A UN Right to Water Convention - Barlow

[Oscar]

Briefing Note to the Canadian Friends of the Right to Water:
A UN Right to Water Convention - An Idea Whose Time Has Come

Maude Barlow - November 2006

Introduction

All over the world, groups who are fighting for local water rights are championing an international instrument on the right to water. Increasingly, the demand is for a United Nations Convention that would serve as a model for nation-state constitutions. While grassroots struggles for water security will continue to be the most important part of the global water justice movement, it is becoming more clear that a proactive goal to unite the movement is crucial.

For the past 15 years, the World Bank and the other regional development banks have promoted a private model of water development in the global South. This model has proven to be a failure. High water rates, cut-offs to the poor, reduced services, broken promises and pollution have been the legacy of privatization. One important new study has confirmed that this experiment has actually led to a net reduction in water development in the global South as northern governments and the banks have assumed that the private sector would bring in new investments, a promise that never materialized.

At the 4th World Water Forum in Mexico City this past March, the UN cited the failure of privatization and called for governments to re-enter the water services arena. Calls for a UN Convention to re-assert the crucial role of government in supplying water to the poor increased dramatically at the Forum and new impetus was given to this campaign.

Why a UN Convention?

The fact that water is not now an acknowledged human right has allowed decision-making over water policy to shift from the UN and governments toward institutions and organizations that favour the private water companies and the commodification of water. These institutions include the World Bank and other regional development banks, the World Water Council, the Global Water Partnership and the World Trade Organization.

Not only have these institutions vigorously promoted the interests of the private water companies in the global South, they have ceded much political control over water policy to them. In fact, the study Pipe Dreams by Public Services International and the World Development Movement, reported that the big water transnationals actually influence decision-making around which communities and countries will receive water services.

Many nations-state governments have gone along with this trend, allowing creeping privatization with little or no government oversight or pubic debate.

Behind the call for a binding instrument are questions of principle that must be decided soon as the world's water sources become more depleted and fought over:

· Is access to water a human right or just a need?

· Is water a common good like air or a commodity like Coca Cola?

· Who is being given the right or the power to turn the tap on or off - the people? Governments? Or the invisible hand of the market?

· Who sets the price for a poor district in Manila or La Paz - the locally elected water board or the CEO of Suez?

The global water crisis cries out for good governance; good governance needs binding, legal bases that rest on universally applicable human rights. Above all, it calls for the political will to act.

It is also crucial to note that, because the operations of these global water companies and the financial institutions that back them are now global, nation-state instruments to deal with water rights are no longer sufficient. International laws are needed to control the global reach of the water barons.

At the RIO Summit, key areas were targeted for action; since that pivotal event, conventions on climate change, biodiversity and desertification have all been accomplished. But water, which was targeted as a priority area, has been neglected.

What is the Practical Use of a Convention?

Would a convention on water solve the world's water crisis? Of course not. But it would set the framework of water as a social and cultural asset, not an economic commodity. As well, it would establish the indispensable legal groundwork for a just system of distribution.

A convention on the right to water would serve as a common, coherent body of rules for all nations and clarify that it is the role of the state to provide clean, affordable water to all of its citizens. Such a convention would also safeguard already accepted human rights and environmental principles.

It would also set principles and priorities for water use in a world destroying its water heritage. The convention we envisage would include language to protect water rights for the earth and other species and would address the urgent need for reclamation of polluted waters and an end to practices destructive of the world's water sources.

A human rights convention or treaty imposes three obligations on states:

The Obligation to Respect, whereby the state must refrain from any action or policy that that interferes with the enjoyment of the human right;

The Obligation to Protect, whereby the state is obliged to prevent third parties (such as corporations) from interfering with the enjoyment of the human right; and

The Obligation to Fulfil, whereby the state is required to adopt any additional measures directed toward the realization of that right.

At a practical level, a right to water convention gives citizens a tool to hold their governments accountable in their domestic courts and the "court" of public opinion, as well as seeking international redress.

(In Canada, the decision by the new government to back away from Canada's previous commitment to the Kyoto Accord has become highly contentious and given environmentalists in Canada and around the world a powerful tool with which to criticize the government. Had Kyoto not existed, the fight for good climate policy in Canada would be much more difficult.)

