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Originally posted on this site at December 12 2003
Dr. D Roy Laifungbam
“If the misery of our poor be caused not by the laws of nature, but by our institutions, great is our sin.”
The 21st century debuted with one of the most fundamental conditions of human development unmet: universal access to vital water services. Water is perhaps the most basic resource: “It is essential for life, crucial for relieving poverty, hunger and disease and critical for economic development” (UN Department of Technical Cooperation for Development). There is no life on Earth without water. It is one of the most vital issues facing future human use of the environment. Climate change, deforestation, protection of biodiversity and desertification, are all connected to water resource management. Unless used equitably and efficiently, water could become the most serious limiting factor to socioeconomic development within states and a potent source of conflict among them (CD 1997). Already today, the Commission on Sustainable Development (CDC 1997) estimates that as many as one third of the world’s population live in countries suffering moderate to severe water stress.
By the year 2025 two thirds of the world could find themselves in similar circumstances. Given its centrality to life, what legal frameworks exist for treating the right to water as a human right?
Access to a basic water requirement is a fundamental human right implicitly supported by international law, declarations, and State practice. Arguably, this right to water is even more basic and vital than some of the more explicit human rights already acknowledged by the international community, as can be seen by its recognition in many local customary laws, traditions or religious canon.
Rights to Water in Basic Human Rights Accords
The only universal human rights document which explicitly discusses a right to water is the Convention on the Rights of the Child (1990) where provision of adequate nutritious food and clean drinking water are specifically identified as responsibilities of State parties. Water is not directly mentioned in the 1966 UN covenants on human rights or in the Universal Declaration of Human Rights, and thus, if there is a right to water under international human rights law, it must be inferred. The Office of the UN High Commissioner for Human Rights, for example, has no reference to water in its website.
Nonetheless a strong case can be made for such an argument. In particular, Article 6 of the Covenant on Civil and Political Rights states that “Every human being has the inherent right to life.” This provision has recently been interpreted as obliging states not only to protect its citizens from arbitrary deprivation of life but also to adopt positive measures by pursuing policies that guarantee access to the means of survival, an interpretation which would include rights to water:
Thus, this modern view would interpret the right to life broadly, so that it ‘comprises the right of every human being not to be deprived of his life (right to life) and the right of every human being to have the appropriate means of subsistence and a decent standard of life (preservation of life, right of living)’” (McCaffrey 1999:0).
Articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights also provides a basis for recognizing rights to water as basic human rights. It provides that parties “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” There is a strong argument for using the concept of “due diligence” as a means of assuring the governments attach a high priority to meeting basic human needs.
While the International Bill of Human Rights does not specifically spell out a direct right to water, it can be argued that the right to life (Article 3 of the Universal Declaration of Human Rights) entails access to water and bestows it with a human rights quality: Meeting a standard of living adequate for the health and wellbeing of individuals requires the availability of a minimum amount of clean water.
Clearly, sufficient food and health require that an individual has affordable access to drinkable water. In a General Comment on November 2002, the UN Committee on Economic, Cultural and Social Rights recognized that Articles 11 and 12 can be seen as a legal basis for the right to water.
More recent international human rights treaties include explicit references to the right to water. For instance, Article 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (1979) stipulates that States parties shall ensure women the right to “enjoy adequate living conditions, particularly in relation to … water supply”.
What now is the content of the human right to water? It seems appropriate to define the obligations of states according to the right to water similar to their obligations according to other social and economic rights. The ICESCR calls for a progressive realization of these rights and acknowledges that – due to limits of available resources – immediate realization of this human right to water may be constraint. As a social and economic right, the right to water does not encompass a right to access to water, directly enforceable by each person against the state.
However, the right to water requires government activities to progressively increase the number of people with safe, affordable and convenient access to drinkable water. This includes government policies and strategies that create economic, social and political conditions for such access. The right to water also includes the obligation to ensure non-discriminatory access to water, especially of the marginalized and vulnerable sections of society. Depending on the particular circumstances, strategies to ensure non-discriminatory and affordable access to water can employ private companies operating in a liberalized, but regulated market, rely on public provision of water or utilize any other regulatory regime which adequately achieves universal and non-discriminatory access to water.
Water and Sustainable Development: Standards and Debate
Water is key to sustainable development. Growing populations, increased water degradation and other environmental problems create enormous difficulties to ensure equal and affordable access to drinkable water and to manage exhaustible water resources in a sustainable manner.
