principle 1 60 Ibid, Principle 2 61 Ibid, Principle 14 62 Ibid, Principle 19
states that “The environment and natural resources of people under oppression, domination and occupation shall be protected.”63. Neither of the environmental declarations are legally binding instruments, rather they confirm international legal rules on environmental law, as well as bringing forward the development of the norms therein, such as environmental rights, common but differentiated responsibilities, and liability for environmental harm.64 They are therefore not invocable instruments, but rather reflect the policy priorities of the international community, and are guidelines for state interests in transboundary resource management.
The first convention that specifically deals with transboundary watercourses is the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention)65, and defines these as “any surface or ground waters which mark, cross or are located on boundaries between two or more States”66. This definition is inclusive of river basin systems and aquifers, without distinction. The convention then defines transboundary impact as “any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party.”67 This encompasses damages including on human health and safety, and also the human right to water as stemming from the right to health. However, we can observe that the language refers to a change in the conditions of transboundary waters, not specifying whether these refer to quality or quantity. The UNECE water regime has been said to constitute the lex specialis, over the UN Watercourses Convention68 Following the Water Convention, the 1994 Desertification Convention69 meanwhile calls for “joint programmes for the sustainable management of
63 Ibid, Principle 23
64 Dinah Shelton, Stockholm Declaration (1972) and Rio Declaration (1992), (MPEPIL July 2008) available at <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1608>
65 Supra, (n 6) 66 Ibid, art. 1(1) 67 Ibid, art. 1(2)
68 Moynihan T M, ‘Contribution of the UNECE water regime to international law on transboundary watercourses and freshwater ecosystems’, (University of Edinburgh Dissertation Collection 2018) available at <https://www.era.lib.ed.ac.uk/handle/1842/31049> 69 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 14 October 1994, entered into force 26 December 1996) 1954 UNTS 3
transboundary natural resources through bilateral and multilateral mechanisms”70. It includes the obligation to undertake cooperation to enhance the availability of water resources and proposes an array of specific freshwater yielding technologies71, however, it does not relate to water sharing conflicts. Whilst the Convention on Desertification provides a broad series of measures in a national and transboundary setting to address water scarcity in the most water-scarce regions, it mostly serves as a guideline for action as opposed to obligations.
The Convention on the Law of the Non-navigational Uses of International Watercourses (1997)72 (UN Watercourse Convention) is currently the most relevant multilateral treaty for the governance of transboundary waters, as it is considered the most complete codification of international water law. It currently has 16 signatory states and 36 states parties. The most important provisions found in the General Principles are ‘equitable and reasonable utilization and participation’73; ‘factors relevant to equitable and reasonable utilization’74; and ‘the obligation not to cause significant harm’75. Addressing the relationship between uses, the Convention favors no usage above another, only stating that special regard should be given to vital human needs.76 The subject-matter of the convention is somewhat contested, with some saying that the mention of aquifers is unsatisfactory.77 The provisions inside the convention, therefore, apply to both river systems and aquifers connected to surface waters78, which together represent the vast majority of accessible freshwater, excluding polar ice, and provides around 50% of potable water.79 However, the definition is not wholly inclusive as it does not apply to certain aquifers that are non-recharging, as well as ones not connected to surface water, and when an aquifer and river are linked but operate separately.80 The significance of the inclusion of groundwater in a transboundary study is that the ‘borders' are not as properly
70 Ibid, art. 11(a) 71 Ibid, art. 17(g) 72 Supra, (n 5) 73 Ibid, art. 5 74 Ibid, art. 6 75 Ibid, art. 7 76 Ibid, art. 10
77 Kerstin Mechlem, ‘Groundwater Protection’ (MPEPIL January 2010) available at
<https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1944>
78 Supra (n 5), art. 2(a) 79 Supra, (n 77) para 5 80 Ibid, para 8
delimited as for surface. This can mean that an action in one state can affect the entire aquifer without clear upstream-downstream relationships to observe pollution and flows. One of the drawbacks of the Convention was the relation between the no-harm rule and the rule of equitable utilization, the former which was ultimately subordinated under the rule of equitable utilization.81 Despite this resolution, the precise meaning of equitable utilization is still contested as there is no common standard, as reflected in article 6 wherein factors to equitability are qualitative and non-hierarchical. This system is inherently not pragmatic.
