Bir doğa ve insan hakkı olarak su hakkı
The right to water as a nature and human right
Yazar: AYŞENUR OCAK
Danışman: DOÇ. DR. DEMİRHAN BURAK ÇELİK
Galatasaray Üniversitesi / Sosyal Bilimler Enstitüsü / Kamu Hukuku Ana Bilim Dalı
Derece: Yüksek Lisans, 2018
Konu: Hukuk = Law
Dizin: Su = Water ; Su hakkı = Right of water ; Su politikaları = Water policies ; İnsan hakları = Human rights

Özet:
İnsanlar ve diğer tüm canlılar için yaşam kaynağı olan su, çeşitli faktörlerin etkisiyle günümüzde bir sorun haline gelmiştir. Üç bölümden oluşan bu çalışmada, mevcut krizin sonlandırılması ya da sonuçlarının hafifletilmesine katkıda bulunmak amacıyla öncelikle krizin sebepleri üzerinde durulmuş, ardından da bir çözüm yolu olarak su hakkı önerisi bir doğa ve insan hakkı olarak ele alınmıştır. Bu kapsamda, su hakkı temellendirilerek su bir hak olarak ele alınmış, su hakkının kabul edildiği hukuki metinler ve yargı kararları üzerinde durulmuştur.

Anahtar kelimeler	: su hakkı, doğa hakkı, su politikası, genel yorum 15, suyun özelleştirilmesi.

