Erin Barnes

May 4, 2007

"Water, Water, Everywhere, Nor Any Drop to Drink."
--Samuel Taylor Coleridge[1]

Can you imagine a future in which you lack sufficient clean water to drink, cook with, or bathe in each day, or where the water that is available is so contaminated that easily preventable diseases are rampant? For too many, that unbelievable future is their daily reality. And the expected increases in climate variability as a result of global warming--including intensified storms[2] and changes in rainfall and drought patterns[3]--coupled with world population growth,[4] will further stress water resources and place many more at risk.

This editorial will describe the problems--existing and expected--as a result of water scarcity, particularly the effect of these shortages on the poor. It will then describe the efforts to recognize a right to water, and how that right can be implemented.

Background

Water scarcity occurs when "the ways in which we use and distribute water cannot fully meet the demand from households, farms, industry and the environment."[5] Right now, 1.1 billion people lack access to improved water sources, and 2.6 billion lack access to adequate sanitation facilities.[6] Given that "[w]ater use has been growing at more than twice the rate of population increase in the last century,"[7] this is expected to rise significantly in the next decades. By 2025, it is estimated that 1.8 billion people will be subject to "absolute water scarcity," while two-thirds of the world's population will be affected by stress conditions.[8]

Image 1: UN Water, Coping with Water Scarcity: Every Drop Counts, http://www.unwater.org/wwd07/downloads/documents/wwd07brochure.pdf (last visited Mar. 25, 2007).

Looking at the availability of freshwater, it is easy to see why many believe we are approaching a global water crisis. As the figure below demonstrates, while three-quarters of the Earth is covered by water, only 3% of that is freshwater. Of that, only 1% is easily accessible surface water.[9] Currently, nearly 70% of water is used for food production, and that number rises to 95% in some developing countries. Agriculture's water needs will only increase as the world's population grows, at the same time that additional water is needed for sanitation, energy, and industrial use.[10]

Image 2: Population Information Program, Population Reports: Solutions for a Water-Short World, Sept. 1998, http://www.infoforhealth.org/pr/m14/m14figs.shtml#fig2.

Approximately 1 billion people world-wide live in extreme poverty,[11] and it is these people who are most affected by water shortages and impure water. Access to clean, reliable, and nearby sources of water provides many benefits to the poor: it relieves the burden of having to travel long distances to find and retrieve water--a burden which primarily falls to women and girls--which allows more time for livelihood activities and increases school attendance. It also promotes better health by reducing water-borne diseases.[12] Diarrhoeal diseases kill 1.8 million people every year; more than 90% of those are children. The World Health Organization estimates that improving the water supply would reduce the diarrhoeal morbidity rate by 21%, and improving sanitation would reduce the rate by 37.5%.[13]

The Right to Water

Given water's critical importance to life, dignity, and poverty alleviation, many groups are working to have water recognized as a fundamental human right. Progress has been made on recognition of the right to water, but implementation is lacking.

The United Nations Committee on Economic, Social, and Cultural Rights (Committee) adopted a General Comment recognizing 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."[14] The Committee primarily relied on Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a basis for the right to water.[15] Article 11 does not refer specifically to water, but "recognize[s] 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."[16] The Committee noted that water is essential to secure an adequate standard of living.[17] Water is also necessary to the fulfillment of the right "to the enjoyment of the highest attainable standard of physical and mental health."[18]

Content of the Right to Water

Three types of obligations are imposed on States in conjunction with the right to water: governments must respect the right, and "refrain from unfairly interfering with people's access to water"; "[g]overnments must protect people's access to water from interference by others, for example, by preventing pollution"; and governments must take action to fulfill the right by "adopt[ing] the necessary measures directed towards full realisation of the right, for example, by passing legislation, devising and implementing programmes, allocating budgets and monitoring their progress."[19]

