Abstract
Hydraulic fracturing for oil and gas is an emotive subject, generating passionate arguments both pro and con. Some scholars argue that a ‘human right to water’ (HRW) approach could usefully enshrine in law the priority of human needs over industrial uses, in hydraulic fracturing and other sectors. This chapter explores the existing status of the HRW in international law and in the constitutions and statutes of some nations around the world. It appears that attempts to link struggles over HF’s impact on water resources with the HRW have so far foundered on a lack of clear unambiguous HRW declarations that can be tried in courts of law.
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Notes
- 1.
Average figures obtained from the US based www.fracfocus.org website. FracFocus is the national hydraulic fracturing chemical registry. FracFocus is managed by the Ground Water Protection Council and Interstate Oil and Gas Compact Commission, two organizations whose missions both revolve around conservation and environmental protection.
- 2.
Also the Clean Water Act, the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
- 3.
Human migration in this context is taken to mean the movement of human populations to settle in other geographic locations, due to any other cause other than intended and voluntary movement. In that respect, movement associated with disaster, conflict, or forced migration is perceived to constitute human migration.
- 4.
The Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979 (art. 14 (2)); International Labour Organization (ILO) Convention No. 161 concerning Occupational Health Services, adopted in 1985 (art. 5); The Convention on the Rights of the Child, adopted in 1989 (arts. 24 and 27 (3)); and The Convention on the Rights of Persons with Disabilities, adopted in 2006 (art. 28).
- 5.
For a comprehensive list of States that have adopted the right to water and sanitation within constitutions and law (and the Articles etc. in which they are contained) see Centre on Housing Rights & Evictions, 2008.
- 6.
Article 14 (2)(h): ‘To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply’.
- 7.
Article 24 (2)(c): ‘To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution’.
- 8.
Whilst it is outside the remit of this chapter, it is important to note that the Dublin Statement introduced the issue of ‘affordable price’ into the development of the right to water. Principle 4 of the statement stated that ‘it is vital to recognise first the basic right of all human beings to have access to clean water and sanitation at an affordable price’. In terms of that development, pricing water has both its merits and disadvantages e.g. culturally: it would be contrary to some cultures to pay for water whereas other capitalist cultures would demand a price for the resource (but arguably capitalism is the antithesis to an autonomous right to water).
- 9.
Article 28 (2)(a)‘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’.
- 10.
The United States, for example, denied the existence of the ‘right to water and sanitation’, as described in the resolution, as being reflected in an international legal sense. This denial relates back to the omission of the term ‘water’ and the right to water in the ICESCR. In addition, the US criticised the resolution for undermining the work done, regarding HRs, in Geneva. In essence, the US reflected other countries sentiments that the right to water (and sanitation) equated to creating a new human right, stating that ‘[the resolution] attempted to take a short cut around the serious work of formulating, articulating and upholding universal rights’. In contrast, Egypt’s stance is based on the understanding that ‘it did not create new rights, or sub-categories of rights, other than those contained in internationally agreed human rights instruments’. The Resolution was passed with 122 recorded votes, but there were 41 abstentions. The plenary sessions to the Resolution provide a narrative regarding why those 41 States abstained from the vote. See General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favour, None against, 41 Abstentions’ (64th General Assembly, Plenary, 108th meeting). Available at: www.un.org/press/en/2010/ga10967.doc.htm
- 11.
This range is from Ohio alone and does not speak to a nationwide fee structure for UGD liquid waste disposal.
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Palmer, R., Short, D., Auch, T. (2020). The Human Right to Water and Unconventional Energy. In: Buono, R., López Gunn, E., McKay, J., Staddon, C. (eds) Regulating Water Security in Unconventional Oil and Gas. Water Security in a New World. Springer, Cham. https://doi.org/10.1007/978-3-030-18342-4_3
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