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The Human Right to Water: Significance, Legal Status and Implications for Water Allocation PDF

377 Pages·2012·3.19 MB·English
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THE HUMAN RIGHT TO WATER The United Nations General Assembly and the Human Rights Council recognised the human right to water in 2010. This formal recognition has put the issue high on the international agenda, but by itself leaves many questions unanswered. This book addresses this gap and clarifies the legal status and meaning of the right to water through a detailed analysis of its legal foundations, legal nature, normative content and corresponding State obligations. The human right to water has wide-ranging implications for the distri- bution of water. Examining these implications requires putting the right to water into the broader context of different water uses, and analysing the linkages and competition with other human rights that depend on water for their realisation. Water allocation is a highly political issue reflecting societal power relations, with current priorities often benefitting the well-off and powerful. Human rights, in contrast, require prioritising the most basic needs of all people. The human right to water has the potential to address these underlying structural causes of the lack of access to water rooted in inequalities and poverty, by empowering people to hold the State accountable to live up to its human rights obligations and to demand that their basic needs are met with priority. The Human Right to Water Significance, Legal Status and Implications for Water Allocation Inga T Winkler OXFORD AND PORTLAND, OREGON 2012 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Inga T Winkler 2012 Inga T Winkler has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available Also available in German libraries (D61) ISBN: 978-1-84946-283-9 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall To my Dad, who loved books Foreword Catarina de Albuquerque As economic, social and cultural rights increase in importance, attention and visibility, it is vital that this recognition is accompanied by strong legal scholarship that can elucidate on the meaning of these rights, extend- ing our understanding of their contents, strengths but also their limits. This is particularly true for the right to water, as a right that has been recently recognised by the United Nations General Assembly and the Human Rights Council, and which is still in the process of finding its place in States’ constitutions and legal framework, but also in national strategies, plans of action and jurisprudence. To be meaningful, the implications of the right to water in terms of pol- icy and practice must be clearly defined, so that governments can priori- tise and allocate water and other resources in a manner that respects the right to water. Inga Winkler’s careful research and analysis in her book on The Human Right to Water: Significance, Legal Status and Implications for Water Allocation is thorough and well-balanced, providing comprehensive elaboration of the issues that States need to address in considering how to prioritise and allocate water resources, particularly in those situations where water resources are scarce or contested. This book considers the inequalities that exist in access to water resources, and the human rights implications of these, particularly exam- ining the societal power relations, reflected in access to water. Political prioritisation of water resources aligned with the human rights frame- work will ensure that the necessary financial means will be found, partic- ularly given the strong economic, social and health benefits of ensuring access to water for all. In this comprehensive legal treatment of water as a human right, Inga Winkler stems the misconception that a lack of access to water is due to water scarcity, making the point that where States prioritise and allocate water resources in alignment with human rights requirements, the full realisation of rights is within reach. Inga Winkler’s careful consideration of all the human rights claims on water use, from needs for water for survival, to core needs and full reali- sation of all rights that require water to be realised is instructive and engaging. This book, while it focuses on the requirements for personal viii Foreword and domestic use as defined by the human right to water, is not narrow in its recognition of the need for water to realise other rights, including inter alia the right to food, the right to work or cultural rights. The analytical framework that she brings to the prioritisation of water resources could also usefully be applied to other resources required to fulfil human rights, and this is therefore an important addition to the canon of literature on economic, social and cultural rights. Hence, the work done by Dr Winkler is invaluable in further defining both the limits and the vision of the right to water, and contributes greatly to our understanding of this newly recognised right. Finally, the issue of allocation of water for different uses while ensuring respect for human rights is one I have been frequently confronted with in my work as Special Rapporteur – both while on country missions, or when faced with concrete situations brought to my attention by alleged victims of violations of this human rights. Hence, academic research in general, and this book in particular, is of significant interest and provides a value added to my work as Special Rapporteur. Catarina de Albuquerque United Nations Special Rapporteur on the human right to safe drinking water and sanitation Acknowledgements This book is based on my doctoral thesis, for which the bulk of research was carried out between January 2006 and April 2009. The thesis was sub- mitted to the Faculty of Law of the Heinrich Heine University Düsseldorf in August 2010, and defended in December 2010. Recent legal and politi- cal developments were taken into account in preparing the book for pub- lication until October 2011. First of all, I would like to thank Prof Dr R Alexander Lorz for supervis- ing my thesis and for giving me the necessary freedom in developing this research while always being available for discussion. I could always count on his support, even for unusual ideas and approaches. Special thanks are also due to Prof Dr Lothar Michael for preparing his review so quickly. This book could not have been written without the support of a great number of people. During the course of this research, I benefitted greatly from a stay at the Faculty of Law at the University of Stellenbosch, South Africa, and would like to thank Prof Sandra Liebenberg and Prof André van der Walt, as well as Elmien du Plessis and Phephelaphi Dube for wel- coming and hosting me. Likewise, I am grateful for the practical insights gained during my internship with the Water Governance Programme of the United Nations Development Programme in New York, and in par- ticular for discussions with Susanne Schmidt, when it all started. I also owe thanks to the Heinrich Böll Foundation, and in particular to Jutta Helm, which supported me with a scholarship throughout the PhD period. Apart from financial support, I am grateful for the facilitation of interesting discussions and exchanges with other students and research- ers through countless workshops and seminars. I would also like to thank the Friends of Faculty of Law in Düsseldorf for their support through awarding me their thesis award. I am further indebted to the library staff at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg for their ready assistance. Moreover, I would like to thank Andrea Kämpf, Anna Oehmichen, Lena Partzsch, Katrin Winninghoff and Anna Zimmer for reading, commenting on and discussing various parts of the manuscript. The same thanks go to Lucinda O’Hanlon, Virginia Roaf and Catarina de Albuquerque – you cannot imagine how much our discussions contributed to the develop- ment of this book. I thank my mum, Edeltraud Winkler, and my sister, Edda Lintz, for their unconditional support to follow my interests in my career and for their constant interest in what I was doing. My husband, Björn Lüssem,

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In 2010, the United Nations General Assembly and the Human Rights Council recognized the human right to water. This formal recognition has put the issue high on the international agenda, but, by itself, leaves many questions unanswered. This book addresses this gap and clarifies the legal status and
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