Archive for the ‘Human Rights’ Category

The Geneva List of Principles of the Protection of Water Infrastructure: An Assessment and the Way Forward

Monday, August 17th, 2020

The following essay by Dr. Mara Tignino and Ms. Öykü Irmakkesen is a summary of their recently published monograph (under the same title), which appears in Vol. 5(2) 2020, pp. 3-104 of Brill Research Perspectives in International Water Law.  Dr. Tignino is Lead Legal Specialist at the Platform for International Water Law at the Geneva Water Hub and Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva. She can be reached at mara.tignino@unige.ch. Ms. Irmakkesen is Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and former Researcher at the Geneva Water Hub. She can be reached at oeykue.irmakkesen@unige.ch.

Water tower in Vukovar, Croatia, damaged during the Battle of Vukovar in 1991

Water infrastructures have been objects of attacks and weaponized in several armed conflicts throughout history. While such acts are invariably condemned by the international community, a thorough study of the legal framework on the protection of water infrastructure had until now been missing. However, as demonstrated in the monograph, protection of water infrastructure is essential to the protection of the environment and civilians during armed conflicts. Damaging or destroying these infrastructures can lead to the contamination of water resources and a disruption in the vital services they provide including water for personal and domestic uses, water for irrigation, and water for energy supplies.

The monograph starts with an introduction, which outlines the scale of the problems caused by attacks against and the weaponization of water infrastructure. This is followed by sections on the background and methodology of the Geneva List of Principles on the Protection of Water Infrastructure. Lastly, preliminary remarks on the List’s scope and content are provided.

This monograph is based on a project carried out by the Geneva Water Hub and its Platform for International Water Law. The project was triggered by the final report of the Global High-Level Panel on Water and Peace, A Matter of Survival. The report’s second chapter, entitled ‘Into the Abyss: Water in Armed Conflicts’, contained several recommendations, mainly addressed to the UN Security Council, including strengthening the respect for and implementation of international humanitarian law for better protection of water resources.

The main section of the monograph is the Geneva List of Principles on the Protection of Water Infrastructure and its commentary. The Geneva List includes principles applicable in peacetime, during armed conflicts and in post-conflict situations. These principles bring together rules regulating the protection of water infrastructure under international humanitarian law, international human rights law, international environmental law and international water law. Moreover, some principles also reflect recommendations that go beyond the existing law, which are largely built upon the practice of parties to past and current conflicts and well-recognized soft law documents, such as the Berlin and Madrid Rules of the International Law Association.

Certain types of water infrastructure are specially protected under international humanitarian law. For example, drinking water installations and irrigation works are protected under a special regime as objects indispensable to the survival of the civilian population (Article 54 of the First Additional Protocol and Article 14 of the Second Additional Protocol to the four Geneva Conventions of 12 August 1949 relating to the protection of victims of international and non-international armed conflicts, respectively). Likewise, dams are also accorded special protection as they are considered to contain dangerous forces (Article 56 of the First Additional Protocol and Article 15 of the Second Additional Protocol to the Geneva Conventions). Additionally, all water infrastructures are protected by the general rules on the conduct of hostilities as long as they remain civilian objects. For example, the principle of proportionality prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b) of the First Additional Protocol to the Geneva Conventions). This principle is particularly important in urban warfare contexts where the interconnectedness of infrastructure results in knock-on effects of the damaging or destruction of only one component. Such reverberating effects, which may not take place in the immediate aftermath or vicinity of the attacks but are foreseeable, must be taken into account by the parties to conflicts in their proportionality assessments.

Finally, the monograph concludes with a short section that delineates the perspectives of the authors on the possible challenges ahead, for example, due to climate change and proliferation of cyber warfare. This part also sets forth next steps to be taken based on the Geneva List of Principles by the Geneva Water Hub and explores the idea of creating a mechanism to monitor damages to water infrastructure during armed conflicts.

The writing of the Geneva List of Principles coincided with several related projects by different actors. Notably, the International Law Commission has provisionally adopted the draft principles on the protection of the environment in relation to armed conflict on first reading in 2019. The International Committee of the Red Cross has been updating its 1994 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict and is expected the publish the new guidelines by the end of 2020. During the drafting and publication process of the Geneva List of Principles, the Geneva Water Hub also cooperated with UNICEF, which launched its Water Under Fire campaign in March 2019. These initiatives highlight the increasing interest in revisiting rules and issues relating to the protection of water and the environment, also with the aim of enhancing the protection of civilians from the effects of armed conflicts.

