International human rights law

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/International_human_rights_law 

 

International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.

The relationship between international human rights law and international humanitarian law is disputed among international law scholars. This discussion forms part of a larger discussion on fragmentation of international law. While pluralist scholars conceive international human rights law as being distinct from international humanitarian law, proponents of the constitutionalist approach regard the latter as a subset of the former. In a nutshell, those who favors separate, self-contained regimes emphasize the differences in applicability; international humanitarian law applies only during armed conflict.

A more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict between both state and military occupation (i.e. IHL) or to certain groups of people including refugees (e.g. the 1951 Refugee Convention), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).

United Nations system

The General Assembly of the United Nations adopted the Vienna Declaration and Programme of Action in 1993, in terms of which the United Nations High Commissioner for Human Rights was established. 

In 2006, the United Nations Commission on Human Rights was replaced with the United Nations Human Rights Council for the enforcement of international human rights law. The changes prophesied a more structured organization along with a requirement to review human rights cases every 4 years.

International Bill of Human Rights

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is a UN General Assembly declaration that does not in form create binding international human rights law. Many legal scholars cite the UDHR as evidence of customary international law.

More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.

International human rights treaties

Besides the adoption in 1966 of the two wide-ranging Covenants that form part of the International Bill of Human Rights (namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), other treaties have been adopted at the international level. These are generally known as human rights instruments. Some of the most significant include the following:

• 

• Processes for becoming a state party to a treaty
  the Convention on the Prevention and Punishment of the Crime of Genocide (CPCG) (adopted 1948 and entered into force in 1951);
• the Convention Relating to the Status of Refugees (CSR) (adopted in 1951 and entered into force in 1954);
• the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted in 1965 and entered into force in 1969);
• the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entered into force in 1981);
• the United Nations Convention Against Torture (CAT) (adopted in 1984 and entered into force in 1987);
• the Convention on the Rights of the Child (CRC) (adopted in 1989 and entered into force in 1990);
• the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted in 1990 and entered into force in 2003);
• the Convention on the Rights of Persons with Disabilities (CRPD) (entered into force on 3 May 2008); and
• the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) (adopted in 2006 and entered into force in 2010).

Regional protection and institutions

Regional systems of international human rights law supplement and complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments which have established human rights law on a regional basis:

• the African Charter on Human and Peoples' Rights for Africa of 1981, in force since 1986;
• the American Convention on Human Rights for the Americas of 1969, in force since 1978; and
• the European Convention on Human Rights for Europe of 1950, in force since 1953.

Americas and Europe

The Organisation of American States and the Council of Europe, like the UN, have adopted treaties (albeit with weaker implementation mechanisms) containing catalogues of economic, social and cultural rights, in addition to the aforementioned conventions dealing mostly with civil and political rights:

• the European Social Charter for Europe of 1961, in force since 1965 (whose complaints mechanism, created in 1995 under an Additional Protocol, has been in force since 1998); and
• the Protocol of San Salvador to the ACHR for the Americas of 1988, in force since 1999.

Africa

The African Union (AU) is a supranational union consisting of 53 African countries. Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, in particular by bringing an end to intra-African conflict and creating an effective common market.

The African Charter on Human and Peoples' Rights is the region's principal human rights instrument, which emerged under the aegis of the Organisation of African Unity (OAU) (since replaced by the African Union). The intention to draw up the African Charter on Human and Peoples' Rights was announced in 1979. The Charter was unanimously approved at the OAU's 1981 Assembly.

Pursuant to Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986, in honour of which 21 October was declared African Human Rights Day.

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union, tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent, as well as with interpreting the African Charter on Human and Peoples' Rights, and considering individual complaints of violations of the Charter. The Commission has three broad areas of responsibility:

1. promoting human and peoples' rights;
2. protecting human and peoples' rights; and
3. interpreting the African Charter on Human and Peoples' Rights.

In pursuit of these goals, the Commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments."

With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court's jurisdiction. In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.

The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union." Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as to act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004, but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by fifteen countries.

There are many countries in Africa accused of human rights violations by the international community and NGOs.

Inter-American system

The Organization of American States (OAS) is an international organization headquartered in Washington, DC. Its members are the thirty-five independent nation-states of the Americas.

Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:

• strengthening democracy;
• working for peace;
• protecting human rights;
• combating corruption;
• the rights of indigenous peoples; and
• promoting sustainable development.

The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights. The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:

1. the OAS Charter;
2. the American Declaration of the Rights and Duties of Man; and
3. the American Convention on Human Rights.

The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are therefore adjudicatory and advisory:

• Under the former, it hears and rules on the specific cases of human rights violations referred to it.
• Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela, have been accused of human rights violations.

European system

The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law, and has observer status at the United Nations. The seat of the Council is in Strasbourg in France.

The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the Council's members to a code of human rights which, although strict, is more lenient than that of the UN Charter on human rights.

The Council also promotes the European Charter for Regional or Minority Languages and the European Social Charter. Membership is open to all European states which seek European integration, accept the principle of the rule of law, and are able and willing to guarantee democracy, fundamental human rights and freedoms.

The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention on Human Rights. The Council includes all the member states of European Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.

The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed this Convention, and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment, the Committee for the Prevention of Torture was established.

