Conference by Me Zakine

Conference on the Right to Water

Me Zakine - University of Paris Panthéon Assas

November 2022.

Introduction

22 March: World Water Day

1/ State of play
- 3 out of 10 people do not have access to safely managed drinking water services and 6 out of 10 people do not have access to safely managed sanitation facilities.
- At least 892 million people continue to practice open defecation.
- Women and girls are responsible for collecting water in 80% of households without access to water on site.
- Between 1990 and 2015, the proportion of the world's population using an improved drinking water source increased from 76% to 90%
- Water scarcity affects over 40% of the world's population and is expected to increase. More than 1.7 billion people currently live in river basins where water use exceeds availability
- 2.4 billion people lack basic sanitation facilities, such as toilets or latrines
- More than 80% of wastewater from human activities is discharged into rivers or the sea without any clean-up
- Every day, 1,000 children die from easily preventable diseases caused by poor sanitation and hygiene
- About 70% of all water withdrawn from rivers, lakes and aquifers is used for irrigation
- Flooding accounts for 70% of disaster-related deaths caused by natural hazards

Water is an element of universal justice for the satisfaction of the needs of all.

Access to and management of water resources pose crucial challenges. Indeed, even from a global perspective, water is neither an inexhaustible resource nor a zero economic value good.

Most of the available water (nearly 98 %) cannot be immediately consumed or used for irrigation, or even used for industrial purposes, either because of a too high salt content or because it is in the form of ice.

Moreover, the capacity of water reservoirs to replenish themselves (especially in groundwater) is far from matching the ever-increasing rate of their exploitation.
Economic and human rights approaches then meet as the link to other human rights, dignity and equity contribute to the promotion of the right to water.
Interruption, unjustified denial of access to water services, or disproportionate increases in the price of water are considered violations of these rights and the right to water.
Water is not a naturally distributed resource:
- inequality of natural supply ;
- variability of needs, between industrialised and developing countries, or between urban and rural areas;
- Climate change poses challenges for water distribution and uses.
Water must be shared among all nations.

The United Nations has an incentive role and states must develop legislation to ensure that access to water for all is effective.

Today, 40% of the world's population is facing water shortages: drought, floods.

Stop the destruction of waterways, stop the drudgery of water: mobilise solutions, ideas, innovations, investments in infrastructure, increase demands for funds to enable water sanitation

The challenge of climate change makes the challenge of access to clean water even more crucial.
Access to water has become an economic, social and political issue, both at national and international level.
Access to water must be humanised even within an economic approach to water management and sanitation.

2/ The evolution of international law: from international water law to international law on access to water and water management water environment

In the course of the 20th century, international law was progressively called upon to deal with activities other than navigation.

For example, the Convention on the Development of Hydraulic Power Affecting Several States of 1923 and the Convention on the Law of the Non-navigational Uses of International Watercourses, adopted in 1997, took into account economic activities such as hydroelectric power generation and industrial and agricultural uses of water.

The dominant prism of international regulation is therefore that of transboundary watercourses, and the need to take account of national territorial limits in this area remains unavoidable.
Sovereignty thus implies recourse to unilateralism in the management of resources such as water, which is strictly speaking a territorial attribute of the state.
The use and management of water resources is therefore regulated by international water law.

However :

Due to the scarcity of freshwater, it was in the 1970s that this body of international rules began to take into account the environmental protection of this natural resource.

The integration of the environmental dimension in water resources management took off at the 1972 Stockholm Conference ("Final Declaration of the UN Conference").

 La environmental management of water has gone hand in hand with Increased commercialisation of water: water has become an economic asset that needs to be managed sustainably, in the name of sustainable development.

3/ Can the right to access water exist?

What is the right to access water?

The right to water can be defined as the set of rules that determine the legal regime of water, the rights to which individuals may have access and the means that must be implemented to protect the water resource
(J.-L. Gazzaniga, X. Larrouy-Castéra, P. Marc and J.-P. Ourliac, Le droit de l'eau, Litec, 2011, p. 5).

The right of access to water is the right to access reliable and affordable drinking water sanitation services: it must be established as a fundamental right.

