Un grave error del gobierno de Álvaro Uribe Vélez

As noted previously, the right to water has been recognised in a wide range o f international human rights documents, including treaties, declarations and other standards,161 although the explicit codification o f water as an independent human right is limited to the CEDAW and the CRC. Therefore, in the main treaty provision concerning the right to water has been based upon implicit provisions, such as those contained within the ICESCR. Within the International Bill o f Human Rights162 there is no mention o f water. However, it is possible that if the framers o f the International Bill o f Rights had realised that water was to be such a scare resource in the future,

161 S ee Introduction.

they would have explicitly codified the right within these instruments.163 As such, with the exception o f the two relatively recent conventions noted above, the right to water has been recognised implicitly, that is under articles that refer to directly related rights contained within the ICESCR 1966, such as an adequate standard o f living, food and health.164 Despite the lack o f explicit wording concerning water, the CESCR has interpreted Article 11 on an adequate standard o f living and Article 12 on health as including water implicitly. Article 11(1) states:

The State Parties to the present Covenant recognize the right o f everyone to an adequate standard of living for himself and his family, including

adequate food, clothing and housing and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization o f this right, recognizing to this effect the essential importance o f international cooperation based on free consent.

It is against this provision that the Committee drafted and adopted the GC 15 on the Human Right to Water, which will be examined shortly.

It may also be argued that the ICCPR165 implicitly provides for a right to water under Article 6 (1), the right to life. Conversely however, it has been contended that to include the right to water is too broad an interpretation o f the right to life itself.166 In addition, common article 1(2) of ICCPR and ICESCR 1966 provides that ‘in no case

163 G leick. P, ‘The Human Right to W ater’, in Water P olicy. V o l l , N o . 5 , 1999, p p .4 8 7 -5 0 3 a tp .5 0 1 . 164 S ee D anieli et al in G leick, 1999, p.492.

165 A dopted on 16th D ecem ber 1966, entry into force 2 3 rd March 1976. R atified b y 156 state parties ( 6 signatories rem aining) as o f 1st M ay 2 0 07.

See Y. D instein, ‘The Right to Life, Physical Integrity and L iberty’ in L. H enkin (ed) The International B ill o f R ights - The C ovenant on C ivil and P olitical R igh ts. N e w York: C olom bia U niversity Press, 1981, p p .l 14 -137 at p .l 15. See further d iscussion, p.75.

may a people be deprived o f its own means o f subsistence’ which must, for survival, include water.

Furthermore, the UDHR 1948 can be seen to implicitly include a right to water under several provisions including inter alia, Article 3 the right to life and security and Article 25 the right to a standard o f living adequate for the health, and well-being o f

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himself and his family. Moreover other explicit rights guaranteed by both the

Covenants and the UDHR, cannot be guaranteed without water. 168

Finally an implicit right to water can be found under Article 5 (e) o f the International Convention on the Elimination o f All Forms o f Racial Discrimination 1966,169 which guarantees the right o f everyone, without distinction to the enjoyment o f economic, social and cultural rights, in particular, the right to social services (including water services) and housing (which to be considered adequate must ensure availability o f clean and sufficient water).

In more recent treaties however, the right to water has been explicitly worded in provisions, although it remains a part o f provisions concerning other substantive human rights, rather than a substantive right in its own sense. The two human rights instruments that include these explicit provisions are the CEDAW 1979 and the CRC 1989.

167 This m ay be significant as part i f not all o f the U D H R constitutes custom ary international law . See further d iscussion Chapter 2, p. 106.

168 G leick, 1999, p.490.

169 Hereinafter referred to as C ER D. A dopted on 2 1 st D ecem ber 1965, entry into force 4 th January 1969. R atified by 170 state parties (6 signatories rem aining) as o f 1st M ay 2 0 0 7 .

Article 24, paragraph 2, o f the CRC requires States parties to combat disease and malnutrition ‘through the provision o f adequate nutritious foods and clean drinking- water’. Even though this provision constitutes an explicit codification o f the right to water, it is far from comprehensive. The CRC’s provision relates only to certain

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aspects o f water: that o f quality and quantity. It does not provide for the accessibility dimension of water. Furthermore, the provision is framed in relation to the right to health, rather than as an independent right to water. Alvarez notes, ‘Within this context, water is seen as part o f the measures needed to ensure the right to health. Nevertheless, it is important to highlight that the article makes some distinction between food and water, assuming that the right to water is not the same subject as the right to food’.171 This framing o f the right to water as different from the right to food or health, but not an entirely separate and independent right is a concept that arises throughout current human rights provisions concerning the right to water. Consequently, this blurring of boundaries with related rights is problematic and will

172 be examined within this chapter.

