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3. Challenges in Legal Implementation There are a number of roadblocks to achieving a universal recognition and enforcement of the human right to access to drinking water and sanitation. These challenges can be categorized into three broad categories: ground realities, perceptional roadblocks and insufficient legal instruments. Let us consider each of these. Ground realities pertain to both the physical and the institutional environments. Examples of ground realities in the physical environment include water scarcity due to climatic conditions, challenging topography in mountainous areas that defies traditional delivery infrastructure, and national imperatives to produce food that require major diversion of water to agricultural activities. Examples of ground realities in the institutional environment include corruption and graft, weak governance and a weak legislative environment prevalent in most developing countries, and lack of institutional capacity. The declaration of human rights through a UN General Assembly resolution does not address any of these ground realities. In order to bring about a change in these, a massive and drastic change in paradigms of human and economic development may be required. Alternatively, Boyd (see Chapter 3.2 in this volume) argues that entrenching this human right as an actionable standard within both the international and national domains would be of benefit to the global community, which may require a different action from the UN General Assembly. Numerous perceptional roadblocks have also emerged. For example, Pardy (see Chapter 3.3 in this volume) contends that the constitutional recognition of the human right to water embodies a false panacea in that constitutional enactment represents an impotent attempt to address the conditions that underlie the global water crisis. Several human rights organizations are also now forwarding claims that water, being a human right, cannot be priced or commoditized and should thus be available free of cost to everyone, everywhere. They further extend this fallacy by claiming that if we pay for water today, governments may ask us to pay for the air we breathe tomorrow. This argument, though it may sound ethical on the surface, can potentially halt many significant efforts to provide water and sanitation services to those who need it most, because it puts a block on any rational discussion of water pricing to recover the costs of service-provisioning and simply scares away financial capital that is critical. The legal instruments available in both national and international normative environments are insufficient at the moment; countries like South Africa may be the exception to this situation. Considerable legislation, and even litigation, may be needed to establish sufficient and actionable norms. Additionally, there is a concern that a literal constitutional enactment of the human right to water may have a significant adverse impact on practices of indigenous populations (see Ávila, Chapter 3.4 this volume). A forced legal integration, as an extreme form of implementation of the human right, would allow the state to forcibly dismantle indigenous water management systems for the purpose of pursuing public (and private) water management interests. Conclusions We believe that we find ourselves at the beginning of a much larger discourse around the ethics, law and norms surrounding the declaration of access to drinking water and sanitation as a human right – one that has only begun to be explored. As the legal ramifications of the UN resolution are fully understood and new legislative responses are created, better implementation will follow. It is not yet clear what kind of timeframe will be needed for these transitions to take place. In a broad sense, the UN resolution provides a number of tools and concepts that will help improve the provisioning of these fundamental services. It provides a framework that can enable resource prioritization both internationally and at the national level. This resource prioritization not only includes financial capital but also encompasses natural resources – most importantly and prominently, prioritizing water as a resource. Future discussions around human water consumption and that for agricultural production would help clarify the relative priority for this human right in different settings. The UN resolution also provides potential remedies to communities and individuals who feel that their human right has been deliberately denied. This automatically empowers communities to better engage in decision-making around trade-offs in water consumption. Finally, recognition of water and sanitation as a human right allows the international community to consider it as an extension of the ‘Responsibility to Protect’ (also commonly referred to as ‘R2P’) paradigm to act in cases in which this human right is threatened by malicious actions of governments. 126 The Global Water Crisis: Addressing an Urgent Security Issue
References Barlow, Maude, 2007. Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water. Toronto: McClelland and Stewart. Gleick, Peter H., 1998. “The Human Right to Water”, Water Policy 1: 487-503. Griffin, J., 2008. On Human Rights. New York: Oxford University Press. Mill, J.S., 1871. Utilitarianism. 4 th Edn. London: Longmans, Green, Reader, and Dyer. Nickel, J. W., 2009. Making Sense of Human Rights. 2 nd Edn. Oxford: Blackwell Publishing. Ripstein, A., 2009. Force and Freedom: Kant’s Legal and Political Philosophy. London: Harvard University Press. United Nations Development Programme, 2006. Human Development Report, 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis. Edited by B. Ross-Larson, M. de Coquereaumont and C. Trott. New York: Palgrave Macmillan. United Nations Economic and Social Council, 2002. General Comment No. 15: The Right to Water. UN Doc. E/C.12/2002/11, 18pp. United Nations General Assembly, 1948. Universal Declaration of Human Rights, 10 December, 1948. 6pp. United Nations General Assembly, 2010. The Human Right to Water and Sanitation. July 26, 2010. A/64/L.63/Rev.1. 3pp. United Nations General Assembly, 2012: General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favour, None against, 41 Abstentions, http://www.un.org/News/Press/docs/2010/ga10967.doc.htm (accessed 9 April, 2012). United Nations Human Rights Council, 2010. Human Rights and Access to Safe Drinking Water and Sanitation. Sept. 24, 2010. A/ HRC/15/L.14. 4pp. Legal and Ethical Dimensions of a Right to Water Part 3 Part 3 127