For the recognition of an individual human right to drinking water: for universal access to drinking water

I will discuss the following ideas:

1/ the texts that have contributed to the emergence of the right to access to water as a human right

2/ Is it a fundamental, sacred, non-derogable right?

3/ Is it an economic right or a human right? Is there an antinomy or a conciliation?

4/ What is the status of water as a natural resource? Is it a private good, a common good, the heritage of humanity, or a public good? It is very important to ask this question because its status conditions its access.

IV. PROBLEMS

In the logic of economic law, should we not reconcile private management of water with the need to protect the environment? protection access to water, but also between private water management and environmental protection (water is an exploited natural resource, hence the question of environmental protection)?

From this reflection, the question arises as to whether the right of access to water can be effectively and concretely implemented and become a binding, autonomous sanctioned right or one that is linked to other fundamental rights.

The challenge is to find a balance between the different approaches to water: economic, social and environmental approaches to water management.

Water: a good or a service?

What about water in international trade?
Can there be a fundamental human right to access to safe drinking water if states have too much discretion?

Internally: how do states manage water within their borders for fair and equal access?

How do states manage water transfers? Do these transfers exist? Are WTO rules applicable?
In other words, has water entered the field of international trade?

The economic value of water, the reconciliation of access to water for all (non-economic interest) with the economic interests of states or private actors may still allow the concrete application of the international right of access to water in a context where its textual recognition is not in doubt.

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I. The challenges posed by the water issue

Access to water is also an objective of sustainable development: reconciling economic (A), environmental (B) and human interests.

A. Can water be given a status?

1. Water: common good / common heritage: serving the general interest

The economic definitions of water were accompanied by the emergence of non-economic definitions, such as "public good", "human right" and "common heritage of mankind".

So what is the status of water?
Is there only one status?
Is the coexistence of several statuses granted to water possible or impossible?
And is the coexistence of the status of man as a common heritage of humanity, a res nullius, incompatible with the notion of an economic good that could be attributed to water (this question will be studied in II B).

DRINKING WATER, PART OF THE COMMON HERITAGE OF HUMANITY

The poor and needy seek water, and there is none. Their tongue is parched with thirst. I, the God of Israel, will not abandon them. I will bring forth rivers on the hills, and springs in the midst of the valleys. Isaiah, 41, 17-18.
With two books published by the United Nations Development Programme (UNDP) in 1999 and 2003, the debate on the concept of public goods took on a whole new dimension, with the notion of "global public goods".

Using Samuelson's (20th century economist) classic definition, a good is defined as public and global if its exploitation is beneficial to all and if it is "non-excludable" and "non-rivalrous" in its use.

Non-exclusive means that it is costly or impossible for one user to prevent others from using a good. Non-rivalry means that when one person uses a good, they do not prevent others from using it.

From a legal point of view, the notion of public and global good is based on the notion of common goods and on the existence of collective interests in the international community.

Common goods are necessary for the use of all, since they aim to satisfy needs deemed essential by the community: access to water.

The notion of the "common heritage of mankind" in international law aims to go beyond the principle of state sovereignty to assert the common interests of the international community.

States have used this qualification for resources outside their jurisdiction.

Where the resources involved are beyond national jurisdiction, it is sometimes referred to as the "common heritage of mankind" (rivers).

*The qualification of water as a common heritage of humanity is accepted in a few specific legal frameworks:

- The European Charter on Water Resources, adopted by the Committee of Ministers of the Council of Europe on 17 October 2001 to replace the 1968 European Water Charter, affirms that water is a common heritage.

The European Water Charter is the first text from Law to have established the principle :

"Water has no borders, water resources are not inexhaustible; when water is returned to a natural environment after use, it must not compromise subsequent uses; water resource management should be based on natural basins rather than administrative and political borders; this management requires international cooperation

Each human generation holds the earth's resources for future generations and has a duty to ensure that this legacy is preserved and that, when it is used, it is used prudently.

- The Water Charter for the Lake Geneva Region, adopted at the 2005 General Assembly on Water in the Lake Geneva Region, also describes water as a common good of humanity.

 Thus, the notion of property public and global is linked to the right to water.

*As a written legal discipline, International Environmental Law was the first text to consider water as part of the common heritage of humanity:

The environment is initially protected not only for its sanctity, but also in the interest of humanity.