The Council of Europe also adopted the Convention on Action against Trafficking in Human Beings in May 2005, for protection against human trafficking and sexual exploitation, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in October 2007, and the Convention on preventing and combating violence against women and domestic violence in May 2011. 

The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states. In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list. About one out of every twenty cases submitted to the court is considered admissible. In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.

Monitoring, implementation and enforcement

There is currently no international court to administer international human rights law, but quasi-judicial bodies exist under some UN treaties (like the Human Rights Committee under the ICCPR). The International Criminal Court (ICC) has jurisdiction over the crime of genocide, war crimes and crimes against humanity. The European Court of Human Rights and the Inter-American Court of Human Rights enforce regional human rights law.

Although these same international bodies also hold jurisdiction over cases regarding international humanitarian law, it is crucial to recognise, as discussed above, that the two frameworks constitute different legal regimes.

The United Nations human rights bodies do have some quasi-legal enforcement mechanisms. These include the treaty bodies attached to the seven currently active treaties, and the United Nations Human Rights Council complaints procedures, with Universal Periodic Review and United Nations Special Rapporteur (known as the 1235 and 1503 mechanisms respectively).

The enforcement of international human rights law is the responsibility of the nation state; it is the primary responsibility of the State to make the human rights of its citizens a reality.

In practice, many human rights are difficult to enforce legally, due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.

In over 110 countries, national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country. Although not all NHRIs are compliant with the Paris Principles, the number and effect of these institutions is increasing.

The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris from 7 to 9 October 1991, and adopted by UN Human Rights Commission Resolution 1992/54 of 1992 and General Assembly Resolution 48/134 of 1993. The Paris Principles list a number of responsibilities for national human rights institutions.

Universal jurisdiction

Universal jurisdiction is a controversial principle in international law, whereby states claim criminal jurisdiction over people whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence or any other relationship to the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.

In 1993, Belgium passed a "law of universal jurisdiction" to give its courts jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle.

The principle is supported by Amnesty International and other human rights organisations, which believe that certain crimes pose a threat to the international community as a whole, and that the community has a moral duty to act. 

Others, like Henry Kissinger, argue that "widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny—that of judges".

Human right to water and sanitation

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Human_right_to_water_and_sanitation 

 

Access to safe, clean water and safe and hygienic sanitation is a basic human right.

 

The Human Right to Water and Sanitation (HRWS) was recognised as a human right by the United Nations General Assembly on 28 July 2010.

The HRWS has been recognized in international law through human rights treaties, declarations and other standards. Some commentators have derived the human right to water beyond the General Assembly resolution from Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, making it binding under international law. Other treaties that explicitly recognize the HRWS include the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). The first resolutions about the HRWS were passed by the UN General Assembly and the UN Human Rights Council in 2010. They acknowledged that there was a human right to sanitation connected to the human right to water, since the lack of sanitation reduces the quality of water downstream, so subsequent discussions have continued emphasizing both rights together. In July 2010, United Nations (UN) General Assembly Resolution 64/292 acknowledged the rights to human water - rights to receive safe, affordable, and clean accessible water and sanitation services. During that General Assembly, it accepted that for the comprehension of enjoyment in life and all human rights, safe and clean drinking water as well as sanitation are acknowledged as human right. The acceptance that access to safe and clean drinking water and sanitation as a free human right in the General Assembly’s Resolution (64/292) brings an important world-wide governmental control of it. The fulfillment of a productive and healthy life will transpire by recognizing broadly the significance of accessing dependable and clean water and sanitation services.

A revised UN resolution in 2015 highlighted that the two rights were separate but equal.

The clearest definition of the human right to water was issued by the United Nations Committee on Economic, Social and Cultural Rights in General Comment 15 drafted in 2002. It was a non-binding interpretation that access to water was a condition for the enjoyment of the right to an adequate standard of living, inextricably related to the right to the highest attainable standard of health, and therefore a human right. It stated: "The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses."

The HRWS obliges governments to ensure that people can enjoy clean, available, acceptable, accessible, and affordable water and sanitation. The ICESCR requires signatory countries to progressively achieve and respect all human rights, including those of water and sanitation. They should work quickly and efficiently to increase access and improve service.

International context

The WHO/UNICEF Joint Monitoring Programme for Water Supply and Sanitation reported that 663 million people did not have access to improved sources of drinking water and more than 2.4 billion people lacked access to basic sanitation services in 2015. Access to clean water is a major problem for many parts of the world. Acceptable sources include “household connections, public standpipes, boreholes, protected dug wells, protected springs and rainwater collections”. Although 9 percent of the global population lacks access to water, there are “regions particularly delayed, such as Sub-Saharan Africa.” The UN further emphasizes that “about 1.5 million children under the age of five die each year and 443 million school days are lost because of water- and sanitation-related diseases”.

Legal foundations and recognition

The International Covenant on Ecology Social and Cultural Rights (ICESCR) of 1966 codified the economic, social, and cultural rights found within the Universal Declaration on Human Rights (UDHR) of 1948. Neither of these early documents explicitly recognized human rights to water and sanitation. Several later international human rights conventions, however, had provisions that explicitly recognized rights to water and sanitation.

