Conference Presentation
Reference
Participation and water rights: the contribution of legal frameworks to the protection of individual and collective rights
TIGNINO, Mara
TIGNINO, Mara. Participation and water rights: the contribution of legal frameworks to the protection of individual and collective rights. In: World Water Forum - Session on Water Justice and Cooperation: Perspectives and Frameworks for Fostering Cultural Diversity, Society and Nature, Daegu, Corée du Sud, 12-17 avril 2015, 2015
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Participation and Water Rights: The Contribution of Legal Frameworks to the Protection of Individual and Collective Rights
Mara Tignino
Senior Researcher and Coordinator of the Platform for International Water Law, Faculty of Law, University of Geneva
World Water Forum
Session 4.4.4 – Water Justice and Cooperation: Perspectives and Frameworks for Fostering Cultural Diversity,
Society and Nature Daegu, 15 April 2015
Outline
1) Participation, individual and collective rights
2) Strengthening the protection of individual and collective rights in the management of water resources
1) Participation, individual and collective rights
• Transparency in environmental decision-making, provision of information and access to justice (see: UNECE Aarhus
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental
Matters (1998); UNECE Helsinki Convention on the Protection and Use of Protection of Transboundary Watercourses and International Lakes (1992)
• Possible tension between individual and collective rights
1) Participation, individual and collective rights
• Human Rights Law sheds light on participation and collective rights
Examples from human rights case law
“Collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa”
(African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, 2001, par.52)
1) Participation and individual and collective rights
Human Rights Law sheds light on participation and collective rights
“The African Commission is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent according to their customs and traditions” (African
Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group on
Behalf of Endorois Welfare Council v. Kenya, 2009, par.291)
1) Participation and individual and collective rights
Human Rights Law sheds light on participation and collective rights
“The culture of the members of the indigenous communities corresponds to a specific way of life, of being, seeing and acting in the world, constituted on the basis of their close relationship with their traditional lands and natural resources, not only
because these are their main means of subsistence, but also because they are an integral element of their cosmology, their spirituality and, consequently, their cultural identity ” (Inter- American Court of Human Rights, Xakmok Kasek v. Paraguay, 2010, par. 174)
2) Strengthening the protection of individual and collective rights in the management of water resources
- Need for an holistic approach: individual and collective rights are reflected in principles of international water law
- Linkages between human rights law and international water law
Principle of equitable and reasonable utilisation: it is applicable to all water resources both national and
transboundary. It includes the protection of water needs (see Art.5.2 of the 2008 International Law Commission’s Draft Articles on the Law of Tranboundary Aquifers)
Obligation not to cause a significant damage. This obligation extends to the environment under the
jurisdiction of a State (see Art. 8 of the 2004 Berlin Rules of the International Law Association)
2) Strengthening the protection of individual and collective rights in the management of
water resources
Linkages between human rights law, international environmental law and international water law
• The relationship between the principle of participation and the principle of free, prior and informed consent (1989 ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries no. 169 , 1992 Convention on
Biodiversity (art. 8 (j) and 10(d), 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemical)
2) Strengthening the protection of individual and collective rights in the management of water
resources
• Need to address individual and collective human rights in a coherent framework which includes transboundary
cooperation on water resources
• Water needs and the right to water depend on both national and transboundary water resources
Example
In Africa 52 States of its 54 States are dependent for drinking and sanitation on international rivers