You can access the monograph here.

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Democratic water governance to achieve a human right to water

Tuesday, July 28th, 2020

This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Energy, Environmental, and Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu.

Ten years ago, the global community formally recognized a universal human right to water in a United Nations resolution. While a major milestone in the effort to secure adequate freshwater for all people globally, much remains to be done.

The unravelling COVID-19 pandemic underscores the inequities and gaps in access to clean water that continue to plague communities worldwide. More importantly, it highlights the reality that while articulation and even codification of the right to water is crucial for ensuring human health and life, fulfillment of that right requires a foundation of strong democratic governance.

Pronouncing the right

The call for formal recognition of a human right to water can be traced back, at least, to 1977 and the UN Water Conference held in Mar del Plata, Argentina. The Action Plan from that event declared that “All peoples, whatever their stage of development and social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.” Building on that foundation, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1989 Convention on the Rights of the Child were the first global treaties to formally and explicitly recognize a right to water in their text.

Over the next few decades, various UN and other conferences and pronouncements expanded on the right and its scope and application. Most notable was the 2002 General Comment No. 15 issued by the UN Economic and Social Council, which provided guidelines for interpreting the right to water, framing it within the right to an adequate standard of living and the right to the highest attainable standard of health. In its opening article, the Comment provides that “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.”

Finally, the 2010 UN Resolution, as well as the 2015 UN Resolution that explicitly recognized the human right to sanitation as a distinct right, capped the series of formal recognitions and gave official notice that, moving forward, the global community acknowledges and intends to respect the existence of these critical human rights.

Ongoing shortfall

Despite these noble and meaningful achievements, progress in attaining the goals that these rights envision has been challenging. In 2019, the World Health Organization reported that 785 million people around the world continue to lack even the most basic drinking-water services, and at least 2 billion people still use a drinking water source contaminated with feces.

Of particular relevance to the current COVID-19 pandemic, the chief executive of the NGO WaterAid recently noted that three quarters of households in developing countries worldwide did not have access to infrastructure or facilities where handwashing was available, and that one third of healthcare facilities in these countries lacked access to clean water on site.

While poorer nations tend to bear the brunt of inadequate access to freshwater, these shortfalls also plague the developed world. A 2020 report by the US Water Alliance asserted that in the United States, more than two million people lack running water and basic indoor plumbing; a 2018 report by Food and Water Watch found that 15 million Americans experienced a water shutoff in 2016. Similarly, the World Health Organization Regional Office for Europe reported that 16 million people across the region have no access to clean drinking-water, and more than 31 million lack adequate sanitation services.

Clearly, we are not living up to the promises and expectations of a universal human right to water. Even when recognizing that such a right can be functionally implemented only at the domestic level, and on a country-by-country basis, the gaps in fulfilling the human right to water across the globe remain vast.

Democracy is key

The main challenge to realizing any human right is in its implementation at the domestic and local levels. The human right to water (as is the right to sanitation) is particularly susceptible to the vagaries of national and local politics, as well as the injustices and disparities that result from classism, racism, sexism, religious prejudice, and other forms of discrimination and oppression. Moreover, while the 2002 General Comment No. 15 asserted that the human right to water “is a prerequisite for the realization of other human rights,” that right itself is highly dependent on the fulfillment of other rights and a functioning government with strong democratic ideals.

Ensuring access to water to all people necessarily implicates investments in infrastructure, tariffs or other resources to cover costs, allocation determinations, and ultimately prioritization decisions. As a result, the right to water functions at the domestic level as a social justice issue, and more precisely, a water justice issue. It is built on notions of fairness (acting without bias), equity (acting to meet needs), accessibility (ensuring the ability to acquire), and participation (involvement in decision-making). Without a strong water justice foundation, the right to water remains aspirational.

Furthermore, the right to water is highly dependent on a regime that ensures and enforces other fundamental human rights, most notably, expression, assembly, non-discrimination, and dignity. As a matter of history, this occurs where governance regimes respect the democratic process. Together, water justice and basic human rights serve as prerequisites and actually constitute the necessary tools for the realization of a viable and enforceable human right to water.

