The extraterritorial application of the human right to water in Africa / Takele Soboka Bulto.
2013
KQC581 .B85 2014 (Map It)
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Details
Title
The extraterritorial application of the human right to water in Africa / Takele Soboka Bulto.
Published
Cambridge, United Kingdom : Cambridge University Press, 2013.
Call Number
KQC581 .B85 2014
ISBN
9781107031081 (hardback)
1107031087 (hardback)
1107031087 (hardback)
Description
xix, 304 pages ; 24 cm
System Control No.
(OCoLC)858825159
Summary
"International human rights law has only recently concerned itself with water. Instead, international water law has regulated the use of shared rivers, and only states qua states could claim rights and bear duties towards each other. International human rights law has focused on its principal mission of taming the powers of a state acting territorially. Takele Soboka Bulto challenges the established analytic boundaries of international water law and international human rights law. By demonstrating the potential complementarity between the two legal regimes and the ensuing utility of regime coordination for the establishment of the human right to water and its extraterritorial application, he also shows that human rights law and the international law of watercourses can apply in tandem with the purpose of protecting non-national non-residents in Africa and beyond"-- Provided by publisher.
"This book joins the debate (albeit mainly from the perspective of the African human rights system) but, more importantly, 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"-- Provided by publisher.
"This book joins the debate (albeit mainly from the perspective of the African human rights system) but, more importantly, 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"-- Provided by publisher.
Note
Based on the author's thesis (doctoral) -- Melbourne Law School, University of Melbourne, 2011, issued under title: Rights, wrongs and the river between : extraterritorial application of the human right to water in Africa.
Bibliography, etc. Note
Includes bibliographical references (pages 270-294) and index.
Record Appears in
Table of Contents
Preface and acknowledgments
xiii
Table of cases
xvi
1.
Introduction
1
1.1.
Introduction
1
1.2.
normative status of the human right to water
5
1.3.
imperatives of extraterritorial application of the human right to water in Africa
8
1.4.
Extraterritoriality as a new legal problem
12
1.5.
State of the art and the claim
14
1.6.
Analytical framework and methodology
16
1.7.
Significance of the study
18
1.8.
Scope of the research
20
1.9.
Structure of the study
22
2.
human right to water at the global level
25
2.1.
Introduction
25
2.2.
human right to water in the texts of human rights treaties
30
2.3.
Evolution through interpretation: the CESCR General Comment No. 15 and beyond
34
2.3.1.
teleological interpretation approach
35
2.3.2.
General Comment No. 15 and its discontents
37
2.4.
derivation approach
42
2.5.
Recognition through the state reporting procedure: the CESCR Concluding Observations and states' acquiescence
44
2.6.
human right to water outside the human rights regime
46
2.6.1.
Acceptance and recognition in international environmental (soft) law
47
2.6.2.
human right to water in international water law
52
2.7.
normative content of the human right to water
55
2.7.1.
concept of minimum core in human rights discourse
56
2.7.2.
core minimum of the human right to water
58
2.7.2.1.
types of uses
59
2.7.2.2.
Adequacy of water for the selected uses
62
2.8.
Conclusion
64
3.
human right to water in the African human rights system
66
3.1.
Introduction
66
3.2.
normative basis of the human right to water in the Charter
68
3.2.1.
right in the mainstream African human rights instruments
69
3.2.2.
approach of the African Commission
70
3.2.3.
Other regional treaties: the African Nature Convention
77
3.3.
use of extraneous rules and the relevance of developments at the universal level
79
3.4.
Conclusion
82
4.
human right to water and states' domestic obligations
84
4.1.
Introduction
84
4.2.
typologies of state obligations
86
4.2.1.
duty to respect
90
4.2.2.
duty to protect
92
4.2.3.
duty to promote
95
4.2.4.
duty to fulfil
96
4.3.
Interdependence of states' obligations
97
4.4.
Implementation of states' obligations: temporal dimensions
99
4.4.1.
Introduction
99
4.4.2.
Obligations of conduct and obligations of result
101
4.4.3.
notion and implications of core obligations
104
4.5.
States' immediate obligation: obligations of result
107
4.5.1.
duty to take steps
107
4.5.2.
`[B]y all appropriate means'
109
4.5.3.
`[I]ncluding legislative measures'
110
4.5.4.
`[W]ithout discrimination of any kind'
111
4.6.
Progressive duties: obligations of conduct
114
4.6.1.