• The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has Article 14.2 that states that "parties shall take all appropriate measures to eliminate discrimination against women in rural areas to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular shall ensure to women the right:… (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications."
• The 1989 Convention on the Rights of the Child (CRC) has Article 24 that provides that "parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health … 2. States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures... (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia… the provision of adequate nutritious foods and clean drinking water... ".
• The 2006 Convention on the Rights of Persons with Disabilities (CRPD) has Article 28(2)(a) that requires that "parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures to ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs."

“The International Bill of Human Rights”- which comprises the 1966: International Covenant on Civil and Political Rights (ICCPR); 1966: Articles 11 and 12 of the 1966 International Covenant of Economic, Social, and Cultural Right (ICERS); and 1948: Article 25 of the Universal Declaration of Human Rights (UDHR) documented the evolution of human right to water and sanitation and other water-associated rights to be recognised in worldwide decree.

Scholars also called attention to the importance of possible UN recognition of human rights to water and sanitation at the end of the twentieth century. Two early efforts to define the human right to water came from law professor Stephen McCaffrey of the University of the Pacific in 1992 and Dr. Peter Gleick in 1999. McCaffrey stated that "Such a right could be envisaged as part and parcel of the right to food or sustenance, the right to health, or most fundamentally, the right to life. Gleick added: "that access to a basic water requirement is a fundamental human right implicitly and explicitly supported by international law, declarations, and State practice."

The UN Committee for Economic, Social and Cultural Rights (CESCR) overseeing ICESCR compliance came to similar conclusions as these scholars with General Comment 15 in 2002. It found that a right to water was implicitly part of the right to an adequate standard of living and related to the right to the highest attainable standard of health and the rights to adequate housing and adequate food. It defines that "The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements." Several countries agreed and formally acknowledged the right to water to be part of their treaty obligations under the ICESCR (e.g., Germany; United Kingdom; Netherlands) after publication of General Comment 15.

A further step was taken in 2005 by the former UN Sub-Commission on the Promotion and Protection of Human Rights which issued guidelines to assist governments to achieve and respect the human right to water and sanitation. These guidelines led the UN Human Rights Council to assign Catarina de Albuquerque as an independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation in 2008. She wrote a detailed report in 2009 that outlined human rights obligations to sanitation, and the CESCR responded by stating that sanitation should be recognized by all states.

Following intense negotiations, 122 countries formally acknowledged "the Human Right to Water and Sanitation" in General Assembly Resolution 64/292 on 28 July 2010. It recognized the right of every human being to have access to sufficient water for personal and domestic uses (between 50 and 100 liters of water per person per day), which must be safe, acceptable and affordable (water costs should not exceed 3% of household income), and physically accessible (the water source has to be within 1,000 meters of the home and collection time should not exceed 30 minutes)." The General Assembly declared that clean drinking water is "essential to the full enjoyment of life and all other human rights". In September 2010, the UN Human Rights Council adopted a resolution recognizing that the human right to water and sanitation forms part of the right to an adequate standard of living.

The mandate of Catarina de Albuquerque as "Independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation" was extended and renamed as "Special Rapporteur on the human right to safe drinking water and sanitation" after the resolutions in 2010. Through her reports to the Human Rights Council and the UN General Assembly, she continued clarifying the scope and content of the human right to water and sanitation. As Special Rapporteur, she addressed issues such as: Human Rights Obligations Related to Non-State Service Provision in Water and Sanitation (2010); Financing for the Realization of the Rights to Water and Sanitation (2011); Wastewater management in the realization of the rights to water and sanitation (2013); and Sustainability and non-retrogression in the realization of the rights to water and sanitation (2013). Léo Heller was appointed in 2014 to be the second Special Rapporteur on the human rights to safe drinking water and sanitation. 

Subsequent resolutions extended the mandate of the Special Rapporteur and defined each state's role in the respect of these rights. The most recent General Assembly Resolution 7/169 of 2015 has been called a declaration of "The Human Rights to Safe Drinking Water and Sanitation. It recognized the distinction between the right to water and the right to sanitation. This decision was made due to concern about the right to sanitation being overlooked when compared to the right to water.

International jurisprudence

Inter-American Court of Human Rights

The right to water has been considered in the Inter-American Court of Human Rights case of the Sawhoyamaxa Indigenous Community v. Paraguay. The issues involved the states failure to acknowledge indigenous communities' property rights over ancestral lands. In 1991, the state removed the indigenous Sawhoyamaxa community from the land resulting in their loss of access to basic essential services, like water, food, schooling and health services. This fell within the scope of the American Convention on Human Rights; encroaching the right to life. Water is included in this right, as part of access to land. The courts required the lands to be returned, compensation provided, and basic goods and services to be implemented, while the community was in the process of having their lands returned.

International Centre for Settlement of Investment Disputes

The following cases from the International Centre for Settlement of Investment Disputes (ICSID) concern the contracts established between governments and corporations for the maintenance of waterways. Although the cases regard questions of investment, commentators have noted that the indirect impact of the right to water upon the verdicts is significant. World Bank data shows that water privatization spiked starting in the 1990s and significant growth in privatization continued into the 2000s.