A convention could also include specific principles to ensure civil society involvement to convert the UN convention into national law and nation action plans. This would give citizens an additional constitutional tool in their fight for water.

Where is the Process Now?

The right to water has been recognized in a number of important international resolutions and declarations at the UN over the past decade. These include the 2000 General Assembly Resolution on the Right to Development; the 2004 Committee on Human Rights resolution on toxic wastes; and the May 2005 statement by the 116-member Non-Aligned Movement on the right to water for all. Recently, Evo Morales, the new President of Bolivia, called for the right to water to the Community of South American Nations. He has received a very favourable response from at least a dozen countries.

Most important is General Comment No. 15, adopted in 2002 by the UN Committee on Economic, Social and Cultural Rights that recognized that the right to water is a prerequisite for realizing all other human rights and for leading a life in dignity. General Comment No. 15 is an authoritative interpretation of the International Covenant on Economic, Social and Cultural Rights and an important milestone on the road to a full binding UN convention.

In October of this year, several countries presented a resolution to the newly formed UN Human Rights Council requesting the Office of the High Commissioner for Human Rights to conduct a detailed study on the scope and content of the relevant human rights obligations related to access to water under international human rights instruments, including recommendations for future action.

The countries that proposed this resolution are: Belgium, Costa Rica, Cuba, Cyprus, Ecuador, Estonia, France, Germany, Greece, Guatemala, Italia, Luxembourg, Malta, Nigeria, Panama, Peru, Portugal, Romania, Slovenia, Spain, Switzerland, Cameroun, and Bolivia. (Not all are members of the Council.) Also believed to be supportive are Spain, Brazil, Finland, New Zealand, Norway, South Africa, Uruguay and Venezuela.

Countries that are likely to oppose or who have serious reservations include India, the UK, Canada, the US, China, Egypt, and Australia. The next step is that the Council will vote on the resolution - perhaps as early as during its next session at the end of November - and can then appoint a Special Rapporteur which could then lead to a full formative resolution and an eventual convention on the right to water.

Support among civil society groups around the world is growing rapidly and we are collecting the names of these groups for reference in the near future. For instance, a right to water convention has been adopted by Red Vida, the network of grassroots groups fighting for water justice all through the Americas.

Are There Countries that Might Champion a Strong Convention?

There is a fear among many grassroots groups that our movement has been too successful and that success may lead to a compromised convention.

Until recently, the global institutions and the big water companies opposed a right to water convention. So did the European countries such as France and Germany who are home to the big water companies. However, the momentum for a right to water instrument is growing around the world and it is clear it cannot be stopped.

So the position of the World Bank and the World Water Council has shifted. There is now an understanding that the call for the right to water is an idea whose time has come and those who opposed it until very recently have decided to help shape it so that the private sector is not excluded. A proposal by Green Cross International, for example, is in great favour in some circles as it includes the water corporations as "stakeholders" and promotes private financing of water projects in the global South. (See Blue Planet Project web site for a critique of Green Cross draft convention.)

This has given civil society great cause for alarm, as it is very concerned that a convention that would protect the rights of corporations in the delivery of water would be worse than having no convention at all. Certainly, grassroots groups in the global South would never support a compromised instrument of any kind.

So civil society has been looking for a small number of nations from the global South and the global North to spearhead a more strongly worded resolution that would not only confirm that water is a public trust, but that water services should be delivered by governments on a not-for-profit basis. The two obvious first choices are Norway, which has announced it will no longer support any World Bank water project that imposes privatization as a conditionality, and Bolivia, which has had terrible experiences with private water companies and is determined to return to public oversight of its water systems.

The hope is that, working with the global water justice movement, these two countries will begin a process to develop this instrument and enlist the support of other nation-states to a more strongly worded convention. Discussions with both governments are underway and meeting a great deal of interest.

