The Human Right to Water & Water Rights Trading

University of GenevaMAS in commodities trading

Jean-Benoit Charrin – 17 Dec. 2010

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Structure of the presentation

1. Human Right to Water2. Water Rights Trading3. Challenges &

Perspectives

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1. What are human rights ?

Dimensions:• Law• State commitment• Vulnerable and marginalized

groups• Specific area

Examples:• Right to water• Right to health• Right to education

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1.1. The LawSources:Several International Law conventions – CRC; ICESCR; CEDAW…Example:1989 Convention on the rights of the child (CRC) states: "Article 24 1. States parties recognize the right of the child to the

enjoyment of the highest attainable standard of health […] 2. States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, (…) the provision of adequate nutritious foods and clean drinking water (…)“

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1.1. The Law (2)

Further definition:"The human right to water entitles everyone to

sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements. “ (CESC, GC 15, 2002)

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1.2. State responsibilities

3 Types of obligations:– Respect– Protect– Fullfil

• Accountability mecanims (e.g. South Africa)

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1.2. Misconceptions

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COHRE - 2009

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1.3. Objective & Means1. Objectives:

– Quality (cf. WHO standards)– Quantity (cf. SPHERE standards)– Physical accessibility – Financial accessibility– Culturally acceptable– Sustainability– Non-discrimination

2. Means:– Access to information – Participation– Effective legal remedy– Non-discrimination

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1.3. Multi-Level Governance

International Law

National Laws & Policies

Regional Laws & Policies

Municipal Laws & Policies

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1.4. Case Study

• Jakarta – Indonesia Water Supply

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2. Water Rights Trading

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2.1. The issues

• Water Property • Water use – concessions• Water Banks (California, Australia)• Regulations in times of emergency• International trade law framework• Subsidy schemes & water footprint

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2.2. Regulations (1)

BURUNDIGovernment Decree No. 1/41 of 26 November 1992 on the establishment

and organisation of the public water domain (Unofficial translation)

Article 16The right as granted under Article 15 may be limited in situation of,

retention block failure, debit or water diversion, water shortages due to climatic factors or in general terms, an unforeseen debit or water volume insufficiency which is protected under the right of use. In this case, the administration retains the right to reduce or even to cut without compensation the quantities of water to which users are entitled.

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2.2. Regulations (2)BURKINA FASODecree No. 2005-191/PRES/PM/MAHRH 4 April 2005 regarding priority uses and

authority of government to control and allocate water in case of water shortage (Unofficial translation)

Article 2 (Chapter 2: Order of priority for the use of water resources in the event of penury)

In the event of water shortage, the water needs of the population for drinking water and for basic conditions of life and human dignity are considered priorities.

Article 3Once the water requirements of the population for food are satisfied, the priorities

for other water uses shall be determined by taking into account local circumstances based on the principles of equity, subsidiarity and if possible participation.

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2.2. Regulations (3)

NIGERWater Regime ruling No. 93-014 of 2 March 1993 (as amended

by Law n°98-041 and Law n°2000-12 (Unofficial translation)

Article 9During period of intensive drought, the local Authority may

forbid activities which consume large amounts of water and which are not directly related to human consumption …

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2.3. Case Study (2)

• Benin - Granaries

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3. Challenges

• Management of competing demands• Varying value of demand (contribution to

sustainable development)• Monitoring responsibility & cost• Legal framework flexibility• Social acceptance

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3. Perspectives & Conclusion

• Bridges among legal frameworks (e.g. UNECE)• WTO-GATT – Art.20• Multi-stakeholder initiatives (e.g. GWP/IWRM)

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