Humanity here refers to past, present and future generations.

According to the Preamble of the World Charter for Nature of 1982, "Humanity is part of nature and life depends on the uninterrupted functioning of natural systems which are the source of energy and raw materials".

International law has also facilitated access to clean water through the Framework Convention on Climate Change.

"The Parties have a responsibility to preserve the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities" Article 3 paragraph 1.

A number of bilateral conventions had already limited this unilateral appropriation of water during the 20th century. Promoting the simultaneous, mutually supportive and responsible use of water, these conventions have created a certain "community of interest", prohibiting, for example, the construction of new infrastructure that would alter the water supplies of riparian countries.

The Rio Grande Waters Convention (In 1906, the United States agreed to a convention on the waters of the Rio Grande flowing into Mexico, organising an "equitable distribution" between the two states) and the New York Convention on the Non-Navigational Uses of International Watercourses (The Convention on the Law of the Non-Navigational Uses of International Watercourses was adopted by the United Nations General Assembly on 21 May 1997) demonstrate this perfectly.

In France, the environmental legislator has made it clear on several occasions that the right to use water is no longer an absolute individual right, in particular through the so-called "fishing" law of 1984 and even more so with the water law of 1992, Article 1 of which includes water resources among the common heritage of the Nation.

2. Water as a public good: also in the public interest

General Comment 15 of the Committee on Economic, Social and Cultural Rights social and Cultural Rights of 29 November 2002 on the right to water begins by affirming that water is a "public good":

"Water is a limited natural resource and a public good; it is essential for life and health. The right to water is indispensable for a dignified life. It is a prerequisite ‡ for the realization of other human rights. The Committee consistently notes that the enjoyment of the right to water is largely denied in both developing and developed countries. More than one billion people lack access to basic water supplies, and several billion people lack access to adequate sanitation, which is the primary cause of water pollution and transmission of waterborne diseases."

Comment 15 sought to highlight the link between the human right to water and the public nature of this resource.

Water is like a common good, a global commons (res communis) which, by its nature, cannot be appropriated.
In this context, water becomes accessible and usable by all.
Only user rights can therefore exist, which the authorities can however regulate:
Article 714 of the French Civil Code states: "There are things that belong to no one and whose use is common to all. Police laws regulate the manner of their enjoyment".

The concept of the public good was systematised by the economist Samuelson in the 1950s, although its historical origins lie in the thinking of 18th century writers such as Adam Smith, who sought to demonstrate the superiority of the 'system of natural liberty' over the 'mercantile system' for the public good.

The concept of public good has no legal meaning of its own in international law; it depends on national law.

According to the definition in the Dictionary of Public International Law, "Public property is property belonging to the State".

The ownership of water as a public good by the state is defined by reference to the domestic law of the state.

The reference to domestic state law is explained by the fact that "customary international law has not established an autonomous criterion for determining what is state property.

Thus, the concepts of public good and public service must be analysed in the light of domestic law.

In the field of water, the collection, distribution and purification services have traditionally been public.

Moreover, the natural public river domain is made up of rivers and lakes belonging to the State.

The existence of a collective interest, of a general interest at the basis of a service is often the element that attributes the "public" character to this service: the water service then becomes a public service accessible to all, characterised by free access and the principle of non-discrimination.

The organisation of drinking water distribution, wastewater and stormwater collection and treatment is the responsibility of the municipalities. The water and sanitation competence of the municipalities is an industrial and commercial public service: managed or delegated to an SPIC (a private operator)

Water is therefore a public good accessible to all, managed by the State as a public service.