It is crucial to find a group of countries that would champion a strongly worded convention as well as address two shortcomings inherent in current human rights conventions: that is, it must bind international institutions and corporations and establish enforcement measures that provide effective remedies for individuals and communities denied their right to water. Further, our convention must make it clear that, where there is a conflict between the human rights articulated in a UN instrument and the corporate rights inherent in trade agreements, UN-sanctioned human rights will prevail.

What is Canada's Position?

The government of Canada, under the Chrétien/Martin Liberals and now under the Harper Conservatives, shamefully opposes the right to water at the UN. Canada was the only one of 53 countries to vote against appointing a special rapporteur on water at 2002 meeting and reacted negatively to the recent October 2006 resolution to the Human Right Council to conduct a study on the right to water. Canada expressed concern over the reference in the resolution to General Comment No.15, asking that it be removed. It is widely understood at the UN that Canada is clearly opposed to any articulation of the right to water. In fact, in July 2006, the UN Committee on Economic, Social and Cultural Rights rebuked Canada for its position on the right to water, saying it "regretted" Canada's continued opposition and called on Canada to review its stand.

The official reason given by the government of Canada for this strange position is that a convention might force Canada to share its water resources with the world, and particularly cites the growing demand for water in the United States. This is patently untrue; it has been repeatedly pointed out to Canadian authorities that a UN human rights convention establishes obligations on a state toward its own citizens. Nothing in a convention would force Canada to share its water, especially with a wealthy nation. Canada's position is rendered doubly troubling as it has included water as a tradable "good" in NAFTA, which means that if the commercial export of water to the US were to be commenced, Canada would have limited authority over its water supplies in the future.

Perhaps this is the real reason the government of Canada is refusing to adopt a favourable position on the right to water even though a 2004 Ipsos-Reid poll showed that 97% of Canadians support the right to water. A declaration that water is a right and therefore, by extension, cannot be traded or sold, would violate the NAFTA contention that water is a commodity like running shoes or cars. Perhaps successive Canadian governments do not want to cut off their opportunity to make money from Canada's water resources in massive commercial exports to the United States.

Whatever the reason, Canada's continued opposition to the right to water is an international embarrassment and a disgrace. It is for this reason that a group of Canadian organizations have come together to put pressure on our government to change its position and to support efforts at the United Nations and around the world for an idea whose time has come - a UN convention on the right to water.

Maude Barlow, November 2006

I would like to acknowledge the excellent work of Rosemarie Barr of the Swiss Coalition, Ashfaq Khalfan of the UN Centre on Housing Rights and Evictions, and John Scanlon, Angela Cassar, and Noemi Nemes of the World Conservation Union for background material for these notes.

[Oscar]

World Water day 2009: over thirty years of procrastination

From: Joan Russow
Sent: Sunday, March 22, 2009 10:34 AM

World Water day 2009: over thirty years of procrastination. PEJ news Joan Russow (PhD) Global Compliance Research Project

Years of commitments to ensure right to water and sanitation; to prevent transboundary pollution, and to ban bulk water exports.

When there was an opportunity to finally implement the commitment made in 1977 to recognize the right to safe drinking water and sewage treatment, the Commission failed.

And when in 1992 at UNCED, numerous commitments, including the transboundary principle, to conserving and protecting water were made, still there has been procrastination.

www.PEJ.org

YEARS OF COMMITMENTS AND OBLIGATIONS

RIGHT TO SAFE DRINKING WATER

Mar del Plata (1977)

In 1977, in Mar del Plata an international action plan was developed and member states of the United Nations agreed that "all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs". As a result of this conference, in 1981 the United Nations launched the the International Drinking Water Supply and Sanitation Decade. The target of the decade was to provide safe drinking-water and sanitation to underserved urban and rural areas by 1990.

Convention on the Rights of the Child (1985)

Under Article 24 of the Convention on the Rights of the Child all signatories of the Convention incurred the obligation to provide clear drinking water. Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.

Unfortunately, as is often the case, the United States is not a signatory to this Convention, and as a result, interferes internationally with the application of this Convention.

TRANSBOUNDARY PRINCIPLE

Rio Declaration

Principle 2 Transboundary Principle

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Non-transference of harmful substances and Activity Principle (Principle 14)

States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.

