Emerging Voices: The Human Right to Water–Progress and Challenges for International Law and State Water Governance

[Scott McKenzie has a Juris Doctorate from the University of Iowa and is a PhD Student in Resource Management and Environmental Studies at the University of British Columbia.]

The human right to water has been making steady progress.  The right has become a fixture of international law and state constitutions frequently include the right.  Within a framework of legal pluralism, this post examines the relationship between the human right to water’s core obligation and specific normative goals and on-the-ground governance in two case studies.  Strong water governance is critical for residents who are dependent on state or private enterprise for the delivery of basic and essential services, meaning international law has a significant impact on daily habits for billions of people.  South Africa and Ireland want to provide water for their citizens but their approaches show striking differences.  South Africa constitutionally protects the right to water but implementation falls short, while Ireland’s new framework is beginning to reflect international guidelines but provides no domestic legal guarantee.  These experiences show value in a duel-track approach for international law, with expanded recognition of the human right at the global and state levels along with further detailed frameworks that solidify how citizens should experience these rights.

Many discussions concerning the human right to water focus on the international level.  This is important, but can miss nuance in governance. Legal pluralism recognizes multiple sources of law in addition to the state.  Pluralism has been defined as “a situation in which two or more legal systems coexist in the same social field.”  (link is to a .pdf) These systems come from different sources and have their own “foundations of legitimacy, validity, power and authority.”  This approach can be used to recognize the human right to water as a concept, and examine its implantation at various systemic levels as a means to improve the realization of the right in international law.

The Human Right to Water

A United Nations report found that worldwide, water related disease was responsible for 3.7 percent of all deaths. Despite agreement on the importance of access to clean water for human health and a diverse history of state and local scale implementation, the international legal and governance community has slowly addressed the right to water.

At the international law level, the human right to water can be divided into two elements: recognition of an obligation and a normative framework.  The obligation of the human right to water has been formulated in two ways. First, it has been “derived” from other codified rights such as health or quality of life because water is fundamental for the realization of those rights.  Second, it is mentioned explicitly in instruments such as the Convention on the Rights of the Child or United Nations Resolution 64/292 (“The General Assembly…Recognizes 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”).

The normative framework of the human right was explained by the United Nations Committee on Economic, Social and Cultural Rights in General Comment 15.  This guidance for implementing the human right was not binding.  But, provides some structure for how the right should be realized; such as “in quantities…necessary” to meet basic needs or “affordable…for personal and domestic uses”.  However, fine-grained details such as the quantity necessary or the amount that can be charged are in debate and not clear in international law.  Some experts argue a lower quantity that covers basic human hydration, while higher estimates include hygiene, food-preparation, and sanitation.  Many experts gravitate towards 50 liters (L) per day. Similarity, affordability estimate range from 2-5% percent of household income but this aspect not yet settled.

South Africa – Constitutional protections fall short

South Africa was one of the first states to constitutionally recognize the obligation of the human right to water.  Section 27 mirrors language from General Comment 15 and states, “Everyone has the right to have access to…(b) sufficient food and water… [and] (2) the state must take reasonable…measures, within its available resources, to achieve the progressive realization…”  As a result, the South African constitution has been described as one of the “most progressive” in the world.  However, at times on the ground implementation falls short of the normative goals.  This is particularly true in urban (and perio-urban) areas.  As the case of Mazibuko v. City of Johannesburg (Phiri) demonstrates, judicial interpretation does not always extend access to scarce and essential resources.

After decades of apartheid, the African National Congress promised social reforms including the right to water.  Many aspects of water governance were implemented through the National Water Act (.pdf) which aimed to answer racial and gender inequalities, connect water management with economic development, and improve stewardship for future generations.  While the Act addressed personal allocations, local municipalities were responsibility for implantation and delivery.

In 2001, Johannesburg adopted a Free Basic Water Policy, which allocated 6 kiloliters (kL) per month to each household.  This was criticized because there was not a guarantee of sufficient water per person.  Additionally, pre-pay meters in some areas reduced waste and ensured payment but made access to water above the free allocated amount difficult.

The applicants in Mazibuko sought the resolution of two issues related to water provision in their community which they alleged violated the constitution.  First, they asked the state be required to provide 50L of water per person, per day.  Second, argued against the pre-paid meters. The trial court found that 6kL per household and prepaid meters were not congruent with the requirements of the constitution.  The appellate court’s judgment set the quantity required to satisfy the human right at 42L per person per day.  However, the Constitutional Court overturned the lower courts and allowed agencies to base their free basic water policies around a reasonableness standard.

Phiri shows that recognition of the human right’s obligation, even enshrined in the constitution, is not sufficient to leverage domestic water governance to international guidelines.  The Constitutional Court has been criticized for failing to uphold a minimum core approach to socio-economic rights.  Proponents of the minimum core note that they would provide  “enforceability, justiciability, and value as a benchmark against which government programs can be temporally oriented and assessed.”  While General Comment 15 does not specify quantities that much be made available and is silent on meters, further iterations could address these and similar affordability issues.

Ireland – Reforms look towards international standards

Ireland has taken a different approach to its citizen’s right to water.  Unlike South Africa, Ireland resisted implementing constitutional protection for water (or any broader environmental rights).  In early 2014, a Constitutional Convention overwhelmingly voted to reform economic, social and cultural rights.  However, water was not among the rights that were discussed.  But, significant policy changes after the 2008 recession resulted in a water governance that begins to fit the human right to water’s normative framework.

The most recent iteration of Ireland’s free water policy started in 1996. Water charges were not necessarily unpopular because they were financially burdensome, but because they were poorly implemented. Consumers found wide discrepancies between the quantities used and the amount billed, invoicing was complex, and the social program to help those in need was disorganized.  As a result, Section 105(1) of the 2007 Water Services Act (.pdf) banned domestic water charges.

There were logical reasons why Ireland’s free water policy was one of the few in the world and the only in Europe.  In addition to be financially expensive, the program created negative consumption patterns and the country had the highest per capita use in Europe.

Ireland was hit hard by the 2008 worldwide economic crisis resulting in significant internal and external pressure for reform.  In the words of one expert “the case for water charging has never been stronger.”

The new policy has slowly developed and there have been public protests, online social media campaigns, and suggestions of a boycott.  Underlying public anxieties are concerns that Ireland is on the path towards water privatization and entirely unaffordable charges.  Household meters will not require pre-payment and the amount charged will have a maximum cap. The new policy attempts to merge aspects of the “free water” policy with the economic reality, seeking (but perhaps not yet finding (.pdf)) a balance between access and affordability which reflects international frameworks.

While far from directly copying General Comment 15, Ireland’s new policy reflects the power of the human right to water’s normative framework.  A constitutional obligation for the human right to water, drawing language and legitimacy from international law, could be one means by which to protect access to water.

Steps forward for the right to water

Water governance is a combination of international, state, and local rules as well as domestic, foreign, and international institutions and actors.  Each level is influenced by the human right to water.  South Africa and Ireland suggest two means by which the human right at the international law level can be advanced.  First, continuing to use international efforts to extend recognition of the obligation at the international level and in state constitutions would provide easy access to forums for petitioner claims.  Second, further development of specific normative framework could help states model legislation and advance realization of the human right.  Citizens and researchers recognize there is a gulf between international law and water provision.  Learning from state level experiences with water governance can be one means to advance and improve international law.