3. Water as a public service?

Water should only be appropriated collectively (water belongs to the community, which distributes it among the various users) or individually (each owner can freely use the surface water flowing through or on his land, as well as the groundwater under his land).
Appropriation of a water resource is therefore conceivable, but under the form of numerous limits set by law or even jurisprudence.
The idea of private ownership of raw water has even been recognised by the European Court of Human Rights.
In a famous judgment, it held that landowners suffer moral prejudice for an infringement of their right to enjoy their well water as a drink: "an element of their right as owners of the land" (European Court of Human Rights, Zander v. Sweden judgment, 25 November 1993, Application No. 14282/88, § 27).
Examples: in Mexico as in Canada, there is a strong feeling that water is the property of the nation. In Bolivia, the transfer of the water resource used by the Quechua Indians to a private company in Cochabamba had to be cancelled following a revolt in April 2000 (Courrier de l'Unesco, Dec. 2000).
Private appropriation of water, a common resource, is not acceptable.
The social body or religion often opposes the sale of the raw material "water" as a gift from heaven.
Some companies reject the idea that water distribution can be a source of profit and are hostile to any form of enrichment linked to water services.
They believe that investors or managers cannot make excessive profits on the backs of water users.
In common law, there is an old doctrine of fundamental necessity according to which a monopoly providing an essential service may not charge more than the "fair" and reasonable price (UK, USA, Canada, New Zealand, etc.).
The 'commodification' of water and the characterisation of water as an economic good, private in nature, generally results in the allocation of the water resource to the most profitable uses.
The commoditisation of water runs counter to access to water for all, especially those who cannot afford it.
The sale of water rights can only be conceived after basic needs have been met.
Market logic must not permeate water.

It must be a logic of public good and public service, but never a logic that would lead to the commodification of water.

4. Water as a private good: towards the commodification of water?

Focusing on the economic value of water, the issue of putting a price on water was highlighted as a solution to avoid its wastage.

Thus, for some, the "commodification" of water would be necessary to respond to water scarcity and growing demand.

 Can access to water, human rights and the law of the market work together harmoniously?

Can there be a reconciliation of general interest and private (economic) interests?

- The Protocol on Water and Health (1999) to the 1992 Helsinki Convention adopted under the auspices of the United Nations Economic Commission for Europe:

"Water has a social value, an economic value and an environmental value and should therefore be managed in a way that combines these different values in the most sustainable and acceptable way possible.

- The launch in March 2017 of the International Decade for Action on Water and Sustainable Development 2018-2028 will help the international community move towards achieving access to water for all:

A natural resource at the service of life (human right) that must be managed correctly (intrinsic objective of sustainable development) and taking into account the economic interests of certain economic actors and the State.

Is water a good that can be appropriated and therefore commodified?

The notion of "commodity" refers to a "movable thing that can be traded, a market": bottled water.

- The legal regime of international trade does not grant water a specific status, but new trends are nevertheless contributing to its being subject to international trade rules.

Since the 1990s, there has been a trend in international law to explicitly recognise the economic value of water, and several legal instruments emphasise an exclusivist approach to its qualification as an economic good.

For example, Principle 4 of the Dublin Statement on Water for Sustainable Development of January 1992 states that "water, used for multiple purposes, has an economic value and should therefore be recognised as an economic good".

Large-scale water transfer projects: water could be considered a commodity by states.

THE ISSUE OF BULK WATER TRANSFERS

International bulk water transfers can be described as bulk water withdrawals by one state, the contents of which are transferred to another through a canal or pipeline diversion.

In recent decades, bulk water transfer projects by sea have been added to these hydraulic engineering projects. These international transfers can be carried out by different actors, both state and non-state: interstate treaties or international contracts that involve private companies.

Water now has a price.

With respect to the application of NAFTA to water, these three governments stated in 1993: NAFTA does not create any rights to the natural water resources of any Party. [... Water in its natural state in lakes, rivers, reservoirs, aquifers, watersheds, etc. is not a commodity or product, is not sold in commerce, and therefore is not and has never been subject to the terms of any trade agreement.
(Declaration of the Governments of Canada, the United States and Mexico on Water Resources and NAFTA, 1993)

If water is considered as such, then the WTO multilateral agreements, including the General Agreement on Tariffs and Trade (GATT), which governs goods, and the General Agreement on Trade in Services (GATS), which governs services, would apply.

We will examine the limitations imposed by these two agreements on water management.
The existence of monetised transfers of water in bulk between states reinforces the logic of water as a commodity.
Exchanges are already taking place in the form of inter-state treaties or through international contracts that may include private companies, all against the background of a price for water.
In addition, there is a specific entry point for the inclusion of water in the WTO trade regime, that of 'environmental goods and services': members have proposed the inclusion of water services in this.
Some states have recalled the right to safeguard their public policy objectives (universal service, quality of service).
And the GATS preamble provides for "the right of Members to regulate the supply of services in their territory and to introduce new regulations in this respect in order to meet national policy objectives".
The leeway given to states will allow them to sign international bulk water transfer contracts.

