Transcript Slide 1

Water Issues, Climate Change and Globalization in
International Law
By,
Laura Westra, Ph.D., Ph.D.(Law)
Professor Emerita (Philosophy)
University of Windsor
Sessional Instructor, Faculty of Law
Sessional Instructor, Faculty of Law, University of Milano (Bicocca)
Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University
E-mail: [email protected]
Website: www.ecointegrity.net
Introduction: Legal Instruments and
Administrative Law
By a vote of 122 in favour, to none against with 41 abstentions, the General
Assembly today adopted as orally revised a resolution calling on States and
international organizations to provide financial resources, build capacity and
transfer technology, particularly to developing countries, in scaling up efforts to
provide safe, clean, accessible and affordable drinking water and sanitation for all.
(Sixty-fourth General Assembly Plenary, 108th meeting, 28 July, 010, General Assemby Adopts Resolution, Recognizing
Access to Clean Water, Sanitation; http://www.un.org./News/Press/docs/2010/gal0967.doc.htm, p.1)
Even if we accept the importance of the above to States, there are two vital
considerations that are not clarified in the passage (1) States are not the only
institutions with the power to affect water availability to all; and (2) it is not only positive
action that is necessary on the part of “states and institutions”.
Critical Comments
For instance Egypt’s concern was “the resolution establishing the Office of Internal
Oversight Services (OIOS)” and its stipulation that “there would be ‘no monopoly’ on
senior posts by nationality or states”. (ibid. p.2) As well, the “African Group”, which was
already sorely underrepresented at the senior management level was concerned about
the imbalances present in the document, thought it required more consultation.
The representative of Bolivia noted that despite references to various instruments such
as CERD, the human right to water and sanitation (doc.A/34/L.63/Rev.1) “had not been fully
recognized”. (ibid. p.3) The representative from the United States pointed out that “neither
the Assembly, nor the Geneva process had yet considered fully the legal implications of
a declared right to water”, hence the US called for a vote and “would abstain from
voting”. (ibid., p.5) Brazil’s representative acknowledged that “the right to water and
sanitation was intrinsically connected to the right to life, health, food and adequate
housing”.
(ibid.)
Critical Comments-2
The Millennium Development Goals were mentioned by several countries including
Norway, Columbia, France, Japan, Russia, Cuba and Nicaragua. The Netherlands
pointed out that not enough responsibility had been placed on the obligations of States,
while Switzerland had proposed that language on the right to water and sanitation
should have been included in binding international instruments, but did not succeed.
Finally, Venezuela emphasized the importance of water as a life-necessity, and
“emphatically rejecting its transformation into a commodity”, while Palestine’s
representative welcomed the document, as he noted that “Palestinians were only
allowed access to 10 per cent of their own water”; as well, he “called on Israel to
comply with international obligations to ensure access to water, as well as its other
international obligations. (ibid., p.9)
The United Nations General Assembly and General
Comment No. 15
Recalling resolution 8/7 of 18 June 2008, in which the Council established the
mandate on the Special Representative of the Secretary-General on the issue of
human rights and transnational corporations and other business enterprises,
……………………………………
2. Recalls General Assembly resolution 64/292 of 28 July 2010, in which the
Assembly recognized the right to safe and clean drinking water and sanitation as a
human right that is essential for the full enjoyment of life and all human rights;
3. Affirms that the human right to safe drinking water and sanitation is derived from
the right to an adequate standard of living and inextricably related to the right to the
highest attainable standard of physical and mental health, as well as the right to life
and human dignity.
(p.2.)
Water and the Millennium Development Goals
This brief document repeats the Commitment of the international community to achieve
the Millennium Development Goals expressed in the UN Millennium Declaration, that is
“…to halve, by 2015, the proportion of people unable to reach or afford safe drinking
water and to halve the proportion of people without access to basic sanitation…”.
(ibid., p.2 )
However, it does not clarify the fact that as 884 million people lack access to improved
water sources”, according to the WHO, and the United Nations Children’s Fund 2010
Joint Report, and that 1.5 million children, 0-5, die every year, because of “water and
sanitation-related diseases” (ibid.), thus huge real numbers of people and children continue
to remain under grave threat, as the promised altered “proportion”, even if achieved, does
not establish sound and precise number goals.
