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8255 results in Intersentia

Page 370 of 413

  • Chapter 6 - Concluding Remarks

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 53-54

  • Summary

    Over the last two decades, many commentaries have been released on the way the WBG and IMF have taken human rights obligations on board, or refrained from doing so. This publication could have set the strict legal obligations and corresponding responsibilities for both IFIs higher, for instance, by presenting more extensive interpretations of already existing case law or by extrapolating trends in the human rights field more progressively than I have done. However, I believe that to do so would have overstretched the legal validity and applicability of developments in the field of international human rights law to IFIs such as the WBG and IMF. Overall, there is a lot of pressure on both organisations, as well as on other multilateral development banks not discussed here, to accept more accountability under international human rights standards. It has been made clear by what standards they are already bound, given the status of international human rights law in 2014, while, as to the extent to which both IFIs, be it to different degrees, still argue that they are not bound by such standards, it has been shown that the space for such a position is becoming more and more limited.

    It helps to underscore that both IFI are independently moving in a direction in which the relevance of human rights to the fulfilment of their mandates is recognised, be it in the form of small steps following other small steps. In addition, it should not be forgotten that the pronouncements on human rights by both IFIs are only partly relevant from a strictly legal perspective. However, human rights law is best understood as living law and actors such as IFIs can be best considered non-static entities, even given their sometimes static approaches to their own mandates. Both IFIs have entered the human rights doorway, be it to different degrees. And should they want to move backwards or reconsider their respective ways forward, international human rights law as it presently stands can serve as an invitation, but also as a stop sign.

    Building on human rights law as ‘living law’ and seeing both the WBG and IMF as ‘non-static entities’, it makes sense to put the findings of this publication in a somewhat historical perspective.

  • Chapter 1 - Introduction

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 1-2

  • Summary

    Are the World Bank Group (WBG) and the International Monetary Fund (IMF) bound to abide by international human rights law? For many legal and non-legal specialists it is clear that human rights must not be treated as something separate from activities conducted by the United Nations (UN) and the international organisations attached to, and closely working with, the UN. This is referred to as the ‘mainstreaming of human rights’. In this approach, the concept of human rights is used as a bridge in the fight against the (over-)fragmentation of international law and as a (the) guiding principle for the composite and complex organisation called the United Nations. This approach applies international human rights laws to the main organs of the UN and all the international organisations and specialised bodies linked to the UN, such as, in the context of the present publication, the WBG and the IMF. Others, however, argue that the charters and other constitutive documents of these international financial institutions (IFIs) have to be honoured and that one has to respect their specialisations. The consequence of this argument would be that such charters could/should be placed above or, at least, alongside other international obligations that the IFIs have by virtue of their links to the ‘UN family’. Both views keep coming up in discussions on the questions why and to what extent the WBG and IMF are legally bound by international human rights standards. The key aim of the present publication is to make it clear by what norms of international human rights law both the WBG and the IMF are bound, and to further identify and specify points for coining their responsibility for violating these norms. As to the latter, the focus is on principles and concepts that can help to attribute and apportion such responsibility to these IFIs, including the responsibility shared with their Member States.

    As to the terminology used, the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARS) use the term ‘attribution of conduct’ to a State (Article 2, header of Chapter II and Articles 10 and 11). The 2011 Draft Articles on the Responsibility of International Organizations (DARIO) do the same in relation to international organisations (Article 4, header of Chapter II and Article 9).

  • Annex III - Draft Articles on the Responsibility of International Organizations (2011) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 69-78

  • Summary

    Text adopted by the International Law Commission of the United Nations at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The text can be found at http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_l 1_201 1.pdf. A commentary can be found at http://legal.un.org/ilc/texts/instruments/english/ draft%20articles/9_ll_2011.pdf. The General Assembly ‘took note’ of the articles and ‘commen[ded] them to the attention of Governments and international organizations without prejudice to the question of their future adoption or other appropriate action’ (A/RES/66/100, 9 December 2011). Again, a few exceptions left aside not relevant in the present context, the Articles are generally considered to be customary international law.