Azurix Corp v. Argentina

The first notable case regarding the right to water in the ICSID is that of Azurix Corp v. Argentina.^[39] The dispute was between the Argentine Republic and Azurix Corporation regarding discrepancies arising from a 30-year contract between the parties to operate the water supply of various provinces. A consideration in regard to the right to water is implicitly made during the arbitration for compensation, where it was held that Azurix was entitled to a fair return on the market value of the investment. This was rather than the requested US$438.6 million, citing that a reasonable business person could not expect such a return, given the limits of water price increases and improvements that would be required to ensure a well-functioning, clean water system.

Biwater Gauff Ltd v. Tanzania

Secondly, a similar case encountered by the ICSID is that of Biwater Gauff Ltd v. Tanzania. This was again a case of a private water company in a contractual dispute with a government, this time the United Republic of Tanzania. This contract was for the operation and management of the Dar es Salaam water system. In May 2005, the Tanzania government ended the contract with Biwater Gauff for its alleged failure to meet performance guarantees. in July 2008, the Tribunal issued its decision on the case, declaring that the Tanzania government had violated the agreement with Biwater Gauff. It did not however award monetary damages to Biwater, acknowledging that public interest concerns were paramount in the dispute.

Right to water in domestic law

Without the existence of an international body that can enforce it, the human right to water relies upon the activity of national courts. The basis for this has been established through the constitutionalisation of economic, social and cultural Rights (ESCR) through one of two means: as "directive principles" that are goals and are often non-justiciable; or as expressly protected and enforceable through the courts.

South Africa

In South Africa, the right to water is enshrined in the constitution and implemented by ordinary statutes. This is evidence of a slight modification of the second technique of constitutionalisation referred to as the "subsidiary legislation model". This means that a large portion of the content and implementation of the right is done an ordinary domestic statute with some constitutional standing.

Residents of Bon Vista Mansions v. Southern Metropolitan Local Council

The first notable case in which the courts did so was the Residents of Bon Vista Mansions v. Southern Metropolitan Local Council. The case was brought by residents of a block of flats (Bon Vista Mansions), following the disconnection of the water supply by the local Council, resulting from the failure to pay water charges. The court held that in adherence to the South African Constitution, that constitutionally all persons ought to have access to water as a right.

Further reasoning for the decision was based on General Comment 12 on the Right to Food, made by the UN Committee on Economic, Social and Cultural Rights imposing upon parties to the agreement the obligation to observe and respect already existing access to adequate food by not implementing any encroaching measures.

The court found that the discontinuation of the existing water source, which had not adhered to the "fair and reasonable" requirements of the South African Water Services Act, was illegal. It is important to note that the decision pre-dates the adoption of the UN General Comment No. 15.

Mazibuko v. City of Johannesburg

The quantity of water to be provided was further discussed in Mazibuko v. City of Johannesburg. The case revolved around the distribution of water through pipes to Phiri, one of the oldest areas of Soweto. This case concerned two major issues: whether or not the city's policy regarding the supply of free basic water, 6 kilolitres per month to each account holder in the city was in conflict with Section 27 of the South African Constitution or Section 11 of the Water Services Act. The second issue being whether or not the installation of pre-paid water meters was lawful. It was held in the High Court that the city's by-laws did not provide for the installation of meters and that their installation was unlawful. Further, as the meters halted supply of water to residence once the free basic water supply had ended, this was deemed an unlawful discontinuation of the water supply. The court held the residents of Phiri should be provided with a free basic water supply of 50 litres per person per day. The work of the Centre for Applied Legal Studies (CALS) of the University of the Witwatersrand in Johannesburg, South Africa and the Pacific Institute in Oakland, California shared a 2008 Business Ethics Network BENNY Award for their work on this case. The Pacific Institute contributed legal testimony based on the work of Dr. Peter Gleick defining a human right to water and quantifying basic human needs for water.

The respondents took the case to the Supreme Court of Appeal (SCA) which held that the city's water policy had been formulated based upon a material error of law in regards to the city's obligation to provide the minimum set in the South African National Standard, therefore it was set aside. The court also held the quantity for dignified human existence in compliance with section 27 of the constitution was in fact 42 litres per person per day rather than 50 litres per person per day. The SCA declared that the installation of water meters was illegal, but suspended the order for two years to give the city an opportunity to rectify the situation.

The issues went further to the Constitutional Court, which held that the duty created by the constitution required that the state take reasonable legislative and other measures progressively to realise the achievement of the right to access of water, within its available resource. the Constitutional Court also held that it is a matter for the legislature and executive institution of government to act within the allowance of their budgets and that the scrutiny of their programs is a matter of democratic accountability. Therefore, the minimum content set out by the regulation 3(b) is constitutional, rendering the bodies to deviate upwards and further it is inappropriate for a court to determine the achievement of any social and economic right the government has taken steps to implement. The courts had instead focused their inquiry on whether the steps taken by Government are reasonable, and whether the Government subjects its policies to regular review. The judgment has been criticized for deploying an "unnecessarily limiting concept of judicial deference".

India

The two most prominent cases in India regarding the right to water illustrate that although this is not explicitly protected in the Constitution of India; it has been interpreted by the courts that the right to life includes the right to safe and sufficient water.

Delhi Water Supply v. State of Haryana

Here a water usage dispute arose due to the fact that the state of Haryana was using the Jamuna River for irrigation, while the residents of Delhi needed it for the purpose of drinking. It was reasoned that domestic use overrode the commercial use of water and the court ruled that Haryana must allow enough water to get to Delhi for consumption and domestic use.

