Water law and the right to a basic watersupplyby Peter Howsam

Although there is no shortage of governmentrhetoric about the importance of providing cleandrinking-water, nowhere is an individual's basicright to an adequate water supply enshrined inlaw. Peter Howsam calls for a global rethink onwhat constitutes this right - and emphasizesthat it comes with responsibilities.

LAW HAS AN important but oftenpoorly understood function in the imple-mentation of water supply and sanita-tion policy. National and internationalpolicy statements frequently contain ref-erences to the importance of basic watersupply and sanitation for all people. Atthe international level, current thinkingon water policy can be illustrated by thefour guiding principles set out in the1992 'Dublin Statement on Water andSustainable Development':• Fresh water is a finite and vulnerableresource, essential to sustain life. Thissection goes on to state that priorityshould be given to the provision of waterto those without, but emphasizes that aholistic approach is required for effectivewater management. Whilst this, byimplication, stresses the issue of basicindividual human water needs, its justifi-able emphasis on an holistic approachrisks relegating this issue to one amongstmany of varying importance:• 'Water development and manage-ment should be based on a participa-tory approach involving users' andadvocates the taking l?f decisions '... atthe lowest appropriate level. ' (i.e. ulti-mately the individual or community);• Principle No.3 talks of .... the pil'-otal role l?f women as prlJl'iders andusers ofwater'; and• Principle No.4 states 'Water has aneconomic mlue in all its competinguses and should be recogni;:,ed as aneconomic good.' This is a relativelynew concept which is growing inacceptance. It argues that' ...managingwater as an economic good is animportant way of achieving efficientand equitable use ... of water.' Thismay be so but it does not necessarilypreclude the idea of basic individualwater rights. Indeed the Statement goeson to say 'Within this principle, itis vital to recognize first the basic rightof all human beings to have accessto clean water ...'; although this is

qualified by the words' ... at an afford-able price'. The question here, ofcourse, is: affordable to whom? Mil-lions of people simply do not have thefinancial resources to pay for watersupply, and neither have their local ornational governments, although thispicture is often distorted by politicalprioritization.

But if we look at the global level offinancial resources, it seems abun-dantly clear that the cost of ensuringbasic water needs could be easily met- if the political will existed. In mostsocieties, only a small fraction of wateris used for drinking and preserving life.In a recent review of water supply andsanitation development in Africa,experts agreed that water supply and,in some cases, sanitation, enjoyed ahigh political priority - but not onewhich was being translated into ade-quate budget allocations and govern-ment implementation.

It is sad to reflect that the ambitiousbut apparently worthy policy objectivesof the UN's 1980s Water and SanitationSupply Decade were only partly imple-mented. At the start of the Decade, 1.8billion people lacked a safe and ade-quate water supply. Ten years later, 1.4billion were in the same position.

The consequences are serious. Fig-ures from UK agency WaterAid sug-gest that 9 million children die everyyear from water-related diseases,largely because 1000 million people inthe developing world do not haveaccess to an adequate and safe supplyof drinking-water. Even where there issome form of provision, as in urbanslum areas, the poor often have topay a lot more per unit for theirwater (from private water vendors)than wealthier people, with houseconnections. The rich tend to benefitmost from subsidized water services,with the poor paying out as much as 40

per cent of their meagre incomes.The problem of cost must be put into

context. Although the UN predicted thatthe cost of basic provision to all wouldbe US$300 billion over the 10 years,actual spending never exceeded $10 bil-lion in anyone year. It is pertinent andperhaps poignant to remind ourselvesthat, compared to the less than $27 mil-lion/day spent on providing the basicwater-supply needs of those without, inthe same period we spent an average of$240 million/day on cigarettes and$1200 million/day on armaments.