Yet some people refuse to do so:
For example, the 2000 framework directive states that water "is not a commercial good like any other but a heritage that must be protected, defended and treated as such".
In 2008, the European Parliament stated that "water is essential to life and is a common good that should not be reduced to a mere commodity".
The 1992 Dublin Convention on Water for Sustainable Development prescribes a similar approach: because water has an "economic value", it should be "recognised as an economic good"; but it is also "essential", the text continues, to "recognise the fundamental human right to safe water and adequate sanitation".
Ultimately, the United Nations Conference on Environment and Development (Rio, 1992) allows states and international or regional organisations to make it a commodity: "integrated water resources management is based on the idea that water is a natural resource and a social and economic good".

The current climate change crisis will certainly accelerate this process

B. Water management and the environment

Enhancing natural resources: an effective way to access drinking water

Reconciling the management of this natural resource with environmental protection: reconciling economic management in the name of the general interest with environmental protection

Responsible and sustainable water and wastewater management is needed.

Directive 98/83/EC on the quality of water intended for human consumption (HWC) is a relevant legal tool to ensure the quality of HWC in the European Union. The objective of this Directive, as set out in its Article 1, is to "protect human health from the adverse effects of contamination of HWW by ensuring that it is wholesome and clean".

New drinking water directive published on 23 December 2020:

- improving access to water for all (Article 16 of the Drinking Water Directive)
Directive based on Article 192(1) TFEU, which provides a framework for voting on the management of water resources, a provision which refers to Article 191 TFEU:
" 1. Union policy on the environment shall contribute to the pursuit of the following objectives :
- the preservation, protection and improvement of the quality of the environment,
- the protection of human health,
- prudent and rational use of natural resources".

II. From the recognition of a human right to its concrete application

Preliminary question: the right to water: a natural right?
1/ Natural law is independent of the positive law in force, which, according to the theorists of legal positivism, is the only standard to be respected.
The proponents of natural law consider that natural law is a collection of immutable principles discovered by reason, based on the nature of the human being and not on the social reality of his time.
In this sense, natural law would not necessarily be enforceable because it may happen that a society has not regulated them.
The term "enforceability" refers to the rights that an individual can assert against the authorities: we will return to the concept of the right to a claim in II B.
This makes it possible to imagine a right to water and sanitation as a natural right, it is irrefutably a thing of the past. common to everyone, based on the nature of human beings, who cannot survive without water.

A. Is the emergence and recognition of a right to ..... sufficient?

1. The different conventional and legal frameworks

The right to water and the right to sanitation are fundamental human rights, implicitly or explicitly recognised in several international and regional treaties and in the domestic law of some states.

1.1. The European framework

Directive 98/83/EC on the quality of water intended for human consumption (HWC) is a relevant legal tool to ensure the quality of HWC in the European Union.

The objective of this Directive, as set out in Article 1, is to "protect human health from the adverse effects of the contamination of HWCs by ensuring that they are safe and clean".

New drinking water directive published on 23 December 2020 in the Official Journal of the European Union: improving access to water for all (article 16 of the drinking water directive)

The directive also addresses the issue of access to water for all, in response to the European Citizens' Initiative, by placing obligations on Member States to put in place measures, including identifying those without access to drinking water and the alternatives available to them, and promoting the use of drinking water in public places.

But taking into account the necessary reconciliation between access to water

The actors of the international right of access to water :
States
NGO

1.2. The international framework

UN: normative incentive role: leading role played by the UN
The UN General Assembly recognised access to safe water and sanitation as a human right on 28 July 2010 in resolution 64/292:

"Recognizes that the right to drinking water and sanitation is a human right, essential for the full enjoyment of life and the exercise of all human rights.

The international right of access to water is derived from the right to life as well as being essential to life.
It is therefore based on this sacred and inalienable right, as well as contributing to its effective implementation and to the implementation and exercise of other rights such as the right to health.

