Democratic water governance to achieve a human right to water

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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