Perhaps more than other states, African nations have used the United Nations Declaration on the Right to Development as a basis for thinking about human rights. It is conceptually linked to the African Charter on Human and People’s Rights adopted in 1981 and it fits with the need for poverty alleviation recognized by most African government and peoples. In the document, development is conceptualized as a process of constant “improvement” incorporating economic, social, and cultural dimensions within a human rights framework.
Thus, satisfaction of basic human needs for water and food are regarded as rights in this document. Within this broad context, the right to development is accorded the stature of an alienable human right, without which other rights cannot be realized. This perspective is reflected in The Rights Way to Development published by the Human Rights Council of Australia:
… development and human rights are not two separate spheres that human rights are not simply one program component alongside others in the development process, but rather that development is a subset of human rights. Moreover, the right to development [underlining in original] and the economic, social and cultural rights have universal legitimacy and this has very practical implications for action by both donor and recipient governments. (1999: 22).
This framework is noteworthy because it does not radically separate the rights of the individual from broader social, economic and cultural rights, nor does it place all burdens of commitment on the state to meet these rights.
Increasingly, the United Nations Development Programme (UNDP), the World Bank, the OECD and governments are integrating rights discourses into their development agendas. One of the more challenging arenas of research and action concerns the means by which development institutions themselves may be held accountable to human rights accords. For example, should (or how could) the IMF and the World Bank be held accountable for the drastic declines in standards of living and health which have taken place in countries undergoing strict structural adjustment programs? How will these large-scale institutions come to terms with alternative development paths in an era of market hegemony promoted by their policies?
While the Declaration on the Right to Development was a product of the late 1970s and early 1980s, the right to development took on a new shape in the late 1980s and 1990s. This reflected a global effort to relate development, human rights and the environment. Integrating Human Rights with Sustainable Human Development published in 1998 by the UNDP exemplifies this orientation. Like The Right to Development, this text is convincing in demonstrating that human rights are multidimensional (social, economic, cultural and political), interrelated and interdependent (UNDP 1998:7). Further, the environment appears as a full and equal concern to be interrelated with human rights and development discourses and integrated into all UNDP programs.
Rights to Water in Environmental Declarations and Covenants
Environmental declarations are another source of recognition of the right to water a s a human right, as well as of the obligations of states to manage this resource so that their citizens’ right to water is insured. Statements to this effect are found in the 1972 Stockholm Declaration on the Human Environment (Principal 2), and in the 1992 UNCED Agenda 21, both of which reflect a focus on sustainable development. For example, Provision 18.2 of Agenda 21 states:
Water is needed in all aspects of life. The general objective is to make certain that adequate supplies of water of good quality are maintained for the entire population of this planet, while preserving the hydrological, biological and chemical functions of ecosystems, adapting human activities within the capacity limits of nature and combating vectors of water-related discases…
A number of water-specific declarations linking human rights discourses with developmental and environmental ones also exist. For example, the International Conference on Water and the Environment, held in Dublin, Ireland in January
1992 issued the Dublin Statement on Water and Sustainable Development. This document laid the groundwork for, and reflects the thinking on, freshwater resources found in Chapter 18 in Agenda 21. The Dublin conference identified four guiding principles for action at the local, national and international levels: 1) Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment; 2) Water development and management should be based on a participatory approach, involving users, planners and policymakers at all levels; 3) Women play a central role in the provision, management and safeguarding of water; and 4) Water has an economic value in all its competing uses and should be recognized as an economic good.
While decidedly anthropocentric, environmental declarations like the Dublin Principals and Chapter 18 of Agenda 21 also recognize that the environment itself has basic needs which must be respected if human life and well-being are to be sustained. This is reflected in the above quote from Provision 18.2 of Agenda 21.
This brief review of international human rights covenants and environmental proclamations suggests that there is a strong case to be made for the right to water as a basic human right. The overview also indicates that considerable latitude exists for interpreting and applying this right depending on the source document. The Universal Declaration of Human Rights and the Covenant on Economic, Social and Cultural Rights (and to a lesser extent the Right to Development), emphasize states; obligations to protect basic human rights and, in a derived way to meet basic human needs.
The Challenges: Neo-liberalism conflicts with the Human Right to Water
Sustainable development and environment proclamations often situate human rights to water in a development/economic growth context and emphasize reconciling human needs with long-term ecological sustainability. The Dublin Principals and Chapter 18 of Agenda 21 call for governments and other organizations to adopt specific policies.
