Water for all

Takele Soboka Bulto (PhD) is an international human rights law and international law expert based in the Western Australia University, Australia. He was born in Ameya Woreda, South Western Shoa. He studied his primary and junior secondary school in Ameya and his high school in Woliso and Addis Ababa. He then went to Addis Ababa University Law School where he took his LLB Degree. He also earned a Masters Degree in International Relations from the same University before he went to Pretoria University (South Africa) where he completed a Masters of Laws Degree in human rights. He then did his third degree (PhD) in Melbourne University, Australia. He had served as a judge in the Oromia Supreme Court for two years. He is now Associate Professor at the Law School of the University of Western Australia. Takele has published numerous research works in the areas of water law, environment law, constitutional law, and right to water areas in well-known and reputable journals. Recently, he also published a book entitled “The Extraterritorial Application of the Human Right to Water in Africa” (Cambridge University Press).  Solomon Goshu of the Reporter met with Takele Seboka in Addis Ababa to discuss on issues from his book in relation with water law and what it means for Ethiopia. Excerpts:

The Reporter: International human rights law did not explicitly recognize access to drinking and sanitation water as an autonomous human right until recently. Do you think countries will soon accept water right defined as an entitlement to ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’, as a fully fledged  independent human right?

 

Takele Soboka (PhD): It is true that the right to water is not explicitly recognized in many of the international human rights treaties. Reasons could be many and varied. I don’t know which reason is the most valid one. Some argued that it was assumed that it should be available to everybody. But I don’t think that is the right answer. Basically, it is an innocent oversight by the drafters of the international human rights treaties. What I know is that it was never discussed nor rejected during the drafting stages of UN human rights treaties. So as it is not explicitly protected and guaranteed in many of the regional and international treaties. But it is still a legal right. If my argument is correct, it doesn’t need to be invented as it is already there as a latent part of existing human rights treaties’ provisions. For example, as the UN Committee on Socio-Economic Rights stated in 2002, it is part of the provision of Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which provides for an adequate standard of living which includes food, shelter, and other necessities. It says ‘including food and shelter’. So the word ‘including’ shows that the list is not exhaustive, it is elastic. It assumes that there are other elements that are required for a person to live an adequate standard of living. Water is one of those elements. The Committee also argues that it is part of the right to health which is guaranteed under Article 12 of the ICESCR. You can’t have health unless you have drinking and sanitation water. More recently, in 2011, more than 160 countries sat at the UN to discuss whether there is a need to recognize the right to water or not. Some 122 countries voted positively and said that they do recognize the right to drinking and sanitation water as an independent human right. 41 countries abstained. But they didn’t vote against it. They said they are not sure yet.

Water law is one of the most controversial laws in the world. The main actors in the water law are countries. But in the right to water individual citizens are the major players. In addition, states are required to respect the rights of citizens in the neighboring jurisdictions. How do you balance international water law with human rights to water generally? Or is equitable share of water in contradiction with individuals’ human right to water?

That takes me into a very controversial area of international human rights law. In recent years, academics and international human rights tribunals have started to ask the question of whether a state can be held accountable for human rights violations that occur abroad through their actions and inactions. In other words, is a state legally allowed to do activities abroad which they cannot lawfully do in its own territory? The answer has been ‘No’. Because when you subscribe to and ratify human rights treaties you mean you uphold these standards everywhere. But every state has the primary responsibility to respect, protect, and fulfill human rights of its citizens. Extraterritorial responsibility is a second level state obligation. For example, if Sudan cannot provide drinking water to its people, Ethiopia can be called upon to provide a degree of drinking water. The question is: can you do harm overseas which harm would be illegal if you did it in your territory. The answer is ‘No’. The European Court of Human Rights and the African Commission have decided that states should uphold those standards at home and even extraterritorially. Because human rights standards are universal, you have to at least respect them everywhere.

Those who resist accepting this position argue that considering the fact that water is a scarce resource providing a forum for citizens to have a say on its utilization as opposed to the exclusive bargaining power of the state is problematic as it interferes in the powers and functions of the state which is in a much better condition to appreciate the central issue than individuals only interested for their personal interests.