Precautionary principle (Principle 15)

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

[At the March 1993 Prep Com leading up to UNCED, the US attempted to prevent the adoption of Principle 2 and claimed that it was the same as Principle 15. The Chair of the conference said to the US that they were not fooling anyone, and the US backed off. There is obviously an important distinction between the two principles: Principle 2 refers to actions, impacting on another state, which results from actions carried out in an adjacent state; while Principle 14, refers to actions carried out in non-adjacent states]

These three principles combined should have seriously addressed the issue of transboundary water pollution and the transfer to other states of substances and activities that would contribute to water pollution in a non-adjacent state.

COMMITMENTS TO CONSERVATION AND PROTECTION OF WATER, TO ADDRESSING POVERTY AND HEALTH ISSUES

Agenda 21, UNCED

The Commitment to safe drinking water and conservation of water was reaffirmed in 1992 at the UN Conference on Environment and Development in Chapter 18 of Agenda 21.

Fresh water
• ... The most outstanding of these efforts was the launching in 1981 of the International Drinking Water Supply and Sanitation Decade, which resulted from the Mar del Plata Action Plan adopted by the United Nations Water Conference in 1977. The commonly agreed premise was that "all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs". 2/ The target of the Decade was to provide safe drinking-water and sanitation to underserved urban and rural areas by 1990, but even the unprecedented progress achieved during the Decade was not enough. One in three people in the developing world still lacks these two most basic requirements for health and dignity. (Chapter 18: protection of the quality and supply of freshwater resources:18.4)

Every member state of the United Nations made commitments to provide safe drinking-water and sanitation in not only in Chapter 18 (Fresh Water) of Agenda 21, but also in the following Chapters.

Combating Poverty
• To Provide the poor with access to fresh water and sanitation
Government with the assistance of and in cooperation with appropriate international, non-governmental and local community organizations should establish measures that will directly or indirectly Provide the poor with access to fresh water and sanitation (Chapter 3: Combating Poverty 3.8)

Demographic dynamics and sustainability
• To give special attention ... to critical resources, such as water and land, and environmental factors, such as ecosystem health and biodiversity. (Chapter 5: Demographic dynamics and sustainability 5.23.)

Protection and promotion of human health
• To develop and strengthen primary health care system....that meet basic health needs for clean water (Chapter 6 Protection and promotion of human health 6.5. a i)
•To provide health and hygiene education and to ensure universal access to safe drinking water and universal access to sanitary measures of excreta disposal, thereby markedly reducing waterborne diseases such as cholera and schistosomiasis and reducing: (Chapter 6: Protection and promotion of human health6.12 e)
• to apply methods for the prevention and control of communicable diseases including water supply and sanitation control, water pollution control, food quality control, integrated vector control, garbage collection and disposal and environmentally sound irrigation practices
(Chapter 6: Protection and promotion of human health 6.13.(d)
• To develop appropriate water pollution control technologies on the basis of health risk assessment;
(Chapter 6 Protection and promotion of human health 6.41. i)
• To promote the integrated provision of environmental infrastructure: water, sanitation, drainage and solid-waste management (Chapter 6: Protection and promotion of human health 6.41(d)
Promoting sustainable human settlement development
• To [recognize that] the sustainability of urban development is defined by many parameters relating to the availability of water supplies, air quality and the provision of environmental infrastructure for sanitation and waste management.

(Chapter 7: Promoting sustainable human settlement development:
• To develop national goals for sustainable management of waste, and implement environmentally sound technology to ensure that the environment, human health and quality of life are protected. (Chapter 7: Promoting sustainable human settlement development 7.39)
• to promote [through Settlement infrastructure and environmental programmes designs] an integrated human settlements approach to the planning, development, maintenance and management of environmental infrastructure (water supply, sanitation, drainage, solid-waste management) (Chapter 7: Promoting sustainable human settlement development 7.39)
• to strengthen [environmental infrastructure] with the assistance of bilateral and multilateral agencies. (Chapter 7: Promoting sustainable human

FUNDING FOR THE PROVISION OF SAFE DRINKING WATER AND SEWAGE TREATMENT

Chapter 33 of Agenda 21

In Agenda 21, there was an itemization of what it would cost to implement the global commitments. This annual estimate was a fraction of what is being spent on the global military budgets. In Chapter 33 of Agenda 21, a firm commitment was made to reallocate military expenses.