Subhash Kumar v. State of Bihar

Also notable is the case of Subhash Kumar v. State of Bihar, where a discharge of sludge from the washeries into the Bokaro River was petitioned against by way of public interest litigation. The courts found that the right to life, as protected by Article 21 of the Constitution of India, included the right to enjoy pollution-free water. The case failed upon the facts and it was held that the petition had been filed not in any public interest but for the petitioner's personal interest and therefore a continuation of litigation would amount to an abuse of process.

World Rights to Water Day

Water is essential for existence of living beings including humans. Therefore the having access to pure and adequate quantity of water is the inalienable human right. Hence, the Eco Needs Foundation (ENF) deems it necessary to recognise the right to water (with ensured per capita minimum quantity of water) through the appropriate expressed legal provision. The United Nations with its several covenants has made it obligatory for all the nations to ensure equitable distribution of water amongst all the citizens. Accordingly, the ENF began to observe and promote the celebration of World Rights to Water Day on 20 March, the date on which Dr. Babasaheb Ambedkar ("the father of modern India") led the world's first satyagraha for water in 1927. The World Right to Water Day calls for the adoption of special legislation establishing the universal right to water. Under the guidance of founder Dr Priyanand Agale, the ENF arranges a variety of several programmes to ensure the right to water for Indian citizens.

New Zealand

ESCR are not explicitly protected in New Zealand at the current time, either by the Human Rights or Bill of Rights Acts, therefore the right to water is not defended by law there. The New Zealand Law Society has recently indicated that this country would give further consideration to the legal status of economic, social and cultural rights.

United States

In Pilchen v. City of Auburn, New York, a single mother named Diane Pilchen was living as a rental tenant in a foreclosed house, in which the owner (landlord) of the house had failed to pay the water bill for some time. The City of Auburn billed Pilchen for the landlord's arrears, and repeatedly shut her water service off without notice when she couldn't pay these debts, making the house uninhabitable. The city condemned the home and forced Pilchen and her child to move out. Pilchen was represented by the Public Utility Law Project of New York (PULP) in the lawsuit. The City of Auburn attempted unsuccessfully to argue that water is not a constitutional right because bottled water could be used instead, an argument that was contested by PULP as absurd. In 2010, Pilchen won summary judgment in which it was determined that shutting off the water violated her constitutional rights, and that Pilchen could not be billed and stopped from having water due to an unrelated party's delays in paying water bills.

Remaining discussions

Transboundary effects

Given the fact that access to water is a cross-border source of concern and potential conflict in the Middle East, 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). 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 rights trading

The commercialization of water is offered as a response to the increased scarcity of water that has resulted due to the world population tripling while the demand for water has increased six-fold. Market environmentalism uses the markets as a solution to environmental problems such as environmental degradation and an inefficient use of resources. Supporters of market environmentalism believe that the managing of water as an economic good by private companies will be more effective than political accountability by citizens through their representatives. The opponents believe that the consequence of water being a human right excludes private sector involvement and requires that water should be given to all people because it is essential to life. Access to water as a human right is used by some NGOs as a means to combat privatization efforts. A human right to water "generally rests on two justifications: the non-substitutability of drinking water ("essential for life"), and the fact that many other human rights which are explicitly recognized in the UN Conventions are predicated upon an (assumed) availability of water (e.g. the right to food)."

Critiques and alternatives

Organizations working on the rights to water and sanitation

1. International organisations:
   • OHCHR (UN Office of the High Commissioner on Human Rights)
   • UNDP
   • UNICEF
   • Sanitation and Water for All
2. Governmental cooperation agencies:
   • DFID (United Kingdom's Cooperation Agency)
   • GIZ (German Corporation for International Cooperation)
   • SDC (Swiss Agency for Development and Cooperation)
3. International non-governmental organizations:
   • Action against Hunger (ACF)
   • Freshwater Action Network (FAN)
   • The DigDeep Right to Water Project
   • Madre Acqua, NGO
   • The Pacific Institute
   • Transnational Institute with the Water Justice project
   • UUSC
   • WaterAid
   • WaterLex
   • PeaceJam
4. International networks:
   • Freshwater Action Network (FAN)
   • Ecumenical Water Network (EWN)

Neocolonialism

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Neocolonialism

Refuse zone in Chipata, Zambia

Neocolonialism is the practice of using capitalism [DJS -- ?], globalisation, cultural imperialism, and conditional aid to influence a developing country instead of the previous colonial methods of direct military control (imperialism) or indirect political control (hegemony). 

Neocolonialism differs from standard globalisation and development aid in that it typically results in a relationship of dependence, subservience, or financial obligation towards the neocolonialist nation. This may result in an undue degree of political control  or spiraling debt obligations, functionally imitating the relationship of traditional colonialism.

Coined by the French philosopher Jean-Paul Sartre in 1956, it was first used by Kwame Nkrumah in the context of African countries undergoing decolonisation in the 1960s. Neocolonialism is also discussed in the works of Western thinkers such as Jean-Paul Sartre (Colonialism and Neocolonialism, 1964) and Noam Chomsky (The Washington Connection and Third World Fascism, 1979).