Water supply is a rightListening to politicians, one mightassume that being a basic human need,access to water would be a basic humanright. A review of the literature, how-ever, suggests otherwise. Indeed, thereis some confusion over what are waterrights. To most people, a water right, ifit means anything at all, means a ripar-ian right - rights to water related toownership of land. Surely such a situa-tion - a consequence of historical evo-lution - should be challenged. Cer-tainly, the basic principles behind waterrights as developed under common lawand customary law, and described bysome as 'first come, first served', can-not be regarded as sustainable for acommon resource needed at a basiclevel. These principles, applicable tothe doctrines of prior appropriation andriparianism, are principles of polityrather than fundamental legal principleswhich, based on notions of equity andrights and duties, might aim to securebasic needs and the right to life.

It should not be difficult to defendthe concept that basic water-supply andsanitation needs are a basic humanright. Yet, when human rights declara-tions are examined closely, there is lit-tle or no reference to water. The 1948UN Universal Declaration of HumanRights does not specifically mentionwater. Article 25 comes closest, declar-ing: 'Everyone has the right to astandard of living adequate for thehealth and well-being of himself and ofhis family, including food, clothing,housing, medical care etc.' Article 2states that 'Everyone is entitled to allrights ... set forth in this Declaration,without distinction of any kind, such as... property ... '. This latter point isimportant in that, in many cases, waterrights have traditionally been taken as

4 WATERLINES VOL. 16 NO.3 JANUARY 1998

Cost in context - while less than $27 million/day was ,\pent on providing water to those without, $240 million went lip in s//loke.

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riparian rights. Thus this Article sug-gests that water (or more preciselyaccess to an adequate supply of safewater), if it were declared a basichuman right, should be equally applic-able to everyone and not just, orpreferentially, to those who own, orhave rights to, land.

It also states in the Preamble that

rights •...should be protected by therule of law'. This confirms the relation-ship between policy and law if adeclared right is taken as a principle ofpolicy. While the human nature of mostpeople allows them to identify moralrights, human history shows that theycannot be sustained without enforce-ment by law.

The only significant example of theright of access to water being specifiedis in the 1989 UN Convention on theRights of the Child. Article 24 talks ofthe .... right of the child to the enjoy-ment of the highest attainable standardof health ... ' and to ensure full imple-mentation of this right, measuresshould be taken to ' ...combat diseaseand malnutrition, ... through the provi-sion of ... clean drinking-water.'

Although often referred to andincorporated in other conventions,the Declaration is, unfortunately, lit-tle more than its name suggests. Ithas, for example, taken 45 years forthe UN to establish the office of UNCommission of Human Rights.Surely, such circumstances can onlybe regarded as a sad reflection of theneglect of individual rights by cen-tral agencies and authorities and per-haps indeed by society and individu-als? Binding rules for the effectiveprotection of human rights do not yetexist.

Water rights and water lawsDespite policy statements supportingbasic human rights, the reality is thatthe water and sanitation needs of thepoor are neglected and barely sup-ported by existing legislation. Theselaws are often neither effective,enforceable nor accessible to those thatneed them most. Water rights and legalissues are frequently neglected orignored by governments, funders andthe implementers of community water-supply projects. History shows how wehave recognized the need to considerand incorporate other important ele-ments - the beneficiaries, the environ-ment and economic value - in orderto achieve proper and sustainable waterprovision, so why do we fail to do thesame for water law and water rights?

A stable legislative system is impor-tant, as the ever-increasing need forwater conflicts with limited resources.The poor need access to effective andenforceable water laws to ensure thattheir basic needs are met and not mar-ginalized by more powerful interests.

In the short to medium-term, whatwe need is increased awareness and aclearer understanding of the constraintsor enabling conditions provided tocommunity water-supply and sanitationproject implementation by local andnational water laws and prevailingwater-rights issues. These should not

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just be in the domain of lawyers andcivil servants; water users, communi-ties, project implementers (managersand engineers) should contribute tobetter administrative and regulatorycontrols which will in turn facilitaterather than impede water-supply provi-sion. But there is little information onwater rights and water laws in relationto community water-supply provision.An enlightened public consultationexercise as part of water-law reform inSouth Africa is a notable exception.

