ETO Obligations and the Right to Water: Common Concern to the Rescue? Werner Scholtz, Professor of law (NWU), Research Associate (SAIFAC)

Map Reflect on right to water. ETO obligations: comment 15. ETO discourse and problems. Alternative: common concern. Conclusion.

Death of a right? Lacks comprehensive legal recognition (exceptions). General comment 15 CESCR (2002) (status). Reading in from ICESCR: A 11 and 12. Scholarship: critique and debate:”revisionist”. GAR of 2010: 41 abstained. Denial of right (respect, promote fulfil) towards own residents!

ICESCR However: General comment includes ETO obligations (non-residents). Obligations to respect: par. 21. Protect: 23. Fulfill: 25. Paras : explicit provision ETOs.

Fulfil Para. 34: Depending on the availability of resources, States should facilitate realization in other countries, for example through provision of water resources, financial and technical assistance, and provide the necessary aid when required. International assistance should be provided in a manner that is consistent with the Covenant and other human rights standards, and sustainable and culturally appropriate. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard.

ETOs in general Legal basis: A 55 UN Charter: joint and separate action for the promotion of universal respect for, and observance of, human rights. A 2(1) ICESCR: Each undertakes to take steps, individually and through international assistance and co-operation … achieving progressively the full realization of the rights.

ETOs: right to water A 11(1): The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co- operation. Fulfil: Positive measures: obligations for residents in other states? Most controversial! Non-intervention and sovereignty? Discourse on ETO in IL.

Context Globalisation Inequality and inequity in economic order. Development of human rights (right to water) since codification. Development of content and understanding of ETOs. De lege ferenda!

Skogly As Skogly points out: “It is now commonly argued, and generally accepted that human rights is now an issue of legitimate international concern, and can no longer be deemed to belong to the internal or domestic affairs of states”. States have at least a legitimate interest in human rights in other countries. Skogly Beyond National Borders 76 et seq.

Lessons Skogly suggests IEL may provide lessons since “developments may have come further”.

IEL Common interest gives rise to common concern (UNFCCC and CBD). Driving force for creation of rules that address the common concern. Implications for sovereignty.

How? Universal cooperation necessary! But cognisance of factual realities of international community (inequity). Differential treatment: capability and culpability. Inclusion of CBDR in MEAs: E.g. A 3 Kyoto.

And isn't that the god of our century? To act together. To think-together. Interdependence: effects of actions (states and non-states) on access to water in other states. Common concern on basis of survival? Spark for the further development of the content of ETO obligations : inter alia a common responsibility for the provision of assistance and support.

Divide and conquer-first. But then- unite and rule. Cognisance of inequity and inequality? Development on basis of moral principle of solidarity. States should conduct their policies in a manner that takes into account the interests of other states. They should also undertake positive measures pursuant to the benefit of a community of states.

Conclusion Suggestion: a shared responsibility for the universal promotion of human (water) rights. Pursuant to a more equitable world order.

II How?: CC framework may provide spark for development of rules, which may further extraterritorial application. Thus, may contribute to normative development of right. CC may strengthen HR regime. ETO important for application of right.

III May borrow from IEL in order to enrich normative development of right. CC also driver for development of role non- state actors. But consensus that it is cc? However, in IEL concern is more acute and tangible And even concern does not induce action!