Term

Origins

Kwame Nkrumah (pictured on a Soviet postage stamp) is a Ghanaian politician who coined the term "neocolonialism"

When first proposed, neocolonialism labelled European countries' continued economic and cultural relationships with their former colonies, African countries that had been liberated in the aftermath of Second World War. Kwame Nkrumah, former president of Ghana (1960–66), coined the term, which appeared in the 1963 preamble of the Organisation of African Unity Charter, and was the title of his 1965 book Neo-Colonialism, the Last Stage of Imperialism (1965). Nkrumah theoretically developed and extended to the post–War 20th century the socio-economic and political arguments presented by Lenin in the pamphlet Imperialism, the Highest Stage of Capitalism (1917). The pamphlet frames 19th-century imperialism as the logical extension of geopolitical power, to meet the financial investment needs of the political economy of capitalism. In Neo-Colonialism, the Last Stage of Imperialism, Kwame Nkrumah wrote:

In place of colonialism, as the main instrument of imperialism, we have today neo-colonialism . . . [which] like colonialism, is an attempt to export the social conflicts of the capitalist countries. . . .
The result of neo-colonialism is that foreign capital is used for the exploitation rather than for the development of the less developed parts of the world. Investment, under neo-colonialism, increases, rather than decreases, the gap between the rich and the poor countries of the world. The struggle against neo-colonialism is not aimed at excluding the capital of the developed world from operating in less developed countries. It is aimed at preventing the financial power of the developed countries being used in such a way as to impoverish the less developed.

Non-aligned world

Neocolonialism was used to describe a type of foreign intervention in countries belonging to the Pan-Africanist movement, as well as the Bandung Conference (Asian–African Conference, 1955), which led to the Non-Aligned Movement (1961). Neocolonialism was formally defined by the All-African Peoples' Conference (AAPC) and published in the Resolution on Neo-colonialism. At both the Tunis conference (1960) and the Cairo conference (1961), AAPC described the actions of the French Community of independent states, organised by France, as neocolonial.

Françafrique

Usage of:

  West African CFA franc

  Central African CFA franc

The representative example of European neocolonialism is Françafrique, the "French Africa" constituted by the continued close relationships between France and its former African colonies. In 1955, the initial usage of the "French Africa" term, by President Félix Houphouët-Boigny of Ivory Coast, denoted positive social, cultural and economic Franco–African relations. It was later applied by neocolonialism critics to describe an imbalanced international relation. The politician Jacques Foccart, the principal adviser for African matters to French presidents Charles de Gaulle (1958–69) and Georges Pompidou (1969–1974), was the principal proponent of Françafrique. The works of Verschave and Beti reported a forty-year, post-independence relationship with France's former colonial peoples, which featured colonial garrisons in situ and monopolies by French multinational corporations, usually for the exploitation of mineral resources. It was argued that the African leaders with close ties to France — especially during the Soviet–American Cold War (1945–91) — acted more as agents of French business and geopolitical interests, than as the national leaders of sovereign states. Cited examples are Omar Bongo (Gabon), Félix Houphouët-Boigny (Ivory Coast), Gnassingbé Eyadéma (Togo), Denis Sassou-Nguesso (Republic of the Congo), Idriss Déby (Chad), and Hamani Diori (Niger).

Belgian Congo

After the decolonisation of Belgian Congo, Belgium continued to control, through the Société Générale de Belgique, an estimated 70% of the Congolese economy following the decolonisation process. The most contested part was in the province of Katanga where the Union Minière du Haut Katanga, part of the Société, controlled the mineral-resource-rich province. After a failed attempt to nationalise the mining industry in the 1960s, it was reopened to foreign investment.

Neocolonial economic dominance

People in Brisbane protesting Australia's claim on East Timorese oil, in May 2017

 

In 1961, regarding the economic mechanism of neocolonial control, in the speech Cuba: Historical Exception or Vanguard in the Anti-colonial Struggle?, Argentine revolutionary Ché Guevara said:

We, politely referred to as "underdeveloped", in truth, are colonial, semi-colonial or dependent countries. We are countries whose economies have been distorted by imperialism, which has abnormally developed those branches of industry or agriculture needed to complement its complex economy. "Underdevelopment", or distorted development, brings a dangerous specialisation in raw materials, inherent in which is the threat of hunger for all our peoples. We, the "underdeveloped", are also those with the single crop, the single product, the single market. A single product whose uncertain sale depends on a single market imposing and fixing conditions. That is the great formula for imperialist economic domination.

Dependency theory

Dependency theory is the theoretical description of economic neocolonialism. It proposes that the global economic system comprises wealthy countries at the centre, and poor countries at the periphery. Economic neocolonialism extracts the human and natural resources of a poor country to flow to the economies of the wealthy countries. It claims that the poverty of the peripheral countries is the result of how they are integrated in the global economic system. Dependency theory derives from the Marxist analysis of economic inequalities within the world's system of economies, thus, under-development of the periphery is a direct result of development in the centre. It includes the concept of the late 19th century semi-colony. It contrasts the Marxist perspective of the Theory of Colonial Dependency with capitalist economics. The latter proposes that poverty is a development stage in the poor country's progress towards full integration in the global economic system. Proponents of Dependency Theory, such as Venezuelan historian Federico Brito Figueroa, who investigated the socioeconomic bases of neocolonial dependency, influenced the thinking of the former President of Venezuela, Hugo Chávez.

