A new Human Right

By Belinda Grasnick

Water is a crucial resource for human life. As drinking water, it provides the essential foundation for life, and used for sanitation, it can prevent diseases and supports development. Because of its important functions for humanity, the need for an international recognition of a right to water is being emphasized by different  actors at the global and the local level. Nonetheless, the global community still has to find a solution how to guarantee the access to water for everyone.

Photography by Samir Marun

At the press conference of the sixth World Water Forum in Marseille this year, member of the French Académie de l'Eau and of the European Environment Council Henri Smets expressed his optimism concerning the implementation of a right to water. “It is the only new human right in fifty years”, he explained. “It is extraordinary. We needed an enthusiastic movement in all countries, and now the enthusiasm has been strong enough in order to recognize the right to water unanimously in the Human Rights Committee.”

Since 1997, the World Water Forum assembles politicians and experts in the field every three years and thus puts water governance as an issue on the global agenda. In March 2012, the World Water Council held the conference in Marseille. The President of the World Water Council Loïc Fauchon sheds more light on the choice of the underlying theme of this year's conference, “Time for solutions”, by highlighting the necessity to include all kinds of different stakeholders. “Year after year, the response to water and sanitation issues has become increasingly of a political order”, he says. “But we need to go further since, beyond words and declarations, what our planet needs is concrete and credible actions.”

The Need for Water

Being able to access water is an important factor for the comfort of every individual. According to the World Water Assessment Programme, each person needs twenty to fifty litres of water a day to ensure their basic needs. Water is not merely essential to life, but it also makes human existence liveable by enhancing personal well-being as well as familial and social relations. “Lack of water supply and sanitation produces infectious diseases and reduces life expectancy in the majority of countries in sub-Saharan Africa today”, says Benedito Braga, Vice-President of the World Water Council. Thus, a fair water distribution has to be an integral part of the development process in all countries.

Besides its importance in private households, water is crucial to agriculture and industry. Different economic sectors compete for our finite freshwater resources, because they are essential to food production, energy markets and health care. For this reason, it is important to find a way how to treat the remaining resources sustainably and to give households priority in the network of water distribution at the same time.

However, the fact that water resources are not equally distributed in the world makes assuring a universal access to water an even more difficult task. While certain regions, like Europe, have regular rainfall, other parts of the world are struggling with more irregular precipitation, causing both droughts and flooding. “This situation will become more complex if one considers that critical hydrological events will tend to be even more intense under the threat of climate change”, underlines Benedito Braga. In other words, the unequal distribution of water will be exacerbated by even less predictable natural phenomena. In combination with a lack of efficient distribution and storage systems, this irregularity poses a problem to providing especially the poorest regions of the world with safe water sources.

In order to find a global solution for water access, the need for a more equal water distribution has been addressed by global governance bodies in the last decades. Target 7.C of the Millennium Development Goals (MDGs) seeks to halve the proportion of the international population without sustainable access to safe drinking water and basic sanitation. In this context, distribution systems are to be built and improved. The Joint Monitoring Programme for Water Supply and Sanitation, put in place by the World Health Organization and UNICEF, controls the realization of this target. According to their report, the MDG has been met early with regards to drinking water, as 83 per cent of the global population had access to improved drinking water sources already in 2002; in 2012, the number mounted to 89 per cent. At the same time, the MDG target for the access to sanitation is still far from met.

Implementing the Right to Water

The inclusion of an increased access to in the MDGs has not been the only step undertaken by international bodies in order to assure an equal distribution of water. Certain rights included in the International Covenant on Economic, Social and Cultural Rights (ICESCR), such as the right to life, and the rights to health, food, housing and an adequate standard of living, imply the need for water. In order to assure these rights, a safe access to water is required. Being part of the International Bill of Human Rights, the ICESCR is a multilateral bill that has been adopted by the United Nations General Assembly on December 16, 1966. It is a binding agreement: all states that have ratified the bill are bound to apply it.

Nonetheless, the idea of a separate, explicit right to water has been pushed forward and was finally included in the General Comment Number 15 (GC15) to the ICESCR in 2002. The GC15 reads that “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, reduce the risk of water-related disease and provide for consumption, cooking, personal and domestic hygienic requirements.”