Following the collapse of apartheid,South Africa has a unique opportunityto review its water laws. The Govern-ment believes water law is central toensuring a just and fair society. 'For toolong, too many people have beenexcluded from basic rights and the fieldof water is no exception'. The newConstitution focuses heavily on basicindividual human rights. The Govern-ment appreciates the complexities andsensitivities involved and has adopted acautious, step-by-step approach tochanging the law, which includes wide-spread programmes of public awarenessand consultation; 'a new water law willonly be effective if it reflects thewisdom, and enjoys the support of, themajority of South Africans, and is wellunderstood by them'.

India's legislationA more typical scenario can be seen

in India. As with many countries in thetwentieth century, moves were made tobring water under central control. InUttar Pradesh, for example, all existingwater rights were abolished in 1975,and all water was brought under statecontrol. Whilst this brought betteroverall protection and resource conser-vation, it has had a negative effect onthe principle of user participation. In

theory, control over water resourcesplaced a heavy burden of duty on theGovernment to provide water to its cit-izens, but the Water Supply Acts pro-vide no evidence of a correlated dutywhich binds the Government, andmakes it accountable, in providingwater to people, a situation common inmany other countries.

In its 1987 National Water Policy theGovernment of India declares that itgives the highest priority to drinking-water. But, argue Indian legalobservers, because of conflicting policyand legislation, in the absence ofwholesale law reforms, this is merely avacuous statement of intent. LocalAuthority (Municipal and Panchayat)Acts dictate that potable water supply isa prime obligation. Specifically, everyhouse should have a sufficient supplyof wholesome water for domestic pur-poses. The story at the local level mir-rors that at the national level; the Pal1-clzarat Acts transferred control of waterres~urces from the villagers to localauthorities who have failed to providecommunities with proper supplies.

In 1986, the Indian Governmentestablished a National Drinking-WaterMission, with water supply regardedas 'a matter of survival not develop-ment' in the poorest rural areas andurban slums. While such policy is tobe applauded, the reality is that theindividual citizen has little or no legalremedy if he or she does not have a

wholesome supply of water available.But there are signs that individualsare starting to find means of redress-ing water-related injustices by refer-ence to India's Constitution, via whatis being termed 'Public InterestLitigation'. Article 2 I deals with theright to life, which, it could easilybe argued, encompasses the right toclean drinking-water.

Power and wealthWhile criticism may be laid at thedoor of national and local politiciansfor failing to ensure basic provision,individuals do contribute, albeit unwit-tingly, to the problem. Attitudestowards authority, misconceptions,and simple ignorance mean that insis-tence on basic water needs is weak. InIndia, the situation is complicated bytraditional systems of class, caste andgender, which perpetuate discrimina-tion and an acceptance of deprivation.

In practice, wealth and power play,universally, an important if not domi-nant part in who has access to waterand who goes without. The situation issummed up well by a Navajo triballeader: 'When I was a kid in Geographyclass, I was taught that water alwaysflows downhill. What l've learnedsince, is that water flows to money andpower wherever they may be'.

Redefining water rightsAn individual's right to basic watershould be a universal principle, for allpeople, communities, societies, andstates. This can be argued for on moraland humanitarian grounds, particularlyfor the millions of people currentlywithout an adequate and safe supply ofwater. For those in the North, it can beargued on democratic grounds -despite relatively good access to water,both current and old systems havetended to be biased towards economicgain, and the individual is ignored.

The ancient and widely practisedprinciple of riparian water rights hasnot served us well. It is time both for itnew definition to be formulated, andfor individual water rights to be for-mally recognized as one of the mostfundamental of basic human rights. Ifwater is a vital resource for life, todeprive people of this resource is toviolate their human rights.

