Water: Fundamental Human Right Or A Commodity?

SHOULD water be viewed as a fundamental human right or should it be treated as a commodity? Is water a privileged service that you can only access if you can afford it?

The content of the right to water may be generally defined as a right to access water of sufficient cleanliness and in sufficient quantities to meet individual needs. As a minimum, the quantity must suffice to meet basic human needs in terms of drinking, bathing, cleaning, cooking and sanitation. These needs correspond to those defined under a right to adequate housing. The minimum quality of household water is dependent on its specific use – drinking water must be safe for consumption, whereas lower standards may be set for other uses. Another important aspect of water rights is the question of affordability and accessibility. If water fees are so exorbitant and prohibitive that a poor household must sacrifice other essential rights, such as education, health services or food, or else use contaminated water or if a member of a household – most frequently women and girls – must walk for hours to fetch water, then individuals of that household are not enjoying their right to adequate water. This article argues whether the human right to water is part of the body of fundamental human rights or whether it is a commodity only accessed by those that can afford to pay for it. Although I am not qualified to identify or comment on all the legal instruments, I attempt to identify, as far as possible legal instruments with regard to water as a human right in presenting my argument. I am primarily interested in the nature and content of water as a human right. However, my point of departure is inspired by Realist thinking and consequently this not a purely academic interest since human rights are inalienable. The term ‘right’ in this article is used in the sense of genuine rights under international law, where States have a duty to protect and promote those rights for an individual. Namibia is the driest country south of the Sahara, with an average annual rainfall that varies from less than 50 mm along the coast to 350 mm in the central and up to 700 mm in the north east. It is reported that about 83 per cent of water from rainfall over Namibia is lost to evaporation, while 14 per cent is used by plants and only three per cent actually contributes to the available water that can be used directly for our benefit. These statistics clearly inform us that water is a scarce resource.The right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot be properly understood in a restricted manner, and the protection of this right requires that the Namibian government and institutions adopt positive, proactive steps to support the right to life. Therefore, the explicit right to life, health and well-being as guaranteed by our constitution must include the right to sufficient water, at appropriate quality to sustain life. To assume the contrary would mean that there is no right to the single most important resource necessary to satisfy the human rights more explicitly guaranteed by the world’s primary human rights declarations and covenants which Namibia has ratified!The Namibian Constitution does not explicitly guarantee the ‘right to water.’ However Article 95(j) enjoins the Government to actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at ‘the consistent planning to raise and maintain an acceptable level of nutrition and standard of living of the Namibian people and to improve public health.’ Article 95 of the Namibian Constitution contains a number of principles of State Policy, which, on their own, are not enforceable in a Court of Law. International law is, however, explicitly recognised as part of Namibian law by virtue of Article 144 of the Namibian Constitution which states ‘International treaties signed by the President and ratified by the Namibian Parliament immediately become part of Namibian law, without the need to further enact a law – unless Parliament enacts a law, which provides otherwise those treaties are enforceable in Namibian Courts’ In Addition, Article 25 of the United Nations Declaration of Human Rights – the premier human rights doctrine that practically all nations have signed up to – notes the following; ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of circumstances beyond his control.’ While water is not mentioned explicitly here, the right to food includes water as well, and because water is essential for humans to live, one can therefore argue that the ‘right to water’ is in line with the principles of the declaration.Furthermore, in terms of the Local Authorities Act of 1992, the local authorities, as an extension of the State, have a duty to, among others, provide the service of supply of water to its residents. This obligation or duty of the local authorities translates into a right for the residents and thus is enforceable in Namibian Courts. This statutory obligation under the Local Authorities Act of 1992 and the international law protecting the right to water provides for an effective right to water if one considers the constitutional right to dignity, the right to life, and the right not to be discriminated on the ground of economic of social status. The non-supply of water services to a particular household for, example, the inability to pay for the services, will obviously violate these constitutional rights.In recent years there have been important developments regarding a general rights-based approach to human needs and to human development. This approach is based on the principles of participation, empowerment, non-discrimination, transparency, accountability, and the rule of law as well as justiciability – meaning access to redress. Viewing essential human needs as the right of every individual is in itself of great importance, along with the recognition that all human rights are universal, interdependent and interrelated. It is unacceptable to justify a human rights violation by claiming to be fulfilling another. Human rights are essentially about governance, what the state must and must not do, and which methods are acceptable or prescribed. For socio-economic rights, the rule of law is thus essential. A rights-based approach – rather than a charitable or developmental or an approach based on Gross National Product (GNP) necessarily entails that the government must be transparent and accountable, that there is no discrimination on grounds of gender, race, economic or social status, that the Government is taking steps towards achieving the full enjoyment of everyone in the country of their human rights with specific emphasis on socio-economic rights – that there are legal remedies available and that people are allowed to organise to claim their rights. The Millennium Development Goals sets a number of targets to help alleviate poverty around the world by 2015, and includes the aim to ‘reduce by half the proportion of people without sustainable access to safe drinking water.’ A number of international meetings have taken place in recent years. For example, March 17-22, 2000, saw the Second World Water Forum, which tried to address many issues. The topics addressed included, among others, water as a human right. Although activists such as the author are mindful of such attempts – notwithstanding the above attempts, I wish to draw your attention to the phenomena of growing poverty, declining life expectancy, increasing disease burden, environmental degradation, rising social inequality – all taking place in the midst of alleged macro-economic growth and the high profits realised by government and its institutions such as NamWater, the municipalities, local authorities at the expense of the poor – veritable islands of opulence amidst a turbulent sea of untrammelled misery. It is therefore incumbent upon government and its institutions to deviate from viewing water as a commodity and recognise water as a human right and militate against the perpetuation of such inequity that is, in effect, a gross violation of the rights of poor communities that have been and continue to be adversely affected. In conclusion, I acknowledge the tireless efforts by activists (Norman Tjombe deserve mention) and urge you all to work unflinchingly in the quest to correct the inequitable imbalances and striving for social justice which, in the final analysis, ought to be the ultimate aim of all decision-makers. ‘If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification – a culture in which every exercise of power is expected and justified, in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.’ – Prof Etienne Mureinik.* The author of this opinion piece is with the Institute of Poverty, Land and Agrarian Studies, University of the Western Cape