Nowadays more than 1.2 billion people are without access to sufficient, economically affordable and safe drinking water. Apart from that, 2.6 people lack access to basic sanitation. 2.4 people, of which a large majority are children, die yearly by diseases transmitted through water.(1) Yet the main reason of the fact that the basic needs of many people throughout the world remain unsatisfied is not a lack of water but the inappropriate and wrong water management policies.
When we look back into history we see that the early civilizations formed and prospered along the banks of rivers.In the considered periods it is assumed that human activities were in terms of intensity and variety on such a low level that it is almost incomparable to nowadays and neither amount nor quality of water raised any concern. However, following the industrial revolution and in particular in the period after 1950, as an excessive growth in population and urbanization coincided with an excessive use of water and the need to provide water which meets demands both in terms of quality and quantity serious problems emerged. In fact, from 1970 on this issue has also become subject of discussion on an international level.
In this context we can recognize different approaches towards the use of water in the period following the Industrial Revolution which is characterized by both an increase in water demand of households and population growth. In fact in all of the following approaches, i.e. the commodity approach, the public service approach, the community/local approach and the social/human rights approach, the water user is defined in a different way. In the public approach the citizen is regarded as the water user, in the commodity approach as the consumer or user and in the community / local approach as the member of the community.(2)
Based on the human rights approach instead water is discussed within the concepts of human and social rights. According to this approach access to sufficient, affordable and clean water is regarded as a basic human right. Thus states and other actors are obliged to secure this basic right. The basic document of this view is General Comment no 15 of the Committee which is constitued on UN Declaration on International Economic, Social and Cultural Rights.(3)
Although this issue had been discussed at various international meetings and congresses previously, the establishment of water as a basic human right based on an international document is a rather new development. However compared to several communiqués and final ministeral declarations issued on international conferences, stating water as a basic human right, none of themtacles the isuue As a basic human rightand got legally binding as much as the General Comment of the Committee.
As the U.N. Committee for International Economic, Social and Cultural Rights declared water access to be a human right in accordance to the General Comment No.15 issued on November 26, 2002, it thereby referred to paragraphs 11 and 12 of the International Covenant on Economic, Social and Cultural Rights signed in 16 December 1966. Paragraph 11 of the covenant mentioned above emphasizes the basic human right on adequate food, clothing and housingand obliges contracting states to take any necessary measures to implement this right. However, Paragraph 12 promotes the basic right to safeguard physical and mental integrity.
Although the right on water is not explicitly mentioned in paragraphs 11 and 12, the expression “adequate standard of living” in the first article of paragraph 11 constitutes a part of the legal foundation of the right on water. However the right on “physical and mental integrity” as safeguarded by paragraph 12 also contributed to the legal foundation on which the term right on water is based on.
Yet in this context not only the definition but also the content of this right is of essential importance. As a matter of fact the U.N. Committee for International Economic, Social and Cultural Rights highlighted four basic elements in the definition of this right. While availability, quality and accessibility form the first three elements the fourth element is based on the idea of equal access in order to prevent positive discrimination against people which are in a weaker position in socio-economic point of view.
National and International Obligations
In the third part, starting with paragraph 17 of the General Comment issued by the Committee in 2002, on regard to the obligations imposed on states a distinction between national and international obligations is drawn. In fact national obligations are subdivided into three topics, namely: obligations to respect, obligations to protect and obligations to fulfill.
Besides the national obligations imposed on all contracting states there are also international obligations. The Committee emphasized that all contracting states must abstain from any measures which hamper the access to water for people of other countries, increase contamination of water resources or decrease the overall amount of water. Another obligation related to this obliges contracting states to ensure that their citizens refrain from any actions which impair the right on water for people in other countries.
Furthermore, paragraph 32 of the Committee’s general statement obliges contracting states to refrain from using water as a political or economic tool for embargos or similar sanctions.
Dimensions of the Legal Concept “Right on Water”
In the Universal Declaration of Human Rights ratified on 10.12.1948 by the U.N. General Assembly a distinction is made between two different human rights. The first one encompasses civil rights and freedoms, while the second one encompasses economic, social and cultural rights. However the legal binding of the declaration is rather limited in terms of international law. Bearing in mind that there is no control mechanism envisaged in the declaration, the U.N. Nations relies solely on the genuine will of its member states to recognize and implement these rights.(4) However many countries, including Turkey just published the Human Rights Declaration, instead of ratifing such as treaties.(5) In order to rectify this situation the U.N. General Assembly intended to safeguard these rights with the adoption of two covenants on 16.12.1966. These both covenants were the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. On regard to international law, both covenants impose obligations on contracting states.
According to some studies on this topic the right to live, which is legally bound by the Covenant on Civil and Political Rights as well as the right to development and the right on an acceptable living Standard, as legally bound by the Covenant on Economic, Social and Cultural Rights imply implicitly the right on water. Yet this claim is far from being accept since it requires the explicit mentioning in an international treaty to be legally binding and thus be implemented.(6) In the Convention on the Elimination of All Forms of Discrimination Against Women, signed in 1979, as well as in the Convention on Children Rights, signed in 1989, we can find references on water. In paragraph 14 of the Convention on the Elimination of All Forms of Discrimination Against Women an emphasis on equality between men and women on regard to sanitation, electricity and water supply is made.(7) but it is impossible to reach water rigths concept by this article. In paragraph 24 of the Convention on Children Rights the obligation to provide clean drinking water in order to prevent the spread of infectious diseases is regarded as a state obligation.(8) Yet the right on water is not uttered explicitly in this agreement. Although major steps have been taken in both conventions on the way to recognizing the right on water they are far from sufficient. However, in the General Comment No. 15 issued by the U.N. Committee for International Economic, Social and Cultural Rights in 2002 the right on water is regarded as a precondition to enable other human rights. However this paragraph which explicitly mentions the right on water is not legally binding. Bearing in mind that the decisions made by the U.N. General Assembly are also not binding, yet, It can be said, that a comment issued by the Economic and Social Council, which was convened by the United Nations, is as binding as the decisions made in the U.N. General Assembly resolutions itself.
On 28 July the UN General Assembly adopted a resolution recognizing the right to water and sanitation as a human right according to resolution A/RES/64/292. The UNGA resolution was adopted by a vote of 122 countries in favor, none objecting and 42 abstaining. The United States, Israel, Japan, Great Britain, Sweden and Turkey were found among the abstaining countries.(9) In spite of the essential importance of this resolution to establish the right on water as a legal concept, it needs further treaties to safeguard this right.
(1) WHO & UNICEF , Meeting the MDG Drinking Water and Sanitation Target: A Mid-Term Assesment of Progress, Geneva, 2004.
(2) Langford, M.“The United Nations Concept of Water as a Human Right: A New Paradigm for Old Problems?”, International Journal of Water Resources Development, 21(2), 2005, pp.275-282.
(3) CESCR (Committee on Economic, Social and Cultural Rights):The Right to Water,General Comment No. 15, 20 January 2003, E/C.12/2002/11, Genova.
(4) Pazarcı, H. Uluslararası Hukuk Dersleri II. Kitap, Ankara: Turhan Kitabevi, 1996, p.196.
(5) ibid., p.200.
(6) Abu-Eid, A. “Water as a Human Right: The Palestinian Occupied Territories as an Example”, International Journal of Water Resources Development, 23(2), 285-301, 2007, p. 289.
(7) United Nations, "Convention on the Elimination of All Forms of Discrimination Against Women”,1979. http://www.un.org/womenwatch/
(8) United Nations, "Convention on the Rights of Child", 1989,