The Human Right to Water: Procedural and
Administrative Law Aspect
…an analysis of human right to water (HRW) in terms of global administrative law
(GAL) assists in explaining its potential application in such disparate doctrinal
areas of law as international water resource law, international environmental law,
and international investment law as well as in national public and constitutional law.
(McIntyre Owen, 2011, “The Human Right to Water and Global Administrative Law: Mutually Supporting Concepts?” in
Westra, L., K. Bosselmann and Colin Soskolne eds, Globalisation and Ecological Integrity in Science and International Law,
Cambridge Scholars Press, Newcastle-upon-Tyne, UK (in press) p.1)
In contrast with the doubts expressed above regarding procedural rights, a well-known
scholar on the legal aspects of the human right to water, considers global governance
through administrative law as an important, perhaps even as a primary aspect of
human rights law regarding water. The argument he proposes is based on the fact that
“such global governance can be understood as administration”, that is, based on
administrative law principles.
(Kingsbury, B., Kirsch, N., Stewart R.B., and Wiener, J.B., 2005, “Global Governance
as Administration National and Transnational Approaches to Global Administrative Law” 68/ 3 & 4 Law and Contemporary Problems
1, at 2)
Global Administrative Law (GAL)
In support of GAL, Kingsbury lists some general principles of “public law” which he deems
capable of channeling some normative content with the ability to “constrain political power”:
(i) The Principle of Legality – requiring that actors within a power system are constrained to
act in accordance with the rules of the system;
(ii) The Principle of Rationality – requiring the justification of decisions, including that
decision-makers give reasons and produce a factual record for decisions;
(iii) The Principles of Proportionality – requiring a relationship of proportionality between
means and ends;
(iv) Rule of Law – requiring particular deliberative and decisional procedures; and
(v) Human Rights – requiring protection of human rights values which are intrinsic (or
natural) to a modern public law system.
(Kingsbury etal., op.cit.@32-33)
Good or “Good Enough” Governance
At best, it seems that relying on GAL might be a case of settling for “good enough
governance”. (Harlow, C., 2006, “Global Administrative Law: The Quest for Principles and Values” 17/1 European Journal of
International Law, 187-214 211 ) Further, Kingsbury points out that, regarding the “difficulty in
indentifying universal rules and principles” (McIntyre, 2011: 5 ):
“[g]lobal administrative law” is not an established field or normativity and obligation in
the same way as “international law”. It has no great charters, no celebrated courts, no
textual provisions in national constitutions giving it status in international law, no
significant long-appreciated history. (Kingsbury et a., 2006: no. 3, 29)
In a current world where economic globalization reigns, and where the explicit mandates on
the UN, their Resolutions and Declarations are not respected by most of the powerful
countries and their allies, and where even the gravest obligations of States, based on
international “binding” legal instruments and erga omnes obligations, are often ignored with
impunity, it seems that the emphasis should remain on the latter. The right to life/health,
hence the right to water should join explicitly the most important covenants, as when that
right is ignored, such basic rights as the right not to face discrimination based on race and
religion, not to suffer torture, not be to forcefully removed from one’s home, in fact all human
rights are under attack, unless the right to water takes its place among other binding human
rights.
The Berlin Rules on Water Resources (ILA 2004)
Article 17
The Right of Access to Water
1. Every individual has a right to sufficient, safe, acceptable, physically accessible and
affordable water to meet that individual’s vital human needs.
2. States shall ensure the implementation of the right of access to water on a non-
discriminatory basis.
3. States shall progressively realize the right of access to water by:
a. Refraining from interfering directly or indirectly with the enjoyment of the right;
b. Preventing third parties from interfering with the enjoyment of the right;
c. Taking measures to facilitate individuals access to water, such as defining and
enforcing appropriate legal rights of access and use of water and
d. Providing water or the means for obtaining water when individuals are unable,
through reasons beyond their control, to access water through their own efforts.
A Legal Right to Water?
