Drinking Water (29 page)

As a statement of formal international governmental policy, the right to water has been presented most strongly in General Comment 15, adopted in 2002 by the United Nations Committee on Economic, Social and Cultural Rights. General Comment 15 recognized the right to water as an independent human right, defining it as “sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” These terms were carefully negotiated, and it is worth considering them in detail.

A “sufficient” amount implies the government’s responsibility to provide a minimal quantity of water for basic needs to prevent dehydration and disease, often seen as seven to fourteen gallons a day per person. “Safe” implies not only a responsibility for treatment but also a corollary responsibility to prevent pollution from contaminating drinking water sources. “Acceptable” and “accessible” suggest that the sources must be reasonably close to where the water is consumed.

The term “affordable” is less obvious. It could mean that states
must provide access to water even to those who cannot pay for it. After all, the General Comment goes on to say that “water, and water facilities and services, must be affordable for all.” This would not be possible if the availability of water were solely determined by market forces in a full cost recovery approach. At the same time, the text never says water must be provided for free. And while its critics rarely note the concession, even the promarket Dublin Statement made clear that there is a “basic right of all human beings to have access to clean water … at an affordable price.”

Many advocates for a right to water reject this possibility, demanding that water be provided for free to those too poor to afford the fees. Others go further, arguing that water belongs to the people and therefore cannot be subject to commerce. As the Council of Canadians, one of the most influential groups in the debate, proclaims on its website, “Water is a public trust; it belongs to everyone. No one should have the right to appropriate it or profit from it at someone else’s expense. Yet that’s what corporations and investors want to do.”

General Comment 15 was adopted in 2002. The UN General Assembly adopted a resolution in 2010 declaring “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” Forty-one countries abstained in the final vote, including the United States, the United Kingdom, Canada, and Japan.

It may seem strange that there has been so much controversy over recognizing a right to water. It is not as if General Comment 15 or other UN pronouncements will lead to an immediate change in behavior, so what are the implications in recognizing a right to water? On a fundamental level, human rights change the nature of the discourse. If we start to think of water more as a right and less as a commodity, supporters hope, then we will also think more naturally of state obligations to respect and fulfill these rights. Just as a state should not deny an individual his or her right to personal liberty, so, too, should no one be denied access to safe drinking water because of their inability to pay. It certainly puts a dent in the principle of full cost recovery.

As lawyers know well, rights talk trumps markets talk. As one scholar put it, “Utilizing human rights protections changes the terms of discourse from one of charity or commodity to one of entitlement with corresponding state obligations.” And, it follows, if states have such an obligation, then they should be legally and politically accountable when they fail to meet this obligation. No one speaks in favor of slavery because there is a profit to be made. The right of liberty is nonnegotiable. The same should be true for the right to water.

This is all fine talk, but what would such a right look like in practice? The General Assembly resolution and General Comment 15 are equally unhelpful in detailing what states need to do to comply. Yet it is at the state level—where the rubber meets the road—where obligations are respected and enforced. It is here we must look to see how a right to water would operate. While most countries do not recognize a right to water, there are at least fifteen national constitutions that recognize basic water rights. Among these, India and South Africa provide the most interesting examples to consider.

While no statute or constitutional provision speaks directly to a right to water, the Indian Supreme Court has developed an expansive reading of Article 21 of the Indian Constitution. Article 21 provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” This short text has served as the justification for a flowering of Court decisions establishing rights-based protections, including the right to go abroad, the right to shelter, and the right to water, among others. As the Court wrote in a 1998 case, the “right to life guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter.”

Like the right to water in General Comment 15, though, the question still remains how to apply this in practice. We can find an instructive and wonderfully creative example in a 1998 case from the northern part of the country, in the city of Allahabad in Utter Pradesh. A lawsuit filed by Shri S. K. Garg, the vice president of the Allahabad bar association, asked the presiding judge,
Markandey Katju, to ensure a regular supply of water to the people of Allahabad. The pleadings cited example after example of broken or inadequate water supplies. Three out of the four water tanks at Khusroobagh were not working, and the functioning tank was full of filth and mud. The tubewells and hand pumps installed by the Jal Sansthan were out of order. The water pumps at Ashok Hagar and Rajapur had been broken for the past week. The list went on and on.

Faced with this litany of public failure, most judges in other countries might throw up their hands. Suing public authorities for inadequate water service provision and forcing action is difficult to do, even in the United States. Indian courts, however, have developed a strong tradition of public interest litigation over the past thirty years. In a small number of cases, courts have stepped in to demand specific improvements in local governance by authorities. This happened most notably in the case of
M. C. Mehta v. Union of India
where, in response to the pleading of a public interest litigator, the court ordered the local government of Kanpur to take specific actions to protect the water quality of the Ganges for drinking and bathing, including construction of sewage works, moving dairies away from the river, and stopping the burial of bodies in the river. And that type of bold intervention is precisely what happened in the courtroom of Judge Katju. Part of his opinion bears quoting:

The English poet Coleridge in his poem The Ancient Mariner wrote “Water, water everywhere but not a drop to drink.”

