Beyond State Sovereignty: The Human Right to Water

Abstract

International legal regulation of water resources traditionally operates from the perspective of the state and, in line with general legal doctrine regarding natural resources, hinges on the parameters of territoriality and state sovereignty. However, in recent times the problem of freshwater management is approached increasingly through the prism of human rights law. The shift from the state to the individual as a starting point in international law-formation is undoubtedly a powerful trend in legal doctrine and in legal discourse. A separate question is whether a human right to water at this point in time can be said to exist as lex lata in the positivist sense. The purpose of this article is to examine whether indeed a universal human right to water can be construed, notably on the basis of international treaty law. The analysis focuses on Article 6(1) of the International Covenant on Civil and Political Rights and on articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights. The authors conclude that a substantive human right to water is implied under articles 11(1) and 12(1) ICESCR, and subsequently address the normative implications of such a right, the nature and scope of corresponding state obligations, and general aspects of its implementation at the international and the domestic level.