    Article 1

    Scope of the present draft articles

  • The present draft articles apply to the international responsibility of an international organization for an internationally wrongful act.

  • The present draft articles also apply to the international responsibility of a State for an internationally wrongful act in connection with the conduct of an international organization.

    • Article 2

    Use of terms for the purposes of the present draft articles

  • (a) 'international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;

  • (b) 'rules of the organization’ means, in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization;

  • (c) 'organ of an international organization’ means any person or entity which has that status in accordance with the rules of the organization;

  • (d) 'agent of an international organization’ means an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.

  • Chapter 2 - IFIs Positioning Themselves in the Human Rights Field

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 3-8

  • Summary

    Before addressing the obligations following from existing international human rights law as it relates to the WBG and the IMF, this chapter illustrates how both of these IFIs present themselves today in relation to the links between their respective mandates and international human rights. This is undertaken to make it clear that discussing the obligations following from existing human rights law and the attribution of conduct that violates these norms in Chapters 3 and 4 is not a matter of imposing something externally upon IFIs, but links to discussions underway in both IFIs.

    OFFICIAL WBG POSITION

    The WBG underlines in its own recent policy statements that internal developments have shown ‘growing recognition of the need for the Bank to address human rights in a more explicit fashion’ and that there ‘have been significant advances in the Bank's thinking on this issue’. The evidence provided relates to the Bank's pronouncements from as early as 1998 on human rights, which contained statements about how the Bank supports the realisation of human rights and how it believes that ‘creating the conditions for the attainment of human rights is a central and irreducible goal of development’. The Bank's official statements refer to several developments outside the Bank, such as the 2003 UN Common Understanding on a Human Rights Based Approach to Development; the Secretary General's 2005 report In Larger Freedom; and the findings of the 2006 World Development Report Equity and Development. In the words of the Bank, ‘[t]he World Development Report 2006 explores the ways in which structural and distributional inequalities can hinder development, and grounds equity in two basic principles: Equality of opportunity and the avoidance of absolute deprivation, both of which have human rights dimensions’.4 Further to this, the Bank refers to, inter alia, its cooperation with the Office of the High Commissioner of Human Rights on several initiatives including, for example, supporting countries to take human rights considerations into account in the preparation of their poverty reduction strategies, as well as with the Organisation for Economic Co-operation and Development (OECD) Development Assistance Committee (DAC).

  • Annex I - Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the International Monetary Fund and Human Rights

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 55-60

  • Summary

    PREAMBLE

  • – Recalling the 2003 Tilburg Guiding Principles on World Bank, IMF and Human Rights, drafted by a group of experts, meeting at Tilburg University, The Netherlands, in October 2001 and April 2002 ('2003 Tilburg Guiding Principles’);

  • – Considering the significant overlap between substantive areas covered by international human rights law and the work of the World Bank Group (WBG) and the International Monetary Fund (IMF) on, inter alia, improving poor people's access to work, health, education, food and water; promoting the participation of indigenous peoples in decision-making; holding state governments accountable to those under their jurisdiction; and supporting justice reforms;

  • – Recalling that creating the conditions for the realization of human rights is a central goal of human development and a responsibility of all States under, inter alia, the Universal Declaration of Human Rights;

  • – Reaffirming the WBGs and IMFs own policy statements, recognizing, albeit in different ways, the growing need to address human rights in a more explicit fashion;

  • – Emphasizing the self-proclaimed role of the WBG and the IMF to support their Member States in fulfilling their human rights obligations while carrying out the policies, projects and programs of both international financial institutions (IFIs);

  • – Reviewing the human rights obligations and responsibilities of the WBG and the IMF in light of developments in the domain of international human rights law over the last decade.

    • The drafters of the 2014 Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the International Monetary Fund and Human Rights have further developed and reformulated the 2003 Tilburg Guiding Principles.

    LEGAL OBLIGATIONS

    – Guiding Principle 1: General International Law Obligations

    International organizations do have international legal personality, which comes with obligations in the field of international (human rights) law. More specifically, the WBG and the IMF, having entered into Relationship Agreements with the United Nations in accordance with UN Charter Articles 57 and 63, are bound by the UN Charter, customary international law and general principles of law.

