The Human Right to Water and Global Administrative Law: Mutually Supporting Concepts?
Abstract:This chapter explores whether we can better understand the significance of the current, urgent discourse in international law on human rights-based approaches to water and sanitation entitlements as an expression of universally accepted standards of global governance, rather than as an enforceable ‘human right’ to water in any strict sense of that term. Such an analysis might obviate many of the difficulties which arise in relation to the precise normative status of the human right to water under international law as well as doubts concerning its enforceability by means of the traditional enforcement mechanisms existing under human rights law. Further, an analysis of the 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 resources law, international environmental law, and international investment law, as well as in national public and constitutional law. Crucially, the GAL concept helps to address problems which arise with the extension of human rights requirements to the actions of private corporate actors and with the problem of extra-territoriality.
Conversely, a survey of the commonly accredited sources of GAL rules helps to make sense of the wide diversity of mechanisms, in addition to the formal conventional obligations and practice of States, for the generation of rules and standards which inform the procedural and substantive normative content of the HRW concept. Such mechanisms include, for example, the International Standards Organisation, various voluntary codes of corporate conduct, international investment arbitration tribunals provided for under bilateral investment treaties, national systems of administrative law, and of course the institutional machinery which elaborates upon human rights values.
Such an analysis in turn permits concrete conclusions to be drawn on, inter alia, the key procedural and due process elements of the HRW concept, the key rule of law values stemming from the movement towards free trade and economic liberalism, the key good governance values, relating particularly to transparency, participation and accountability, and the key human rights values impacting upon the concept. This mode of analysis goes some way towards detailing the rights and obligations created by the HRW concept for a variety of actors, including individuals, vulnerable communities, transnational corporations, investors in water and sanitation services, and of course State agencies.
Document Type: Research Article
Publication date: January 1, 2011