Comments from the Right to Food team at ESA on the V0 draft of the HLPE report on Water and food security
The comments below relate to approaches to water governance/management/use (question 5 of cover letter) and to conceptual issues in the human rights-based approach. The report covers quite a lot of ground including in the human rights aspects of water and food security. A general comment is that the notes and discussions in the different parts could be better streamlined and systematized. We have seven main comments and other relatively minor textual comments.
1. the definition of human rights-based approach (HRBA): The first paragraph of section 3.6 is structured in a difficult-to-read way mainly because it attempts to make a condensed presentation of too many conceptual issues. The legalistic definition of HRBA could be restrictive as the approach is broader than protection “by law and legal mechanisms”. The questions do not quite capture the central elements of HRBA and the more important elements of participation, accountability and inclusion of the most vulnerable come up only later. These elements should actually be used as defining features of HRBA in the first line – together with non-discrimination, transparency, empowerment... See FAO (2009) Guide on Legislating for the Right to Food, 78-83.
The human rights obligations are also better defined upfront in terms of the respect, protect and fulfil typology – rather than the positive/negative classification as the latter is used based on the potentially confusing criteria of whether the obligations are resource dependent or need actions or omissions.
2. The content of the right to water – entitlement v mechanism: in section 3.6.2, the report recites the elaboration of the right to water by the UN GA and the CESCR. It also refers to normative obligations of non-interference. The obligation to protect could be clearer, for example, in connection with land/water grabbing. The more contentious issue of access to water for agriculture/farming/food production is just mentioned as something recognized in GC15 of the CESCR. The obligation of states (fulfill?/facilitate?) is not clear in this respect, especially in the prevalent contexts of water scarcity. This has to either be clarified or at least be flagged as an issue. The report should further delineate the “entitlement” and “systemic” aspects of the right to water/food and HRBA. There is a tendency to look at the rights to food and water merely as sources of entitlements. In this regard, while it is made clear that the right to water doesn’t imply access for free (page 70, line 31), it would make sense to add a similar sentence with respect to the right to food (that it is primarily a right to feed oneself in dignity and not a right to receive food for free) on page 69, Line 29. In the same vein, looking at “water for productive uses” merely as an entitlement could be problematic. The report should clearly highlight that HRBA provides a mechanism that helps manage resources and entitlements in various contexts in fair/equitable ways - by creating an enabling environment through participation, inclusiveness, non-discrimination, accountability, empowerment. It is worth mentioning that HRBA addresses critical governance issues in food security. See FAO (2011) Right to Food Making it Happen: Progress and lessons learned through implementation, pp 6-7.
3. The difference in implications of the right to food and the right to water: the recognition of any right (in a constitution) at least in principle requires that the state takes steps to ensure that its present and future policies and conducts are in line with the requirements of the right. The recognition of the right to water could be peculiar in this respect because it implies or relates to the role of the state in the management of water resources, which are hitherto regulated in non-right-based frameworks or are left to customary or private practices. Food is mainly produced by various (private) actors, whereas water is essentially a naturally available (public) good. The report could be clearer with regard to this difference because these features significantly affect the recognition as well as implementation of the right to food and the right to water. For example, the Parliament of EL Salvador had embarked on the amendment of article 69 the Constitution to provide for the right to food and the right to water. Although the amendment was approved in the first stage in 2012, the reform failed to get the support it needed in the second round of voting in October 2014 mainly because of the debates around the implications of the right to water. See “ACUERDO DE REFORMA CONSTITUCIONAL N° 3. AL ARTICULO 69, REFERENTE AL DERECHO AL AGUA Y ALIMENTACIÓN” (available at http://www.asamblea.gob.sv/eparlamento/indice-legislativo/buscador-de-documentos-legislativos/reformase-la-constitucion-de-la-republica). It is probably for the same reason that there are differing formulations of the provisions on the right to wáter in various national laws - see http://www.righttowater.info/progress-so-far/national-legislation-on-the-right-to-water/#AL