    – Guiding Principle 2: The ‘Political Prohibition’

    The ‘Political Prohibition’, conceptually linking activities of the WBG to non-interference into ‘the domestic affairs of sovereign States’, must be re-interpreted in conformity to modern international human rights law, and applied accordingly.

  • Chapter 7 - General Conclusions

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 341-354

  • Summary

    This study aimed to answer two main questions: firstly, whether and in what ways a human right to water is recognised, either as an independent right or as a derivative human right, and what is precisely the content of this right. Secondly, whether the human right to water can be applied in an extraterritorial context creating obligations between states, and whether international water law can be used to support a human right to water in a transboundary watercourse context.

    RECOGNITION OF THE HUMAN RIGHT TO WATER UNDER HUMAN RIGHTS LAW

    Despite the essential role that water plays for survival and human development, the recognition of the human right to water was slow and in some cases controversial. Although access to safe drinking water as a human right started to be discussed since the 70s, it was not until 2002 that the human right to water was for the first time defined and authoritatively recognised by the CESCR in General Comment 15. The recognition of this right has been controversial mainly due to its absence in international human rights conventions, and the possible obligations that this right might generate for states, particularly extraterritorial obligations related to the transfer of water to water-short countries.

    The recognition of the human right to water has gone through an evolutive process. At the international level, this process can be summarised in the following phases. First, the acknowledgement of the human right to water was debated by scientists, politicians and experts in different fields at various international conferences, due to the growing awareness about water scarcity. Then, explicit reference to drinking water was incorporated in some international human rights conventions as a component of other human rights. States have recognised the essential function of drinking water for the implementation of a number of human rights, as evidenced by their reports under the monitoring mechanisms to the UN treaty bodies. Similarly, UN treaty bodies have expressed in their recommendations and concluding observations the essential role that water plays for the implementation of human rights.

  • Chapter 6 - Extraterritorial Application of the Human Right to Water in a Transboundary Watercourse Context

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 283-340

  • Summary

    INTRODUCTION

    Human rights create a number of state's obligations particularly towards individuals located within their territory. Additionally, it is considered that regarding economic, social and cultural rights (ESC rights) states also have obligations towards other states or individuals located outside their territories. As a result, both territorial (domestic) as well as extraterritorial obligations emerge from ESC rights. The latter obligations derived from the main duty to provide international assistance and cooperation for the full realisation of such rights. Given that the human right to water is an ESC right, extraterritorial obligations also emanate from this right.

    The human right to water is a right that requires a precise element for its implementation: freshwater. However, freshwater resources are not static; they are flowing and crossing international boundaries. With approximately 300 rivers, 100 lakes and a number of aquifers shared by two or more states, international cooperation is required for the management of such resource. Likewise, freshwater resources are unevenly distributed; this situation and the relative scarcity of water resources have a direct impact on a state's capacity to realise the human right to water on its own territory. As a matter of fact, the fate of the human right to water is in many countries inextricably connected to the (in)action of other states, undermining the role of a domestic state acting alone. The difficulty to confine freshwater resources in each state marks the relevance of international cooperation and assistance for the implementation of the human right to water or the extraterritorial obligations, particularly when the realisation of this right depends on international watercourses.

    International watercourses pose the problem that states can within their own borders, this means without necessarily occupying another state or without controlling individuals in another state, violate the human right to water in other riparian states, by reducing the quality or quantity of shared water resources. Therefore, it is essential that states when acting within their own territories take into account that some of their (in)actions might violate human rights of individuals located in other states.

  • Chapter 3 - Recognition of the Human Right to Water at the International Level

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 43-126

  • Summary

    INTRODUCTION

    Safe drinking water is indispensable for human survival. Nevertheless, a human right to water has not been explicitly incorporated in any of the international conventions on human rights. Due to the vital character of this resource, drinking water is an essential element for the realisation of a number of recognised human rights. In fact, some international conventions explicitly refer to drinking water as part of other human rights enshrined in those conventions.

