[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
[Scott McKenzie is a lawyer in private practice. His scholarship focuses on water policy in the context of sustainable development.]
The Nile River is currently one of the most contentious transboundary water hotspots. As Ethiopia begins construction of the Grand Renaissance Dam (GERD), it forces Egypt and other basin states to re-examine how the Nile’s water is allocated. This situation has the potential to result in conflict, but modern international water law can help these states settle their differences peacefully. At the heart of water law are principles regarding the allocation and management of these resources. These principles are designed to promote cooperation, prevent conflict, and provide needed stability. The Nile is a timely case study to see how these principles can be applied.
The conflict over the Nile’s water pits the more developed downstream countries Egypt and Sudan against the still developing upstream countries including Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, the Democratic Republic of Congo (DRC), Eritrea, and South Sudan. The downstream countries are almost completely dependent on the Nile’s water and have historically received a large portion of the Nile’s flow. However, as the upstream countries begin to develop they need more water for their drinking water, agricultural irrigation, and hydropower production.
In June, Ethiopia began diverting a portion of the Nile as part of its plans for the construction of the GERD. Egypt was alarmed by this move because the GERD is a stunning size. When complete, it will be the largest dam in Africa and have a generating capacity of 6,000 megawatts (the equivalent of 6 nuclear power plants). Egypt is concerned that such a dam could reduce the amount of water it receives from the Nile, and because it is a signal that in the future the upstream countries will wield greater power over the Nile.
Neither Egypt or Ethiopia has gone to war over the Nile’s water, but both sides are engaging in a tremendous amount of saber-rattling. For example, at a recent forum of Egyptian politicians, it was suggested that the country could sabotage dam construction though a covert military campaign. Ethiopia has long been concerned about such a plot. As former Prime Minister Meles Zenawi said he was not “worried that the Egyptians will suddenly invade Ethiopia ... Nobody who has tried that has lived to tell the story.”
Governing this conflict are competing legal instruments, which also reflect the evolution of water law.