Global Goal Setting and the Human Right to Water
- Cristy ClarkCristy ClarkUniversity of Canberra
Since the 1970s, global goal setting to increase access to safe drinking water has taken a number of different approaches to whether water should be primarily understood as a “human right” or a “human need.” In the Mar del Plata declaration of 1977, states both recognized a human right to water and committed themselves to achieving universal access by 1990. By the 1990 New Delhi Statement, with universal access still out of reach, the goal was renewed with a new deadline of 2000, but water was described as a human need rather than a human right. This approach was coupled with an emphasis on water’s economic values and the need for increased cost recovery, which in turn increased the focus on, and uptake of, private-sector participation in the delivery of water and sanitation services across the Global South.
A similar needs-based approach was adopted at the start of the new millennium in Target 7 of the Millennium Development Goals (MDGs), but during this decade a consensus on the recognition of the human right to water also emerged in international law. As the normative status and content of this right came to be better articulated and understood, it began to influence the practice of providing water and sanitation services, and by the end of the MDG process a rights-based approach featured more prominently in the Sustainable Development Goals (SDGs) of 2015.
While the provision of water and sanitation services is multifaceted, the evidence of global achievements from the 1970s onward indicates that a rights-based approach increases the priority given to the social values of such services and focuses attention on the need to go beyond technical solutions to address the structural issues at the heart of water inequality. Going forward, approaches to the provision of water and sanitation services and the human right to water will need to continue to adapt to new challenges and to changing conceptualizations of water, including the growing recognition that all living things have a right to water and that water itself can have rights.
The challenge of securing universal access to a sufficient amount of safe water for personal and household use has been through a number of distinct phases at the global level. Within these phases, it is also possible to distinguish between two parallel stories that have often overlapped: (a) global goal setting around increasing access to safe drinking water and (b) the emerging consensus around the status and content of a human right to water in international law. This article provides an overview of these two parallel stories, in addition to exploring the interplay between them. By considering these stories together, it becomes clear that the effectiveness of global goal setting around increasing access to safe drinking water has depended on a number of key factors, particularly including the priority given to the social and environmental values of water and the need for social and institutional reform. The potential value of the human right to water to the success of global water goals is thus its ability to both highlight these values and accord priority to issues of equality, participation, and the redistribution of power.
A Background to the Human Right to Water
Until at least 2002, the existence of a human right to water was not well established in international law. Within treaty law it has been explicitly recognized only for some distinct groups in some specific circumstances. However, over the decades there has been a growing acceptance that the right can also be implied from a number of other treaty rights, including those of universal application. Furthermore, from the late 1970s, states began to demonstrate their acceptance of the right to water for human consumption through their statements and actions at international and domestic fora, such that its status started to slowly become established within customary international law.
Explicit, Selective Recognition
The earliest example of a specific guarantee of access to drinking water can be found in article 11 of the Geneva Convention relative to the Treatment of Prisoners of War (1929), which requires that prisoners of war be supplied with “[s]ufficient drinking water.” Article 29 of the Third Geneva Convention (1949) added a requirement to supply “sufficient water and soap for their personal toilet and for washing their personal laundry.”1 Although these provisions do not constitute an explicit recognition of water as a human right, they recognize the fundamental importance of guaranteeing access to water to people under the direct control of the state.
This recognition has been expanded in respect to at least some categories of women in article 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women, which requires that state parties ensure women in rural areas have the right to “enjoy adequate living conditions, particularly in relation to . . . water supply.” Similarly, states are required to combat disease and malnutrition in children “through the provision of adequate nutritious foods and clean drinking-water” under article 24(2) of the Convention on the Rights of the Child (CRC). Article 28(2)(a) of the Convention on the Rights of Persons with Disabilities (CRPD) further recognizes a right of “equal access by persons with disabilities to clean water services.”
The right to water for human consumption has also been explicitly recognized in a number regional conventions, such as article 14(1) of the African Charter on the Rights and Welfare of the Child, which requires state parties “to ensure the provision of adequate nutrition and safe drinking water” to children, in the context of the right to enjoy the best attainable standard of health. Article 15 of the Protocol to the African Charter on Human and Peoples’ Rights also declares that women shall be provided with access to clean drinking water, while article 39 of the Arab Charter on Human Rights recognizes the right to “highest attainable standard of physical and mental health” and subsection 2(e) makes specific mention of including the “provision of the basic nutrition and safe drinking water for all.”
However, these treaties are only binding on their parties and do not give rise to a general right to water in international law as they are mostly limited in their application to specifically defined groups, and the scope of protection is often unclear. The right to water protected under the CRC, for example, appears to be limited to that amount necessary to prevent malnutrition and disease, while the right to water protected under the CRPD appears to be tied to the prevention of discrimination.
