WITH WATER LAW National Environment Energy and Resources Law Summit. April 7 9, 2011 Banff, Alberta. Irma S. Russell, Dean.
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1 ETHICAL ISSUES ASSOCIATED WITH WATER LAW 2011 National Environment Energy and Resources Law Summit April 7 9, 2011 Banff, Alberta Irma S. Russell, Dean University of Montana School of Law
2 Human Rights and Ethical Duties Emperor Justinian, (A.D. 529): By the law of nature, these things are common to humankind: the Air, running Water, the Sea... Chief Francois Paulette of the Dene Tribe of Alberta: Water, precious water. image source: NRDC Switchboard
3 Human Rights and Ethical Duties, II Michael Parfit stated without water:...there is no life. A healthy human being can live for a month without food, but will die in less than a week without fresh water. We live by the grace of water.
4 The Right to Water in International Law
5 The Universal Declaration of Human Rights (UDHR) Acknowledges the rights of individuals to have the basic building blocks for survival Article 3, Everyone has the right to life, liberty and security of person Article 25, paragraph 1, Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care
6 International Covenant on Economic, Social and Cultural Rights (ICESCR) The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. General Comment No. 15 on the Right to Water for the International Covenant on Economic, Social and Cultural Rights (ICESCR) ICESCR shows water is linked to the right to: standard of living, attain a high h standard dof health, h adequate housing and food, life and human dignity, secure livelihoods and work, and take part in a cultural life
7 The Right to Water in the Geneva Conventions...Sufficient drinking water shall be supplied to internees. Article 89 of Geneva Convention IV Relative to the Protection of Civilian Persons Sufficient drinking water shall be supplied to prisoners of war Article 26 of the Third Geneva Convention Relative to the Treatment of Prisoners of War
8 The Right to Water in the Geneva Conventions, II It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, ff crops, livestock, drinking water installations ti and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive. Article 54, Section 2 of Additional Protocol I to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts
9 Convention on the Elimination of All Forms of Discrimination i i Against Women (CEDAW) States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate ii in and benefit from rural development and...
10 Convention on the Elimination of All Forms of Discrimination i i Against Women (CEDAW), II...in particular, shall ensure to such women the right: To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. Article 14, Paragraph 2, Section h
11 Convention on the Rights of the Child (CRC) States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: 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. Article 24, paragraph 2, section c
12 UN Work in Water
13 UN Efforts on Sustainability sustainable development as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. 1987, United Nation Brundtland Report, Our Common Future Reflects the Intergenerational Golden Rule: use the Reflects the Intergenerational Golden Rule: use the resources but do not use them up
14 UN Efforts on Sustainability, II The 1992 Earth Summit in Rio de Janeiro, Brazil Convention on Biological Diversity ( CBD ), the first global agreement to treat biological diversity in a comprehensive manner: Article 10, entitled Sustainable Use of Components of Biological Diversity of the Convention creates the obligation for all ratifying states to [i]ntegrate...
15 UN Efforts on Sustainability, III...consideration of the conservation and sustainable use of biological resources into national decisionmaking. The Report of the World Summit on Sustainable The Report of the World Summit on Sustainable Development in Johannesburg, South Africa declared that [g]ood governance within each country and at the international level is essential for sustainable development.
16 Water as Property
17 Property Rights The Universal Declaration of Human Rights recognizes the right to property: Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property. UDHR Article 17, 1 UDHR Article 17, 2
18 Riparian rights Eastern United States right based on land abutting water Courts: riparian rights constitute "property" as a matter of the Constitutional meaning of property. riparian rights seem to constitute real property image source: South Dakota Department of Natural resources
19 Prior Appropriation p Western United States right based on who used water source first Courts: find that water is a community resource image source: South Dakota Department of Natural resources water may be used where it is needed
20 Public Trust Doctrine Reassess private rights for public need Takings Issues may be raised
21 Public Trust Doctrine, II A California Court noted in the Mono Lake Decision that a state: has an affirmative duty to take the public trust into account in the epa planning gand dallocation ocato of water resources, and to protect public trust uses whenever feasible. Once the state has approved an appropriation, p the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power the state is not confined by past decisions which may be incorrect in light of current knowledge or inconsistent with public needs."
22 Case Study Stop the Beach Renourishment, Inc. v. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection
23 Stop the Beach Renourishment, Inc. v. Florida Department t of Environmental Protection Supreme Court ruled that private property had not been taken The Court split on the question of whether the Takings Clause of the Constitution creates a potential claim of a judicial taking Four Justices accept general concept
24 Stop the Beach Renourishment, Inc. v. Florida Department t of Environmental Protection, II Opinion created a risk that it will consider the act of a court decision to be government action that may constitute a taking Decision makes the act of interpretation of state law a new vehicle for imposing costs of protecting ti property on the public
25 Ethical Duties of Lawyers
26 Ethical Duties of Lawyers Dilemma of human rights v. property p rights Lawyers do not make the laws; duty is to represent clients in pursuing their rights
27 Ethical Duties of Lawyers, II Lawyers also have a duty to society to work to balance the imponderable issues of our time Lawyers as public citizens with the special responsibility for the quality of justice Golden Rule Revisited: d i h i h h f We do not inherit the earth from our parents. We borrow it from our children.
28 Thank you for inviting me to speak. please visit the University of Montana School of Law at
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