This is precisely the plight of the people of Allahabad which has been highlighted in this writ petition. Despite two mighty rivers, the Ganga [Ganges] and Yamuna, at whose confluence the city is situated, a large number of colonies and the people living there have been hardly getting even a drop of water for days on end, and even in the places where water comes, it very often trickles for hardly 15 minutes or so in a day, and people have to rush with their buckets to get some. …

In our opinion the right to get water is part of the right to life guaranteed by Article 21 of the Constitution but a large section of
citizens of Allahabad are being deprived of this right. Without water the citizens of Allahabad are going through terrible agony and distress particularly in this hot season when the temperature goes up to 46 or 47 degree Celsius [115 degrees Fahrenheit]. Without water the people are bound to die in large numbers due to dehydration and heat stroke and in fact many have died already.

Judge Katju ordered the creation of an Allahabad Water Committee, naming its chair and eleven members. The committee was charged to meet within a week and at least every two weeks after that to decide immediate and long-term remedial steps. The local authorities were also directed to repair the broken wells and pumps within a week, as well as test the water for pollution. Both the committee and general manager of Allahabad were ordered to appear before the court two months later to report on progress.

This kind of judicial intervention in municipal governance is virtually unheard of in other systems. It seems as strong an exercise of the right to water as might be possible. And yet, despite this powerful exercise of judicial authority, the fact remains that roughly 17 percent of Indians do not have access to clean water. Even a motivated judiciary has its limits in poor countries.

South Africa has taken a different approach. Confronting the legacy of apartheid, much of South Africa’s black population suffers from the same lack of access to clean water as in other parts of Africa. This was addressed in 1996 when the new constitution created a right to water. Section 27 mandates that “everyone has the right to have access to … sufficient … water. … The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.”

To make concrete this broad and abstract right, government legislation established a Free Basic Water entitlement of twenty-five liters per person per day (6.6 gallons) or six kiloliters per household per month, available within two hundred meters of a household. Under what is known as the Free Basic Water policy, this ration of six kiloliters is to be provided free to all citizens, supplied from the local government’s portion of the national allocation.
Municipalities are required to adopt a block tariff system, where the cost of water increases for consumption in excess of the free six-kiloliter allocation. The result is a cross-subsidized system, where large users of water subsidize the initial basic supply for the poor. In addition, the Water Services Act stated that government actions cannot “result in a person being deprived access to basic water services for nonpayment.”

While it seems sensible on its face, the policy has had limited success. Collection of revenue, in particular, has proved challenging, especially in areas where there are not enough high-volume users to subsidize free water. Up to 75 percent of water pumped to some areas goes unaccounted for because of leaks and unpaid bills. In response, some municipalities have installed prepaid water meters. These meters shut off a household’s water supply once the free basic supply has been provided. Any additional water must be paid for.

This practice was challenged by residents of the Soweto area of Johannesburg in 2008. The lower court said the practice was unconstitutional because it unlawfully and unreasonably discontinued the supply of water. The court also found that the twenty-five-liter free basic supply allotment was insufficient and should be raised to fifty liters per day. On appeal, the Constitutional Court overruled this decision. The Court made clear that the constitutional right to water provided in Section 27 “does not require the state upon demand to provide every person with sufficient water without more; rather it requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water, within available resources.” The decision was deeply pragmatic, recognizing that inadequate resources pose a legitimate barrier to realization of the right. Indeed, in 2006, more than 8 million South Africans did not have adequate access to water, and 3.3 million had no access to a basic, safe water supply at all.

India’s active judiciary and South Africa’s legislative guarantee of a basic supply offer promising approaches to realize the people’s right to water. Even the strongest proponents of a rights-based approach, however, recognize that simply declaring a human right to water will not, by its mere pronouncement, solve problems on
the ground. But it can help change how people think about the problem and, importantly, the basic responsibilities of government.

T
HE RIGHTS-VERSUS-MARKETS DEBATE REMAINS HIGHLY CONTENTIOUS
, with strident advocates on both sides of the issue. As with most complicated issues, both sides have a point yet neither owns the debate. Indeed if our survey of drinking water management in different societies in
Chapter 2
showed anything, it was that the popular discourse is both simplistic and distinctly ahistorical. While making for powerful rhetoric, framing access to drinking water as a binary conflict of rights versus markets, of public versus private management, forces a false choice.

Consider that more than 150 years ago, the New York Committee on Fire and Water addressed the very same issue of private versus public provision that we continue to fight over today. Its 1835 report recommended a hybrid approach.

The control of the water of the City should be in the hands of this Corporation, or in other words, in the hands of the people. From the wealthy and those who would require the luxury of having it delivered into their houses; and from the men of business, who would employ it in their workshops and factories, the revenue should be derived. But to the poor, and those who would be content to receive it from the hydrants at the corners and on the sidewalks, it should be as free as air, as a means of cleanliness, nourishment and health.

Markets and rights both have coexisted and can coexist, one reinforcing the other.

The centuries-long stability of the Roman drinking water system provides an even more nuanced perspective. When viewed from the broader vantage of natural resource management, drinking water was consciously managed as a physical resource (the aqueduct and distribution system within Rome), a social resource (free water in the communal gathering places of the
lacus
), an economic resource (charging the
vectigal
to underwrite maintenance costs),
and a political resource (as a justification of imperial rule). Asking whether access to Roman drinking water was by market or by right is not nearly as instructive as considering how the different natures of drinking water were deliberately managed.