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

377 Pages·2012·3.19 MB·English

by  Inga T Winkler

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
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© 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.
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Also available in German libraries (D61)
ISBN: 978-1-84946-283-9
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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,