Implied Right to Water
The absence of any explicit globally applicable and universal treaty norm on the right to water for human consumption does not, however, mean such a right cannot be found in treaty law. Rather, as made clear by the U.N. Committee on Economic Social and Cultural Rights (CESCR, 2002) in General Comment No. 15, the right can be implied from other recognized rights. When the International Covenant on Economic, Social and Cultural Rights (ICESCR) was drafted, it did not specifically list access to water as a protected right. Nonetheless, article 11(1) of the ICESCR guarantees the right to an adequate standard of living and those rights that are indispensable to the realization of this right, “including” food and housing. This reflects the wording of article 25(1) of the Universal Declaration of Human Rights (1948), which also provides for the right to an adequate standard of living. The word “including” in both instruments indicates this is intended to be a nonexhaustive list, and it is undeniable that access to water and sanitation is equally indispensable to the realization of the right to an adequate standard of living. Similarly, the right to the highest attainable standard of health, guaranteed in article 12(1) of ICESCR, has also been found to impliedly guarantee access to an adequate amount of safe water necessary to provide for the highest attainable standard of health. Thus, the right to water can be understood as a prerequisite for the realization of other human rights.
It has been argued that this approach of implying the right to water can also be applied to rights listed in other treaties, such as article 6(1) of the International Covenant on Civil and Political Rights, which requires state parties to guarantee the right to life. The right to water can also be implied from regional human rights instruments that recognize rights such as the right to life, health or a healthy environment. For example, the African [Banjul] Charter on Human and Peoples’ Rights recognizes in article 16 that every individual has “the right to enjoy the best attainable state of physical and mental health.”
Customary International Law
Although various interpretations of treaties signify the existence of the right to water with reference to certain groups and in certain circumstances, the question remains as to whether a general right to water can be said to exist in customary international law. According to article 38(1)(b) of the Statute of the International Court of Justice (United Nations, 1945), customary international law results from “a general practice accepted as law.” This requires two elements: consistent practice (“state practice”) and a sense of legal obligation (opinio juris).2 Both state practice and opinio juris can be evidenced by the statements and actions of states in international fora (Brownlie, 2008, pp. 6–7), while state actions at the domestic level, such as the decisions of domestic courts and legislative protection, are also relevant examples of state practice, particularly for human rights (Roberts, 2001, pp. 777–778).
The earliest recorded state declarations acknowledging the existence of the right to water at the international level originate from the 1977 U.N. Conference on Water in Mar del Plata, Argentina, which recognized the principle that “all people . . . have the right to have access to drinking water in quantities and of a quality equal to their basic needs” (United Nations, 1977, para. 11(a)). The Mar del Plata conference was the culmination of a marked shift in the 1970s, when the United Nations turned its attention to the looming water crisis and attempted to formulate a holistic plan to confront and prevent it. The first stage of this process started in 1971, when the Committee on Natural Resources of the United Nations considered the idea of convening a water conference in its first session in New York.
Global Goal Setting for the 1980s
At Mar del Plata, states committed themselves to achieving universal access to clean drinking water by 1990, as well as adopting a range of recommendations, including improved data collection and assessment; integrated water management; increased public participation; capacity building; the use of appropriate, low-cost technologies; and international cooperation (United Nations Water Conference, 1977).
The International Drinking Water Supply and Sanitation Decade
To focus political attention on the Mar del Plata goals, the United Nations General Assembly (UNGA, 1980, para. 1) proclaimed the period 1981–1990 as the International Drinking Water and Sanitation Decade (IDWS Decade), with the stated aim of bringing about “a substantial improvement in the standard and levels of services in drinking water supply and sanitation by the year 1990.” In a 1981 report, the World Health Organization (WHO, 1981, p. 1) emphasized that “[t]he Decade represents an essential first stage in the global programme of health for all by the year 2000,” and noted, “[i]f the same standards of service and methods of implementation as have been used in the recent past are used during the Decade, the targets may never be reached” (pp. 2–3). (Here it can be assumed the “recent past” being referred to by the WHO was the 1960s and 1970s.) The importance of maintenance, water quality, financial administration, and sanitation services was also particularly emphasized (World Health Organization, 1981, p. 3).
Unfortunately, the WHO’s advice was not well heeded. While a significant number of people gained access to clean drinking water over the course of the IDWS Decade, population increases meant coverage only increased from 70% to 76% in areas where reliable data were available (Gleick et al., 2011, pp. 233–240). Ultimately, this meant the global community fell well short of the goal of universal access. Meanwhile, the goal of expanding access to sanitation services languished even further behind.
Beyond population growth, there have been many detailed explanations for this disappointing result (Biswas, 1988, pp. 151–153; Gleick et al., 2011, pp. 233–240; O’Rourke, 1992; United Nations Development Programme, 1990; World Health Organization, 1986, 1991), but key critiques include inappropriate technology choices coupled with poor maintenance; inadequate finance; and that an overly technical approach was taken to the development of water, sanitation, and hygiene (WASH) services with the result that social and institutional reform was neglected, as was the importance of community participation.