Cold War

During the mid-to-late 20th century, in the course of the ideological conflict between the U.S. and the U.S.S.R., each country and its satellite states accused each other of practising neocolonialism in their imperial and hegemonic pursuits. The struggle included proxy wars, fought by client states in the decolonised countries. Cuba, the Warsaw Pact bloc, Egypt under Gamal Abdel Nasser (1956–70), et al. accused the U.S. of sponsoring anti-democratic governments whose régimes did not represent the interests of their people and of overthrowing elected governments (African, Asian, Latin American) that did not support U.S. geopolitical interests.

In the 1960s, under the leadership of Chairman Mehdi Ben Barka, the Cuban Tricontinental Conference (Organisation of Solidarity with the People of Asia, Africa and Latin America) recognised and supported the validity of revolutionary anti-colonialism as a means for colonised peoples of the Third World to achieve self-determination, which policy angered the U.S. and France. Moreover, Chairman Barka headed the Commission on Neocolonialism, which dealt with the work to resolve the neocolonial involvement of colonial powers in decolonised counties; and said that the U.S., as the leading capitalist country of the world, was, in practise, the principal neocolonialist political actor.

Multinational corporations

Critics of neocolonialism also argue that investment by multinational corporations enriches few in underdeveloped countries and causes humanitarian, environmental and ecological damage to their populations. They argue that this results in unsustainable development and perpetual underdevelopment. These countries remain reservoirs of cheap labor and raw materials, while restricting access to advanced production techniques to develop their own economies. In some countries, monopolization of natural resources, while initially leading to an influx of investment, is often followed by increases in unemployment, poverty and a decline in per-capita income.

In the West African nations of Guinea-Bissau, Senegal and Mauritania, fishing was historically central to the economy. Beginning in 1979, the European Union began negotiating contracts with governments for fishing off the coast of West Africa. Commercial, unsustainable, over-fishing by foreign fleets played a significant role in large-scale unemployment and migration of people across the region. This violates the United Nations Convention on the Law of the Seas, which recognises the importance of fishing to local communities and insists that government fishing agreements with foreign companies should target only surplus stocks.

International borrowing

To alleviate the effects of neocolonialism, American economist Jeffrey Sachs recommended that the entire African debt (ca. 200 billion U.S. dollars) be dismissed, and recommended that African nations not repay the World Bank and the International Monetary Fund (IMF):

The time has come to end this charade. The debts are unaffordable. If they won't cancel the debts, I would suggest obstruction; you do it, yourselves. Africa should say: "Thank you very much, but we need this money to meet the needs of children who are dying, right now, so, we will put the debt-servicing payments into urgent social investment in health, education, drinking water, the control of AIDS, and other needs".

China

The People's Republic of China has built increasingly strong ties with some African, Asian, European and Latin American nations, becoming Africa's largest trading partner in 2009. As of August 2007, an estimated 750,000 Chinese nationals were working or living for extended periods in Africa. In the 1980s and 90s, China continued to purchase natural resources — petroleum and minerals — from Africa to fuel the Chinese economy and to finance international business enterprises. In 2006, trade had increased to $50 billion expanding to $500 billion by 2016.

In Africa, China has loaned $95.5 billion to various countries between 2000 and 2015, the majority being spent on power generation and infrastructure. Cases in which this has ended with China acquiring foreign land have led to accusations of "debt-trap diplomacy". Other analysts have concluded that China is likely trying to "stockpile international support for contentious political issues."

Commentators have stated that Western perceptions of China's motives are misconstrued due to Western conceptions of development as seen through their own lens of exploitation of others for resources—as exemplified by European colonialism—instead of through Chinese conceptions of development.

In 2018, Malaysian Prime Minister Mahathir Mohamad cancelled two China-funded projects. He also talked about fears of Malaysia becoming "indebted" and of a "new version of colonialism." He later clarified that he did not refer to the Belt and Road Initiative or China with this.

According to Anderlini of the Financial Times, Pakistan is at risk of becoming a colony of China.

Langan (2017) stated that Western actors tend to paint China as a threat in Africa, othering it from themselves, but it neglects the fact that Europe, the United States, China, and other emerging powers likewise facilitate economic and political interests through aid and trade in a manner that conflicts with African sovereignty.

South Korean land acquisitions

To ensure a reliable, long-term supply of food, the South Korean government and powerful Korean multinationals bought farming rights to millions of hectares of agricultural land in under-developed countries.

South Korea's RG Energy Resources Asset Management CEO Park Yong-soo stressed that "the nation does not produce a single drop of crude oil and other key industrial minerals. To power economic growth and support people's livelihoods, we cannot emphasise too much that securing natural resources in foreign countries is a must for our future survival." The head of the Food and Agriculture Organization (FAO), Jacques Diouf, stated that the rise in land deals could create a form of " neocolonialism", with poor states producing food for the rich at the expense of their own hungry people.