Article 17.1 was noted above for setting the stage for the legal right to water, which this
article embraced explicitly. When we consider its mandates (especially nos. 2, 3.a and 3.b)
against the background of globalization, and the vast differences between North and South
in general, it will become apparent that a lot of work still lies ahead, although Joseph
Dellapenna speaks of this article, as he states
This is probably as reasonable a summary of the human right to water, as it exists
today. (Dellapenna, J. 2008, “A Human Right to Water”, in Westra, L. Bosselmann, K., and Westra, R., 2008, op.cit., p.190)
Implications of the Right to Water
Starting with A 17.2, which clearly states the necessity for non-discrimination in water
access and availability, and which ties explicitly the Rules to a jus cogens norm that is, to
one of the few non-derogable principles in international law, (the principle of nondiscrimination) Article 17.1 cements the right to water by devoting several paragraphs to the
obligations of States, especially the negative obligations that are seldom—if ever—
considered explicitly in any legal document. States should refrain from “interfering directly or
indirectly with the enjoyment of that right”, and even States should be “preventing third
parties from interfering with the enjoyment of the right.”
These paragraphs encompass more than the protection of an individual citizen, as they
cover the collectivity within a State, as well as possibly the regional or global collective. In
order to clarify these wide-ranging claims, it might be best to consider some of the major
environmental problems that are closely related to water in various ways.
Westra, L., 2011a, Human Rights: The “Commons” and the Collective, University
of British Columbia, Vancouver, BC (in press)
Breaches of Human Rights
The most obvious is clearly the lack of clean drinking water, a phenomenon that affects
primarily sub-Saharan Africa, and most Indigenous and land-based communities on most
continents, as well as those living in the occupied territories of Palestine. (Westra, L., 2007,
Environmental Justice and the Rights of Indigenous Peoples, Earthscan Publishing, London UK; Westra, Laura, 2011, Globalization
Violence, and Global Governance, Brill, The Netherlands esp. ch.5, (in press)) But
that is only the most easily
observable result of global over-consumption. (Rees and Wackernagel, 1996; Rees, W.E., “Globalization and
Sustainability: Conflict or convergence?” Bulletin of Science, Technology and Society, Vol.22, no.4, pp.249-268)
Hence the lack of drinking water for many is caused primarily by the activities of global
trade and industry, as they promote unsustainable overconsumption in the so-called
developed world, hence the overuse of unsafe energy sources, sustaining and promoting
climate change. The operating of these industries in the so-called “developing world” have
an immediate adverse effect on Indigenous and other such communities, as they direct
water away from the basic needs of those populations (drinking, sanitation, small agricultural
needs) to their extracting, mining operation, for instance, most often returning toxic or
hazardous leakages to those areas. Thus the benign “Face” of development touted as the
“right” of those peoples can be seen for what it really is: a source of plunder
2008) and
deprivation for defenceless communities.
(Mattei and Nader,
Climate Change
As well, the overuse of energy which sustains and increases the presence of global climate
change, increases the presence of water shortages and desertification in the global south,
where the critical lack of water for basic needs is often combined with the negative effects of
extreme weather events. It is a causal claim, echoed by many recipients of such
catastrophic events, such as the recent words of the President of Bolivia, who termed the
deadly mud slides in Colombia, “crimes against humanity”.
(BBC News, Dec.8, 2010) Climate
change is caused by energy overuse, thus it is a crime perpetrated with the complicity of
many actors, state and non-state, by human and legal persons.
Climate Change-2
The recent Kivalina case where an Inuit community is sinking into the sea in Alaska because
of glacial melts and extreme storms, sued 23 Energy and Oil corporations, accusing them of
complicity for first denying the reality of climate change, then spending large sums to
support junk science, which denied its extreme effects. Neither the “civil conspiracy” nor the
Public nuisance claims were recognized by the courts (San Francisco, California), as we
now await a possible appeal. On the other extreme, crop failures and desertification in subSaharan Africa, or tornadoes and hurricanes in North and Central America or in countries on
the Indian Ocean, are all results of practices that are supported and encouraged as
promoting “growth” and “development” rather than being recognized for what they are: the
actions of third parties interfering with the right to water with the complicity of the respective
North governments.
