Catherine M. Brölmann

Beyond State Sovereignty: The Human Right to Water

International legal regulation of water resources traditionally operates from the perspective of the state and, in line with general legal doctrine regarding natural resources, hinges on the parameters of territoriality and state sovereignty. However, in recent times the problem of freshwater management is approached increasingly through the prism of human rights law. The shift from the state to the individual as a starting point in international law-formation is undoubtedly a powerful trend in legal doctrine and in legal discourse. A separate question is whether a human right to water at this point in time can be said to exist as lex lata in the positivist sense. The purpose of this article is to examine whether indeed a universal human right to water can be construed, notably on the basis of international treaty law. The analysis focuses on Article 6(1) of the International Covenant on Civil and Political Rights and on articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights. The authors conclude that a substantive human right to water is implied under articles 11(1) and 12(1) ICESCR, and subsequently address the normative implications of such a right, the nature and scope of corresponding state obligations, and general aspects of its implementation at the international and the domestic level.

A Flat Earth? International Organizations in the System of International Law

The author analyzes why it is that international law has problems accommodating international organizations, and argues that this (partly) finds it cause in the circumstance that organizations are multi-layered entities. Some of the more central doctrines of international law (in particular the law of treaties; to some extent also the law of responsibility) are, however, better suited to deal with unitary entities such as states. In order to overcome such systemic difficulties, the author carefully advocates a reconceptualization of both international organizations and the system of public international law.

Member States and International Legal Responsibility: Developments of the Institutional Veil

The ‘institutional veil’ of international organizations is the linchpin for legal analysis and appraisal of the role and interrelation of international organizations, member States and organs. Through this lens the article examines in semi-broad strokes the position of international organizations’ member States in the legal framework of international responsibility, with reference to pertinent provisions in the ILC ARIO. This leads to the finding that in (the discourse on) the establishment of responsibility there are four possible legal contexts, which have the institutional veil of the organization work out in different ways: subsidiary responsibility of member States (the proverbial ‘piercing of the corporate veil’); the attribution of conduct to member States; the ‘attribution of responsibility’ to member States; and the bypassing of the institutional veil to establish independent responsibility of member States, which is then connected by a material link to the wrongful act of the organization or to the injurious circumstances originally at issue. While in the context of subsidiary responsibility the institutional veil can be seen as consistently impermeable since the 1980s Tin Council cases, in the context of attribution of conduct the institutional veil of organizations appears to be increasingly contested, engaged with and challenged for transparency.

The International Court of Justice and international organisations

This vignette deals with the position of international intergovernmental organisations as non-state actors. In the case law of the ICJ the independent identity of international organisations is addressed in the formal terms of international legal personality. Such personality is undisputed in international practice: for example, international organisations not only have the capacity to conclude treaties but also, although the legal framework is not entirely settled yet, to bear international responsibility for violations of international law. The ICJ arguably has had a central role in the conceptualisation of organisations as independent actors in international law: with the 1949 Reparation Opinion intergovernmental organisations essentially received at one stroke the paraphernalia required by an international legal actor. The framework proposed by the Court was widely adopted to match developing practice and, although organisations figure in the majority of cases subsequently brought before the ICJ, it was considered and to some extent refined only in the 1996 Legality of the Use by a State of Nuclear Weapons in Armed Conflict Opinion.

Introduction: International lawmaking in a global world

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