However, the right affirmed in 1977, and the target in the decade devoted to International Drinking Water Supply and Sanitation Decade to provide safe drinking-water and sanitation to underserved urban and rural areas by 1990 was never attained. The reaffirmation of this goal in 1992 at UNCED was ignored.

In 2000, rather than seriously addressing the health and environmental consequences of the failure to ensure the right to safe drinking water and sewage treatment, the United Nations established the following millennium target:

PREVENTING BULK WATER EXPORTS

Convention on Biological Diversity

One of the principal objectives of the Convention is the conservation of biological diversity.

In the preamble. there is affirmed the precautionary principle:

“ where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. . "

Bulk water exports would be a threat of significant reduction or loss of biological diversity.

Most member states of the United Nations have signed and ratified the Convention on Biological Diversity.

At the UN Conference on the Environment and Development the US refused to sign the Convention. However subsequently during the Clinton administration the Convention was signed. While the US has not ratified the Convention under Article 18 of the Vienna Convention on the Law of Treaties, In the interim between the signing and the ratifying of the Convention, nothing should be done to defeat the purpose of the Convention One of the purposes of the Convention is the conservation of biological diversity and to ensure the conservation of biological diversity the precautionary principle must be invoked.

Given that Biodiversity does not respect human-made boundaries, biodiversity can be perceived to be a matter of national concern.

It should be noted in the case of Canada, at the October 1992 meeting , in Alymer Quebec, of provincial environment ministers, that a resolution was passed to call upon the Federal Government to ratify the Convention on Biological Diversity; the Convention was then ratified in December 1992.

As a result of being a matter of national concern, of being negotiated with full consultation with the Provinces, the provinces are all bound by the convention.

MISSED OPPORTUNITY OF TRANSLATING YEARS OF RHETORIC INTO ACTION

Sadly at the meeting of the Commission on Human Rights, when there was an opportunity to finally implement the commitment made in 1977 to recognize the right to safe drinking water and sewage treatment, the Commission failed. And subsequently now in 2009, the rhetoric is still not translated into action.

[Oscar]

US State Department on the right to water

Monday, March 30, 2009 5:37 AM

Last weekend, Environment Minister Jim Prentice stated on CBC News that Canada does not support water as a human right because, “You get into difficult questions such as do countries that have access to water have a legal obligation to export it to countries that don’t. Clearly, it’s a
complex issue.”

Now the Environmental News Service reports on US opposition to the recognition of the human right to water. ENS reports that, "The U.S. delegation (to the World Water Forum in Turkey), led by Daniel Reifsnyder, deputy assistant secretary of state for environment and sustainable development, took the position that 'there is at present no internationally agreed right to water or human right to water, and there is no consensus on what such a right would encompass,' according to State Department spokesman Andy Laine."

ENS reports, "The Ministerial Declaration was not open to negotiation at the World Water Forum as negotiations on the statement were concluded at a preparatory meeting held in Paris on March 3 and 4. Laine told ENS that during the preparatory process the United States did oppose language that would have recognized water as a human right."

Lane said, "The United States does not oppose any government adopting a national right to water or sanitation as part of its own domestic policy. We do, however, have concerns with a statement that would require all countries to adopt a national right to water or sanitation or would establish an international right to water or sanitation. Establishing an international right to anything raises a number of complicated issues regarding the nature of that right, how that right would be enforced, and which parties would bear responsibility for ensuring these rights are met. To date, there have been no formal intergovernmental discussions on these issues. It would therefore be premature to agree to such a right."

There is some hope in all this. It is our understanding that these State Department officials are still George W. Bush appointees, and have not yet been replaced by the Obama administration.

The full article is at
http://www.ens-newswire.com/ens/mar2009 ... -27-03.asp

To read the Council of Canadians critique of the Harper government's position on the right to water, please go to our campaign blog at
http://www.canadians.org/campaignblog/?p=259

Brent Patterson,
Council of Canadians
Ottawa