Beyond a paper right

While the phrase “water is life” may have become a cliché, it remains a truism. Yet, the fulfilment of its logical conclusion – that all people must have access to freshwater – remains far from reality. This has become brutally evident in the context of the COVID-19 pandemic where millions of people worldwide cannot even wash their hands to maintain their health, let alone drink potable water to maintain their lives.

The right to water, however, is intertwined with and dependent on democratic governance. Without a foundation that recognizes water as a justice issue and ensures other basic human rights, the right to water will simply remain a paper right.

This essay was written by Gabriel Eckstein for the Global Water Forum to celebrate the adoption of “the human right to water and sanitation” by the General Assembly of the United Nations on 28 July 2010. In addition to appearing here on the International Water Law Project, you can also find the essay on the Water Justice Hub website.

Main image by Sasin Tipchai from Pixabay

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The Human Right to Water in Latin America

Monday, May 14th, 2018

The following essay by Anna Berti Suman is a summary of her recently published monograph (under the same title), which appears in Vol. 3(2) 2018, pp. 1-94, of Brill Research Perspectives in International Water Law. Ms. Berti Suman is a PhD Researcher at the Tilburg Institute for Law, Technology and Society (TILT) at Tilburg University in The Netherlands. She can be reached at A.BertiSuman [at] uvt.nl.

The right to water (RtW) is a key factor both shaping and shaped by the social, political, and economic arena of a country. Often, conflicting interests are at stake when water governance is addressed. A large and heterogeneous number of governance solutions have been proposed with the aim of balancing the interests of civic society and the private sector, as well as respect for the environment and public finance concerns. The main aim of this monograph is to illustrate and analyze lessons from Latin America contributing to the international debate on the governance of the RtW. The attention is specifically focused on questioning the role that each stakeholder should have in the water debate with a view to harmonizing the RtW with the interests of the concerned stakeholders.

Water, as a shared resource, calls for a transboundary approach. Various forms of cooperation and association among the global community are discussed as, for example, the World Water Forum organized by the World Water Council, and the Global Water Partnership. Relevant treaties, such as the 1992 UN Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, demonstrate the importance of cross-sectorial and multi-level cooperation in addressing water governance challenges.

Demonstrations during the ‘Water War’ in Cochabamba, Bolivia, which occurred December 1999 – April 2000.

Subsequently, the monograph proceeds in a preliminary and indispensable discussion on the dual nature of water, as an indispensable source of life and as an economic good, thereby acknowledging that water has been recognized as a social good and a human need, as well as a commodity. Its economic value will be inspected through the analysis of the debate ongoing at the international and national levels. A remarkable example of this double nature is identified in the Chilean legal framework for water, where two texts provide for the rights of private citizens over water (granted by the 1980 Constitution and the 1981 Water Code) and for water as a national property for public use (as stated by the 1981 Water Code; the Constitution lacks a similar provision). The economic value of water is also approached from the international perspective, as enshrined in the 1992 Dublin Statement on Water and Sustainable Development.

The monograph next delves into local scenarios and inspects the transposition of RtW in constitutional laws of Latin American countries and its interplay with water management systems. Part A investigates the broader  discussion in Latin America on the responsibility of the state towards the right to water, when recognized in constitution and when acknowledged through different legal tools. It also considers whether the state has a duty to grant a quantitative and qualitative minimum of fresh water to everyone, even if through subsidies or by impinging on private interests. The consequences of a state’s decision-making process that does not take into account the RtW are illustrated through three case studies, the participatory case of Porto Alegre, Brazil, and two cases of conflicts over water management, namely the case of the Matanza-Riachuelo River Basin, Argentina, and the case of Cochabamba, Bolivia.

The cases presented in Part A serve to illustrate the limits of the law in resolving water management issues. The discussion also examines the judicial system under the analytical lens of its suitability to settle water disputes. Overall, Part A stresses the need to focus the water debate on specific issues rather than on general statements.

The linking element bridging the transition from Part A to Part B is the discussion of whether the right to water as a human right is in antithesis to privatization. Part B considers the main Latin American water management systems, with their advantages and disadvantages, and compares them with European legal frameworks. In principle, the analysis suggests that the recognition of water as a human right does not prevent the privatization of the service, as long as the state monitors the private provider’s operations and complies with its obligations to ensure the RtW.

Participatory budgeting including water issues in Porto Alegre – Brazil

Part C provides a specific insight into the relationship between the market and the RtW in the context of Chile’s highly privatized water framework. The Chilean case offers an opportunity to reflect on the importance of the engagement of all affected stakeholders in the water debate as well as on the need for a wise compromise among them.

