The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?

Abstract

Not until the UN Committee on Economic, Social and Cultural Rights’ (CESCR) General Comment (GC) No. 15 on the human right to water has access to drinking and sanitation water been authoritatively defined as a human right. The CESCR carved the right to water out of other related rights, an approach that has been criticised as ‘revisionist.’ Some argue that the CESCR invented a ‘novel’ and non-existing right in a way that goes beyond state practice in its attempt to remedy a gap which states should have filled through treaty amendment. This article argues that the CESCR has articulated a pre-existing right that had prior autonomous existence, if latent in the International Covenant on Economic, Social and Cultural Rights (ICESCR). It also suggests that the CESCR approach to the analysis of the human right to water has grounded the right on a narrowly defined legal basis, as it limited its analysis to the mainstream human rights regime. The article contends that a meaningful analysis of the normative basis of the human right to water should read the ICESCR in conjunction with rules and principles of environmental law and international water law. The combined use of the three legal regimes reveals that the right is not as much novel as a ‘discovery’, as it has been recognised in the relevant rules of international treaties and has been supported by an ever increasing state practice.

Keywords: human right to water, Covenant on Economic, Social and Cultural Rigts, Committee on Economic, Social and Cultural Rights, General Comment 15, international water law, soft law, treaty interpretation, teleological interpretation, drinking, sanitaion, watercourses law, non-navigational uses, rivers