User:Xelabn/Human right to water and sanitation

Right to water in domestic law / Remaining discussions

Australia

The attention in Australia is focused on the rights of Indigenous Australians to water and sanitation. History of settler-colonialism overshadows today's state governance that regulates water use to indigenous Australians. There are many governmental agreements, but most of them are incomplete to fully influence power to the indigenous right to water and sanitation. In Mabo v Queensland, 1992, Native rights were legally recognized at the first time. Indigenous Australians often claim cultural bonds to the land. Although "culture" was recognized in the court as much as land resources, cultural and spiritual value of Aborigines to water body are fuzzy. It is challenging but needed to transcend their cultural and spiritual values into legal sphere. For now, there is virtually no progress.

Australian water law basically prescribes surface water for citizens who can use surface water but cannot own. In the constitution, however, there is no description about inland and riparian water. Therefore, the sphere of inland/riparian water rights are the primary mandates of the state. The Commonwealth Government obtains authority over water by borrowing the help of external relationship, including the Grants Power, Trade and Commerce Power.

In 2000, the Federal Court concluded the agreement that allowed indigenous landowners to take water for traditional purposes. However, the use is limited to traditional purpose, which did not include irrigation as a traditional practice.

In June 2004, CoAC concluded an intergovernmental accord on a National Water Initiative (NWI), promoting recognition of indigenous right to water. However, NWI is not concerned broadly about complex history of settler-colonialism, which has systematically created a unequal pattern of water distribution. Indigenous people in Australia are constantly seeking the right to water.

Pluralism perspectives as a mean to protect the right of a socially weak community[edit]

A legal pluralism perspective is gaining momentum, with the idea of Anthropocene and the recognition of indigenous people who face a serious incursion of right to their culturally important land and water. Pluralism perspectives are a multidisciplinary approach, which apply different rules to a group of people. There are a huge number of international and domestic agreements, which limits the power over indigenous rights to water, recognize indigenous rights, and promote them. For example, they include International Covenant on Civil and Political Rights ratified by 167 countries in 1996, which usurps the power of state who invades the indigenous rights and gives the right of self-determination for indigenous people. Self-determination is the idea that people should be able to autonomously manage their natural resources. Also, in the same year, International Covenant on Economic, Social and Cultural Rights (ICESCR) recognized self-determination of indigenous people to land and water use. The UN Conference on Environment and Development adopted Agenda 21 supported by 174 states, further protecting indigenous people from incursion of their natural resources. There are many other arrangements in international and domestic sphere. Pluralist concerns about all of them to apply these different rules to the same jurisdiction on case-by-case basis. There are many limitations on this multifaceted approach, though. Some rules use abstract languages about the right, featuring ambiguous. They are often taken advantage by a state to power the right to water resources over a specific community. Many states make it rule to adopt their customary rules rather than international arrangements. Also, a content of each rule features differently, causing "inconsistencies" under the same content, agenda. Ambiguity, customary laws, and inconsistencies become impediments to put in practice pluralism perspectives. In spite of these drawbacks, pluralism perspectives provide other options to governance to help socially weak people, including marginalized indigenous people, therefore worthwhile exploring more.

Transboundary effects[edit]

Given the fact that access to water is a cross-border source of concern and potential conflict in the Middle East, South Asia, the Eastern Mediterranean and parts of North America amongst other places, some non-governmental organizations (NGOs) and scholars argue that the right to water also has a trans-national or extraterritorial aspect. They argue that given the fact that water supplies naturally overlap and cross borders, states also have a legal obligation not to act in a way that might have a negative effect on the enjoyment of human rights in other states. The formal acknowledgement of this legal obligation could prevent the negative effects of the global "water crunch" (as a future threat and one negative result of human over-population).[22] Water shortages and increasing consumption of freshwater make this right incredibly complicated. As the world population rapidly increases, freshwater shortages will cause many problems. A shortage in the quantity of water brings up the question of whether or not water should be transferred from one country to another.