    The question that has emerged and been discussed in the last decades is whether access to safe drinking water should be guaranteed as an extension of other rights or whether it should be recognised as an independent right in itself. An independent right to water would provide a more comprehensive protection, and it would support other rights for which water is an essential element. An independent right to water would also protect all people, instead of particular groups, as proposed by the CESCR in General Comment 15.

    This chapter focuses on analysing the implicit recognition of the right to water in international human rights conventions, to determine from which rights it derived. The mechanisms for monitoring compliance with the international human rights conventions, reporting procedures and complaints procedures will also be examined. Reports submitted by state parties, particularly concerning the four states under study, on the measures adopted for the implementation of the international human rights conventions can serve to illustrate which rights might incorporate access to drinking water. Compliance procedures are a useful tool to understand which rights are deemed to be violated by lack of access to safe drinking water.

    RECOGNITION OF THE RIGHT TO WATER

    This section focuses on analysing whether the human right to water is recognised in international human rights conventions. On the one hand, the most recent conventions on human rights adopted under the auspices of the UN, with the exception of the Convention on Enforced Disappearance, explicitly mention access to drinking water. On the other hand, interpretations of the rights embedded in the different international human rights conventions, may indicate that the human right to water is implicitly recognised therein.

  • Chapter 5 - Recognition of the Human Right to Water at the Domestic Level: a Case Study Approach

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 199-282

  • Summary

    INTRODUCTION

    Under the international law of human rights, each state has a primary obligation towards its citizens and other individuals living within its territory. These obligations were devised to protect individuals from the exercise of power of the territorial state. Therefore, human rights are normally framed within a territorial perspective, creating a vertical relationship (states to individuals). As a result, human rights identify certain obligations and responsibilities of states (duty bearers) towards the mentioned individuals or groups of people (rights holders). Due to the existence of this vertical relationship, human rights are generally implemented domestically. For this reason, this chapter examines at the national level, whether some states in South America have recognised the human right to water, and if so, whether this right is recognised as a derivative or independent right, and how it is implemented.

    A number of countries in South America have already adopted the human right to water as an independent right in their constitution, their legislation or by the jurisprudence of their courts. One of the first South American countries, if not the first, that recognised the human right to water was Colombia. The Colombian Constitutional Court, characterised as being a progressive court, recognised as early as 1992 the right to water in its jurisprudence. This Court declared that the supply of drinking water is a fundamental right. In recent years, the Peruvian Constitutional Tribunal recognised the human right to water through its jurisprudence. This right is also explicitly incorporated into the constitution of other South American states. In most cases, the constitutional recognition was triggered by the negative effects of the privatisation of drinking water services experienced in those countries. For instance, on 31 October 2004 Uruguayan citizens voted in favour of a constitutional reform that recognised drinking water and sanitation as a fundamental right, in response to a previous privatisation process. The Uruguayan Constitution now stipulates that drinking water services shall exclusively and directly be provided by public entities. Subsequently, Ecuador in 2008 and Bolivia in 2009 also reformed their constitutions and unambiguously incorporated the human right to water. Other countries recognise the human right to water through their national legislation. This is the case for Venezuela, Paraguay and Peru.

  • Chapter 2 - Emergence, Definition and Core Content of the Human Right to Water

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 7-42

  • Summary

    INTRODUCTION

    Water is an essential element for life; a minimum intake of water is necessary for human survival. Every human being needs to drink a minimum amount of water to prevent death from dehydration, and water is also necessary for other basic needs, such as sanitation, personal and house cleaning, and food production, among others.

    According to the World Health Organization (WHO) about 768 million people still do not have access to improved sources of drinking-water, 2.5 billion people lack access to improved sanitation and about 2 million annual deaths are attributable to the use of unsafe water and sanitation. Access to improved water sources refers to household connections, public taps or standpipes, boreholes, protected wells or springs, and methods of rainwater collection. Unimproved sources include vendors, tanker trucks, unprotected wells and springs, as well as surface water (rivers, dams, lakes, ponds, streams, canals, or irrigation channels).