The GC15 is intended to elaborate on the articles of the covenant. “However, this addition to the ICESCR is not agreed to by all the states that are bound by the covenant itself”, emphasizes Andrew Allan, lecturer in National Water Law at the University of Dundee and expert in International Water Law. In this way, the addition to the covenant putting forward the idea of a human right to water is not binding for all United Nation members. Nonetheless, some countries have introduced the right to water in their national constitutions until today – among them Ecuador, Ethiopia, France and South Africa.

A Cape of Good Hope

Photography by Samir Marun

Having included a universal right to water in their new constitution of 1996, the Republic of South Africa gave momentum to the debate about a human right to water. “Everyone has a right to have access to sufficient food and water”, is the exact wording of section 27 of the South African Bill of Rights.

Following the inclusion of the right to water in the Bill of Rights, South Africa had to create a fitting legal framework to accomplish a universal access to water. The White Paper on Water Supply and Sanitation from 1994 called for the supply of the country's poor with free safe water and for a maximum distance of 200 metres from any household to a water source by 2008. The basic level of service was set to 25 litres per person per day by the South African government. The policy for the provision of free basic water thus stipulated that every poor household would receive 6,000 litres of water every month free of charge.

In 1998, the National Water Act was adopted in order to reform laws relating to water sources. The Act sought to ensure the development, conservation, management and control of national water resources. Equitable access to water was to be promoted and racial and gender discrimination abolished. An efficient, sustainable and beneficial use of water in the public interest was targeted, so that social and economic development could be promoted, and aquatic and associated ecosystems and their biological diversity were protected.

The ambitious targets laid down in the different legal acts rise to the suspicion that they could not be met easily. Perhaps not surprisingly, the implementation of the right to water led to an important trial that made its way up to the Constitutional Court of South Africa. In 2009, the Mazibuko case questioned the realization of the right to water in the urban area of Soweto in Johannesburg. The governmental project included the improvement of water pipelines in the area and the installation of pre-paid meters to charge households as soon as they exceeded the monthly limit of 6,000 litres. Especially the use of such meters was considered highly discriminatory, because households were obliged to get their water on credit, and especially because the 6,000 litre limit per household did not take large families with many children into account.

After the objection was sustained by both the South Gauteng High Court and the Supreme Court of Appeal, the accusation was taken to the Constitutional Court. Finally, the Constitutional Court concluded that the progressive realization of the Free Basic Water is a reasonable policy in order to achieve a universal access to water. Furthermore, the final judgement announced that it is within the sovereignty of the government to define the basic water supply. Hence, the 25 litres determined by the South African government were accepted as the right measure for sufficient water supply.

Achieving the Goal

The South African case illustrates the difficulties in fairly distributing the given water resources and thus in translating the legal project of guaranteeing a right to water into practice. Implementing a human right to water is an ambitious project, but as long as it is not followed by concrete, effective actions, it will not result in providing the world's population with sufficient water. Some experts suggest that the right to water is in fact not the right approach to assuring access to water for everyone. “The basic question is how to get fresh water to everyone. One suggested solution is the human right to water. Is this the right answer? Many think so, but I am less sure”, says Andrew Allan.

Alain Mathys, Program Manager for development and institutional relations at the French utility company Suez Environment, is even clearer in his evaluation of the international approach to a right to water: “All these forums on the right to access to water are gathering the same kind of people repeating the same messages for years. They work mainly for themselves.” The experts are pointing out that political orders as the only measures will not contribute to an improvement of the world's water distribution.

The credibility of a human right to water is also reduced by the implementation of such a right in some countries. “In my view, the presence of a right to water in a constitution is often inversely proportional to that country's ability to implement it”, states Andrew Allan. That is to say, even if Ethiopia passes a law about the right to water, this does not mean that the access to water can actually be guaranteed to the population.

In the end, it is true that everyone in the world should have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. This target, however, might not be achieved by merely introducing a legal project. It requires actions from stakeholders that represent governments, the private sector and civil society. Different regions need different approaches, and the global community should turn their attention to fitting strategies for each region. Most importantly, the focus of providing access to water, no matter how it is achieved, should be on clean and safe water sources. Building improved distribution networks, as it is currently targeted by the Joint Monitoring Programme for Water Supply and Sanitation, does not signify that these sources are sufficient to provide healthy drinking water and sanitation. The main goal of a universal access to water should, however, be to secure health and comfort, and in this way to foster development.

Posted in: global injustice, human rights, water resource