The Use of Inappropriate Technologies Coupled With Inadequate Maintenance
The development and distribution of appropriate low-cost technology was heavily emphasized at Mar del Plata, due to the recognition that this was the only way to rapidly and sustainably expand access to the poor and underserviced sections of the global community (United Nations, 1977, pp. 35–38). Unfortunately, even low-cost technology like the handpump must be carefully selected to meet community needs, and failure rates in the 1980s were high (Arlosoroff et al., 1987).3 Many communities lacked both the technical skills and economic means to properly maintain their handpumps and the reliability of new water services suffered as a result (Arlosoroff et al., 1987, pp. 31–37; Biswas, 1988, p. 153; Black, 1998, pp. 14–23). In addition to inappropriate technology choices, this problem also stemmed from financial constraints and a lack of local institutional capacity (O’Rourke, 1992, pp. 1935–1936). Mar del Plata had called for international cooperation around water financing and technology (United Nations Water Conference, 1977, pp. 53–57), but this proved inadequate in practice.
Inadequate finance was a significant cross-cutting issue and had consequences for expansion, maintenance, performance, and sustainability—ultimately resulting in significant (and avoidable) rehabilitation costs (Arlosoroff et al., 1987, pp. 45–47; Biswas, 1988, p. 151). While the issue of financing for WASH services is complex, the fundamental problem was that most national water budgets only covered day-to-day operational expenses, leaving little to nothing for either maintenance or development (Cardone & Fonseca, 2003, pp. 16–19). This creates a vicious cycle, as leaking pipes increase running costs due to the loss of water (resulting in “nonrevenue water”). A system that cannot afford maintenance also cannot afford to extend its infrastructure, leaving large sections of the population unserviced by the network (Cardone & Fonseca, 2003, p. 21; Winpenny, 2003, p. 9).
An Overly Technical Focus
The Mar del Plata recommendations focused on the need to improve integrated water management through the formulation of national water policy statements and plans, with defined goals and targets, and supporting legislation (United Nations, 1977, pp. 30–34). However, many countries were slow to adopt national water policy statements, and those plans that were adopted tended to be overly technical in focus (Biswas, 1988, p. 151). This meant that natural resource management and sustainability, along with issues of equity, largely fell off the agenda, despite their inclusion in the recommendations (United Nations, 1977, p. 11). The related issues of capacity building and research also received too little attention (World Health Organization, 1991, para. 7), notwithstanding commitments to accord them priority (United Nations, 1977, pp. 43–49).
A related casualty of this technical emphasis was the need for social, economic, and institutional change. This was a significant omission, due to the fundamental role of these structural issues in shaping access to WASH services. As UNDP (2006, p. 173) later emphasized, the fact is that water flows to power—with governments allocating rights to those groups that have the most political or commercial influence. While it can help to expand physical access to water services, a technical, basic needs approach will never address these structural issues that are at the heart of entrenched water inequality across the globe.
Related to this issue of power and resource distribution, the Mar del Plata recommendations highlighted the importance of increasing public awareness of, and participation in, water governance (United Nations, 1977, pp. 34–35). This was a reflection of a broader trend in development during the 1970s and 1980s, which saw an increasing adoption of participatory development techniques by development agencies, including within the water sector (McGee, 2002, pp. 92–95; Razzaque, 2009, p. 355). Participatory development theory started to inform the work of several U.N. agencies by the 1970s (Tandon, 2008, p. 287), while the World Bank also began to adopt participatory development processes (or “community-driven development”) in the 1980s (Mansuri & Rao, 2003; Paul, 1987).
Nonetheless, despite the radical roots of participatory development theory (see, e.g., Cernea, 1985; Chambers, 1983; McGee, 2002, p. 94), its early application by the United Nations and the World Bank took a more restrained approach and focused largely on beneficiary participation and the establishment of consultative mechanisms (Barnes, Newman, & Sullivan, 2007, p. 7; Cornwall & Gaventa, 2001, p. 4; Tandon, 2008, p. 289). In part because of the largely technical approach being taken toward water sector development, including for WASH services, community participation in the 1980s tended to consist primarily of information sharing or consultation and cost sharing (Mansuri & Rao, 2003; O’Rourke, 1992, pp. 1931–1933; Paul, 1987). This meant that participation was chiefly understood as an instrumental tool through which to contribute to the primary goals of financial sustainability and efficiency, rather than as an important goal in and of itself. As a result, the adoption participatory development techniques had little to no impact on the fundamental distribution of power over water governance or resources, limiting its capacity to facilitate structural change.
A closely related issue was the approach taken to human rights. Although Mar del Plata had recognized a human right to water, the IDWS Decade itself lacked a human rights framework. This limited the emphasis given to redistribution and to community participation and empowerment. The more technical, efficiency-focus approach that was adopted instead helped to set the stage for the ideological approach taken to water governance reform in the following decade.