Although presented as globally applicable, these reflect current neoliberal political and economic agendas rather than universal principals. They involve removal of subsidies, privatization, commodification of resources, and decentralization of management structures. Thus, tensions exist between different rights-based discourses concerning water – particularly those resting on basic human rights orientations and those informed by sustainable development and economic growth agendas.
In most countries, the supply and management of water has traditionally been a domain of public entities at the national, regional or local level. Yet, countries have employed different regulatory models at different points in history and governments have often played multiple roles in the water sector. These include the roles as natural resource manager, service provider and regulator.
This traditional “public domain” of the water sector has been challenged on the basis of a resurgence of neo-liberal market ideologies. Today, many politicians and commentators are convinced that the supply of water through private companies can bring about much needed solutions for the pressing needs in the water sector. During recent years, policies encouraging private (often foreign) investment in water services and privatization (including outsourcing and public-private partnerships) became the means of choice in many parts of the world.
Public or communal schemes of water supply came under pressure in favour of supply schemes requiring competitive water markets. The emergence of multinational companies specializing in water supply and privatization and commercialization policies reinforced this development and created a veritable international market for water services.
While many of these policy shifts were based on autonomous national decisions, international economic and financial institutions such as the World Bank also advocated a greater involvement of the private sector. Arguably, the re-definition of the role of public and private entities in the water sector is also reinforced through developments in the World Trade Organization (WTO) and its General Agreement on Trade in Services (GATS). As part of the overall Doha Agenda, WTO members are currently engaged in negotiations to further liberalize trade in services (GATS 2000 negotiations). After the initial request and initial offer phases in June 2002 and March 2003 respectively, the day-to-day negotiations now take place in bilateral settings and the outcome will probably only become public at the end of the Doha Round scheduled for 2005. Based on a general negotiating proposal and country-specific requests by the European Community (EC), these negotiations now also cover water services.
These developments, together with some high-profile examples of failures of private water management and supply, led to concerns about the future of water regulation. Critics point to the impact of GATS and the GATS 2000 negotiations, which are said to have major implications on water management and the ability of governments to regulate water services.
The critics’ voices came together in a statement of civil society groups issued at the WTO’s Cancun Ministerial Conference calling upon WTO Members to clearly exclude basic services such as water from the scope of GATS. Clearly the battle is on for the contest between “investor rights” and “human rights”.
Contesting Frames: Human Rights and Economic Logic
The internal logic of the capitalist system and its uneven and detrimental effects upon environment and society are well documented by political ecologists and eco-Marxists. Renowned scholars articulated in the early 20th Century that industrial and economic “improvements” often came at the price of social dislocation, and if the needs of the two are unevenly matched then the “community must succumb.” However, society need not be passive in challenging the paradigm, just as it has not been passive in challenging abuse of civil and political rights.
However, to work constructively towards a case that water is a human right one must confront a key fact. First of all, the proposition will almost always have a natural set of opponents prepared to counter it out of vested financial interest. Even Northern countries that claim tremendous democracy, transparency, and equity in water resource management experience times when internal economic logic has overwhelmed ethical behavior. It appears that Northern countries are struggling with their water policy priorities as well. Thus, it is clear that “solving” the problem of equity in safe drinking water distribution is not simply a matter of building a wealthier country and “defeating poverty,” with the assumption being this will ensure full coverage. Rather, it is more about building an ethic and changing frames in a way that respects concepts such as conservation, indigenous rights, and the importance of sustaining and sharing our “common” intergenerational water resources. At the heart of the case for a “human right to water” is the demand for not just action alone, but discourse in which equity is the core value.
Turk, Elisabeth & Krajewski, Markus. 2003. The right to water and trade in services: Assessing the impact of GATS negotiations on water regulation; Paper presented at the CAT+E Conference “Moving forward from Cancun”; Berlin, 30-31 October 2003.
Williams, Colin, Using Proxies for Ticketmaster: Attending conferences as a freelance, Krakow, October 206
McCaffrey, Stephen. 1997. “Water Scarcity: Institutional and Legal Responses” Pp. 43-58 in The Scarcity of Water: Emerging Legal and Policy Responses edited by Edward Brans, Esther de Haan, Andre Nollkaemper, and Jan Rinzema. London and The Hague: Kluwer Law International
Gleick, Peter. 1999. The Human Right to Water. 1(5) Water Policy, 487-503 (1999)
John Barrow, Some Private, Dedicated Proxies Isn’t Enough.
Boyle, A.E. & Anderson, M.R. 1996. Human Rights Approaches to Environmental Protection. Claredon Press, Oxford, United Kingdom.