`[A]chieving progressively'
114
4.6.2.
`[T]o the maximum of its available resources'
115
4.7.
Between willingness and inability: availability of water resources
116
4.7.1.
Inventory of resources and impossibility of performance
116
4.7.2.
right-duty of international assistance and cooperation
122
4.7.3.
Normative content of the duty to seek international assistance and cooperation
123
4.8.
Conclusion
125
5.
human right to water and states' extraterritorial obligations
127
5.1.
Introduction
127
5.2.
Setting the scene: the spatial reach of states' human rights obligations
130
5.3.
Extraterritorial reach of the African Charter
136
5.3.1.
Absence of jurisdiction clause
136
5.3.2.
Substantive provisions with extraterritorial dimensions
138
5.3.3.
jurisprudence of the African Commission
139
5.4.
utility of cross-reference: `inspirational sources'
144
5.4.1.
relevance of the ICESCR
145
5.4.1.1.
duty of international assistance: its implications for extraterritorial obligations
146
5.4.1.2.
Article 2(1) of the ICESCR as an `extraterritoriality clause'
150
5.4.1.3.
Extraterritorial state obligations under General Comment No. 15 of the CESCR
152
5.4.2.
Extraterritoriality in other regional human rights systems
154
5.4.2.1.
Extraterritoriality in the European human rights system
154
5.4.2.2.
Extraterritoriality in the Inter-American human rights system
162
5.5.
Towards concretising extraterritorial states' human rights duties
167
5.5.1.
Extraterritoriality through the layers of state obligations
167
5.5.2.
Problems specific to the extraterritorial duty to fulfil
171
5.6.
Extraterritoriality: its implications for the human right to water
173
5.7.
Conclusion
175
6.
Extraterritoriality of the human right to water in international water law
178
6.1.
Introduction
178
6.2.
International water law: from states' rights to human rights
180
6.2.1.
International water law: its relevance to the human right to water
180
6.2.2.
Convention as an embodiment of customary rules of international water law
187
6.3.
principle of equitable and reasonable utilisation as an extraterritorial duty to fulfil
191
6.3.1.
Introducing the concept
192
6.3.2.
normative status of the principle of equitable and reasonable utilisation
195
6.3.3.
relevance of the equitable and reasonable utilisation principle for the human right to water
198
6.3.3.1.
Equitable and reasonable utilisation as a human rights duty of co-riparian states
199
6.3.3.2.
`vital human needs' exception as a source of states' extraterritorial obligations to human beings
202
6.4.
`no-significant-harm' rule as extraterritorial duties to respect and protect
208
6.4.1.
Introducing the principle
208
6.4.2.
`no-significant-harm' rule as states' extraterritorial human rights duty
215
6.5.
prohibition of extraterritorial discrimination and the right to extraterritorial remedy
219
6.6.
Conclusion
222
7.
human right to water and extraterritorial remedies
225
7.1.
Introduction
225
7.2.
right to a remedy
227
7.2.1.
right to a remedy in international law
227
7.2.2.
Right to a remedy: whose right is it?
230
7.2.3.
role of individual remedies in redressing transboundary violations of the human right to water
232
7.3.
right to a remedy under the African Charter
235
7.4.
Primacy of national remedies over international remedies
240
7.5.
Beyond national jurisdictions: accessing regional tribunals and remedies
242
7.5.1.
Problems of remedial deterrence
243
7.5.2.
Exceptions to the local remedies rule and the human right to water
246
7.5.2.1.
Lack of protection for the human right to water in domestic law
246
7.5.2.2.
Problems of domestic non-justiciability of socioeconomic rights
247
7.5.2.3.
`Serious' or `massive' violations and the human right to water
251
7.6.
Conclusion
253
8.
Conclusion
255
8.1.
Introduction
255
8.2.
Extraterritoriality: a human rights response to water scarcity and state incapacity
258
8.3.
right to water and the tripartite dimensions of extraterritoriality
260
8.3.1.
Extraterritoriality from the right's perspective
260
8.3.2.
Extraterritoriality from the states' duties perspective
261
8.3.2.1.
duty of international assistance and cooperation
261
8.3.2.2.
Watercourses Convention and states' extraterritorial duties
262
8.3.3.
Remedial extraterritoriality
264
8.4.
Extraterritoriality and questions of attribution
265
8.5.
Conclusion
268
Bibliography
270
Index
295