WASH Development in the 1990s
The Global Consultation on Safe Water and Sanitation for the 1990s sought to review the progress of the 1980s and to set the agenda for the sector going forward (United Nations Development Programme, 1990). The issues of governance, finance, and the need to take a more integrated approach to water were all considered in depth, as was the importance of achieving social and institutional change. But although the resulting New Delhi Statement set a new deadline of 2000 for achieving universal access to safe drinking water, it made no mention of the human right to water. Instead water and sanitation were described as “two of the most basic human needs” (United Nations Development Programme, 1990).
The Dublin Principles
The Global Consultation on Safe Water and Sanitation for the 1990s was followed two years later by two conferences that established two very different agendas to addressing the challenge of water. The first was the International Conference on Water and Sustainable Development (the “Dublin Conference”) (United Nations, 1992), where the expert participants agreed on four guiding principles to guide the “concerted action . . . needed to reverse the present trends of overconsumption, pollution, and rising threats from drought and floods.” These were (a) environmental sustainability, (b) participatory governance, (c) gender awareness, and (d) water as an economic good. While the human right to water was also recognized in the Dublin Principles, it was buried within the explanatory text of Principle 4 and presented as a key reason (alongside sustainability) for recognizing the economic value of water. Indeed, it was this core message of “water as an economic good” that came to be known as “the Dublin Principle,” with human rights, environmental sustainability, participatory governance, and gender awareness all taking a back seat to the newly prominent ideology.
The Dublin Conference proved to be highly influential in shaping global water development policy (including WASH programs), despite the fact that it was attended by a group of experts designated by states rather than officials. In contrast, the more ambitious agenda set by states at the 1992 United Nations Conference on Environment and Development (“Rio Summit”) had less of an impact on global water development policy. At the Rio Summit, state representatives accepted Agenda 21, which endorsed the resolution of the Mar del Plata Water Conference that all people have the right to access to drinking water, and included a wide range of environmental and social targets for the “development, management and use of water resources” (United Nations Conference on Environment and Development, 1992, ch. 18). This was followed with a statement in the Programme of Action from the 1994 United Nations International Conference on Population and Development in which states affirmed that all individuals “[h]ave the right to an adequate standard of living for themselves and their families, including . . . water and sanitation.”
In contrast to the Dublin Principles, Agenda 21 and the Programme of Action focused particularly on the social and environmental values of water, including its crucial role in promoting health, rather than characterizing water as an “economic good.” However, despite the numerous targets that were adopted in the early 1990s, the real agenda of the decade—particularly when it came to donor funding and loan conditionality—was the ideology underlying the Dublin Principle, which promoted the adoption of free-market water policies, including the liberalization of water services (the reduction of government controls), private-sector participation (PSP), and full cost recovery (an arrangement under which consumers pay for the full cost of the water they consume rather than relying on subsidies).
Good Water Governance
Ultimately, the 1990s saw a marked shift in the global approach to challenges facing the governance of the WASH sector of the global south, informed by the prevailing economic ideology of the time—neoliberalism. A leading example of this influence was the World Bank’s 1993 report, which emphasized that “[w]ater is an increasingly scarce resource requiring careful economic and environmental management” (p. 9). Although the report as a whole focused on the broader water development sector, it was in this report that the World Bank (1993, p. 126) set out its agenda for the development of the WASH sector, with a central emphasis on privatization and cost recovery “both to ensure the financial sustainability of water supply systems and to ration the withdrawal of scarce water.” It went on to clarify that “cost recovery should be sufficient to pay both for operations and maintenance (O&M) and for a fair return on capital investment” (World Bank, 1993, p. 126).
The report also set out a road map for encouraging PSP in urban WASH systems through “service contracts, management contracts, lease contracts, and concessionaire contracts” (World Bank, 1993, p. 119). By conflating PSP with community participation, including the long history of communal irrigation systems and water user associations, the World Bank (1993, p. 100) argued that this approach “can introduce appropriate incentives that provide a sense of responsibility for water systems, improve accountability and concern for users' needs, constrain political interference, increase efficiency, and lower the financial burden on governments.” Finally, the World Bank (1993, p. 115) noted that “[r]esistance will continue, but greater private sector and user participation offers an effective means to decentralize water resources management and increase the responsibility of users for managing and financing water resource projects.”
Informed by this new approach, WASH sector reforms focused primarily on liberalization with the assumption that this would automatically increase investment, financial sustainability, and efficiency, and that transparency, accountability, and participation would naturally follow (United Nations Development Programme, 2006, pp. 88–93, 173; World Bank, 1993, 2004). Attempts were also made to help water governance become more transparent, accountable, and open to community participation by improving the capacity of the regulator or, more commonly, establishing independent or autonomous regulation for the first time (Gutierrez, Calaguas, Green, & Roaf, 2003; Trémolet & Hunt, 2006). Proponents of this approach argued, quite legitimately, that public water authorities had had decades to prove themselves capable of managing WASH systems and had, by and large, failed (Winpenny, 2003, p. 7).