In the Conclusion, the lessons learnt from Latin America are summarized. The limits of the law in resolving water conflicts, and the disconnection of water issues from the adopted legal framework, are outlined to demonstrate the mismatch between the legal framework and the reality of water challenges. While it is not possible to identify the ‘best’ water management model, the analysis affirms the general need for a focus on the specificities of each river basin unit. The final message presented is that recognition of water as a human right does not prevent the possibility of privatizing the service if the state fulfills its obligations toward the right to water. Ultimately, the engagement of all affected stakeholders in the debate over water can facilitate constructive and open-minded compromises for jointly facing water challenges.

 

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2013 – International Year of Water Cooperation

Monday, March 18th, 2013

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and a Fellow with the International Water Resources Association. Until December 2009, Dr. Salman served as Lead Counsel and Water Law Adviser with the Legal Vice Presidency of the World Bank. He can be reached at Salmanmasalman [at] gmail.com.

The United Nations General Assembly (UNGA) adopted on December 20, 2010, resolution 65/154, proclaiming 2013 as the “International Year of Water Cooperation.” The resolution, adopted without vote, called on all member states of the United Nations system and all other actors to take advantage of the Year to promote actions at all levels. Such actions include encouraging international cooperation, aimed at the achievement of the internationally agreed water-related goals contained in Agenda 21, the Programme for the Further Implementation of Agenda 21, the United Nations Millennium Declaration, and the Johannesburg Plan of Implementation, as well as to increase awareness of their importance. Celebrations of the World Water Day on March 22, 2013, will focus on plans and programs for achieving the objectives of this resolution. The purpose of this post is to trace the efforts of the United Nations to highlight the problems and challenges faced in the realm of water resources and to underscore the need for cooperation at all levels to address those problems.

UN World Water Day 3012The United Nations started paying attention to water resources in 1972. In June of that year, the United Nations Conference on the Human Environment was held in Stockholm, Sweden. Principle 2 of the Stockholm Declaration stated that “the natural resources of the earth including the air, water, land, flora, and fauna … must be safeguarded for the benefit of the present and future generations through careful planning and management.” Five years later, water resources received far reaching attention of the world community for two full weeks when the Mar del Plata Water Conference was held in Argentina, March 14 to 25, 1977. The Mar del Plata Action Plan included detailed provisions on water resources assessment, water use and management efficiency, the environment, the right to water, and international cooperation. One critical outcome of the conference was the proclamation of the period 1981 to 1990 as “the International Drinking Water Supply and Sanitation Decade.”

The world community’s attention to the emerging problems facing water resources continued. In January 1992 the International Conference on Water and the Environment was held in Dublin, Ireland, and issued the “Dublin Statement on Water and Sustainable Development.” The Conference underscored the fact that water resources management should be based on a participatory approach involving users, planners and policy makers at all levels. It addressed the two principles of water as an economic good, as well as the right to water at an affordable price. This meeting was followed six months later by the United Nations Conference on Environment and Development that was held in Rio de Janeiro, Brazil, in June 1992. Agenda 21 of the Rio Summit “Actions on Sustainable Development” included a separate chapter (Chapter 18) on water resources which laid down detailed plans, programs and action plans to “satisfy the freshwater needs of all countries for their sustainable development.” Cooperation at all levels was highlighted as one important requirement for achieving this objective.

Building on the recommendations of the Rio Conference, the UNGA adopted on December 22, 1992, resolution 47/193, declaring March 22 of each year, as World Water Day, to be observed starting in 1993, and invited states to devote the day in the national context to concrete activities such as the promotion of public awareness through publication and diffusion of documentaries and the organization of conferences, round tables, and seminars related to the conservation and development of water resources.

A number of other actions in the water resources field were thereafter taken by the UNGA. The most important of those has been the adoption by the UNGA on May 21, 1997, by more than one hundred of its members, of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The Convention is predicated on the principle of cooperation of the watercourse states, and indeed it mentions the words cooperation/cooperate fifteen times. The Convention needs the ratification/acceptance of 35 parties to enter into force. Thus far 30 countries have ratified/accepted the Convention, raising hopes that the Convention may even enter into force during 2013, making the year also the year of international water cooperation (see Status of the Convention).