The Committee stated that the water supply "must be sufficient and continuous for personal and domestic uses."[20] In order to fulfill basic needs, each person must have access to at least 20 liters of water per day.[21] Optimal access requires 100-200 liters per person each day.[22] In addition, the water must be safe, "free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person's health," and "of an acceptable colour, odour and taste for each personal or domestic use."[23] Finally, water must be physically and economically available to everyone, without discrimination. Physical accessibility means that "[s]ufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace."[24] Economic accessibility means that everyone must be able to afford water without compromising access other basic needs.[25]

Implementation

Other international agreements have also recognized a right to water.[26] These agreements, however, are binding only upon the countries that have ratified them. The right to water has not been recognized as a fundamental human right in customary international law,[27] which would oblige all countries to take steps to implement the right. The ICESCR obliges parties "to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."[28] Lack of resources, sufficient political will, and/or effective governance has slowed the implementation of the right to water.

Successful implementation of the right to water requires cooperation between governments (from the national to the local level), nongovernmental organizations, and citizens. The World Water Council describes four different methods of implementation: 1) the legislation and policy method, which focuses on "explicit reference in the Constitution or laws accompanied with national policies, plans and resources to enable local authority implementation"; 2) accountability mechanisms, which focuses on judicial action; 3) the community advocacy approach, in which "communities or social groups can mobilize and advocate for the right based on national laws (where applicable) and international agreements that support the right to water"; and 4) the community implementation approach, in which "communities and municipalities can within their area of jurisdiction establish the right to water through their actions and local regulations despite non-recognition at the national level."[29] One or more of these methods may be required in different circumstances.

South Africa is an excellent example of the legislation and policy approach. While more than 100 countries recognize the right to a clean environment in their Constitutions,[30] South Africa is one of only a few countries to expressly recognize the human right to water in its Constitution.[31] In 1994, the government established a goal of providing free basic water, consisting of 25 liters of water per person per day, to every poor household by 2008.[32] The percentage of population with access to basic water has improved under this policy from 60% in 1994 to 86% in 2004.[33]

The accountability mechanisms approach relies on the judicial system to enforce the legal right to water. The Supreme Court of India, for example, required a municipality "to take immediate action within its statutory powers to construct sufficient number of public latrines, provide water supply and scavenging services, to construct drains, cesspools and to provide basic amenities to the public."[34] The case was brought by residents frustrated by the municipality's failure to address sanitation problems such as open sewers. This approach will not always work, however, because the legal right to water is not recognized everywhere, and in those places where it is recognized, many people are unaware of the right.[35]

Community groups and nongovernmental organizations (NGOs) are the foundation of the community advocacy approach, which seeks to empower citizens to secure their right to water. In Argentina, an international NGO (the Centre on Housing and Rights and Evictions) and an Argentinean NGO (El Centro de Estudios Legales y Sociales) teamed up to inform citizens of their rights, provide technical assistance, and develop legal strategies. As a result, the "[c]ommunities have now developed concrete plans to secure access to water services and obtained visibility and government recognition."[36]

The community implementation approach also relies on the empowerment and active participation of community members. Under this approach, communities and municipalities can take action to implement the right to water through local regulation or action, regardless of the acceptance of the right on a national level.[37]

These examples make it clear that no one approach to implementation is necessarily right for every situation. It is necessary, however, for each State to consider the needs of its population and the availability and uses of water to determine how best to proceed.

Conclusion

To ensure that each person has access to sufficient water for health, hygiene, and sanitation, governments, nongovernmental organizations, and citizens must work together to implement the right to water. Establishing effective governance practices now regarding water use and distribution will assist in poverty alleviation, save the lives of millions each year, and lessen the impact of climate changes and increased burdens on our already-limited water supply.

[1] Samuel Taylor Coleridge, The Rime of the Ancient Mariner, available at http://www.english.upenn.edu/Projects/knarf/Coleridg/mariner.html (last visited Mar. 23, 2007).

[2] Intergovernmental Panel on Climate Change, Climate Change 2007: Impacts, Adaptation and Vulnerability (Summary for Policymakers), April 2007, http://www.ipcc.ch/SPM13apr07.pdf.

