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Water Issues, Climate Change and Globalization in International Law By,

Water Issues, Climate Change and Globalization in International Law By,

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Water Issues, Climate Change and Globalization in International Law By,

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  1. Water Issues, Climate Change and Globalization in International Law By, Laura Westra, Ph.D., Ph.D.(Law)Professor Emerita (Philosophy) University of WindsorSessional Instructor, Faculty of LawSessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University E-mail:lwestra@interlog.com Website: www.ecointegrity.net

  2. 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”.

  3. 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.)

  4. 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)

  5. 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.)

  6. 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.

  7. 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)

  8. 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)

  9. 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.

  10. 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.

  11. 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)

  12. 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 non-discrimination) 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)

  13. 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 (Mattei and Nader, 2008) and deprivation for defenceless communities.

  14. 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.

  15. 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 sub-Saharan 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.

  16. 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.

  17. 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, 1st 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.)

  18. 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.

  19. 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.)

  20. 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)

  21. 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.

  22. 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.

  23. 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 )

  24. 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)

  25. 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.

  26. 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.

  27. Conclusion Our goal has been to link ecological degradation and industrial toxic and hazardous by-products 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 (greenetwork@mailman.greenpeace.org).

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