Lessons from Criminal Law
These disasters are approached as though they spring, almost unexpectedly and
autonomously from expected weather patterns, so that the original causality is never
explored or discussed in the media, let alone taken in consideration in law. In contrast, in
domestic criminal law, the original causality is sought and uncovered, in order to ensure that
the culpable party or parties are properly punished seeking out the origin of any sequence of
events leading to injury or death. For instance, in the Canadian case of R. v. De Souza (R. v.
De Souza (1002) 95 D.L.R. 4th, 595)),
an individual who drank to excess during a New Year’s Party,
then, in the spirit of celebration, threw an empty beer bottle against a wall, was eventually
found guilty of assault, as a glass fragment from his bottle bounced off the wall to inflict a
serious injury to a woman, a guest who was unknown to him, yet suffered grave harm from
his unintended action.
Lack of Prevention
Another “Face” or mask of human rights breaches is the lack of prevention, as governments
would have the power of protecting basic rights and are in fact, obliged to do so by not
permitting interference with the right of access to safe water, for instance, according to
Article 17. The General Assembly of the United Nations met on 6 October 2010 (15th Session
UNGA, Point 3),
when it adopted Resolution 15/13 on Human Rights and International Solidarity.
(15th Sess. A/HRC/15/60.1; re-affirming similar resolutions 2005/55, 20 April 2005; Resolution 6/3, 27 September 2007; 7/5 27 March
2008; 9/2 24 September 2008; and 12/9, 1 st October 2009) However,
this high sounding document is far too
vague to acknowledge the grave problems that beset human rights, let alone pinpoint their
causal origins. The drafters pronounce themselves “deeply concerned” by the number and
severity of natural catastrophes, the illnesses and agricultural damages caused by pests, all
of which cause loss of human life on a grand scale and result in lasting negative effects
regarding social, economic and environmental plans, affecting vulnerable people
everywhere, “but especially in the developing world”.
(ibid.)
Human Rights Resolution (2010)
still does not acknowledge that
...if water is perceived solely as an economic good, then access may be determined
based purely upon market forces, without regard to equity or need. (Bluemel, Erik, 2004, “Human
Right to Water” 31 Ecology L.Q. 96 959-1005 963; see also UNICEF Groundwater: The Invisible and Endangered Resource (1998))
General Comment 15 is not acknowledged, nor are other recent instruments pertaining
to the right to water. (World Health Org.(WHO), the Global Water Supply and Sanitation Assessment 2000, at
http://www.who.int/docstore/water_sanitation_health/Gloasssessment/GLobal/Toc.htm; World Health Organization (WHO) The Right to
Water 16 (2003); Millennial Project Task Force 7 on Water and sanitation, Interim Full Report, Achieving the Millennium Development
Goals for Water and Sanitation: What Will It Take (2004))
As well, despite the wealth of instruments promoting human rights especially those of
children (Convention on the Rights of the Child, Nov.20, 1989, 1577 U.N.T.S. 3 at http://www.unhchr.ch/html/menu3/b/k2crc.htm) , as
the Convention for the Rights of the Child (CRC), requires States to combat disease and
malnutrition “through the provision of adequate food and clean drinking water”. Bluemel
notes that “every fifteen seconds a child dies form diarrhea largely due to poor sanitation
and insufficient water supply”. (Bluemel, 2004:959)
Thus we can observe that the proliferation of high-sounding instruments and resolutions
in the international arena, often masks the lack of rights enforcement on the ground and the
deliberate omission of the wealth scientific evidence documenting the mounting death and
disease toll that follows current practices, as ongoing human rights violations target the most
vulnerable. In the next section we will briefly see whether the legal situation in the EU shows
more promise of protection regarding the right to water.
The EU and Other Regional Approaches to
Water Rights
Climate change is a global phenomenon, and it is clear that the water problems in
Europe are small compared to the problems which the change of the climate will cause
worldwide and in particular, in developing countries...The Chapter on the international
commitments of the European Union with regard to water still needs to be written.