Water Dispute Between India and Pakistan

The water dispute between India and Pakistan is influenced by the scarcity of water in the South Asian region. The two countries have a pre-existing agreement known as the Indus Waters Treaty. The treaty was formed to limit the conflict between India and Pakistan regarding the use of the Indus basin and allocate water supply for both countries after the countries gained independence. However, disagreements regarding it have surfaced. According to the treaty, India is allowed to use the western river basin for irrigation and non-consumptive purposes, while Pakistan has the majority of control over the basin. However, Pakistan has voiced concerns that India's construction on the rivers may lead to severe water scarcity in Pakistan. Moreover, Pakistan voiced that the dams constructed by India for non-consumptive purposes may be used to divert water flow and disrupt Pakistan's water supply. In addition, the treaty involves rivers that originate from Jammu and Kashmir, which have been excluded from control over their own water bodies.

The 5 Dimensions of HRWS

The Human Right to Water and Sanitation consists of 5 dimensions (availability, accessibility, quality and safety, acceptability, and affordability) as stated by the United Nations. These include that water must be available in abundance, which allows for both commercial and personal use. Water must be accessible to every citizen living in the country, the UN states that water should not be further than 1,000 meters or 3,280 feet and must be within 30 minutes. The third dimension of the HRWS is that the water provided to the citizens must be of quality and safe for everyone to drink. As proclaimed by the United Nations, the water must not include, "micro-organisms, chemical substances, and radiological hazards," which means that water is safe to use. In addition, if the water used follows the World Health Organization guidelines for drinking water, the government of the country will know that the water is safe for drinking and sanitation. The fourth dimension is the acceptability of water. In order for water to be considered acceptable it must not have any odor and should not consist of any color. The last aspect of the HRWAS is that water must be affordable, water price should not exceed 3% of a person's income.

Standing Rock Sioux Tribe v. United States Army Corps of Engineers

In 2016, there was a prominent case known as Standing Rock Sioux Tribe v. United States Army Corps of Engineers, where the Sioux Tribe challenged the building of The Dakota Access Pipeline(DAPL). This crude oil pipeline spans over four states which includes the beginning in North Dakota, South Dakota, Iowa, and ending in Illinois. The Standing Rock Reservation is located near the border of North and South Dakota and the pipeline is built within a half a mile of it. Since the pipeline was built near the reservation, the tribe feared that historical and cultural significance of Lake Oahe would be tampered with, even though the pipeline doesn't run directly through the lake. Lake Oahe provides basic water necessities for the Sioux Tribe such as drinking water and for sanitation.The construction of the oil pipeline means that there is a higher risk of an oil spill into Lake Oahe, which made the tribe concerned.The Sioux Tribe sued the DAPL company as they believed that the creation of the pipeline was violating the National Environmental Policy Act (NEPA) and the National Historic Act(NHA). After the 2016 briefing, the court was unable to come to a conclusion, so the court decided to do additional briefings. After 5 briefings in 2017 and 1 briefing in 2018, the court has allowed the construction of the pipeline, but the Standing Rock tribe continues to fight to ensure that pipeline is removed.

References

Robert Poirier & Doris Schartmueller (2012) Indigenous water rights in Australia, The Social Science Journal, 49:3, 317-324, 10.1016/j.soscij.2011.11.002.

Peter Burdon, Georgina Drew, Matthew Stubbs, Adam Webster & Marcus Barber (2015) Decolonising Indigenous water ‘rights’ in Australia: flow, difference, and the limits of law, Settler Colonial Studies, 5:4, 334-349, 10.1080/2201473X.2014.1000907.

Ho, Ezra (2014). "Unsustainable Development in the Mekong: The Price of Hydropower '' (PDF). The Journal of Joyeeta Gupta1, Antoinette Hildering and Daphina

Misiedjan. (2014). Sustainable Development. 63–76 – via Consilience. "Indigenous people's right to water under international law: a legal pluralism perspective". Current Opinion in Environmental Sustainability. 26–33.

Elizabeth Strakosch and Alissa Macoun, (2012). “The Vanishing Endpoint of Settler Colonialism,” Arena Journal 37:48, 40-62.