    Despite the fact that water is a limited natural resource and a public good fundamental for life and health, a human right to water started to develop recently in international human rights law, and in the constitutional sphere of some states. A number of statements, declarations, resolutions and even international conventions have recognised water as an essential element necessary to satisfy basic human needs. The following subsection contains a descriptive evolution of the recognition of the emerging human right to water at the international level. This chapter also examines the main elements that compose this right, as well as the state's obligations that derive from it.

    EMERGENCE OF THE HUMAN RIGHT TO WATER

    Since the end of the 1960s scientists, politicians and experts in different fields started to realise the fundamental relationship between humans and the environment. They also realised the emerging problems from the scarcity of some natural resources, such as the limited quantities of water resources in certain areas of the world or during certain periods of the year. Since then, the importance of access to water has been recognised in declarations, action plans, agendas, statements, treaties and resolutions. The way the right to water has emerged in different spheres will be discussed in a chronological evolution.

  • Chapter 4 - Recognition of the Human Right to Water at the Regional Level

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 127-198

  • Summary

    INTRODUCTION

    Human rights are also being protected at the regional level where the political and cultural local circumstances are taken into account. Regional intergovernmental systems play a major role and are important to an understanding of the full range of techniques available for protecting and promoting human rights.

    Currently, there are three well established and two embryonic regional systems with the purpose of promoting and protecting human rights. The well established regional human rights systems are: the European, the Inter-American and the African system, which were created by the Council of Europe, the Organisation of American States and the African Union, respectively. The two embryonic systems are being developed in the Asian and Arab regions.

    One of the embryonic systems of human rights is being developed by the Association of Southeast Asian Nations (hereinafter ASEAN). This Association created the ASEAN Intergovernmental Commission on Human Rights that was charged to develop a human rights declaration. On 18 November 2012, the Association adopted the ASEAN Human Rights Declaration. Among the economic, social and cultural rights incorporated in this Declaration, the right to safe drinking water and sanitation has been explicitly included as part of a list of other rights that conform the right to an adequate standard of living. The ASEAN Intergovernmental Commission on Human Rights is responsible for the promotion and protection of human rights in the region. However, this Intergovernmental Commission is only a consultative body, which can provide advisory services and technical assistance on human rights matters. In other words this body has not been entrusted with any responsibility so as to consider complaints regarding violations of human rights.

    The other evolving regional system was created under the auspices of the League of Arab States. In 1994 this organisation adopted a Charter on Human Rights; however, this Charter never entered into force. Then, as part of an effort to ‘modernise this organisation, the Charter was revised.

  • Chapter 1 - General Introduction

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 1-6

  • Summary

    Water resources are used for a large number of societal activities, such as agriculture, industry, recreation and human consumption, as well as energy production. Additionally, water is necessary for the survival of all other living things. We might think that we have enough water on Earth to accomplish all these activities since there are large quantities of this resource on the planet. However, the majority of societal activities require freshwater resources, which only represent a small percentage of that large amount of water on Earth. In fact, only 2.5% of the world's water is fresh; the remainder – 97.5% – is seawater (saline water) and undrinkable. In addition, the greater portion of freshwater resources (approximately 68.7%) is found on ice and permanent snow in the Antarctic, the Arctic and in the mountainous regions. Further, 29.9% of freshwater is found in groundwater, and only 0.26% of the total amount of freshwater is concentrated in lakes, rivers and reservoirs. This last percentage represents the amount of water that is easily available for the listed societal activities. As a result, these activities have become competing uses for limited water resources.

    Freshwater resources are unevenly distributed on the planet. While water is abundant in some regions, in other regions it is extremely scarce. People living in areas where water is scarce may face difficulties in fulfilling their essential needs, since water is necessary to maintain life and good health, and to produce food. Therefore, access to sufficient safe drinking water is indispensable for all human beings to survive. In certain places available drinking water is becoming dangerously low and in other places water is highly polluted and not suitable for human consumption. Climate change is expected to make some arid areas even drier. In coastal areas, sea levels rising increase the potential for the intrusion of saline water into fresh groundwater in coastal aquifers. Additionally, water stored in glaciers and snow cover are projected to decline due to climate change, thus reducing water availability during dry periods in regions supplied by melt water.

Page 370 of 413