Following the Watercourse Convention and the dissatisfaction with it, the ILA approved the Berlin Rules on Water Resources82. These set out to provide a holistic view of international water law. Chapter IV deals with the rights of persons and includes the right of access to water; public participation and access to information; education; protection of particular communities; and the duty to compensate displaced by water projects or programs.83 Besides the ambitious and broad rights inclusion, the enforcement of these rights are different in an inter-state system, and much less so in this form of soft law instrument. Nevertheless, the content of ILA Rules have given rise to concrete instruments in the past, and have the potential to contribute to custom formation. Particularly in a transboundary context, Chapter III on internationally shared waters assert the principles of cooperation84; equitable utilization85; the avoidance of transboundary harm86; and equitable participation87. The latter of these addresses the issue of party power inequities often found along river basins that obstruct equitable agreements. With regards to preferential use of waters, the Berlin Rules depart from the Helsinki Rules, and reassert the Watercourse Convention, stating that in determining an equitable and reasonable use, states must first allocate water to satisfy vital human needs.88 They emphasize an obligation to establish management authorities for international waters, and provide minimum requirements
81 Supra, (n 49)
82 Committee on Water Resources, ‘Berlin Rules on Water Resources International Law Association’ in International Law Association Report of the Seventy-First Converence (Berlin, 2004). Available at <http://www.cawater-info.net/library/eng/l/berlin_rules.pdf>. 83 Ibid, art. 17-21 84 Ibid, art. 11 85 Ibid, art. 12-13 86 Ibid, art. 16 87 Ibid, art. 10 88 Ibid, art. 14
for these arrangements as well as stipulating for compliance reviews.89 They assert that breaches would engage a state’s international responsibility, and create a broad regime for remedies. The Rules address access to courts for individuals having suffered damage under these, including remedies for persons in other states90 - effectively including extraterritorial obligations. Professor Dellapenna is optimistic about the Berlin Rules and sees them as a departure from the now outdated Helsinki Rules and Watercourse Convention. However, he still holds that the mere codification of custom as done therein, is insufficient in a soft law instrument and that the strongest provisions are those based on human rights and environmental law.91
89 Ibid, art. 64-66
90 Ibid, art. 71 91 Supra, (n 49)
III. The Human Right to Water Paradigm
The second paradigm on water management, that of the human right to water, is still not fully recognized in certain circles. The argument herein, however, is that it does exist both in theory and in law, but is merely less actionable than other rights. In this section, the human right to water will be discussed in light of its status and potential role in transboundary freshwater. Below is an account of origins and content of the right and its implications for duty bearers, with a particular emphasis on extraterritoriality.
A. Origins of the human right to water 1. Theoretical origins
To say that human rights law proper originated in antiquity is an anachronism. However, there is cause to say that the values and morality written about in both Ancient Rome and Greece can be traced to modern human rights philosophy. The Stoic Cicero (106-43 BC) famously cited "true law as right reason in agreement with nature".92 True law was universal, of equal applicability across the world; rhetoric we find echoed in seminal 20th-century human rights texts. Universalist claims of freedom, equality, and dignity were also expounded by Ulpian (170-228 AD) and his ideas of universal citizenship as a consequence of personal dignity, a right whose breach entailed a legal remedy, in a way that mirrors human rights today.93 Professor Honoré contends that human rights and the civil rights movements are the modern attempts at implementing freedom, equality, and dignity in society. In terms of human rights law, there was a view that it ought to be pursued through a philosophy of justice.94 An early form of natural resource rights based on natural law is found in Justinian's Institutes, which fomented Roman Law principles such as the ‘res
communis’ which is a today applied to our high seas and space:
“1. By the law of nature these things are common to mankind, the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is