But it was the recognition of this right already integrated with other rights:

- The UN Committee on Economic, Social and Cultural Rights (CESCR) already expressed itself clearly on this issue in 2002;

- Human Rights Council resolutions on human rights and access to safe drinking water and sanitation, including resolutions 7/22 of 28 March 2008 and 12/8 of 1 October 2009, on the right to safe drinking water and sanitation,

- General Comment No. 15 (2002) of the Committee on Economic, Social and Cultural Rights on the right to water (Articles 11 on the right to an adequate standard of living and 12 on the right to health of the International Covenant on Economic, Social and Cultural Rights),

- the report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments and the report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation;

Since 1977, the right to water has been proclaimed in several intergovernmental declarations.

In particular, the Dublin Declaration (1992) considers it "essential to recognize the basic human right to safe water and adequate sanitation at an affordable price.

The Hague Ministerial Declaration on Water Security in the 21st Century set the objective :

The aim is to ensure "access for all to sufficient, safe and affordable water for a healthy and productive life".

It recognises that access to water and sanitation are "basic human needs essential for health and well-being".

The Ministers also agreed to take into account "the basic needs of the poor and most disadvantaged". Although the word right does not appear in the adopted text, it is clear that governments have a responsibility to ensure that "basic" needs are met. Correspondingly, every person has a right to have this met for a limited amount of water.

- Right to life

- Right to human dignity

- The right to hygiene

- The fight against poverty

- Right to participation and information: Aarus Convention: The right to water includes issues of public participation and access to information. Individuals must be able to participate in the decision-making process and have equal access to information held by public authorities or third parties concerning water, water services and environmental protection.

- The fight against health crises

The first explicit recognition of the right to water at the international level was at the United Nations Water Conference in Mar del Plata in 1977. At this conference, states declared that "all peoples, irrespective of their stage of development and their economic and social situation, have the right to have access to drinking water in a quantity and quality equal to their basic needs.

The UN resolution cites numerous texts:

- Universal Declaration of Human Rights: Article 25

- The International Covenant on Economic, Social and Cultural Rights

- The International Covenant on Civil and Political Rights
Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which enshrines the right to life,

- The International Convention on the Elimination of All Forms of Racial Discrimination

- Report of the United Nations Conference on Environment and Development, Rio de Janeiro 3-14 June 1992,

- Report of the United Nations Conference on Human Settlements (Habitat II), Istanbul, 3-14 June 1996

- Report of the United Nations Water Conference, Mar del Plata, 14-25 March 1977

- Report of the United Nations Conference on Environment and Development, Rio de Janeiro,

- The Convention on the Elimination of All Forms of Discrimination against Women: States Parties must ensure that women living in rural areas have the right to "the enjoyment of adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply" (Article 14, § 2)

- Convention on the Rights of the Child: States Parties must combat disease and malnutrition through "the provision of adequate nutritious foods and clean drinking water, taking into account the dangers and risks of environmental pollution" (Article 24(2)).

- The Convention on the Rights of Persons with Disabilities

- The Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949

- In the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women, States have committed themselves to ensuring access to safe drinking water for women (Article 15) and to regulating the management, processing, storage and disposal of domestic waste (Article 18). In the African Charter on the Rights and Welfare of the Child, States have committed themselves to taking the necessary measures to ensure the provision of safe drinking water for children (Article 14, paragraph 2).

Since then, the right to water has been defined as "the right to sufficient, physically accessible and affordable water for personal and domestic uses".

In 2002, the Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the ICESCR, adopted General Comment No. 15, in which it defined the right to water and the corresponding obligations of states.

In General Comment 15, the Committee on Economic, Social and Cultural Rights began by recognising that the right to water is a fundamental human right protected by the Covenant.

For the Committee, "the right to water is indispensable for a dignified life. It is a precondition for the realisation of other human rights. It is a precondition for the realisation of other human rights.

In 2002, on the eve of the International Year of Freshwater, the Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the ICESCR, adopted General Comment No. 15, in which it defined the right to water and the corresponding obligations of states.

The Committee went on to define the right to water as the authoritative definition in international law today: the right to water is "the right to an adequate, physically accessible and affordable supply of water of acceptable quality for personal and domestic uses".