Furthermore, the UNGA adopted resolution 55/196 on December 20, 2000, proclaiming the year 2003 as the International Year of Freshwater, and called for concerted actions and efforts for better management and conservation of water resources, through inter alia, cooperation between the different users. This followed the Millennium Declaration that was adopted by the UNGA on September 8, 2000. One of the eight millennium development goals to be achieved by 2015 is reducing by half the proportion of people without sustainable access to safe drinking water. The UN Summit on Sustainable Development that was held in Johannesburg, South Africa, in September 2002 added a similar goal with regards to sanitation. The need to achieve both goals was underscored by the UNGA resolution 58/217 adopted on December 23, 2003, which declared the period 2005 – 2015 as the “International Decade for Action, Water for Life,” and stated that the goals of the decade should include a greater focus on water related issues at all levels to achieve the internationally agreed goals.

The UNGA decided to give similar attention to sanitation, and addressed this matter through resolution 59/228 adopted on December 22, 2004, as well as resolution 61/192 of December 20, 2006 which proclaimed 2008 as the international year of sanitation.

The fact that close to one billion people lack access to improved water resources, more than two and a half billion people are without provision for sanitation, and one and a half million children under five die annually of water-borne diseases are constant reminders of the challenges facing humanity in the field of water resources. It should also be added that by 2050 one fourth of world population will live in countries with chronic water shortage, mostly in the Middle East and Africa.

Thus, the declaration of 2013 as the international year of water cooperation and the celebrations that will take place on March 22 this year should mark as another important reminder that cooperation is needed at all levels – among individual and corporate users, districts and provinces within the country, and more importantly among states – to manage, share, protect and conserve the most vital heritage of mankind, its water resources, so as to address these challenges.

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Botswana Court Awards Kalahari Bushmen Water Rights

Friday, January 28th, 2011

After eight years of litigation, on January 27, 2011, the Kalahari Bushmen of Botswana won the right to access borehole water in their ancestral lands located in the Central Kalahari Game Reserve. The victory came when a court of appeals unanimously struck down a lower court ruling that had previously denied the Bushmen access to the borehole (Court’s Decision).

Although the decision was not predicated on a human right to water, the court referred to General Comment 15 of the U.N. Economic and Social Council (here), and the 2010 UN Human Rights Council Resolution on Human Rights and Access to Safe Drinking Water and Sanitation (here) (which the court misidentified as a UN General Assembly document) to address the Botswana constitutional issue of whether the Bushmen had been “subjected … to inhuman or degrading punishment or other treatment” as a result of the denial of access to the borehole. The court ruled that by prohibiting the Bushmen from using, at their own expense, borehole water for domestic purposes, the Botswana government had violated the Bushmen’s constitutionally protected rights.

Accordingly, the court ordered that the Bushmen have a right at their own expense to re-commission the contested borehole and to sink new boreholes in the Reserve so long as the water is used for domestic purposes.

The full text of the final appellate judgement can be found here.

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UNGA Declares Water a Human Right … Which means what?

Friday, July 30th, 2010

Just a few days ago, on 28 July, the UN General Assembly declared the obvious – “the right to safe and clean drinking water and sanitation [is] a human right that is essential for the full enjoyment of life and all human rights.” I say “the obvious” because there seems to be little argument that water is fundamental to life. The disagreement, though, lies in the formulation of the right and what obligations it actually creates.

Does it mean that water should be provided free of charge? By whom? And who should cover the costs? Does it mean that water of a certain quantity and quality must be provided, or would any water do? Does it mean water at your tap or kitchen sink, or merely in the village square? Moreover, against whom would the right be enforceable? Against your own government, or that of another? And, does it create rights in nations as against other countries? Should water-rich Canada be obliged to provide for the water needs of parched Middle Eastern nations?

Unfortunately, the Resolution is long on prologue and short on details. In addition to the above assertion, it also calls on nations and international organizations to fund the realization of “safe, clean, accessible and affordable drinking water and sanitation for all” and encourages the ongoing work of the UN Human Rights Council and its independent expert, Catarina de Albuquerque, on the subject and request that her forthcoming report to the sixty-sixth session of the General Assembly to include “the principal challenges related to the realization of the human right to safe and clean drinking water and sanitation and their impact on the achievement of Millennium Development Goals.” Nothing more.