The provision under the CEDAW 1979, frames the right to water within the right to an adequate standard of living, as in the ICESCR. However, it has the notable addition o f the explicit inclusion of water supply and sanitation:

State parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis o f equality o f men

170 O therw ise know n as availability w ithin GC 15. It d oes not include a ccessib ility o f water. m A lvarez in Piccolotti and Taillent, 2 0 0 3 , p .5.

and women, that they participate in and benefit from rural development and, in particular, shall ensure to women the right: [...]

(h) To enjoy adequate living conditions, particularly in relation to housing,

sanitation, electricity and water supply, transport and communication.173

Unfortunately, this provision is in relation to women in rural areas alone. As such it is narrow in its application and excludes many women living in urban areas who have a problem with accessing clean and sufficient water.

In sum, the provisions noted above constitute the present legal codification o f the human right to water174 and it is clear that there are several problems with the current codification o f the right. Although international human rights and international law bodies have concluded that a right to water already constitutes an integral part of

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recognised human rights provisions, it is evident that the right to water as codified within these instruments ‘remains imperfectly defined.’ Lack o f explicit wording under the ICESCR has subsequently led to a lack o f clarity as to the right’s status and content. Furthermore, only partial aspects o f the right to water are recognised within the CRC and CEDAW. Thus, current provisions regarding the right are not fully comprehensive and require clarification in some manner. Consequently, the right to

173 C E D A W , A rticle 1 4 (h ).

174 M ost recently the right to w ater has been further cod ified in the U N C onvention on Persons w ith D isab ilities 2 0 0 6 (U N G A A /61/611 6 D ec 2 0 0 6 ) generally under A rticle 28 A dequate Standard o f L iving and ex p licitly in para.2 (a) equal access to clean w ater services but this treaty is not yet in force, having opened for signature in March 2 0 07.

175 See Introduction for sources. In addition see European C ouncil on E nvironm ental Law M adeira D eclaration, April 1999, in Sm ets. H, ‘The Right to Water as a Human R igh t’, Environm ental P olicy and Law V ol. 30, Issue 5, 2 0 0 0 , pp.248 -2 5 1 at p.248 and R eidel. E, Statem ent on D ay o f General D iscu ssion on the General C om m ent on the Right to Water, U N C ESC R 29™ Session , N o v 2 0 0 2 . 176 Scanlon et al, 2 0 0 3 , p. 18.

water holds a ‘unique status’ within international human rights law. This unique status arises from water not being explicitly listed within the ICESCR.

However, despite the lack o f clarity with regard to the formal codification o f the right to water, recent developments in treaty law do illustrate an increased concern about access to sufficient and safe water. Moreover, a right to water has been established as a derivative right i.e. reliant on the right to water’s relationship to other economic and social rights and a moral obligation has been established. Thus notwithstanding this background o f uncertain status, violations of the right to water by states have been determined.177 Because o f these increasing violations and due to increased attention on access to safe and sufficient water and sanitation, for example with the UN Year o f Freshwater 2003 and the UN World Summit for Sustainable Development, taking

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place in Johannesburg, South Africa, the Committee on Economic, Social and

Cultural Rights decided to draft and adopt a General Comment specifically on the right to water. This would offer guidance to assist states in realising their obligations correlative to the right by clarifying the right’s content and setting standards o f application. This culminated in November 2002 with the adoption o f the GC 15.179

177 GC 15, paragraph 5 notes that the right to water has been con sisten tly addressed b y the C om m ittee during its consideration o f States parties’ reports, including identification o f violation s. For exam ple, see the C ESC R C oncluding O bservations on Second Periodic State Report o f Israel 2 3 /0 5 /2 0 0 3 , paragraph 25 and further exam ples listed at p.69, note 236.

Hereafter referred to as W SSD , w hich took place from 2 6 th A ugust - 4 th Septem ber 2 0 0 2 .

179 It is interesting to note that during the process o f drafting and adoption o f the GC 15, the C E SC R m et w ith several international organisations, non-governm ental organisations and individuals for a day o f general discu ssion , fo llo w ed by several days o f m eetings, both open and closed . In all there w ere 130 am endm ents to the original draft General C om m ent. T hese w ere subm itted by com m ittee m em bers, as w ell as by non-governm ental organisations, international a gen cies, academ ics and U N Special Rapporteurs. It w as also a tim ely event, as it w as the U N Y ear o f Freshw ater and the U N W orld Sum m it for Sustainable D evelop m en t (W S S D ) had just taken place in Johannesburg, South Africa.