The Committee also emphasised the importance of access to sanitation, stating that "guaranteeing access to adequate sanitation is not only fundamental to respect for human dignity and the right to health, but it is also a prerequisite for the full enjoyment of all human rights. privacyIt is also one of the main ways to protect the quality of drinking water supplies and resources.

International action by water agencies to promote access to safe drinking water and water sanitation.

Nevertheless :

In this general comment, however, the Committee did not specify that the right to sanitation was an autonomous right.

The International Court of Justice in turn took up this idea of "community of interest" in its own jurisprudence (Corfu Channel case (United Kingdom v. Albania) of 9 April 1949), suggesting that the emergence of a certain form of inter-state solidarity limiting sovereignty over water resources would facilitate access to them for people.

However, a casuistic study of these judgments shows that the ICJ does not grant any real autonomy to the right to water. It merely relates it to the human right to the environment and to the universality of human rights.

Simply referring to human needs, these texts do not create any obligations for the signatory states, nor do they create any subjective rights for individuals (Articles 10§1 and 2 of the so-called New York Convention on the Use of International Watercourses).

The launch in March 2017 of the International Decade for Action on Water and Sustainable Development 2018-2028 will help the international community move towards achieving access to water for all.

Sustainable Development Agenda 2030

Autonomous right or right linked to other fundamental rights?

***

The crucial question that arises from this set of texts is whether the international right of access to water is an autonomous right that does not need to be linked to other human rights in order to be recognised.

Would making it an autonomous right have an impact on the practical application of this human right?

For if we ask ourselves whether the right The reason why the international right of access to water exists is not just to answer the question of whether there are texts that provide a framework and set out this right, but above all to find out whether this international right of access to water can be applied effectively and concretely throughout the world.

B. For a concrete application of an autonomous right

Action programme, objectives....

But a goal is worthless if you don't keep it.

Is the coexistence and interdependence of human rights that has allowed the emergence of a human right of access to water exclusive of the recognition of an autonomous international right of access to water?

The emergence of an international right of access to water depends on the concrete and effective application of this right by each State, within the framework of democratic governance.

QUESTIONS :

Reference to Part I A) 4° :

Is access to water a human right subject to market forces?

Won't the international right to water affect the interests of the water market?

Does this submission to the law of the market necessarily compromise the concrete application of the international right of access to water?

What if the need for the right to access water, which is based on the right to life, the right to human dignity and the prohibition of inhuman and degrading treatment, could be reconciled with the law of the market?

Should water remain outside the logic of the market?

In other words, what if it were possible to reconcile economic and non-economic interests?

Concrete measures:

The obligation to respect the right to water implies that states should not interfere with the enjoyment of the right to water: negative obligation

For example, states are prohibited from interrupting water service, distributing unsafe water, or disproportionately or discriminatorily increasing the price of publicly managed water: both positive and negative obligations

Positive obligations :

The obligation to protect the right to water implies that states must prevent more powerful third parties, such as transnational corporations, from interfering with the right to water.

For example, states will have to monitor water quality, protect the most vulnerable from water pollution by industrial pollution, or from the increase in the price of water distributed by a private company.

The obligation to fulfil the right to water requires States to take positive steps to facilitate the right to water of their population and to provide water, particularly in times of drought.

Prohibition of discrimination :

The obligation to ensure that the right to water is enjoyed without discrimination and equally between men and women implies that States must combat de jure and de facto discrimination in access to water.

For example, states should put in place policies to ensure equal access to water for discriminated women and children, people living in remote rural areas, refugees, asylum seekers etc.

Territorial obligations :

The right to water, like other human rights, also implies extraterritorial obligations for states. For the Committee on Economic, Social and Cultural Rights, states must respect the enjoyment of the right to water in other countries; they must take steps to prevent their own nationals or companies under their jurisdiction from violating the right to water of individuals.

IS CONCILIATION ONLY POSSIBLE IF WATER REMAINS A COMMON OR PUBLIC GOOD?

The impossibility of making water a private good

What if water is given private status? In other words, what if water remains in the hands of private actors? Can the international right to water be implemented in a concrete and effective manner?

There would be a shift from water as a res nullius (a thing without a master) to private property, an object of appropriation.