Water is a question of sovereignty. It has probably so far been regulated through state apparatus or institutions. It has been a state vis-à-vis state affair so far. That will continue to be the case. But the question is, let us say in the Nile Basin negotiation process,  the 11 riparian countries have reached an agreement whereby each country will receive a dividend of the bounty of the river. The question that we raise in terms of human rights is what it means for me as an Ethiopian citizen. How much of that water will I get from my government as an individual? Let us say hypothetically Ethiopia has been allocated 30 billion cubic meters per year from the Nile. The question I am asking is: shouldn’t the government be obligated to distribute that national dividend equitably for its citizens?  Putting the human right aspect in the hands of individuals will empower them to ask the government to provide that minimum level of drinking and sanitation water. It is a question of fighting arbitrariness and enabling individuals to remind the state that there are people who do not have drinking and sanitary water. Unless you put that right in the hands of the right holders the states do tend to ignore those rights. Human right to water also forces the states to take individual’s human right into account in their international negotiations. The UN Committee on Socioeconomic Rights also said that when states negotiate on water sharing treaties they have to take into account the individuals’ rights. The question of human rights usually arises after the Basin-wide treaty has been settled and each country has come with its own dividend.

If the right to water is strictly construed to force one’s own government to share the national water pool equitably for citizens, not many are against it. Rather what is questioned is the extra territoriality of the human right to water in light of the tripartite state obligations under human rights. For example, from Ethiopia’s point of view, allowing an Egyptian farmer to sue the Ethiopian government is unacceptable and hard to enforce for some as it erodes the gains resulted through the state negotiations.

In my opinion, the human right to water is different from the rest of human rights catalog mainly because the resource on which its realization depends is mostly trans-boundary. If you take Africa, almost all states share water. So implementation of the right to water is going to be problematic. We face two different questions. One, should we recognize the right to water. My answer is yes. Because this is about life and health. Two, if we recognize the right to water how do we implement it. Because the resource is trans-boundary. A Sudanese’s national right to water depends upon actions and inactions of upstream countries such as Ethiopia. So is the human rights regime ready for the enforcement of that sort of right. If the human rights is not ready to ensure my rights even if the resource is elsewhere then what is the point of giving me the right to water? It would create what I call in my book ‘rights inflation’. You give me a right which doesn’t buy me anything. So if you believe that the right to water has to be recognized which 122 countries have voted in favor then you have to find a way to make it work. One way is through international cooperation and assistance. That has been the obligation of states. Other countries come into the picture only when the home country has mobilized its maximum available resources. That country has to prove that it has tried its best to allocate drinking water to its people before allocating water to other purposes like agriculture. Let us underline the fact that extraterritorial responsibility doesn’t impose an obligation on Ethiopia to always provide water to Egypt. It is only when Egypt has done everything within its power to provide water for its nationals that upstream riparians’ obligations come to the fore. The 1997 International Watercourses Convention states that when there are conflicts between different uses, priority must be given to vital human needs that is drinking and sanitation water.

Some still argue that the right to water benefits the lower riparian countries more than the upper riparian ones. Would the right to water benefit upper and lower-riparian states equally?

It is yes and no. It depends upon the particular basin you were talking about. In the context of the Nile Basin, for example, at the moment that is not the case. Because Egypt, Sudan, and Uganda are the only three countries that provide near-adequate water for their nationals. Ethiopia and the rest of the upper riparian countries lie at the very bottom of drinking and sanitation water provision. We could claim more for drinking purposes from the Nile River. At the moment, we can present Ethiopia’s population and claim more water. That could actually put more pressure on Egypt because they provide more water to their population than does Ethiopia. But in the future it could change. The lower riparian countries may claim more water in the future.

How complimentary are international water laws which deals with state power and human rights to water that empowers individuals to have a say on water-related issues?

They can complement each other. Because when states go out to negotiate their share of a shared river, one of the criteria is the population size. The Watercourses Convention provides the size of the population as criteria to gain more water. The problem is once that shared river is divided amongst the riparian countries shouldn’t that state go home and divide the water equitably for its own people. In that sense, it does put an obligation on the state. It does also contribute for the right of the state because the state can present the population as a yardstick.

Some still insist that without the need to recognize the right to water as an independent right through the instrumentality of the other bundle of rights available in different instruments it is still possible to force the government to fairly apportion the national water pool amongst different sections of the society.

