The Right to Water as a Human Right or a Bird's Right? Does Co-Operative Governance Offer a Way Out of a Conflict of Interests and Legal Complexity?

Abstract

The right to water has been recognised as a human right under various international human rights instruments. These legal instruments primarily focus on access to safe drinking-water, disregarding the need to wetlands designated under the Ramsar Convention. In theory, the principle of reasonable and equitable use and the concept of common river basin management, as laid down in the Convention on the Law of the Non-navigational Uses of International Watercourses, offer a way out of this potential conflict. However, these theoretical concepts are not easy to implement in practice. A vast amount of legal rules applies to any given area: international law, regional law (EU, SADC), national law and local or provincial law in all countries involved, not only on water, but also on other issues such as environmental protection. National legislation should regulate the balancing of the various interests involved, especially the right to water and the duty to protect aquatic ecosystems.

A co-operative governance approach, where all relevant stakeholders together try to figure out how the available water is to be reasonably and equitably shared, is an important mechanism to achieve an outcome that is acceptable for all. To achieve such an outcome, the stakeholders temporarily withdraw from the legal specifics and focus on the main principles of the relevant international law. Although often successful at first, the process may run into legal complexity once the carefully reached agreements are to be consolidated into legal decision-making at all levels of government, in all countries involved.

Keywords: right to water, governance, human rights, Ramsar convention, river basin management