If this is the case, the international right of access to water can never be realised in practice.

It will remain at the stage of recognition and inclusion in the texts.

The commodification of this common good must be fought.

Question already raised:

WTO and NAFTA: Whether water resources management should involve inclusion in international economic governance mechanisms, such as the World Trade Organisation (WTO) and the North American Free Trade Agreement (NAFTA)

For some, this inclusion could contribute to rational and sustainable water management; for others, the idea of subjecting water to commercial agreements would be tantamount to selling this resource to private companies and making it an object of competition, to the detriment of states and their populations.

Example of possible drift: "Water war in the Tarn": Danone, owner of the Slaveta water brand, wants to drill for underground water: farmers fear being deprived of their source

Does the factory have the right to tap into the groundwater?

Why are private companies allowed to exploit this water? Doesn't this go against the status of water as a common good or public good?

Why does the state allow public water to be privatised?

Some answers

- Water management should be privatised, not the water resource

However :

Despite the recognition of the economic value of water, practice shows that the economic aspect of this natural resource does not tend to prevail over its social, environmental and cultural dimensions.

Furthermore, in the case of the large-scale transfer of water mentioned above, states are rather reluctant to consider water as a commodity to which a price could be attributed.

ACCESS TO WATER MUST BE MADE A POSITIVE OBLIGATION OF THE STATE: ECONOMIC EFFICIENCY AND ETHICS MUST BE RECONCILED

This refers to the 2010 UN resolution:

"Calls upon States and international organizations to provide financial resources, capacity-building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe drinking water and sanitation services that are accessible and affordable to all.

- The need for a right to water: We are moving from freedom of access to water to a right to water claimed by citizens.

Article 210-1 of the Environmental Code: no bill aimed at the effective implementation of the right to water has been passed.

Freedom of access to supply services and the right to claim because, as the management and supply systems are managed by private companies, the population must be able to benefit from them, without limit or discrimination: we are therefore straddling a freedom and a right to claim

The law creates multiple obligations for public authorities to implement a legal system to protect water resources.

They are also obliged to intervene to facilitate access to safe water and to rural areas cannot deprive users of this source of water which is necessary in many countries.

Universal public water service: whatever the form of management of the water service (public service, leasing, concession) and the role of private companies in this service, the public authorities are obliged to exercise control over the water service and to lay down the obligations arising from this public service: concrete application of the right of access to water.

They should consider water quality, sanitation levels, continuity of service, shortage management, content of specifications, pricing, user participation and financing of works, extension and rehabilitation. They can also play a useful role in informing users and developing their commitment to not wasting water.

Some examples of state obligations:
- improving the availability of quality drinking water
- protection of drinking water wells and springs; - protection of network catchment areas;
- prevention of drinking water resource depletion ;

- protection of the microbiological and chemical quality of the water supplied; - improvement of service continuity;
- extension of the distribution and sewage networks ;
- installation of public water points, public wells and fountains, public washing places and free hygiene and health areas
- self-closing taps in public places; baths/showers
- individual water supply, water purification, water reuse and recycling systems;
- water distribution in individual tanks and other intermediate methods ;
- promoting low-cost measures to make water safer;
- creation and implementation of new supply and sanitation technologies adapted to developing countries;
- rainwater harvesting and use ;
- use of individual or group sanitation systems; - emergency supply and mutual aid in case of shortage or disaster;
- emergency food in case of unpaid bills due to poverty ;
- Reduction of water loss and waste
- monitoring, maintenance and repair of networks, reduction of leaks; - connection control
- flow limiter to prevent cut-offs.
- repair of leaking sanitary installations, especially in low-rent housing;
- installation of water-saving devices and appliances that use less water;
- consumer information, awareness of water waste and expenditure.
- better technical and economic management of the networks (fight against leaks) ;

- Banning excessive water prices: ethics, equality, a vital resource

PUBLIC OR PRIVATE WATER MANAGEMENT AND SANITATION SYSTEMS

- Is this in conflict with the international right of access to water? NO, if states manage the water resource to allow access by all.

Water management is a public service: public sanitation service

- The right of access to water then becomes a contractualised right, but is this antithetical to the right of access to water as a human right?