Indigenous Communities: Analyzing their Right to Water under Different International Legal Regimes

Misiedjan, Daphina; Gupta, Joyeeta

doi:10.18352/ulr.270

Cited by 11 publications

(9 citation statements)

References 2 publications

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“…The legal literature also analyses the legal framework for the implementation of the right at various levels of governance, from the international (McIntyre, 2012;Misiedjan & Gupta, 2014;Salman, 2014) to the national and local levels (Baer, 2015;Bhullar, 2013;Cullet, 2013;Martin, 2011;Tignino, 2011;Wekesa, 2013) . Meta-analysis sometimes shows marked differences in the conception of the HRS norms like participation and accountability, between lawyers and non-lawyers for instance (Klasing, Moses & Satterthwaite, 2011).…”

Section: Incoherence Between Legal and Non-legal Research On The Humamentioning

confidence: 99%

“…Where the decisions of international courts expand on the meaning and principles of the HRS, in consonance with the ICESCR and other international law instruments recognising the right Source: Compiled by the author, based on Misiedjan & Gupta, 2014;Obani & Gupta, 2014b;WaterLex, 2014 …”

Section: Mutual Supportmentioning

confidence: 99%

“…This can create tensions between the HRS and other economic, social and cultural rights. The HRS as an individual right, may also be in competition with collective rights such as the indigenous' people's rights (Misiedjan & Gupta, 2014).…”

Section: Competitionmentioning

confidence: 99%

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Strengthening the Human Right to Sanitation as an Instrument for Inclusive Development

Obani¹

2018

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Section: Incoherence Between Legal and Non-legal Research On The Humamentioning

confidence: 99%

Section: Mutual Supportmentioning

confidence: 99%

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Strengthening the Human Right to Sanitation as an Instrument for Inclusive Development

Obani¹

2018

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“…The first is that it is either soft law (Ref , p. 654), which offers limited protection in case of violation, or derived from hard law, but the scope and content of the right remain ill‐defined (Ref , p. 391, p. 394, p. 405). The second argues that the HRWS is a binding legal obligation as it exists in soft and hard law and is increasingly included in national law (Ref , p. 980, Ref ). The third argues that it is a principle of customary international law based on State practice, national and international jurisprudence (Ref , p. 30, ), and Goal 6 of the SDGs (see Table ).…”

Section: The Hrs In the Legal Literaturementioning

confidence: 99%

“…However, implementing this right is difficult. First, the HRW is an individual right and may negate collective rights, such as indigenous people's rights of access to water for multiple uses as part of their natural resources (Ref , p. 90). Second, it is not clear if the rights language creates a political obligation, which imposes significant administrative and legal challenges, or is just a guiding principle for affirmative state action subject to available resources (Ref , p. 4).…”

Section: The Hrs In the Legal Literaturementioning

confidence: 99%

Human right to sanitation in the legal and non‐legal literature: the need for greater synergy

Obani

Gupta

2016

WIREs Water

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This review paper analyzes the legal and non-legal literature on the human right to sanitation (HRS). It shows that despite applying different paradigms in framing the HRS, both literature support the following three main conclusions: (a) state and non-state actors, particularly NGOs and private service providers, have potentially mutually supportive roles in the implementation of the human right to water and sanitation (HRWS); (b) the implementation is enmeshed in three potential conflicts-between the human rights approach and cost recovery, state provision of services and the implicit legitimization of informal settlements, and the empowerment of vocal rights holders rather than the marginalized rights holders for whom these rights are primarily meant; and (c) HRWS needs to be better linked to other fields and broader issues to ensure complementarities. The paper also highlights important lessons for both legal and non-legal scholars to learn from each other's research and possibly forge strong multi-and interdisciplinary research themes. Non-legal scholars can benefit from the legal literature's coverage of: (a) the normative content of the HRWS; (b) the theoretical justifications for HRWS; (c) the legal status of HRWS; (d) enforcement mechanisms; and (e) the accountability of duty bearers. Legal scholars can also benefit from the non-legal literature's coverage of: (a) a broader scope for the HRWS and the indicators and monitoring systems used by non-lawyers; (b) learning from the community-led total sanitation (CLTS) experience; (c) the economic justifications for HRWS; (d) the need to link to appropriate technologies; and (e) the accountability of nonstate actors. © 2016 The Authors. WIREs Water published by Wiley Periodicals, Inc. How to cite this article:WIREs Water 2016Water , 3:678-691. doi: 10.1002Water /wat2.1162 INTRODUCTIONT he human right to sanitation (HRS) is a legal construct primarily discussed by legal scholars, but it has emerged as a prominent socio-political discourse and engaged a much wider community beyond lawyers. Its prominence in tackling the global sanitation challenge has been on the rise, particularly since the International Year of Sanitation in 2008 and the adoption of the United Nations General Assembly (UNGA) and Human Rights Council (HRC) Resolutions on the human right to safe drinking water and sanitation (HRWS) in 2010. The HRS has since become a subject for conceptual, sociopolitical, and legal enquiries about its meaning, impact on human lives, and enforceability as a binding right. Hence, this paper adopts a multidisciplinary perspective to explore the main HRS-focused research themes in the legal (used here as a generic term for publications by legal scholars) (see second section) and non-legal literature (used here as a THE HRS IN THE LEGAL LITERATUREThe legal literature discusses the HRS mostly within the context of the HRW and the HRWS and only more recently as an independent right, hence the structure of this section. The Human Right to Water and Sanitation (HR...

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The tension between state ownership and private quasi‐property rights in water

Bosch

Gupta

2022

WIREs Water

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A critical legal issue in water governance is who owns and who holds property rights in water. Hence, we address the question: How has the state of legal knowledge on private property rights in water evolved worldwide, and how are these rights embedded in the current existing legal constructions? In answering the question, this article reviews the legal literature to: (i) understand the current state of water ownership and water property rights in the main legal systems, (ii) understand and capture how private water "property" rights are embedded in the existing legal constructions; and(iii) reflect on the application of these rights in practice. We conclude:(a) While most states have placed water in the public domain, past statutory systems of water rights are difficult to abolish, and increasingly Indigenous peoples are successfully demanding recognition of, and reclaiming their water rights. (b) States are (re)allocating water rights through statutory mechanisms, including clearly defined bundle-of-rights. And (c), while the state ostensibly controls the water, the allocation of water through historic and new statutory instruments "encroaches" on state water ownership, and has created confusion affecting the state's power to adaptively govern the water. This confusion reflects the tension between the need of states to own and govern water in the public interest, the rights of Indigenous peoples to their water, with the need of agriculture and industries to have reliable supplies of water, leading to water use rights that imply "quasi-property" rights in water.

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Indigenous Communities: Analyzing their Right to Water under Different International Legal Regimes

Cited by 11 publications

References 2 publications

Strengthening the Human Right to Sanitation as an Instrument for Inclusive Development

Strengthening the Human Right to Sanitation as an Instrument for Inclusive Development

Human right to sanitation in the legal and non‐legal literature: the need for greater synergy

The tension between state ownership and private quasi‐property rights in water

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