Rights, wrongs and the river between: extraterritorial application of the human right to water in Africa

© 2011 Dr. Takele Soboka BultoSince it was declared as a human right for the first time in the General Comment of the Committee on Economic, Social and Cultural Rights (CESCR) in 2002, the human right to water has been a favourite subject of academic controversy. Much of the debate has been about whether the right exists as such, and, if so, whether it exists as an auxiliary right or as an autonomous, self-standing entitlement. This debate arises from the absence of an explicit reference in the texts of the main human rights treaties to the right to water. The CESCR found the right in the implicit terms of related rights. This purposive approach to ‘reading-in’ the right has been endorsed by the African human rights monitoring and adjudicatory body, the African Commission on Human and People’s Rights, a conclusion that is supported in the present study. This thesis joins the debate but, more importantly, also goes ahead of the current controversy and analyses the immediate implementation problems triggered by declaration of the right given the shared nature of scarce water resources in regions such as Africa. Unlike or beyond the necessities of implementing other socio-economic rights, the human right to water often depends primarily on a uniquely international resource for its realisation. Of the 54 African states, 51 states are dependent for drinking and sanitation water on international rivers that are shared between/among 2-10 co-riparian states. An action or omission relating to a shared river in one state thus has a direct impact on the fate of the human right to water in co-riparian states. Unless riparian states are held to account for their (in)actions that produce extraterritorial effects, some co-riparian states would be unable to realise the human right to water within their territories. Thus, the declaration of the human right to water would be an empty gesture for the right holders unless the relevant legal regime provides for ways to hold foreign states accountable for their acts or omissions that cause the violation of the human right to water abroad. The thesis thus analyses the extraterritorial scope of the right to water, relevant state duties and attendant remedies. The central question of the thesis is whether states owe extraterritorial obligations directly to individual and group right holders in a co-riparian state’s territory for the realisation of their human right to water. After analysing the corpus of relevant international and regional human rights treaties, the rules and principles of international water law and related case law (which may be relied upon as ‘inspirational sources’ of the African Charter on Human and Peoples Rights) the thesis answers this question in the affirmative. It is argued that while the extraterritorial duties to respect and protect the human right to water have firm legal bases in the international human rights regime, the duty to fulfil - a crucial guarantee in the water-scarce regions such as Africa - needs to be sought in international water law. The thesis therefore calls for ‘humanising’ international water law, and pinpoints textual bases in the 1997 Convention on International Watercourses and related customary rules for such an approach