The simplest definition of basic waterneeds would be that for consumption. Itwould also be appropriate to include anamount adequate for basic hygiene andsanitation. It should be stressed thatbasic water needs and, therefore, rights,relate not only to an adequate quantitybut also an adequate quality.

It has often been argued that the com-mon good should override the needs ofthe individual or, in some cases, classesof individuals or even communities. Asconsidered elsewhere, policies and lawsmay abuse basic individual rights undera false justification of defending suchbenefits. Basic moral values shouldallow us to accept that there areabsolute human rights and that theirpromotion can only be beneficial,even if universal application is never

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attainable. In particular cases, there willalways be a compromise between themeasures required to sustain such basicrights and their actual feasibility.

Global actionTo some degree, therefore, this subjectneeds to tackled at an international aswell as a local and state level. Not onlybecause - ideally - it should be auniversal principle, but on a purelypragmatic level, because of the univer-sality of the water cycle and the factthat water is limited in volume andvariable in availability. If we questionwhy such a situation does not existtoday we may conclude that it isbecause, until relatively recently, mostpeople have had access to an adequatequantity and quality of water and, as aconsequence, have taken it for granted.Certainly, in communities in aridregions, where the shortage of waterhas been acknowledged for muchlonger, there are very clear codes ofconduct. Perhaps hydrological circum-stances and human needs will eventu-ally dictate to increasingly larger pro-portions of society that water cannotand should not be taken for granted.

Water law will have to address theissue of the cost of providing or gain-ing access to basic water needs. In gen-eral, public perception of true costs iscompletely inadequate. While equi-table and enforceable regulations toensure cost recovery are required, thekey will be to ensure that water forbasic domestic needs is not valued inthe same way as water used for eco-nomic purposes. There must be scopein some poorer countries for agricul-tural and industrial water users to sub-sidize domestic water supply. The costof meeting basic water needs is nothigh compared to the cost of manyother activities and can be afforded.

Enforceable and accessible (to indi-viduals) legislation should be intro-duced. While defining the purpose ofany new water legislation is relativelyeasy, ensuring how and why it wouldachieve its purpose would be more dif-ficult, especially with regard to indi-viduals. A law to achieve the protec-tion of a water right would forciblyremind people of moral values, andfocus attention on the rights of others.Furthermore, it could protect waterrights by providing a mechanism -through sanctions - for individuals todefend their own right to water.

Or Peter f/o\VslIm is Sellior Lecturer ill

Groll/lIllI'lIter Engineering lind LlIW lit SilsoeCollege. Cranfield Ullil'ersit\,. He ClIll beeO/ltacted lit Silsoe Coliege, CrallfieldUnil'ersity. Silsoe. Bl'i/j(ml, MK45 4DT, UK.Tel: +44 1525 X63288. {<'lIX: + 44 1525863300.fo:·nlllil: "./1I1II'SllIl/0' era,ljield.lIc.uk

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Water - a human rights charter• Water is a fundamental human need.• In poor, less developed countries, too many individuals strug-gle to survive without an adequate and safe water supply.• Policy declarations promoting the priority of basic human~ater needs are often not supported by effective implementa-tion, even though such needs are only a small proportion oftotal water use and could be financially resourced.• In practice, economic development and now, to some extent,the environment, dominate water-policy strategies, and basicindividual needs have been neglected.• Water laws have, in general, not supported basic individualwater needs; instead, they have supported water rights related toland ownership and occupancy, and they have provided for statecontrol of water.• State control of water has not always been in the best interestsof the water environment and has not always been able toprovide for basic individual water needs.• Water for basic domestic needs should be specificallydeclared a fundamental human right; and the term 'water right'should be refocused on, and redefined as, a right to basic indi-vidual water needs, to which there is a correlative duty not towaste water.• Constitutions and/or water law should include provisionsto protect this right and duty, and such provisions must beaccessible to the individual.

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