92 Cicero, The Republic III, (Loeb Classical Library, Harvard University Press) 211.
<https://www.loebclassics.com/view/marcus_tullius_cicero-de_re_publica/1928/pb_LCL213.211.xml?readMode=recto>
93 Tony Honoré, ‘The Cosmopolis and Human Rights’, in Ulpian: Pioneer of Human Rights’ OUP (2002)
forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations [...]”95
Medieval theologians of the Scholastic tradition were in turn proponents of distributive justice as a consequence of natural law theory. Aquinas, in his Summa
Theologiae, wrote on the concept of jus, translated as right, or justice that
"distributive justice is concerned with the distribution of the common goods of the civitas proportionately and fairly to the citizens of the civitas".96 From the late 1400s onwards, however, we see a change in international law and human rights discourse, as new subjects emerged. Hugo Grotius (1583-1645), elaborated on the concept of natural rights; with human beings as the original subjects of jus gentium. Classical international law, as it emerged through the colonial encounter is characterized by its geographical bias, religious aspirations, economic motivations, and political aims.97 Modern international human rights law and its applicability, notwithstanding its universalist rhetoric, continues to operate within those parameters. This does not discredit the universalist aspirations in a pure form, but rather its conception and application under law.
In the Enlightenment, universalism turned into Cosmopolitanism as one of Immanuel Kant's (1724-1804) central ideas, which today has largely been drawn out to encompass modern obligations concerning asylum rights and obligations based on the idea of a ‘cosmopolitan world order'. Even though Kant's theory only provides for a minimalist cosmopolitan rights obligation of hospitality, this has been read as the mere starting point for creating transnational interdependence.98 The philosopher's priority, however, was "the achievement in law of a Rightful condition beyond the state”, which is more or less found in the European human rights system today, where charters of rights are effectively enforced, based on an international social contract
95 Thomas Collett Sanders, The Institutes of Justinian: With English Introduction,
Translation, and Notes: Lib. II Tit. I De Divisione Rerum et Qualitate (Longmans, Green and
Co. 1874)
96 Anthony J. Lisska, ‘Human Rights Theory Rooted in the Writings of Thomas Aquinas’ An Online Journal of Philosophy Diametros (2013) 38
97 Mohamed Bedjaoui, ‘Poverty of the International Order’ in Richard Falk, Friedrich Kratochwil & Saul Mendlovitz (eds), International Law: A Contemporary Perspective, (Westview Press 1985)
98 Alec Stone Sweet & Clare Ryan, A Cosmopolitan Legal Order: Kant, Constitutional
theory.99 A shift away from the state-centric dependence for human rights was echoed by Hersch Lauterpacht (1897-1960), a seminal figure in 20th-century international law. He is remembered in great part for his writings on the role of international law in the world, including human rights law. ‘An International Bill of the Rights of Man' is Lauterpacht's design of an international human rights document for the 20th century.100 His system of global human rights governance painted a picture of a community of nations with mutual concern and enforcement for the compliance with these obligations and where individuals could petition their rights to a central Council. Despite the high regard given by Lauterpacht to human rights, he contested the usefulness of natural law rhetoric. Lauterpacht was more concerned in the enforcement of a universal human rights system. He refers to this issue as the “major - and [...] apparently insoluble - political difficulty”101.
Today, there is pushback on the improper historiography of human rights, with professor Moyn referring to human rights rhetoric as only one of many appealing ideologies.102 Despite its long theoretical basis, the rhetoric of human rights as such is a relatively novel phenomenon that emerged in the second half of the 20th century in part as a language for conducting foreign relations. Moyn warns against the ‘moralization of politics’, as well as using the past (historiography) of human rights for “new imperatives”. Nevertheless, human rights law, including the novel and contested human right to water, insofar as it is codified and given effect for basic and non-controversial human needs, would not be an improper overreach into the political.