4. The informal food sector: The report should address the issue of access to clean/safe water by small scale “informal” food producers, including street food vendors, on which the livelihoods of millions of people (producers and consumers) depends in developing countries. This is important for two main reasons. First, without access to clean water or policies that make it possible, the small scale (informal) food producers are forced to remain in the informal sector and would be marginalized from value chains. They are also exposed to arbitrary prosecution/extortion by local governments because of their inability to meet food safety and health standards in a context where that is not realistic or feasible due to lack of appropriate policies and services. Second, poor consumers that depend on the informal food sector are exposed to higher risks to their health than people that can afford to buy food through the formal channels. The number of people that depend on the informal food sector is quite high. In 2007, FAO estimated that 2.5 billion people have a meal provided by street food vendors every day (http://www.fao.org/AG/magazine/0702sp1.htm). Further see FAO (2003) The informal food sector http://www.fao.org/3/a-y4312e.pdf; FAO (2007) Promises and challenges of the informal food sector in developing countries http://www.fao.org/docrep/010/a1124e/a1124e00.htm
5. Transnational human rights obligations: Despite the close relationship between international watercourse law and extraterritorial obligations of states – whether or what obligations one (source) state holds towards people living in riparian (downstream) states - the two are treated in different parts of the report and no relationship is indicated (see page 71, lines 6-12 and section 3.6.5). The report should also address the issues of “regime conflict” (among international watercourse, trade, investment and human rights laws/treaties) and regulation of the conduct of TNCs/private companies more clearly, for example, with regard to their involvement in land/water grabbing that it alludes to. It must, however, be acknowledged that the extraterritorial dimension of human rights obligations, including the regulation of TNCs, is a bone of contention in international law. See FAO (2009) Guide on Legislating for the Right to Food, pp 133-134.
The notes under section 3.6.5 could be systematized. The first paragraph could preferably talk about “regime conflicts” in addition to the existence of lacuna in international agreements. Moreover, although the general focus is on international investment, the section may further look into the right to water issues in international trade and development cooperation. In this regard, the sentence in lines 36-39 on page 73 should be clearer.
6. Reference to relevant provisions of the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security: Guideline 8(c) calls on states to improve access to and the sustainable use of water. The report should refer to the provision and relevant explanatory materials (e.g., FAO (2009) Guide on Legislating for the Right to Food, section 4.4, pp 212ff - if the South African example on the issue of fixing minimum entitlements to water is to be used, please have a look at the later judgment of Constitutional Court.
7. HRBA-related recommendation: it would be wise for the report to include a recommendation on the importance of following a human rights-based approach in efforts to ensure access to water or in water management/governance. This may complement recommendations 2, 9, 12 and elements of recommendation 10, which should be streamlined or at least be listed consecutively. The recommendations could stress the need for the adoption and implementation of (domestic) legal, policy and institutional frameworks for access to water/water management/the right to water in participatory, non-discriminatory, inclusive and transparent manners and to put in place easily accessible accountability mechanisms that redress possible violations of the right to water. This would go well with the recommendation that CFS should facilitate dialogue/work towards a framework instrument that supports the right to water.
In what follows, we provide specific textual comments with a view to improve the clarity and accuracy of the report in the section relating to the rights to food and water.
Page 69, Line 42: - suggested change “... the right to food is interdependent with the recognition of ....” – as it stands, it looks like a unilateral dependence. Furthermore, in this paragraph, it could be good to refer to the requirement of “free, prior and informed consent” as the criteria to be met in conditions where the listed indigenous people’s rights may be infringed with under special circumstances.
Page 70, Line 28:- September of the same year?
Page 70, line 34:- please insert the underlined: “... water and sanitation, the right entitles....
Page 71, lines 11-12:- the last sentence is quite vague – not clear how the advisory nature relates to inclusion in the right to water – is the intention to indicate that the provisions are not binding?
Usage of the term “violation” – violation is a technical term that is used where there is an independent finding that a duty-bearer failed to carry out a human rights obligation. “impairment” or “non-realization” could be alternative terminologies in places such as page 72, line 33
Consistency in the use of some phrases/names – Special Rapporteur on the right to food/water rather than Special Rapporteur for food/water – see page 73, first paragraph
Right to Food team, ESA and LEGNSisay Yeshanew