Abstract:
Water is the most basic source of life for people and other living things, and is the "life" with the most cliche expression. So deprivation of water means the same thing as the cessation of life. It is not new for water being "life". The Mesopotamian civilizations have been settled near the Euphrates and Dicle rivers, the Jews have migrated to the Jordan River, the Egyptians have been attracted by the Nile River, and the systems developed by Anatolian civilizations have reached the water. These events show that water has always had the same precaution. Unlike ancient civilizations, it can be said that there is an expansion in the sense of water; water has now become a symbol of disease, death, inequality, discrimination, scarcity and capital. Every year nearly 3.5 million people lose their lives due to water and sanitation. Much of the Middle East, India, China, Mexico, California and Africa are under water scarcity threat. Drinking water is rapidly depleting these so-called "hot spots" and the water that will soon be available will not meet the nutritional needs of the growing population. Although this threat seems regional, it will affect the whole humanity in terms of its consequences. Some writers have even been convinced that the next wars will be due to water resources. In many parts of the world, especially in African countries, women spend a quarter of their days supplying the water their families need. While this is the case, companies are flocking to return the song to their favor. Water companies are seeking to gain market dominance by demanding governments lift restrictions on the water sector. As it is seen, the world is facing a global water crisis. In this roughly three-part study, the causes of the crisis were first emphasized in order to contribute to the ending of the current crisis or to alleviate the consequences, and then the right to water as a solution was considered as a nature and human right. The background of the problem has been highlighted in the introduction to the causes of water emerging as a global problem. The factors that influence the emergence of water problems are very diverse. These factors are mainly due to the increase in water use areas and the damage of water resources due to drying and pollution. Due to the increase in population, the amount of water required for both drinking water and food production has increased. Therefore, the world's water is now shared by more and more people. On the other hand, the development of the industry and the change of consumption habits led to a rapid decrease in the amount of water to be shared.
The other dimension of the water problem is the changing water senses and water privatization issues. Water, which is a necessary requirement for the continuation of vital activities, is centered on profit targets by being accepted as a commercial commodity. In other words, it is claimed that water is a 'property' in economic sense. Whereas the regulations on the right to water are generally stated that water is a public entity. While acknowledging that water is an economic value, there is a third opinion that recognizes the right to water. These opinions, which characterize the water, in fact play a decisive role in the content of water right. For this reason, different views on the quality of water in the study have been discussed
in detail and it has been discussed that the privatization practices of water services are compatible with the water right. In the first chapter entitled " The Right to Water as a Right of Nature", it is theoretically explained that nature can not be claimed by focusing on the concept of nature right. The concept of nature rights, which means that nature has some rights independently of the human being, demands that the law be operated for nature as well. This demand is not entirely theoretical, although it is not based on very old ones. Today, there are international and national legal regulations in which natural rights are involved. On the other hand, where nature is accepted, nature has been regarded as a legal entity. In the study, the cases where the water right of nature was accepted were examined in particular and the content of the water right of nature was revealed. In the second part of the study, the right to water is based on as human right. In this context, firstly, the right to water is considered theoretically and then the content of water right is emphasized. In 2010, the United Nations General Assembly adopted the right to safe and clean drinking water as a fundamental human right to enjoy the right to life and all other human rights. In 2012, the documentary titled "The Future of Our Future," which was created by the UN Sustainable Development Conference, all the states of the UN have confirmed their commitment to water and their commitment to the implementation of this right. Parallel to this, in the UN General Assembly, gathered in December 2013, unlike the 2010 meeting, the right to water was accepted without any abstentions, and it was reiterated that this right is legally binding in international law. Finally, the report published in 2015 recalled the responsibility of states in fulfilling the water right, which is included in the 2030 Development Goals; it is stated that the right of water should be accepted together with all elements and necessary steps should be taken in order to use this right in full and international cooperation should be taken. As a result of this international effort, every member of the UN has been obliged to accept the right to water and to fulfill its obligations under this right. With this obligation, the relation to the content of the right to water and other human rights has become more important than ever, perhaps because the right to water will be subject to constitutional or legal regulations, and if the States have to adhere to it, they can demand the right of individuals.
The legal character of water is explained in General Comment 15 of Articles 11 and 12 of the Economic, Social and Cultural Rights Convention. In this study, the normative content of the right to water and the obligations of the states to fulfill the water right have been dealt with in the context of the mentioned explanations. Accordingly, there are three elements of right to water, namely the availability, quality and accessibility. The state's obligations in terms of water right have been laid out according to the accepted classification of 'respect, protection and fulfillment'. The State should abstain from practices such as practices that result in the damage of water resources under the obligation of respect, and the complete abolition of water for individuals who can not pay the water bill. Within the scope of the protection obligation, the state should prevent third parties‟ all possible interventions of the individuals on the right to water and establish necessary legislation for them. Finally, the obligation to fulfill simply requires the state to ensure that everyone has access to the water. While the State fulfills these obligations, it must also take into account the principle of equality and the right to discrimination. Finally, on the basis of water rights, the issue of water rights is related to other human rights. In this study, the UN reports and notifications were mainly based on the determination of the bases of water right and the normative content of the water right. In this respect, the relation of water to other human rights has also been put forward under the leadership of the United Nations system in order not to disturb the integrity. In the United Nations system, three main texts for these rights arise: the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights that also called as twin conventions. The right to water in respect of personal rights is linked to the "right to life" in article 6 and the "human honor" in article 7 of International Covenant on Civil and Political Rights. However, when it is taken into account that the right to water has first appeared in international law in the interpretation of some of the articles of Economic, Social and Cultural Rights, it seems that the right to water is more related to economic and social rights. These rights, which are related to the right to water, are the right to adequate Standard of living and the right to health. The right to adequate standard of living in the Convention, including the right to adequate food and housing, is the most important bearing of the right to water. It is stated in the UN reports that the right to water is based on the right to adequate standard of living. In the last part of the study, the place of water right in international law and national laws has been examined. In the first part of international law, conventions, declarations and decisions are examined together with the content of the right to water. Subsequently, international judicial decisions on the right to water were discussed, either directly or indirectly. The European Court of Human Rights has made the issue of the right to water under the European Convention on Human Rights within the scope of the Convention. The Court's decisions to date include the right to water, the prohibition of torture in Article 3 of the Convention, the right to a fair trial in Article 6, the right to protection of private life and family life in Article 8 and the right to property guaranteed in Article 1 of Protocol No.1. The Inter-American Court of Human Rights has also addressed the right to water by interpreting certain items of the American Convention on Human Rights and on the basis of international legal resources. The decisions made by the Inter-American Court of Human Rights on the right to water consist of two main categories: detention or condemnation and the rights of indigenous peoples. The Latin American Water Court, which is different from the other courts in its composition, structure and decisions and constitutes a rather civil society movement, has made many decisions about the right to water. In these resolutions, water is mentioned as an independent right not in connection with any right.
The right to water is recognized by constitutions and codes in national laws. These arrangements can be either explicitly acknowledging the right to water, or treating the right to water in connection with other rights. In some countries, the right to water is safeguarded by broad interpretation of constitutional rights. As a consequence of the acceptance of the right to water, the right to water has now
become a right to be sued in national courts. National courts have examined water-related cases, often taking international law into account. Therefore, international conventions in which the elements of the right to water are manifested are an important place. Until today, decisions have been made on the right to water in many countries. It can be said that some of these decisions constitute a first place in courts, while others have a continuity. Cases relating to water rights are concentrated in particular on water disruptions due to non-payment of bills and fulfillment of water services and water conservation. It is early to make general conclusions about the right to water from the aforementioned resolutions, but based on these decisions, many consequences about the state's responsibility can be reached. Accordingly, the state must take the necessary precautions against activities that lead to water scarcity, such as disproportionate use of water, and destruction of water by polluting water resources, and should provide access to the water to individuals, even it is minimal. In addition, water interruption, which depends on the non-payment of the water bill, should only be applied in some cases and limitedly.