2. Normative origins
The normative concept of a human right to water as an invocable right vis-a-vis states is somewhat novel. The human right to water is not stipulated for in any of the 20th-century‘ human rights constitution' documents. However, there is a sustained theory of interpreting and advocating for its existence through other rights.
99 Fernando R Tesón, ‘The Kantian Theory of International Law’, in Gerry Simpson (ed), The
Nature of International Law (Routledge 2017)
100 Hersch Lauterpacht, An International Bill of the Rights of Man (first published in 1945, OUP 2013)
101 Ibid, 14
102 Samuel Moyn, The First Historian of Human Rights, 116 The American Historical Review (2011)
The Universal Declaration of Human Rights103 article 25(1) states that "[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, [...]." The language of this article denotes a non-exhaustive nature open to the interpretation of elements that could be necessary for a standard of living and health. Whilst the human right to water largely falls under social and cultural rights, it goes without saying that the right to water is necessary for the fulfillment of the essential, right to life. This right is codified in article 3 of the Universal Declaration, as well as in article 6 of the International Covenant on Civil and Political Rights (ICCPR)104. Commentators differ on the relevance of such articles for the right to water, especially due to the historical implications of civil and political rights as rights of non-interference. The passive nature of these obligations often implies that a government must do all but not hinder the possibility to attain the rights. Therefore, whilst the right to life encompassing the right to water is important in terms of rhetoric, it can all but ensure respect of the right by a home, or co-riparian state.
The UN Committee on Economic, Social and Cultural Rights (CESCR), issued General Comment 15105 in 2003 as an interpretation of articles 11 and 12 of the Covenant106, which relate respectively to the adequate standard of living including food, and the right to the highest attainable standard of health. The text of GC15 says that water is a limited public good and that "the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights." It entails everyone to "sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses". States parties to the ICESCR have positive obligations under the covenant, the enforcement mechanisms are however a relatively feeble reporting and recommendation system overseen by CESCR. The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions under Part IV of the ICESCR.107
103 Universal Declaration of Human Rights, (adopted 10 December 1948) (UNGA Res. 217 A (III))
104 International Covenant on Civil and Political Rights, (adopted 16 December 1966, entered into force 23 March 1976) 999 U.N.T.S. 171
105 UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 15: The Right to Water’ (2003) UN Doc E/C.12/2002/11.
106 International Covenant on Economic, Social and Cultural Rights, (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3
107 United Nations Office of the High Commissioner, ‘Committee on Economic, Social and Cultural Rights’ https://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx
Despite holding this authority, and having the power to issue General Comments of interpretation and implementation, such instruments, including General Comment 15 are non-binding. Nevertheless, the Limburg Principles on the Implementation of the ICESCR108 call for a spirit of cooperation to monitor compliance, as well as a role for international organizations in its implementation.
Further, in 2010, the UNGA adopted resolution 64/292 on ‘The Human Right to Water and Sanitation’.109 The language used was that they recognize the right to safe and clean drinking water, as well as calling upon states and IOs to "provide financial resources, capacity-building, and technology transfer, through international assistance and cooperation". The right if further supported by article 24(c) of the Convention on the Rights of the Child.110 Whilst these are strong sources, they result in few practicable enforcement mechanisms in the transboundary context.
B. The Content of the Right
The human right to water as outlined in General Comment 15 (GC15) includes the requirements of availability, quality, and accessibility, with the requirement of
adequacy varying depending on specific water use.111 The availability requirement underlines that water ought to be ‘sufficient and continuous for personal and domestic uses'. The CESCR gives a non-exhaustive list of sample activities, wherein water for food growth/cultivation is notably absent. Furthermore, specific water quantity availability is said to be determinable by WHO guidelines.112 The requirement for water quality stipulates that water must be safe to a degree that it does not constitute a health threat, and to an ‘acceptable color, odor and taste'.113 And, the accessibility requirement has four sub-sections, physical, economic, information accessibility, and a non-discrimination component. Physical accessibility entails that water facilities be within ‘safe physical reach for all sections of the population', so as water access not to be prejudicial to physical security. Economic accessibility then mandates that water
108 United Nations Commission on Human Rights, Note verbale dated 5 December 1986 from
the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights ("Limburg Principles"), (8 January 1987) UN Doc.
