Rights to Drinking Water

In 1992 Stephen McCaffrey authored a seminal article proposing a human right to water. In the intervening years a stream of scholarship affirming the right has followed McCaffrey’s lead. Today, the existence of a human right to water is seldom challenged and it now appears to be well rooted in international human rights law. Nevertheless, to date there has been little to no scholarship about what the practical contours of the right should be.

If legal tools are to benefit the world’s poor and disenfranchised they cannot be void due to the impossibility of implementation. This is the problem with the purported human right to water. It is quixotic. International lawyers then must ferret out the means to provide those who have little or no access to potable water and proper sanitation with a suite of meaningful and workable legal options.

A. The Dilemma with the Right

There are two fundamental problems with the “right”. First it is unenforceable. Indeed, it is axiomatic that there can be no right without a remedy. Moreover, as Joseph Vining has observed, “[t]hat which evokes no sense of obligation is not law. It is only the appearance of law . . . .” Thus, the putative right is of little help or solace for those who have no access to potable water or the millions who die annually due to its privation.

Second, the rights scholars do not address how the issue of privatization of water utilities, especially the failure of corporate privatization and the comodification of water, should fall within the penumbra of the right. Indeed, these issues have yet to be addressed, leaving this area of the law unsettled and crammed with practical pitfalls.

A. The Enormity of the Problem
“Safe drinking water, sanitation and good hygiene are fundamental to health, survival, growth and development.” Accordingly, the World Health Organization (“WHO”) recently observed that “[s]afe drinking water and basic sanitation are so obviously essential to health that they risk being taken for granted.” Unless people gain access to sources of drinking water that are clean, safe and reliable “[e]fforts to prevent death from diarrhea or to reduce the burden of such diseases as ascaris, dracunculiasis, hookworm, schistosomiasis and trachoma are doomed to failure . . . .”
The problem is so pervasive that former South African President Thabo Mbeki recently asserted that “[w]e have a duty to fight against domestic and global apartheid in terms of access to water.” Indeed, the United Nations recently declared that “[o]vercoming the crisis in water and sanitation is one of the great human development challenges of the early 21st century. [In addition, s]uccess in addressing that challenge through a concerted national and international response would act as a catalyst for progress in public health . . . .”
Unfortunately, the average person in the developing world will not realize the universal availability of faucets or water piping at home “in the short – or even medium term.” Consequently, these people will be bereft of safe water for the foreseeable future. Of course, the burdens of polluted water, lack of access to potable water, as well as basic sanitation falls on the poor. Not only are they much “less likely to have access to safe water and sanitation, but they are also less likely to have the financial and human resources to manage the impact of this deprivation.”
Additionally, the poor are treated less equitably because the laws and policies of many states offer scant protection for the vulnerable. Even where these laws are on the books, they are seldom enforced. The rural poor also have little or no access to the political process, and comprise “[s]ome 80% of those who have no access to improved sources of drinking water.” Indeed, in 2002 the World Health Organization (“WHO”) estimated that more than 1.1 billion people worldwide lack clean drinking water and that “2.6 billion people have no sanitation . . . .” WHO also estimates that at least 1.8 million people die annually from diarrheal diseases (including cholera); with children below the age of five, mostly in developing countries, constituting 90% or 1.6 million of these deaths. This figure is five times the number of children who die annually from HIV/AIDS. Of the deaths caused by diarrhoeal disease, fully 88% are ascribed to unsafe water and deficient sanitation.

It is for these reasons that in 2003 WHO declared that the providing water to the peoples of the developing world was an urgent priority. Similarly, in 2000 the United Nations adopted the Millennium Development Goals. The Goals’ aim is to halve the number of people who do not have access to water by 2015. Nevertheless, without any financial support these programs have done little.

Finally, the “[l]ack of basic sanitation indirectly inhibits the learning abilities of millions of school-aged children who are infested with intestinal worms transmitted through inadequate sanitation facilities and poor hygiene.” It also adds to a higher rate of wasteful and unproductive time due to adult illness and the need to stay home taking care of children. If the world’s poor are to climb out of their morass, their status quo must change. One option for those who seek to aid these folk is privatization. There are of course problems with privatization. These include obstacles grounded in possible litigation before the World Trade Organization and national Supreme courts, as well as suspension in or from the practice of legal regimes, which provide water via public or privatized sources. In addition, those that use tanks to distribute water may also face actions to suspend these actions by corporate entities, who may claim that there rights are being infringed upon. These corporations may seek indemnification for loss of profits.