In 2008, South Korean multinational Daewoo Logistics secured 1.3 million hectares of farmland in Madagascar to grow maize and crops for biofuels. Roughly half of the country's arable land, as well as rainforests were to be converted into palm and corn monocultures, producing food for export from a country where a third of the population and 50 percent of children under 5 are malnourished, using South African workers instead of locals. Local residents were not consulted or informed, despite being dependent on the land for food and income. The controversial deal played a major part in prolonged anti-government protests that resulted in over a hundred deaths. This was a source of popular resentment that contributed to the fall of then-President Marc Ravalomanana. The new president, Andry Rajoelina, cancelled the deal. Tanzania later announced that South Korea was in talks to develop 100,000 hectares for food production and processing for 700 to 800 billion won. Scheduled to be completed in 2010, it was to be the largest single piece of overseas South Korean agricultural infrastructure ever built.

In 2009, Hyundai Heavy Industries acquired a majority stake in a company cultivating 10,000 hectares of farmland in the Russian Far East and a South Korean provincial government secured 95,000 hectares of farmland in Oriental Mindoro, central Philippines, to grow corn. The South Jeolla province became the first provincial government to benefit from a new central government fund to develop farmland overseas, receiving a loan of $1.9 million. The project was expected to produce 10,000 tonnes of feed in the first year. South Korean multinationals and provincial governments purchased land in Sulawesi, Indonesia, Cambodia and Bulgan, Mongolia. The national South Korean government announced its intention to invest 30 billion won in land in Paraguay and Uruguay. As of 2009 discussions with Laos, Myanmar and Senegal were underway.

United States

There is an ongoing debate about whether certain actions by the United States should be considered neocolonialism. Nayna J. Jhaveri, writing in Antipode, views the 2003 invasion of Iraq as a form of "petroimperialism," believing that the U.S. was motivated to go to war to attain vital oil reserves, rather than to pursue the U.S. government's official rationale for the Iraq War ("a preemptive strike to disarm Saddam Hussein of his weapons of mass destruction").

Catholic Church

Historically there has been a strong connection between Christianity and colonialism. 

Although not always aligned with colonial policy, for example in its opposition to slavery in the Americas, modern senior Catholic churchmen have been prominent in their pronouncements about the peoples of former colonial territories, especially during the pontificate of Pope Francis. Thus at the 2014 Synod on the Family, Cardinal Walter Kasper said that African Catholics “should not tell us too much what we have to do.” During the 2019 Synod on the Amazon, Austrian-born Bishop Erwin Kräutler, a former bishop in Brazil, said at the October 9 Synod press conference that “there is no alternative” to abolishing celibacy in the Amazon basin because the [apparently primitive] natives “don’t understand celibacy."

Other approaches

Although the concept of neocolonialism was originally developed within a Marxist theoretical framework and is generally employed by the political left, the term "neocolonialism" is found in other theoretical frameworks and charges of neocolonialism are now levelled against Marxist and other left-wing states, such as the previously mentioned Chinese policies.

Coloniality

"Coloniality" claims that knowledge production is strongly influenced by the context of the person producing the knowledge and that this has further disadvantaged developing countries with limited knowledge production infrastructure. It originated among critics of subaltern theories, which, although strongly de-colonial, are less concerned with the source of knowledge.

Cultural theory

Map of the European Union in the world, with Overseas Countries and Territories and Outermost Regions.

 

One variant of neocolonialism theory critiques cultural colonialism, the desire of wealthy nations to control other nations' values and perceptions through cultural means such as media, language, education and religion, ultimately for economic reasons. One impact of this is "colonial mentality", feelings of inferiority that lead post-colonial societies to latch onto physical and cultural differences between the foreigners and themselves. Foreign ways become held in higher esteem than indigenous ways. Given that colonists and colonisers were generally of different races, the colonised may over time hold that the colonisers' race was responsible for their superiority. Rejections of the colonisers culture, such as the Negritude movement, have been employed to overcome these associations. Post-colonial importation or continuation of cultural mores or elements may be regarded as a form of neocolonialism.

Postcolonialism

Post-colonialism theories in philosophy, political science, literature and film deal with the cultural legacy of colonial rule. Post-colonialism studies examine how once-colonised writers articulate their national identity; how knowledge about the colonised was generated and applied in service to the interests of the coloniser; and how colonialist literature justified colonialism by presenting the colonised people as inferior whose society, culture and economy must be managed for them. Post-colonial studies incorporate subaltern studies of "history from below"; post-colonial cultural evolution; the psychopathology of colonisation (by Frantz Fanon); and the cinema of film makers such as the Cuban Third Cinema, e.g. Tomás Gutiérrez Alea, and Kidlat Tahimik.

Critical theory

Critiques of postcolonialism/neocolonialism are evident in literary theory. International relations theory defined "postcolonialism" as a field of study. While the lasting effects of cultural colonialism are of central interest, the intellectual antecedents in cultural critiques of neocolonialism are economic. Critical international relations theory references neocolonialism from Marxist positions as well as postpositivist positions, including postmodernist, postcolonial and feminist approaches. These differ from both realism and liberalism in their epistemological and ontological premises. The neo-liberalist approach tends to depict modern forms of colonialism as a benevolent imperialism.

Conservation and neocolonialism

Wallerstein, and separately Frank, claim that the modern conservation movement, as practiced by international organisations such as the World Wide Fund for Nature, inadvertently developed a neocolonial relationship with underdeveloped nations.