I am familiar with that argument. Academics and practitioners argue that the right to water can be provided or claimed as part of right to food, health, and life. But the kind of right to water that we find as part of these rights is a dependent right. If we take the right to water is part of the right to health, you can’t complain about violations of the right to water unless and until your health is affected as a result of shortage of water. But if you recognize the right to water as a free standing independent right you are required to fulfill the minimum core of that right which is 20 liters per person per day. The moment the state provides 19 liters per person per day, now you can talk about the violation of the right to water independently. So you don’t need to wait until your health is affected. For the state, it is a higher obligation and a bigger burden to fulfill the right to water as an independent right. But for the right holder, it gives him more power to keep the state on its toes. If the right to water is taken as a dependent and auxiliary right, it will have a lesser protection.

What is the status of the human right to water in the Watercourses Convention?

The 1997 International Watercourses Convention is probably the only global treaty on watercourses. It came into force in August 17, 2014. There was a debate whether to include the right to water as an individual right. Many states argued that this treaty is not a proper treaty to incorporate the right to water of an individual. It was a treaty that was aimed at regulating a state rights and duties vis-à-vis each other. But there was also an argument that states should respect, protect, and fulfill their citizens’ right and riparian population as such.  Eventually, the countries that negotiated the treaty agreed that countries that negotiate water sharing arrangement within a river basin must take into account the vital human needs of riparian population. This is provided for under Artile 10(2) of the Convention. So it must be the primary consideration : the Convention recognizes the human right to water. It is a new inclusion. It wasn’t part of previously existing customary rules on water sharing arrangement. The problem about it being a new inclusion is that many countries have yet to accept the treaty. So that provision is not binding as yet and the impact is minimal. Ethiopia is not a party to that treaty.

The focus on your book is Africa. Is the existing condition in the continent convenient to recognize the human right to water?

The African continent is the hardest place to implement the human right to water. Simply because the continent is a continent of trans-boundary rivers. There isn’t a single country that doesn’t share one river with another state on the continent. This makes the implementation of the right to water on the continent very complicated. On the other hand, the African Charter on Human and Peoples’ Right which is the primary continental human rights treaty did not include it. Ten years ago, I took up this case and put it before the African Commission. This is a case concerning Angola. The Angolan government basically apprehended tens of thousands of  foreigners and put them in a jungle on their way to deportation. It was a national policy of getting rid of foreigners from Angola. It is a very hot environment. During that period, every 500 people were given two buckets of water per day for drinking and sanitation. So there were many human rights violations. Access to judicial tribunals, dignity, right to work, discrimination, and the right to water were part of the complaint that we put before the Commission on behalf of these deportees. The Commission accepted all our arguments except our argument on the right to water. They did not even comment on it. That is where my research started. Unless the human right to water is applied extraterritorially, the right to water in Africa doesn’t have any hope of fulfillment.

Does the Cooperative Framework Agreement (CFA) on the Nile River Basin which Ethiopia take the primary initiative for its realization recognize the right to water?

The right to water in the CFA within the Nile Basin has somehow been ignored. It is not mentioned by name. The CFA is a proper inter-state treaty. They didn’t even discuss it. But that doesn’t mean that the countries do not have the obligation to implement the right to water in their own territories. All the Nile Basin counties except South Sudan have ratified the African Charter. The African Commission has now interpreted the African Charter and said that the right to water is part of it. A few years ago, it found Congo to have violated the human right to water. Recently, it has found Sudan in violation of the right to water because of pollution.

Ethiopia abstained from recognizing the right to water at the UN. Ethiopia is not a signatory of the Watercourses Convention which recognizes the right to water. Ethiopia is a forerunner in the CFA which does not recognize the right to water.  In light of these facts, how do you evaluate the stand of Ethiopia in relation to accommodating the human right to water?

I think Ethiopia’s position is consistent. Both at the UN level and at the level of the Nile Basin negotiations, they focused on state’s rights regarding trans-boundary rivers. They were the forerunners in the negotiation, drafting, and probably accepting of the CFA. They were active partners in the negotiation of International Covenant on Watercourses. In both treaties, their position regarding the right to water was consistent. At the UN level, Ethiopia abstained. But Ethiopia did not vote against the human right to water. I think Ethiopia will accept the right to water for its own population in the future. But for now Ethiopia has a huge battle securing its equitable and reasonable utilization regarding the Nile Basin. The reason that Ethiopia did not accept the human right to water and the Convention is that if they did accept that treaty they thought they might end up giving away more water for drinking to downstream countries. So Ethiopia took a cautious stance. Some people argue that, at national level, the policy objectives section of the FDRE Constitution does recognize drinking and sanitation water for Ethiopians. I doubt the validity of that argument because that provision is not part of the Bill of Rights section of the Constitution. But if that argument is right, Ethiopia does accept drinking and sanitation water as a right.