[3] Id. at 5.

[4] The world's population currently stands at approximately 6.4 billion, increasing by approximately 70 million each year. It's expected that there will be 8.1 billion people by 2030 and 8.9 billion by 2050, with much of the growth coming from low-income countries. United Nations Educational, Scientific and Cultural Organization, Water: A Shared Responsibility 8 (2006), available at http://unesdoc.unesco.org/images/0014/001454/145405E.pdf.

[5] UN Water, World Water Day 2007: Questions and Answers, http://www.unwater.org/wwd07/downloads/documents/wwd2007qanda_en.pdf (last visited Apr. 7, 2007).

[6] World Water Council, Water Crisis, http://www.worldwatercouncil.org/index.php?id=25 (last visited Mar. 28, 2007).

[7] UN Water, Coping with Water Scarcity: A Strategic Issue and Priority for System-Wide Action, Aug. 2006, ftp://ftp.fao.org/agl/aglw/docs/waterscarcity.pdf.

[8] Id.

[9] Population Information Program, Population Reports: Solutions for a Water-Short World, Sept. 1998, http://www.infoforhealth.org/pr/m14/m14chap2.shtml#return.

[10] Coping with Water Scarcity: Every Drop Counts, supra note 9.

[11] Water: A Shared Responsibility, supra note 4, at 7. Extreme poverty is defined as those who live on less than $1 per day. NetAid, Global Poverty, http://www.netaid.org/global_poverty/global-poverty (last visited Apr. 2, 2007).

[12] Water: A Shared Responsibility, supra note 4, at 8.

[13] World Health Organization, Facts and Figures: Water, Sanitation and Hygiene Links to Health, http://www.who.int/water_sanitation_health/publications/factsfigures04/en/ (last visited Apr. 12, 2007).

[14] United Nations Committee on Economic, Social, and Cultural Rights, General Comment No. 15 (2002): The Right to Water (arts. 11 and 22 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, http://www.unhchr.ch/html/menu2/6/gc15.doc (hereinafter General Comment No. 15).

[15] Id.

[16] International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR), art. 11(1), Dec. 16, 1966, available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm.

[17] General Comment No. 15, supra note 16.

[18] ICESCR, supra note 18, at art. 12(1).

[19] World Water Council, The Right to Water: From Concept to Implementation 8 (2006), http://www.worldwatercouncil.org/fileadmin/wwc/Library/RightToWater_FinalText_Cover.pdf.

[20] General Comment No. 15, supra note 16.

[21] Centre on Housing Rights and Evictions, Clean Water for the Poor?: Making the Human Right to Water a Reality, http://www.cohre.org/store/attachments/clean-water-for-the-poor.pdf (last visited Apr. 14, 2007).

[22] World Health Organization, The Right to Water 13 (2003), http://www.who.int/water_sanitation_health/rtwrev.pdf.

[23] General Comment No. 15, supra note 16.

[24] Id.

[25] Id.

[26] See, e.g., Convention on the Elimination of All Forms of Discrimination against Women, art. 14(2)(h), available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm ("States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas . . . and, in particular, shall ensure to such women the right . . . [t]o enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications."); Convention on the Rights of the Child, art. 24(2)(c), available at http://www.unhchr.ch/html/menu3/b/k2crc.htm ("States Parties . . . shall take appropriate measures . . . [t]o combat disease and malnutrition . . . through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution."); see also General Comment No. 15, supra note 16, at footnote 5.

[27] John Scanlon et al, Water as a Human Right? 12 (2004), available at http://www.iucn.org/themes/law/pdfdocuments/EPLP51EN.pdf.

[28] ICESCR, supra note 18, at art. 2(1) (emphasis added).

[29] World Water Council, supra note 21, at 15--16.

[30] The Right to Water, supra note 24, at 19.

[31] World Water Council, supra note 21, at 17.

[32] Id.

[33] Id. at 19.

[34] Id. at 24.

[35] Id.

[36] Id. at 26--27.

[37] Id. at 28.