This lack of detail actually was at the heart of the opposition to the Resolution. Yes, there were some who actually tried to prevent its adoption. But not because they thought a human right to water is a bad idea. Rather, they felt the Resolution undermined the formal process underway by the Human Rights Council for developing a substantive and well-formulated human right to water. As asserted by the US representative in his explanation of why the United States abstained in the vote:

“This resolution describes a right to water and sanitation in a way that is not reflective of existing international law; as there is no ‘right to water and sanitation’ in an international legal sense as described by this resolution.

“The United States regrets that this resolution diverts us from the serious international efforts underway to promote greater coordination and cooperation on water and sanitation issues. This resolution attempts to take a short-cut around the serious work of formulating, articulating and upholding universal rights. It was not drafted in a transparent, inclusive manner, and the legal implications of a declared right to water have not yet been carefully and fully considered in this body or in Geneva.”

In other words, it was premature and possibly ill-considered. This objection by the United States, though, was not an isolated protest. As the record of the vote indicates, 40 other countries abstained, including a majority of the developed world. Yet, a number of European nations, including Germany, Italy, Spain, and Switzerland sided with the majority (122 votes in favor) suggesting that the objections are grounded more in the ideology and interpretation of the right itself rather than in any political or socio-economic debate. Moreover, as I have suggested in the past, the objections are probably also based on the complexities of implementing such a right, including addressing how to finance implementation of the right (see my post on water marketing).

Despite its shortcomings, the Resolution is definitely a milestone. While legally non-binding, this statement by the highest of international assemblies indicates that the notion of water as a human right is gaining traction. At the very least, it adds moral (and potentially political) weight to the belief that governments have a responsibility to ensure safe, clean, accessible and affordable drinking water and sanitation, at least for their own citizens if not for all. Moreover, it adds to the momentum of those championing the right and suggests that they may be gaining ground on their ultimate goal – a legally binding obligation.

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Why do so many governments oppose a human right to water?

Monday, August 3rd, 2009

The voices championing a human right to water seem to be getting louder, and many national governments are being openly chastised for a lack of leadership, vision, and responsibility (see, e.g., PLOS Medicine’s editorial declaring “Clean Water Should Be Recognized as a Human Right”; the Pacific Institute’s Peter Gleick’s article on The Human Right to Water; Maude Barlow’s “A UN Convention on the Right to Water An Idea Whose Time Has Come”). At the World Water Forum held this past March in Turkey, for example, more than 20 countries challenged the Ministerial Declaration for failing to define water as a human right and opting instead to describe water as a human need (see Council of Canadian press release). Yet, countries like the United States are holding steadfast that “there is at present no internationally agreed right to water or human right to water, and there is no consensus on what such a right would encompass” (see ENN Article).

 

Why do governments – such as those of the United States, the European Union, Brazil, Canada, and Egypt (see ENN Article) – oppose the notion of a human right to water? What is it about such a right that contravenes so many countries’ national interests?

 

Is it a concern that fresh water resources would be squandered under governmental control, or the corollary ideology that the private sector could provide water to the masses more effectively than any governmental scheme? This is the justification espoused by many non-governmental opponents of the human right to water who typically commend the virtues of the free market and private sector for managing the world’s fresh water resources (see, e.g., the work of Fredrik Segerfeldt here and here, articles in The Economist here and here, and an article by Fortune Magazine’s Marc Gunther writing for The Huffington Post here).

 

According to the US position:

“Establishing an international right to anything raises a number of complicated issues regarding the nature of that right, how that right would be enforced, and which parties would bear responsibility for ensuring these rights are met … To date, there have been no formal intergovernmental discussions on these issues. It would therefore be premature to agree to such a right” (see ENN Article).

 

To a large extent, this sounds more of an academic or procedural debate rather than a substantive national concern. And as strenuously as it is asserted by countries like the US, its tone rings more of pretext rather than of meaningful explanation.

 

While there is much to be said about pursuing the formalities of international law, I suspect that governmental trepidation over a human right to water is based on a more elemental concern. Nations and governments are likely troubled by the responsibility and liability that would be associated with a human right to water. In other words, they are afraid to fail; afraid of being accountable if they fall short of the obligation that would accompany a right to water. Given the enormity of the problem, though, that may be an understandable concern. According to a 2008 report by the World Health Organization (WHO) and the UN Children’s Fund (UNICEF), there are some 884 million people globally without access to clean drinking water and more than 2.5 billion who lack access to minimal sanitation services, all of which results in millions of deaths every year directly attributable to these deficiencies. These are staggering numbers, numbers that many governments might want to sweep under the rug. And the US is no exception – in 2000, there were nearly two million people without access to basic water and sanitation services (see the report by the Rural Community Assistance Partnership).