Corporatization and PSP
A common first stage of these water governance reforms was to corporatize water utilities by “ring-fencing” their budgets so they were separated from the budgets of other government departments and could not be subsidized or have their profits diverted for other purposes (World Bank, 2010, p. 1). The general idea is that ring-fencing enables the collection of more accurate data regarding the performance of water utilities and the true costs of operations and maintenance to enable operators to increase efficiency and to set tariffs at financially sustainable levels (World Bank, 2010, pp. 1–2). The downside is that this can serve to mask the inherently interconnected nature of public service provision and create the potential for negative externalities, particularly in relation to health care. For example, while increasing tariffs can reduce the amount of government subsidies that are needed to provide WASH services, without sufficient support for poorer households, it potentially forces people who cannot afford to purchase treated water to turn to untreated natural sources, which can lead to disease outbreaks (such as cholera) and create significant public health expenses (see, e.g., Deedat & Cottle, 2002; Hemson, Dube, Mbele, Nnadzole, & Ngcobo, 2006).
Nonetheless, corporatization was encouraged in good part because it facilitated the involvement of the private sector, which was seen as a means to improve efficiency and to secure much needed investment (World Bank, 1993). On the strength of these expectations, the international financial institutions (IFIs—such as the World Bank, International Monetary Fund, and the Regional Development Banks) pressured many governments in the Global South to open up their WASH markets to private water corporations (Bayliss, 2002, p. 3; Emmett, 2006, p. 9).
The most significant mechanism used by the IFIs to impose PSP on governments of the Global South was loan conditionalities (see, e.g., Wood, 2003, p. 6). Donors also wielded considerable influence over the policies of governments in the Global South even when conditionalities were not imposed. As Oxfam pointed out, “[f]or some of the poorest countries, donor aid is equivalent to half the national budget. Advice from outside experts, funded by aid, is highly influential in determining the kinds of reforms a government adopts” (Emmett, 2006, p. 9). While sometimes this advice involved explicit directions to privatize water systems, it also influenced policy in more subtle ways by prescribing reforms to the public sector that are more geared toward creating future potential for private-sector investment than they are with ensuring the ongoing viability of the public operator (Moore & Urquhart, 2004, p. 19; Wood, 2003, pp. 4, 9–10).
As a result of these developments, the 1990s was a period of contestation around water with the rise of the Dublin Principle leading to a distinct reluctance in many quarters to frame drinking water as a human right. While the global goals set in the 1990s appeared to have little impact, the decade did see a significant growth of PSP across the Global South, with 208 projects reaching financial closure in 33 countries (World Bank, 2020). And, as predicted by the World Bank, it was met with considerable resistance.
Water in the New Millennium
At the dawn of the new millennium, two approaches to water competed for legitimacy. The first approach was the now dominant focus on economic efficiency, cost recovery, and PSP, which was particularly championed by the IFIs but also supported by many development organizations and bilateral aid programs (Gutierrez et al., 2003; World Bank, 2004). The private water sector also got involved in promoting their own role in “delivering water for the poor” (Russell, 2011; Winpenny, 2003), particularly through the vehicle of the World Water Council—an organization established to “help authorities develop and manage water resources, and . . . to reach the whole political sphere: national governments, parliamentarians and local authorities, as well as United Nations bodies” (World Water Council, 2017). The World Water Council proposed that “[p]rivate actors can . . . provide the main source of infrastructure investment” (Cosgrove & Rijsberman, 2000, p. 64). Meanwhile, at the private sector–dominated triennial World Water Fora, all ministerial declarations until 2012 either ignored the right to water or described water as a “human need.”4
The second approach—championed by several United Nations agencies, many nongovernmental organizations (NGOs), and a growing number of social movements—critiqued the dominant economic approach and called for one that centered on equity, social change, and human rights (Clark, 2017, pp. 4–11). These critics argued that commercially oriented WASH policies do not necessarily improve management and do not address the structural issues that prevent so many from accessing WASH services (United Nations Development Programme, 2006). It was also argued that the focus on cost recovery and PSP failed to respect the social values of water and served instead to commodify water and compromise economic access for the poor (Bakker, 2007; Barlow, 2007; Davidson-Harden, Naidoo, & Harden, 2007). For example, the UNDP (2006, p. 97) warned that since 729 million people without clean water live on less than $2 a day, “full cost recovery would put water security beyond the reach of millions of people now lacking access to water.”