(Kramer, Ludwig, 2009, “Climate Change and the EU Legal initiatives Regarding Water availability”, Journal of European
Environmental and Planning Law, p.461)
We now turn to other regional regimes that may have an impact on water rights. In general,
the EU’s regulatory regimes regarding environmental issues, are significantly better than—
say—those in North America. But in the case of water right—it appears that the EU is largely
silent. As well, the directives issued regarding water and climate change, are primarily
quantitative, rather than qualitative in tone, and the main concern appears to be the relation
between the EU itself and individual States, rather than what happens inside the states
themselves. (ibid.)
EU Water Laws?
European water framework legislation does not establish—let alone enforce—hard targets,
as it addresses (qualitatively) “good water quality” and “reduction of flood risks” (Directive 2000/60
on the assessment and management of flood risks, adopted in 2007) for
the latter, given the grave floods of 2004,
the EU is committed “To establish by end 2015 flood risk management plans which try to
reduce the adverse consequences of floods”. (ibid.) Even this vague goal make no attempt to
trace the causality of these events, as what is sought is the mitigation of effects, rather than
the reduction of risks. Again, no mechanism is present to monitor or compel individual
States to Comply. Water scarcity and drought also addressed by Directive 2000/60, despite
the fact that in 2000 the commission published a communication on water scarcity and
droughts, where it identified a “first set of policy options”, and later, that Report resulted in a
Community Environmental Action Programme”. However, “the numerous measures which
member States were asked to take, were simply ignored by member State”.
(Kramer, 2009:464)
The Failures of Voluntarism
Most measures were purely voluntary, hence the suggested policies remained unaddressed.
Kramer remarks on this phenomenon:
Perhaps time has come to state with all necessary bluntness that voluntary agreements
in the environmental sector are a dead road at the European level. There is, after 30
years of environmental policy, not one single example of a successful significant
European environmental agreement. However, there are numerous examples of the
failure of this approach.... (Kramer, 2009:467)
A final difficulty is that—generally—measures promoted by Northern European States have
a better chance of being adopted (if not implemented), than those originating in
southern/Eastern European States, which are actually more likely to be negatively affected
by water scarcity. (Kramer, 2009:468) Of course, in addition to all these difficulties, the human right
to water, as affirmed by the Berlin Rules Article 17(1) is obviously lacking in EU legislation.
The Right to Water and Water Protection in Canada
and the US?
The world is embroiled in an unprecedented and worsening water crisis. Water
consumption by humans has quadrupled in the past fifty years. At least forty nations,
with a combined population of 500 million, are already experiencing severe water
stress, defined as using more than 40% of their available supply of fresh, renewable
water. By 2025 severe water stress is expected to affect between 2.4 and 3.2 billion
people (depending on the rate of population growth in affected countries). (Boyd, David R.,
2003, Unnatural Law, University of British Columbia Press, Vancouver, BC, p.53; see also Vorosmarty, Charles J., Pamela Greene,
Joseph Salisbury et al., 2000, “Global Water Resources Vulnerability from Climate Change and Population Growth”, Science, 289,
284-88)
Canada is blessed with large quantities of water, and Canadians use less than 2 percent of
their available supply.
(Boyd, 2003:53 ) But
most other countries do not fare as well, hence
Canada is threatened by others seeing to ensure bulk water exports to their own
countries.(ibid. ) Although both American and European States have reduced the water needs
through conservation measures (OECD, 1999, Environmental Data Compendium, Paris), other, poorer nations
did not and could not meet the price of importing water, transported by tanker to their region.
NAFTA
But, while Canadians singly and collectively do not appear to lack for water, the North
American Trade Agreement (NAFTA), Chapter 11, gives “corporations from the United
States and Mexico the right to sue Canada and have the case determined by international
arbitration.
In the Fall of 1998 Sun Belt filed a NAFTA claim for 15.75 billion in damages, alleging
that BC’s ban on bulk water exports violates its investment rights. (Boyd, 2003:6)
In 1988 the Conservative government, headed by then Prime Minister Brian Mulroney,
introduced the Canada Water Preservation Act (1988), to prohibit bulk water sales, but it
was not passed and no other Government after Mulroney’s attempted to propose a similar
Act again.
