[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