It was into this contested space that both the MDGs (United Nations General Assembly, 2001, pp. 55–58) and General Comment No. 15 on the Right to Water (Committee on Economic Social and Cultural Rights, 2002) were adopted. While equitable and affordable access to water was included upfront in the first target of the Millennium Declaration (United Nations General Assembly, 2000, para. 19), water quietly slipped down the agenda with the adoption of the MDGs, which structured the original 18 targets into eight groups—or overarching goals—and added a further 48 indicators (United Nations General Assembly, 2001, pp. 55–58). Within this new structure, the targets on water and sanitation access were subsumed within Goal 7, which largely focused on environmental sustainability. Furthermore, unlike the universal access promised at Mar del Plata and in the Delhi Declaration, the global target was downgraded to halving “the proportion of people who are unable to reach or to afford safe drinking water” (United Nations General Assembly, 2000, para. 19). As a result, the MDGs ultimately adopted a minimalist, technical approach to water access (United Nations General Assembly, 2001, pp. 55–58). The justification given for this approach was that it was both pragmatic and measurable in apparent contrast to the more “aspirational” human rights-based approach (Vandemoortele, 2013, p. 51).
This contrasting human rights-based approach was best represented by General Comment No 15, in which the CESCR (2002) declared that a right to water can be implied from articles 11(1) and 12(1) of the ICESCR and guarantees access for everyone to “sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” General Comment No 15 marked a turning point in the international recognition of the human right to water, and while the status of the right remained unsettled, the focus began to shift toward questions around the scope and normative content of the right. There was also significant debate over the implications of the right for PSP and cost recovery, and whether framing water as a human right adequately protects all of its environmental and social values (see, e.g., Bakker, 2007; Clark, 2017).
The Right to Water at the United Nations
In 2006, the U.N. Human Rights Council (HRC, 2006) resolved to request that the Office of the U.N. High Commissioner on Human Rights (OHCHR) prepare a report on “the scope and content of the human rights obligations related to the equitable access to safe drinking water and sanitation under human rights instruments,” and to make conclusions and recommendations. In preparing its report, OHCHR (2007, para. 2) consulted widely with “States, intergovernmental organizations, national human rights institutions, non-governmental organizations (NGOs), experts, and representatives of the private sector” and reviewed the existing international legal framework. Reflecting on this wide consultation, OHCHR (2007, para. 65) made a number of observations, including “the growing importance of this issue to the international community” (evidenced by “increasing references to safe drinking water in human rights instruments” and “the inclusion of access to safe drinking water and sanitation amongst the Millennium Development Goals”) and that “an increasing number of States are recognizing safe drinking water as a human right in their constitutions, as well as national legislation, while national courts are enforcing it as a justiciable right.” OHCHR (2007, para. 67) also reached a number of conclusions around the scope and content of the right to water, including that there was “a need for further elaboration of certain aspects of human rights obligations attached to access to safe drinking water and sanitation,” including the regulation of the private sector in the context of private provision of safe drinking water and sanitation.
Ultimately, this issue of PSP and the related issue of government responsibility continued to be the most contentious (Clark, 2017; Mirosa & Harris, 2012). This was particularly apparent at the UNGA, where 41 countries abstained from the voting on the 2010 resolution on the human right to water and sanitation (United Nations General Assembly, 2010b) while expressing concerns around the lack of clarity provided by the resolution over what responsibilities the right to water would impose on governments (United Nations General Assembly, 2010a). It was also apparent at the triennial World Water Forum, particularly the fourth in Mexico City (2006) and fifth in Istanbul (2009), where the corporate water lobby sought to promote the value of their role in delivering investment and increased efficiency, while civil society congregated outside to promote community-driven alternatives (see, e.g., Martinez Austria & van Hofwegen, 2006; McNaught, 2009; Provost, 2012; Smets, 2006).
The OHCHR’s report highlighted the lack of existing mechanisms to monitor the realization of the right to water and sanitation (Office of the U.N. High Commissioner on Human Rights, 2007, para. 69), which led the HRC to appoint an independent expert on the issue of human rights obligations relating to access to safe drinking water and sanitation’ (Human Rights Council, 2008). One of the independent expert’s first tasks was to prepare a report on “the human rights obligations and responsibilities which apply in cases of non-State service provision of water and sanitation” (de Albuquerque, 2010a). After consulting widely with civil society, states, and the private sector, the independent expert ultimately concluded that “[h]uman rights are neutral as to economic models in general, and models of service provision more specifically” (de Albuquerque, 2010a, para. 15).
Although the independent expert’s report did emphasize the ongoing obligations of states regardless of delegated service provision, and the fundamental right of communities to participate in water governance (de Albuquerque, 2010a), it had significant implications for both the development of the normative content of the right to water and the willingness of many states to recognize the right without reservation. Shortly after its publication, the HRC adopted a declaration recognizing that a human right to water can be implied from articles 11 and 12 of the ICESCR (Human Rights Council, 2010). By 2012, the tide of global opinion had completely shifted, and states made a number of further declarations at the HRC (2012), the U.N. Conference on Sustainable Development (2012, para. 121), and the Sixth World Water Forum (2012, para. 8)—all by consensus (meaning that, unlike previous declarations, no states abstained or made contrary statements in the debates). Following this, the UNGA also adopted two further resolutions on the right to water (United Nations General Assembly, 2013, 2015b).
