International Organizations and the Right to Water:  Realization, Resistance or Repackaging?

With increased recognition of the critical role it plays in international development, lately there has been growing international movement to recognize access to water as a basic human right. This is visible in national constitutions, legislation and case law,1 as well as General Comment No. 15. Issued in 2002, by the UN Committee on Economic, Social and Cultural Rights, General Comment No. 15 recognizes the right to water as being included within Article 11 (the right to an adequate standard of living) and Article 12 (the right to health) of the International Covenant on Economic, Social and Cultural Rights.2
Much of the literature in this area focuses on the authoritative basis for recognizing water as a human right.3 There is little research that goes beyond strict legislative or judicial analysis to see how right to water standards are actually being translated into practical reality.4 This paper offers insights into this issue by looking at how the UN agencies view, use and interpret the international right to water. (It forms part of a larger three-year, socio-legal empirical investigation into the interpretation of the international right to water by the UN agencies, international NGOs, and transnational corporations involved in water service delivery.)

Through employment of a two-dimensional research methodology, consisting of documentation review and in-depth interviews, this paper asks how the international right to water, as articulated in General Comment No.15, is being interpreted across the UN agencies.5 (The interpretation of the non-discrimination and affordability standards are looked at in specific detail as these two standards are most distinctive of a rights-based approach and often pose the greatest challenges for disadvantaged communities to overcome in order to attain adequate access to water.) In short, by looking at how the UN agencies are affected by, and shape emerging legal (or quasi-legal) standards,6 this paper will contribute to our understanding of the overall international standard setting process, as well as the influence of the international order’s contribution to the actual implementation of the emerging human right to water.

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1 See eg Constitution of the Republic of South Africa 1996 s 27(1)(b); Constitution of Uganda 1995 art 14; Menores Comunidad Paynemil s/accion de amparo (Argentina) Expte 311-CA-1997 Cámara de Apelaciones en lo Civil, Nequen 19 May 1997 1997 .

2 UNCESCR (29th Session) ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights - General Comment No. 15 (2002) - The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’ (11-29 November 2002) UN Doc E/C.12/2002/11.

3 See eg S McCaffrey 'A Human Right to Water: Domestic and International Implications' (1992) 5 Georgetown Intl Envtl L Rev 1; P Gleick 'The Human Right to Water' (1999) 1(5) Water Policy 487; COHRE Legal Resources For the Right to Water: International and National Standards (COHRE Geneva 2004); S Salman and S McInerney-Lankford The Human Right to Water: Legal and Policy Dimensions (World Bank Washington 2004).

4 In general, there is a lack of socio-legal analysis, including that based on empirical work, in the study of human rights (S Halliday and P Schmidt (eds) Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Oxford 2004)).

5 The UN agencies examined include the World Bank, the United Nations Development Program (UNDP), the World Health Organization (WHO, the United Nations Children’s Fund (UNICEF), the United Nations Human Settlements Program (HABITAT) the United Nations Environment Program (UNEP), and the Office of the High Commissioner on Human Rights (OHCHR) .

6 Although General Comment No. 15 is not actually legally binding, it is generally considered authoritative, and the extent to which this legal validity matters for the acceptance of norms as authoritative standards of conduct is looked at as part of the empirical research.