Generally, what do you think would be the role of recognition of the right to water in solving the actual or apparent water based conflicts such as that of Ethiopia and Egypt?

The situation between Ethiopia and Egypt at the moment is kind of cold war where war is unlikely and peace is impossible. Ethiopia has a huge population. Population size is a primary consideration in water sharing arrangements. Ethiopia is one of the countries in the Nile basin that provide very small amount of drinking and sanitation water to its own population. The human right to water is not a political issue; rather it is a human right, it is about lives of real people. Let us remember that the controlling principle in international watercourses regulation is the principle of equitable and reasonable utilization. When you do that, comparable interests of all riparian countries must be treated equally.  If countries come together and consider drinking and sanitation water as the primary issue, it might be a good starting point to build trust and confidence. And this might serve as a springboard for negotiating about use of water for other purposes like agriculture, environment, tourism, and industry. The human right to water will depoliticize the negotiation because this is about people’s lives. It will de-escalate the mutual mistrust between the countries. In that sense, it will positively contribute to the negotiations and peaceful settlement of dispute over the Nile.

In light of the current situation, how do you see Ethiopia’s approach in Nile Basin negotiations towards Egypt and Sudan particularly in the CFA and GERD issues?

Legally speaking, Ethiopia’s approach has been always on the right side of the law. If you put the utilization of the Nile made in Egypt compared to the utilization of the Nile in the upper riparian countries, Egypt uses the most amount of the Nile waters. What Ethiopia has been pushing for is for equitable and reasonable utilization which is Ethiopia’s natural right. With or without CFA and the Convention, equitable and reasonable utilization is a natural right of any country that shares river with another country. This is a rule of customary international law, which binds states irrespective of consent. Ethiopia’s role in the past in the negotiation of the Nile hasn’t been up to the standard. Ethiopia has come to the fore over the last 10 or 15 years. In practice, the Renaissance Dam is part of this. Ethiopia can use its own resources without doing significant harm to downstream countries. Significant harm is not factual harm. It is a legal harm. It only happens when you take the water more than your equitable and reasonable share. Otherwise, harm is expected. Each country has to accept that level of harm. Ethiopia’s actions haven’t gone beyond that principle. It has been within the bounds of the law. I think that is why no downstream country has tried in fact to take Ethiopia to any international tribunal for violations of any rule.

Ethiopia is not a signatory to the Watercourses Convention. You argue that there are convincing reasons for Ethiopia to be a party to this treaty. But many Ethiopians fear that being a party will benefit Egypt better considering the political influences of Egypt in the international arena as it opens a door for litigation. How do you see their concern?

I think there is a good reason for Ethiopia to ratify that Convention. It is a balanced Convention. The reason why both Ethiopia and Egypt took the same position is because they stand to lose something. But they also stand to gain something. The equitable and reasonable utilization principle allows all countries to be treated equally. Egypt has used more water in its country in history. So Egypt is trying to put existing use as main criteria. But the Convention has adopted the principle of equitable and reasonable utilization. It tries to balance future uses and existing uses. Another principle incorporated in the Convention is the principle of no significant harm, which mainly protects downstream interests in the Nile bsin. With or without the treaty, these two principles are applicable as international customary law incorporates them. So the Convention, to a degree,  reflects Ethiopia’s official position. As to the possibility of litigation, I don’t think litigation benefits any country in the Nile basin. Litigation fosters competition, it creates winners and losers. It does not help boost mutual trust. Rather negotiation is the best option. It promotes equitable use and mutual respect. It helps confidence building among the Nile riparian states. Resolving Nile issues requires recognition of mutual interests, equality of treatment of these interests, fairness and the spirit of mutual empathy and cooperation. So I think all riparian countries particularly Ethiopia and Egypt should continue the CFA negotiation rather than opting to litigation. Where the situation is, no riparian stands to benefit from litigation more than it benefits from negotiation and cooperation. Because of the Nile, the 11 riparians are permanently married to each other and animosity and litigious stances won’t help any party.

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