On the justification of a human right to water
Clean drinking water is inaccessible to 663 million people worldwide. By contrast, every German consumes more than 5,000 litres of water a day. Is this just an unfortunate abuse or an injustice?
Is there a human right to water?
Some live in abundance…
Unicef and the World Health Organization (WHO) estimate that 663 million people in the world still have no access to clean drinking water. 2.4 billion people continue to live without toilets or latrines. “Despite progress in water supply, 10,000 people still die every day from diseases caused by polluted water,” wrote Caritas on World Water Day 2014. In sub-Saharan Africa, the average journey to a water source takes more than 30 minutes. Mostly girls and women who lose time for education and paid work and expose themselves to dangers such as rape have to walk it.
But the need is not the same everywhere. We Germans consume an average of 5,288 litres per day. The high figure not only reflects our direct water consumption. The so-called virtual water is also taken into account. This is the water that evaporates, is consumed or polluted during the production of goods or services: For every cup of coffee 140 litres, for every litre of milk 1,000 litres, for every kilo of beef 15,500 litres. About half of the water that Germans use directly or indirectly is imported via foreign products. Brazil, for example, is particularly important for our coffee imports, although its agriculture is one of the main causes of water pollution.
Is this just an unfortunate state of affairs, an inequality with deadly consequences for millions? Or is it an injustice to which we contribute through our way of life? Would it only be nice of us to limit our water consumption and advocate clean drinking water and hygienic sanitation everywhere in the world? Or is this a duty we owe others? The United Nations General Assembly answered this question on 28 July 2010 by a large majority in the second sense: it “recognises the right to safe and clean drinking water and sanitation as a human right indispensable for the full enjoyment of life and of all human rights”. Sanitation should be inclusive, drinking water clean, accessible and affordable. The Federal Republic of Germany has also agreed to this resolution. Although it is not legally binding, it is an important political signal.
Three contexts in which human rights are justified
What can it mean to justify the claim to drinking water and sanitation as a human right? Three contexts of such a justification can be distinguished: a political, a legal and a moral one.
Firstly, human rights are answers to experiences with injustice and to threats to a human life in dignity. They are primarily aimed at political rulers who also have to regulate the actions of third parties, such as private economic actors, if they want to live up to their human rights responsibilities. Political activists prefer to refer to the human right of water in order to point out the dangers of commercialisation – access for all is not compatible with trading water as an ordinary commodity. The language of human rights should make it clear that everyone, including the poorest, depends on clean drinking water and sewage disposal. Water must therefore be regarded as a public good to which everyone is entitled.
Secondly, political conflicts over water are calling for lawyers to be involved. They are trying to show that the human right to water is already enshrined in the applicable legal provisions. It is true that not all states have yet recognised it by treaty or regular practice. But in particular the International Covenant on Economic, Social and Cultural Rights (UN Social Covenant) of 1966 contains statements that suggest a human right: Article 11, Section 1 speaks of the right to an adequate standard of living; Article 12, Section 1 of the right to the highest attainable standard of physical and mental health.
These two articles in particular support the main international human rights document on water: General Comment No. 15 of the Committee on Economic, Social and Cultural Rights. Its core statement is: “The human right to water entitles everyone to adequate, safe, secure, acceptable, physically accessible and affordable water for personal and domestic use”However, whether the statement follows from the UN Social Covenant is legally controversial, since its wording does not imply a human right to water.
Thirdly, moral arguments are decisive for the existence of human rights. It makes sense to justify human rights with fundamental interests: life, well-being, personal self-determination and political participation. We want to be able to confidently demand what we need in order to survive, live in dignity, have an equal say and realise our own ideas of what is good. The conception of the interests of human rights forms a bridge between human-physical needs and morally authenticated claims. It is therefore particularly well suited to justifying a human right to water. After all, people cannot survive or develop their abilities without water.
But rights also include obligations, human rights especially those that states can and should fulfil. We must be able to say clearly enough by what means we want to measure the actions of governments and the functioning of the basic social orders for which they are responsible. Here, objections to social human rights such as the right to water could be used. Such objections have by no means fallen silent. Not all governments are still convinced of the right to water; the USA, for example, abstained from voting in the plenary session on 28 July 2010.
bjections to the human right to water
A first objection to the human right to water is that it requires resources that not every state has. Therefore, it cannot be a right that any government must respect. If, however, we were to understand human rights less clearly in order to cover claims that are subject to preconditions, we would weaken the normative status of these rights as a whole. Even torture states could then argue that no state respects all human rights.
The argument is based on the idea that some human rights could be sufficiently realised through inaction: For example, in order to respect the right to freedom from torture and degrading treatment, the state only has to renounce torture and degrading treatment. Social rights such as the right to water, on the other hand, demand an active state that provides material goods. This could overtax poorer communities.
But the idea that some human rights could be fulfilled free of charge is misleading. It suffers from an abridged understanding of human rights obligations. All human rights, not just economic and social, call for three types of obligations: observance, protection and guarantee.
The human right to water can also be violated in many ways: by pollution, by displacement, by exclusion of some groups, by discriminatory or excessive price increases (violations of duties of observance); by privatization without security for the poor, by acceptance of avoidable soil erosion, by refusal to fight bandits or rapists who block access to water points (violations of duties of protection); by the absence or avoidable failure of a policy that provides water and sanitation for all (violations of duties of guarantee).
A second objection to the right to water is that the criteria for fulfilling obligations are not clear. But this, too, is not fundamentally different for other types of rights that are undoubtedly considered human rights. Where does censorship begin? What types of punishment are cruel and dubious? What exactly belongs to decent legal protection?
The General Commentary No. 15 clearly limits the permissible interpretations. At its core, the right to water is a right of subsistence: it depends on its observance whether all people can survive within the sphere of power of a state. The minimum subsistence level of water and sanitation is therefore not at the disposal of any state. If states are unable to fulfil their obligations on their own, they are entitled to international aid and cooperation.
This partly answers a third objection. The objection is that it is not clear who the right to water would involve. The General Comment No. 15 states that this is first and foremost the respective national state, and secondly the international community. The right to water is therefore by no means a mere “manifesto right”. It is not a claim called into space to all and not to any; very specific actors can be held responsible for its violation or inadequate observance. And as far as individual states or the international community can improve the conditions for the realization of law by coordinating their actions or creating new institutions, they must do so.
What follows from the human right to water?
The United Nations General Assembly has wisely recognised water as a human right. Furthermore, sanitary facilities in large parts of the world are accessible to too few people. Avoidable environmental destruction, armed conflicts, crime and politically motivated scarcity continue to prevent all people from having access to drinkable water. The human right to water primarily obliges governments and, secondarily, the international community to ensure such access.
However, it is not essential who offers drinking water and sanitary facilities. The expectation that these must necessarily be the states themselves could indeed overtax the poorer among them. In principle, states may also involve private actors such as companies in water policy. It is crucial that they guarantee inclusive, safe, non-discriminatory and affordable access. It is precisely for this reason that states bear the final responsibility, which they cannot get rid of through privatisation. At least a badly or not at all regulated privatisation, without precise specifications and strict controls, without guarantees for the poorest, without vigilant social movements, would not be compatible with the human right to water.
Nor would it be a water policy that would offer everyone completely free access to water, but at the expense of the future or other human rights. A human rights water policy must be sustainable so that the even larger world population of tomorrow can exercise its right to potable water and sanitation. And it must maintain a balance with other human rights concerns. Farmers, for example, must continue to be able to irrigate their fields so that the right to food is not neglected.