(ibid., 57 )
Ecological Integrity
This discussion has centred on quantitative issues, but one should remember that Canada’s
Great Lakes Water Quality agreement, for instance imposes strong qualitative mandates as
its states:
The purpose of the Parties is to restore and maintain the chemical, physical and
biological integrity of the Great Lakes Basin Ecosystem. (GLWA 1978; rev. 1987)
The first use of the concept of biological integrity, however, appears in the US Clean Water
Act of 1972 and, although unfortunately clear interpretation of the terms was lacking due—
among other factors—to the vagueness of “integrity”, which remained undefined in law,
although this author founded a group whose first target was to convene a number of
scientists from various disciplines, to devise an exhaustive definition of the concept of
integrity.
Later, the group developed in several related direction beyond seeking a definition.
(reached
finally in 2000 in Pimentel, D., Westra, L. and Noss, Reed, 2000, Integrating Environment, Conservation and Health, Island Press,
Washington, DC, Chapter ) Further
expansion of the membership f the group, beyond science and
ecology, included public health, law, and public policy. (Westra, L., 2008, “Ecological Integrity, Its Future and
Development of the Global Ecological Integrity group”, in Westra, L., Bosselmann, K., and Westra, R., Reconciling Human Existence with
Ecological Integrity, Earthscan Publishers, London, UK pp.5-20)
US Water Problems
In the US, reports estimate “nine hundred deaths per year due to contaminated water”
(Boyd,
2003:26; Bennet, J.V. et al., 1987, “Infections and Parasitic Diseases” in R.Amler and H.B.Dull eds., Closing the Gap: The Burden of
Unnecessary Illness, Oxford University Press, Oxford, UK ):
•
Fifty-three million American drink tap water polluted with lead, fecal bacteria, or other
harmful substances despite the Safe Drinking Water Act.
•
4.769 out of 55, 000 community water systems in the United States reported a violation
of one or more drinking water health standards in 1996.
•
The Department of Agriculture reports that fifty-four million Americans relying on
groundwater are at risk from pesticides, mainly atrazine and aldicard.
•
More than seven hundred communities with over ten million residents faced boil-water
advisories in recent years.
•
A cryptosporidium outbreak in Milwaukee resulted in 400,000 people becoming ill, 4,000
people being hospitalized, and 50 to 100 deaths.
•
The EPA estimates that repairs and upgrades to the American drinking water
infrastructure will cost US $138 billion.
Canada’s Issues
Similarly Canada’ significant water pollution from non-point sources and agricultural run-off,
as well as persistent organic pollutants (E.g. PCBs and DDT), endocrime disruptors and
heavy metals tell a story of public health hazards (Boyd, 2003:28 ):
•
Canadian industry discharges more than 20 million kilograms of toxic chemicals directly
into surface water annually, including 120,000 kilograms of carcinogenic substances
(including arsenic, formaldehyde, benzene, and mercury).
•
Factory farming poses a serious contamination threat, with livestock generating 4,000
kilograms of animal waste per Canadian annually.
•
Lakes, glaciers, and snowfields in remote national parks and northern areas suffer from
toxic contamination.
•
Acid runoff from dozens of abandoned mines is damaging aquatic ecosystems.
•
Thousands of square kilometers of marine areas are closed to shellfish harvesting
because of pollution concerns.
•
Extensive areas, including the Great Lakes, are subject to health advisories warning that
eating fish can cause birth defects and other serious problems.
Conclusion
Our goal has been to link ecological degradation and industrial toxic and hazardous byproducts to water issues in support of the basic human rights to life and to health.
Greenpeace has recently joined the International Association of Doctors for the Environment
in Roma, Italy, for a comprehensive discussion of the grave effects on health, caused by
various aspects of climate change. These include the increase burden of disease because
of air and water pollution, heat waves, changes to the geography of infections and the
presence of parasites, as well as loss of biodiversity causing multiple mass extinctions of
species.
These results, together with the loss of water resources in many areas, and catastrophic
water events in others, increase exponentially the health hazards, the lack of security and
multiple breaches of human rights, show the necessity to find the political will (sorely
missing at this time in Cancun), for radical changes to current legal regimes
([email protected]).