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The Global Water Crisis: Addressing
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About the InterAction Council Estab
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Acknowledgements
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Foreword
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The undeniable seriousness of the g
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Foreword xiii
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The Global Water Crisis: Framing th
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Ethical considerations also need to
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3. Support Ratification of the UN W
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1 Water and Global Security
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Introduction Since the serious stat
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Jury and Vaux project that the numb
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5. The Potential for Conflict and t
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References Cullen, H., 2010. The We
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Introduction Water is an integral p
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shortage Statewide Regional Local N
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summer months. To alleviate the con
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References Department of Energy, 20
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Introduction Water, economic and en
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Economic analyses of ecosystem good
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• Managing for sustainability. De
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Richter, B.D., M.M. Davis, C. Apse
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Introduction Water is an essential
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early post-Cold War period, from a
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2.4. Water, conflicts, and institut
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Renaud et al. (2011) proposed a pre
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Carius, A., D. Tänzler and A. Maas
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Turton, A.R., 2004. “The Evolutio
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Introduction In the West Asia and N
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2. Water in the WANA Region 2.1. De
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Following on this, during a persona
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Below are some suggestions for how
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plants through evapo-transpiration)
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WANA Forum, 2010b. Toward Supra-nat
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Introduction “The trouble with wa
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• Upgrading current water infrast
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60,000 ventilation improved pit lat
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5. The Bottom Line It is widely ack
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The Blue Economy: Risks and Opportu
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2.1 A Human Development Approach to
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apparatus assists nation-states in
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By ensuring that the international
Page 90 and 91: 2.2 Water and Health Security Ganes
Page 92 and 93: 1.1. Human-induced Pollutants Domes
Page 94 and 95: Table.1. Water pollutants and human
Page 96 and 97: In many urban and semi-urban areas,
Page 98 and 99: 2.3 Water, Sanitation, Hygiene and
Page 100 and 101: 1. The Impacts of Poor Water, Sanit
Page 102 and 103: 77 64 2015 MDG target Coverage (%)
Page 104 and 105: 3. The Neglect of the WASH Sector a
Page 106 and 107: References Checkley, W., G. Buckley
Page 108 and 109: 2.4 Water, Food and the Development
Page 110 and 111: 2. Keeping Pace with Change Since t
Page 112 and 113: one and has yet to attain widesprea
Page 114 and 115: 2.5 Investing in Women’s Particip
Page 116 and 117: of agriculture resulting mainly fro
Page 118 and 119: their substantial contribution is p
Page 120 and 121: Although cultural constraints still
Page 122 and 123: UNEP, 2009. Water Security and Ecos
Page 124 and 125: 2.6 Water Governance Reform in Afgh
Page 126 and 127: 1.2. The Extreme risk of food secur
Page 128 and 129: Furthermore, within each basin, lan
Page 130 and 131: 3.2. Early doubts vis-à-vis progre
Page 132 and 133: transboundary water management conc
Page 135 and 136: 3 Will the Right to Water Alleviate
Page 137 and 138: Introduction A growing number of ar
Page 139: 2. Ethical Perspectives on State Ob
Page 143 and 144: Introduction It is widely recognize
Page 145 and 146: Later in 2010, the UN Human Rights
Page 147 and 148: 3.2. Legislative Recognition Dozens
Page 149 and 150: Mandela, M., 2002. No Water, No Fut
Page 151 and 152: Introduction South Africans have a
Page 153 and 154: water per person per day. The appli
Page 155 and 156: References Bluemel, E. B., 2004.
Page 157 and 158: Introduction Water conflicts are nu
Page 159 and 160: 4. Water Policies and Their Impact
Page 161 and 162: y its interconnection to encompass
Page 163 and 164: Access to Water and Conflict: An In
Page 166 and 167: Response from the InterAction Counc
Page 168 and 169: As former U.S. President Mr. Bill C
Page 170 and 171: The InterAction Council Québec Dec
Page 172: List of Participants
Page 175 and 176: List of Participants: 29 th Annual
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