Global Goals and the Human Right to Water
As the human right to water gained prominence, the minimalist global water targets set under the MDGs began to receive more serious critique. In 2008, OHCHR reflected on the mid-point report on progress toward the achievement of the MDGs and lamented that “[h]uman rights have not yet played a significant role in supporting and influencing MDG-based development planning” (Office of the U.N. High Commissioner on Human Rights, 2008, p. vii). In relation to the targets on water and sanitation, OHCHR (2008, p. viii) encouraged states to “ensure that the poorest of the poor and the “hard to reach” are included, and [to] place legislative responsibility on water service authorities to respect, protect and fulfil the right to water.” OHCHR (2008, p. 7) also called for the adoption of “a human rights-based approach to empowerment and participation” in order to ensure a “transformative, not technocratic” approach and “to create the conditions for effective participation and good governance.” Finally, OHCHR (2008, p. 7) emphasized that “[t]he human rights framework offers a relatively objective and comprehensive framework for legal empowerment and accountability, to help ensure that the MDGs are not only reached but that the achievements are sustained after 2015.”
Similar critiques were made in a 2010 report from the independent expert, which pointed out that the indicators selected to measure progress toward the MDG water target conveniently ignored issues such as affordability, safety, equality, and participation (de Albuquerque, 2010b). As de Albuquerque (2010b, para. 34) pointed out, “[t]he human rights criteria are required to ensure that access is factually guaranteed. For instance, physical ‘access’ alone is not sufficient, when people cannot afford expensive water and sanitation services.” Another identified gap between rhetoric and reality was the fact that recorded rates of access to “improved drinking water sources” included access to water that was still contaminated and failed to fully account for those people who lost access to water, either through disconnection, technical failure, or other issues (de Albuquerque, 2010b, para. 29; United Nations Children’s Fund & World Health Organization, 2012).
Although not new, the sole focus on drinking water also failed to account for the well-established link between water for hygiene and water for health. As the WHO (2003, p. 12) has emphasized, easily accessible water services are necessary to enable “good hygiene practices . . . [to] reduce the likely spread of disease.” The proximity of any water sources increases the likelihood of water being used for “hand-washing, general physical cleanliness and laundry, and improved living conditions,” with on-site water connections resulting in an estimated “30 times more water [being used] for child hygiene compared with those who have to collect water from a communal source” (World Health Organization, 2003, pp. 14–15). As Langford and Winkler (2014, p. 250) point out, the issue of water for hygiene has a gendered dimension, with menstrual hygiene having significant “implications for gender equality,” including school attendance and participation in employment and community affairs. This failure to account for equality is the most potent critique of the MDG water target. By eschewing the goal of universal access, the MDGs allowed states to meet their targets without having to expand access to any of the most marginalized communities.
These critiques started to be reflected in the monitoring reports undertaken by the World Water Assessment Programme (WWAP), with the 2009 report recommending that governments strive for sustainable cost recovery rather than full cost recovery (United Nations Educational, Scientific and Cultural Organization & World Water Assessment Programme, 2009, p. 66). According to WWAP, “the challenge for policy-makers is to make decisions about the acceptable trade-offs among different objectives and about who bears the costs” (United Nations Educational, Scientific and Cultural Organization & World Water Assessment Programme, 2009, p. 66). One of these objectives is affordability and WWAP suggests that this should be generally taken to mean that water should be priced below 3% of net household income (or 5% in some cases) (United Nations Educational, Scientific and Cultural Organization & World Water Assessment Programme, 2009). By the 2012 report, WWAP recommended couching decision-making around water resource allocation “within the rights-based approach that the UN has adopted.”
The MDGs’ target on water was met by 2012—with 89% of the global population having access to improved drinking water sources—although sanitation was “still lagging far behind” (United Nations Children’s Fund & World Health Organization, 2012). However, the role of the MDGs in increasing access to water remains unclear. Although there was evidence of “a steady increase in aid to the water and sanitation sector since 2000” (Langford & Winkler, 2014, p. 251), the MDGs may have also exacerbated existing inequalities in water distribution by failing to include any incentives to prioritize marginalized or hard-to-service communities (de Albuquerque, 2010b, ¶ 36). Furthermore, the so-called improved drinking water of around a billion of those people was still contaminated with fecal matter (UN-Water & World Health Organization, 2014, p. 2). As with early global goals, the deadline-driven nature of the MDGs also appears to have encouraged an excessive focus on upfront infrastructure investment that continues to be unsustainable due to a lack of corresponding funding for maintenance or capacity building (UN-Water & World Health Organization, 2014, p. 8).
Meanwhile, the role of private finance in the WASH sector had become more complex, with the rise of financialization—a process by which investment and profit-making is decoupled from the “real” or commodity-based economy (Loftus, March, & Purcell, 2019). Bayliss (2014, p. 302) argues that privatization laid the groundwork for financialization “by transforming a public service into a tradable asset.” In this next stage, global private equity firms or investment funds purchase shares in the firms responsible for the provision of water and sanitation services (Bayliss, 2014; Loftus et al., 2019). The significance of this development is that these funds are solely concerned with maximizing short-term profits or “rent” for shareholders rather than the provision of safe and affordable water services or the question of long-term sustainability and have purchased the power to skew water policy to serve this agenda (Bayliss, 2014, pp. 299–301; Loftus et al., 2019).