E/CN.4/1987/17
109 UNGA Res 64/292 (28 July 2010) UN Doc A/Res/64/292
110 Convention on the Rights of the Child, (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
111 Supra, (n 105) paras. 10-12 112 Ibid, para 12(a)
must be affordable for all, so as the cost to not compromise an individual's access to the right. The non-discrimination component of accessibility is there to ensure that water access also applies to the most vulnerable or marginalized sections of the population, ‘in law and fact'. This is important as water access has unfortunately marginalized certain sectors of the population in a de facto manner. Importantly, the accessibility requirement is limited to water and facilities within the jurisdiction of the state party.114
When a legal obligation has been established, there are three elements to the obligations that a state owes, these are to respect, protect and fulfill the right. Each of these elements implies a different degree and type of action or omission depending on the nature of a right, but work in tandem. The obligation to respect, in the words of GC15 includes that States parties do not interfere directly or indirectly with the enjoyment of the right, and to heed special attention during armed conflicts.115 The
obligation to protect the human right to water under GC15 mainly requires the prevention of interference by third parties with the enjoyment of the right to water, who explicitly include individuals, groups, corporations, and their agents. The Committee specifies the need to implement measures to restrain "[...] third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells, and other water distribution systems".116 Finally, the obligation to fulfill the human right to water under GC15 encompasses essentially the obligations to facilitate, promote and provide.117
Several states have recognized the right and fulfill it domestically in their own way. The obligation entails non-discrimination in the application, and to take continuous steps in its realization. Domestically, the minimum essential levels of the human right to water of immediate effect are lain out and include inter alia o ensure access to the minimum essential amount of water for personal and domestic uses; to ensure physical access to sufficient, safe and regular water facilities; to ensure equitable distribution of available water facilities; to monitor the extent of the realization of the right to water; to target water programmes to protect the vulnerable and marginalized.118 The committee attaches to this a reiteration of the importance for 114 Supra, (n 105) para 12(c) 115 Ibid, para 21, 22 116 Ibid, para 23 117 Ibid, para 25 118 Ibid, para 37
States Parties and other actors to "provide international assistance and cooperation, especially economic and technical", particularly towards developing countries, to fulfill the above.119 Reflecting on the minimum core obligations, George McGraw emphasizes that if international water rights are to be universally guaranteed, this hinges on the adequate reinforcement in national jurisprudence120. In his study, McGraw makes a convincing case for the enforceability of the right to water in domestic courts based on appeals of violations of the minimum core content of the right. The ultimate lesson is that ‘norm transmission' regarding the right to water is successfully taking place in domestic courts for a breach of the ICESCR, and this has important and positive implications.
C. The Extraterritorial Application of the Human Right to Water
In the present context that deals with shared, transboundary waters, wherein conduct in one state can have palpable effects on a neighboring state's shared resource, it is the potential extraterritoriality of the human right to water that is the most important avenue to approach fulfilling the right. The idea of extraterritorial obligations stems from comportment or effects-driven accountability and is contingent on the element of extraterritorial ‘control' over a right. These ideas are especially pertinent to freshwater due to its special character, as well as the evolving global demography and relations that demand a reassessment of extraterritorial obligations.