 

The concern, however, is probably also propelled by the projected costs associated with ensuring clean and safe water for everyone globally. According to a study in the WHO’s Bulletin, the cost of attaining the Millennium Development Goals (adopted in 2000) for water and sanitation (to “halve by 2015 the proportion of people without sustainable access to safe drinking water and basic sanitation”) would require the world community to invest some US$70 billion annually between 2005 and 2014. Considering the principle of diminishing marginal returns, the cost of guaranteeing clean and safe water for everyone on the planet would likely be far more than double that figure.

 

Recognizing and ensuring a right to water will certainly not be an easy undertaking.  There are likely to be considerable social and political costs, as well as economic ones. Nonetheless, upholding a human right to water may actually be in the best interests of nations and governments around the world. As an issue of responsibility, many nations – in both the developed and developing worlds – already guarantee human, civil, and social rights and entitlements that impose considerable obligations on their governments, from public health guarantees to worker protections to lifeline utility rates. And all too often, these nations (including those in Europe and the United States) find themselves short of the mark. Yet, these regimes face their failures, often by the strength of their citizenry, and they endure. And in the ultimate calculus of social development, they are better off for it, for that is the essence of democracy.

 

Moreover, implementing and enforcing a human right to water could actually yield considerable economic advantages. According to Ms. Catarina de Albuquerque, the UN Independent Expert on the issue of human rights obligations attached to access to safe drinking water and sanitation, the return on investments in proper sanitation alone may be as high as 9 to 1 (see statement of de Albuquerque). These include benefits associated with improved human health and reduced public health care expenses, improved worker productivity, and more stable markets. A similar appraisal of expanding fresh water availability to those without would likely reveal analogous returns on investment.

 

Although the notion of a human right to water seems so fundamental and instinctive, the fact that we debate its existence often seems inimical to our own existence. Yet, in most of our communities and nations, we consider life extraordinary and deserving of protection, at least from the vagaries of human action. If each human life is so singular and so vital, the debate over the human right to water should focus on how best to achieve the right rather than on the fallibility of government to succeed in its implementation; it should address the issues of costs and compliance with such a right rather than its theoretical existence or absence; it should consider the implications of a right to water for countries’ national interests and objectives rather than the niceties of international law.

 

While certainly a cliché, water truly is life. For without water, life as we know it cannot exist. It is time that governments and nations reassess their national interests, face their responsibilities to their peoples, and think seriously about a human right to water.

 

See also my prior post on Water Marketing v. Human Rights.

Posted in Human Rights, Water and Economics | 11 Comments »

In memory of Fadia Daibes Murad

Sunday, May 17th, 2009

In memory of Fadia Daibes Murad

A few days ago, friends and colleagues commemorated the life of Fadia Daibes Murad, a Palestinian water law and policy expert who died in a car crash on her way back to Ramallah from the World Water Forum in Istanbul, Turkey. Fadia had long been an advocate for Palestinian water rights in the difficult contest between Palestinians and Israelis. She had also been a stalwart voice on women’s issues and was widely known as an intelligent and articulate champion of human rights.

 

While I had heard about Fadia previously, I got to know her during our participation in Track II negotiations over water issues between Palestinians and Israelis under the framework of the Geneva Initiative. During that process, I found Fadia to be wonderfully energetic and approachable, someone with whom you could argue intelligently and not get caught up in idealism. While Fadia certainly held strong opinions about the Palestinian rights, water allocations, and related issues, she could also recognize and acknowledge opposing positions. Most important, she had a wonderful personality that welcomed conversation and that made everyone feel at ease.

 

I do not know what influence Fadia had on the Palestinian side. But from my discussions with some Israelis, I know that she found respect on that side. And that is the essence of the ongoing dispute – a loss of respect and trust that will keep peace at bay so long as both parties ignore each other’s human dignity and fail to recognize each other’s rights. I can only hope that for the sake of peace, the Palestinians and the Israelis have someone to fill her shoes.

 

I was not able to attend Fadia’s memorial, but her memory remains with me. Fadia’s untimely death is a tremendous loss to her family and friends. It is also a loss to those devoted to the cause of peace in the Middle East. Her absence will be sorely missed.