WASH Services After 2015
Despite these developments, in the final years of the MDGs, there was evidence of an increasing focus on funding WASH services for the poorest and significant support for a new target of universal access (UN-Water & World Health Organization, 2014, pp. 6, 8–9). This more integrated approach flowed into the development of the post-2015 development agenda and the SDGs, which not only set a goal of achieving “universal and equitable access to safe and affordable drinking water for all” but committed to an “integrated and indivisible” approach that balances “the three dimensions of sustainable development: the economic, social and environmental” (United Nations General Assembly, 2015a, pp. 1, 18). Furthermore, the human right to water and sanitation featured prominently in the SDGs, with states resolving to protect all human rights and specifically reaffirming their “commitments regarding the human right to safe drinking water and sanitation” (United Nations General Assembly, 2015a, p. 3).
While this complete integration of human rights and sustainability into the global goals around water could be seen as a significant development, Langford (2016, p. 170) also points out that it reflects a fairly consistent theme of these global water goals “seesawing between minimalism and maximalism.” He argues that the SDGs targets around water, for example, “strikingly resemble the forgotten targets of the 1990s” (Langford, 2016, p. 170). Nonetheless, he acknowledges that there is also evidence of a new approach to development, and a more comprehensive level of coherence between international human rights law and the development agenda being set (Langford, 2016, p. 172).
When reviewing early data on progress towards the SDG target of universal access, the United Nations (2018, p. 11) found “only one in five countries below 95 per cent coverage is on track to achieve universal basic water services by 2030.” But it is still too early to draw any conclusions about the impact or success of the SDGs. In its report, the United Nations (2018, p. 17) particularly emphasizes the integrated approach of the goals, and “that most aspects of society, development, sustainable growth and the environment are symbiotic.” A key issue here is the complex and interdependent relationship of water with the wider environment, and this relational understanding of water has started to feed back into the normative content of the human right to water itself.
Over the past decade, there has been an observable progression in the global discourse around the right to water from an anthropocentric human right to an ecocentric approach that acknowledges the rights of all living things to water—and even includes the rights of water itself. The early seeds of this shift in Western human rights discourse can be observed in the interrelationship between the right to water and the right to a healthy environment, but a key driver has been the growing acceptance of rights of nature or “ecological jurisprudence” (Clark, Emmanouil, Page, & Pelizzon, 2019, pp. 789–792, 835–836). This growing recognition of humanity’s complex and embedded relationship to water (and the wider environment) reached a tipping point of sorts in 2017, when multiple rivers including the Ganges, Yamuna, Whanganui, and the Yarra were granted legal personhood or recognized as a “living and integrated natural entity” (Clark et al., 2019). This followed the 2016 recognition of Colombia’s Attrato river and was later followed by a Bangladeshi judgment granting legal personhood to the Turag river and all other rivers.5
A significant aspect of this emerging ontological understanding of water is that it has its foundation in Indigenous law and culture (see, e.g., O’Donnell, Poelina, Pelizzon, & Clark, 2020; Zenner, 2020). While this reliance on Indigenous law and culture is fraught with the risks of cultural appropriate and oversimplification (Zenner, 2020, p. 43), and environmental colonialism, it is also the case that Indigenous peoples have played a lead role in the rights for nature movement, often successfully engaging with Western legal frameworks for their own strategic ends (O’Donnell et al., 2020). The challenge going forward will be to better acknowledge (and empower) the leadership of Indigenous communities and to ensure the adoption of a pluralist ecological jurisprudence (O’Donnell et al., 2020). This could help to transform approaches to water development and human rights by better acknowledging the complexity of humanity’s fundamental, perhaps even sacred, relationship with water.
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1. Articles 20 and 46 also make it clear that this obligation to supply sufficient drinking water extends to periods of transfer or evacuation.
2. Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands (North Sea Continental Shelf Cases)  4 I.C.J. Rep .
3. The poor functionality of handpumps continues to be an issue, with a recent study finding that one in four handpumps in sub-Saharan Africa are nonfunctional at any one time, and while functionality statistics for Asia-Pacific countries vary widely, nonfunctionality rates largely remain above 10% (Foster, Furey, Banks, & Willetts, 2019).
4. See, e.g., Fourth World Water Forum, Ministerial Declaration (2006) ; Fifth World Water Forum, Ministerial Statement (2009) : “We recognize that access to safe drinking water and sanitation is a basic human need.”
5. Human Rights and Peace for Bangladesh v. Government of Bangladesh and others, Writ Petition No. 13989 of 2016, High Court Division (HCD), Supreme Court of Bangladesh, 2019 (translation from Bangla by M. S. Islam).