Extraterritoriality in law
The meaning of extraterritorial obligations in international human rights law is not self-evident. The most pertinent source for extraterritorial applicability of economic social and cultural rights are the Maastricht Principles on Extraterritorial Obligation of States in the area of Economic, Social and Cultural Rights121. The Principles were drafted to address the influence that foreign actors exert on rights-holders. They define the scope of extraterritorial obligations of states as “a) obligations relating to
119 Ibid, para 38
120 George S McGraw, ‘Defining and Defending the Right to Water and its Minimum Core: Legal Constriuction and the Role of National Jurisprudence’ 8(2) Loyola University Chicago International Law Review (2011) 162
121 Maastricht Principles on Extraterritorial Obligation of States in the area of Economic, Social and Cultural Rights, ETO Consortium, (January 2013) available at
the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and b) obligations of a global character [...] to take action, separately, and jointly through international cooperation, to realize human rights universally.”122 The principles define the jurisdiction as a state having obligations in “a) situations over which it exercises authority or effective control; b) situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory; c) situations in which the State, acting [...] is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law.”123 The contours of jurisdiction particularly of principle 9(b) are a significant step away from traditional extraterritoriality of human rights obligations.
In the context of shared transboundary freshwater, the main extraterritorial human rights obligations, are within the international obligations of General Comment 15.124 These extend from the requirement to recognize the role of international cooperation and to take action for the achievement of the right to water (para. 30), to concrete obligations to respect the enjoyment of the right in other countries by refraining from actions that could interfere with it (para. 31). Paragraph 33 importantly includes the obligation for states parties to prevent their citizens and companies from violating the right to water in other countries. In terms of rights fulfillment, there is the obligation to facilitate the realization in other countries through assistance and aid (para. 34), and general obligations to take the right into account in international fora (para. 35, 36).
The obligations are of course limited in scope and hinge on the elements of ‘respect' and ‘protect', with the exception of paragraph 34, which presents the idea of fulfilling the human right to water extraterritorially, within a defined scope of necessity for the other state. GC15 was nevertheless innovative in its inclusion of irregular subjects, drawing attention to international financial institutions and corporations, whilst keeping the onus on states. Part of the difficulty in creative interpretations of extraterritoriality, of course, is the fact that states in entering into treaties, such as the ICESCR, accept a certain character of obligations which is not
122 Ibid, Principle 8 123 Ibid, Principle 9
towards other states, but rather to their own citizenry. The types of rights which have been enforced transnationally are those whose violation is said to be a concern for the international community or breaches of jus cogens norms. Outside of that context, the principle of sovereign equality bars third states from becoming involved in the domestic affairs of other states. As such, there is a conceptual issue in creating a system where sovereignty is pierced to account for the citizenry of another a state. However, it should be borne in mind that the Limburg Principles state ”States Parties are accountable both to the international community and to their own people”125. If we, therefore, understand that states contracted these human rights treaties to favor every relevant citizen regardless of nationality, it is important to prescribe the character of the obligations that follow.
Beyond GC15 there is a lack of this manner of provisions. Dr. Soboka Bulto argues however that the right should be read into the African Charter on Human and Peoples' Rights126 on account that it is an ‘inspirational and universal’ source.127 He further references the African Convention on the Conservation of Nature and Natural Resources (1968)128. This Convention, on the other hand, does have credible extraterritorial human rights provisions: "(1) The Parties shall [...] (b) prevent damage
that could affect human health or natural resource in another State by the discharge
of pollutants; and (c) prevent excessive abstraction, to the benefit of downstream
communities and States.”129. The final provision states that “(3) Where surface or underground water resources [...] are transboundary to two or more of the Parties, the latter shall act in consultation, and if the need arises, set up inter-State Commissions for their rational management and equitable utilization and to resolve disputes
arising from the use of these resources, and for the cooperative development,
management and conservation thereof.”130 The human rights link in terms of the nature of the convention is vague, though the preamble does ‘recall' the African Charter on Human and Peoples Rights. In the same breath, however, the Convention reaffirms the right to exploit natural resources. It is nevertheless one of the most
125 Supra, (n 108), Part 1 (A)(10) 126 Supra, (n 24)
127 Takele Soboka Bulto, Right to Water in the African Human Rights System, 11 African Human Rights Journal 343 (2011)
128 African Convention on the Conservation of Nature and Natural Resources (adopted 15 September 1968, entered into force 16 June 1969) 1001 UNTS 3
129 Ibid, art. VII(1) 130 Ibid, art. VII(3)(4)