 

Here are a few links to some of Fadia’s recent work:

·         Interview at the World Water Forum in Istanbul where Fadia represented the Gender and Water Alliance on the topic of water and conflict from a gender perspective.

·         Statement of Dr. Fadia Daibes Murad at 5th World Water Forum.

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Bond Fights Evil Corporate Water Company

Tuesday, May 5th, 2009

The other day, I watched the latest James Bond movie, Quantum of Solace. While the action/thriller had more in common with the recent Borne series than the Bond films of my youth, one of the subplots particularly intrigued me. After losing a dogfight over the Bolivian desert, Bond and his companion parachute into a sinkhole where they discover that Quantum (the evil criminal organization) has blockaded Bolivia’s fresh water supply which, apparently, in the movie, flows through the desert in subterranean rivers). Piecing together information from some of the prior scenes, you also learn that Quantum’s agent (Dominic Green) is in the process of buying that desert from a Bolivia general planning to overthrow his government.

Although private ownership of fresh water resources is not new, this film seems to take the concept to the “logical” extreme opposed by the likes of Maude Barlow and others. Certainly, there is much left unanswered in this subplot, but the film suggests that once evil Quantum obtains the desert from the would-be Bolivian ruler, it would have full possessory rights in and to the underlying water – a “rule of capture” approach to water rights. Why would a company (evil or not) want to have such rights? That becomes apparent in a later scene where the general is coerced into signing a contract granting Quantum’s agent an exclusive and overpriced water provision contract for the country. In other words, Barlow’s worst nightmare comes true.

I cannot say that such possibilities do not concern me or that all corporations working in the water sector have evil intent. Yet, unregulated private ownership of one of the most important components of life is quite troubling. Moreover, as I stated before, there is “a fundamental human notion that water is so elemental to life that it deserves a unique status in our societal system.” Nonetheless, I do think that there is a viable middle ground and having blogged about it previously, I will not rehash the issue.

Nonetheless, I wonder whether this film is a harbinger of what’s to come? Are there already any lakes, rivers, or aquifers that are wholly owned by a private company? Note that by “owned,” I do not mean a mere right to use or access the water for a defined period of time. Rather, I mean full-blown, unrestricted ownership – where the company has complete legal title to each and every molecule of water in the water body. None come immediately to mind, but I suspect that some of you may be able to point out examples.

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Friends of the Earth Middle East and World Bank’s report on restrictions on Palestinian water sector

Saturday, April 25th, 2009

Friends of the Earth Middle East (FoEME) – a regional environmental NGO composed of Palestinians, Israelis and Jordanians cooperating to promote sustainable development and sustainable peace in the region – recently issued the statement Water Being Held Hostage to the Conflict.  The statement is a response to the recently released World Bank report Assessment of Restrictions on Palestinian Water Sector Development (PDF) (see the press release here), which “reveals the extent to which water resources and sustainable development are being held hostage to the conflict.”

 

In its statement, FoEME “calls on the Israeli government and the Palestinian Authority to replace the failed Joint Water Committee (JWC) with a new joint water management structure.”  It also calls on “the Quartet led by the new Administration of US President Barak Obama to focus on the dire Palestinian water economy as a matter of urgency and help the parties replace the JWC with a new institution that empowers both sides as equal partners.”

 

Referring to its past reports, FoEME asserted that the Joint Water Committee had “failed the interests of both peoples, not providing the water quantities needed to Palestinians and not protecting shared Israeli/Palestinian water resources from large scale pollution.”  Nader Khateeb, Palestinian Director of FoEME, said in the statement that: “It is time to replace the failed mechanism of the Joint Water Committee, established under Oslo, with an institution where Palestinians and Israelis are true partners in both water supply and management responsibilities.”

 

Gidon Bromberg, Israeli Director of FoEME (and a friend of mine), stated: “The irony is that due to the water crises, following 5 consecutive years of draught, pollution largely from Palestinian sources poses an ever increasing threat to the declining shared water reserves … A key problem with the JWC is that it has disempowered the Palestinians from being able to take responsibility for water management. The Palestinians receive so little of the shared water, that Israelis must ask themselves, what incentive do Palestinians have to protect shared water from pollution?”

 

The statement notes that “In 2008, FoEME released a Model Water Agreement that called for the replacement of the Joint Water Committee with a new body where equivalent powers and responsibilities would lie with both sides covering all shared water resources.”

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