The no significant harm principle and the human right to water
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The no significant harm principle and the human right to water Otto Spijkers1 Accepted: 10 July 2020 © Springer Nature B.V. 2020
Abstract Access to water has been recognized as an international human right at least since 2010, when both the United Nations General Assembly and the Human Rights Council adopted resolutions to this effect. The no significant harm principle can be found in the UN Watercourses Convention, and in numerous other global, regional, and watercourse-specific treaties. This paper provides an explanation of how the no significant harm principle and the human right to water supplement each other, by jointly protecting both the State and the individual from significant harm done, by another State, to a watercourse on which they depend. The dispute between Chile and Bolivia relating to the status and use of the Silala waters is used as a case study, to illustrate the way in which these two international legal regimes (international water law and international human rights law) supplement each other. Keywords Chile · Bolivia · Silala · Human right to water · No significant harm · International water law · Human rights Abbreviations CEDAW Convention on the Elimination of all Forms of Discrimination Against Women CESCR Committee on Economic, Social and Cultural Rights CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities FCAB Ferrocarril de Antofagasta a Bolivia HRC Human Rights Council ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ILA International Law Association ILC International Law Commission UDHR Universal Declaration of Human Rights UN United Nations * Otto Spijkers [email protected] 1
China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University, Wuhan 430072, Hubei, China
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O. Spijkers
UNGA United Nations General Assembly WCC Watercourses Convention
1 Introduction It is a well-established principle in international water law that States “shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States” [Article 7 Watercourses Convention (WCC)]. This no significant harm principle, although its exact formulation differs, features in many international legal documents and case law, and its status as a principle of customary international water law is undisputed [e.g. Arbitral Tribunal (1957, para. 13), ICJ (1996, para. 29), and ICJ (1997, para. 53)]. What is remarkable, is that it is generally formulated as a principle that only applies horizontally, i.e. in the relation between States sharing the same watercourse. In international human rights law, there exists a human right to safe and clean drinking water. This right is not explicitly mentioned in any of the classical human rights treaties, but it has been derived from a variety of sources, and its existence has been
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