Langford, M. and Russell, A.F.S. (Eds). 2017. The human right to water. Theory, practice and prospects. Cambridge: Cambridge University Press. ISBN 9781108722315, paperback 2019, 713 p., £ 32.99.
Jose Esteban Castro
Emeritus Professor of Sociology, Newcastle University, United Kingdom. Principal Researcher, National Scientific and Technical Research Council (CONICET), Argentina, Esteban.Castro@newcastle.ac.uk
To cite this Review: Castro, J.E. 2020. Review of "The human right to water. Theory, practice and prospects". Cambridge University Press, 2017, edited by M. Langford and A.F.S. Russell, Water Alternatives, http://www.water-alternatives.org/index.php/boh/item/111-hwr
This collection is a useful addition to ongoing debates about the meaning, legitimacy, practicality, extent of implementation, impacts, obstacles and prospects of the Human Right to Water (HRW), focusing primarily on law, policy, and practice.
The editors identify three main themes connecting the diversity of topics covered in the 20 chapters: a) the legitimacy of the HRW, addressing the philosophical and legal controversies surrounding its status as a 'right', including the cultural relativism characterizing the dominant interpretation of the HRW, particularly in relation to sanitation, and the implications of the unsolved contradictions between individualistic and holistic understandings of 'rights' for the incorporation of the HRW in international human rights law, in policy, and practice; b) problems of conceptual and legal determinacy affecting the HRW concerning the difficulties in defining universally valid levels of provision, in the allocation of responsibilities for its compliance, and in the weak justiciability of the HRW and social rights more generally, as well as in the feasibility of the HRW given the high economic costs and the complexity involved in its practical implementation; c) the politics of practice, focused on the factors that could help overcome political barriers to the implementation of the HRW, including to what extent invoking the HRW could be a facilitating factor itself.
The chapters are organised in four sections. Part I includes five chapters focused on water resources allocation. The section addresses the urban bias characterizing the HRW, and the contradictions and potential synergy between it and the highly diverse legal and customary frameworks for water allocation found, for example, in rural areas of Latin America and Sub Saharan Africa. Among other questions it discusses to what extent the HRW includes water for food production and, conversely, if the Human Right to Food includes a right to the water needed for it. In ancestral and indigenous customary practices this philosophical and legal dilemma has little bearing as, in addition to drinking water, customary water rights tend to include a provision for domestic food production and other human needs, including cultural aspects. Although customary arrangements have been under threat from neoliberal water reforms aimed at introducing greater economic efficiency in water allocation, recognizing the mutually reinforcing aspects of customary practice and human rights principles could inform a revision of legal and regulatory frameworks to make them more attuned to the human rights agenda and provide much needed protection to rural and indigenous communities against the dispossession of their water resources. Part I also discusses the potential benefits of introducing the HRW into international legislation and cooperation agreements related to transboundary water resources, given that under current arrangements people affected by problems like water scarcity or pollution caused by events that take place in the territory of a neighbouring country are largely unprotected. Finally, this section also addresses the potential threats that climate change poses for the implementation of the HRW, and the worrying facts that, despite the significance of these threats, climate change negotiations largely neglect human rights, while there is a persistent disconnection between the literatures specialized in climate change and the HRW respectively.
Part 2 features six chapters addressing the access to water and sanitation (WS). Examples from South Africa illustrate the contradictions between exemplary formal arrangements for the HRW and the practical realities of policy implementation, legal interpretation, and the practices of local governments and water utilities, which render universally affordable WS an unfulfilled promise. The section also discusses quantifying 'affordability', which is contemplated in the HRW but lacks a precise definition or indicators. A detailed account of available evidence shows that while in developed countries households spend 3-5 percent of their income in WS, the figure rises to 4-7 percent in developing countries, making universal affordability impossible in the absence of targeted government interventions to reduce the burden for the poorest sectors. Part 2 also addresses the needs of poor rural women and girls, especially in rural areas, which are not yet fully integrated into the HRW or human rights more generally. Human rights, including the HRW, must be infused "with the right to protection against direct, indirect and structural discrimination" (pp. 343-4), which would provide for greater scrutiny of water policies and practices and holding State agencies and other relevant actors accountable. A specific chapter on the "Human Right to Sanitation" (HRS) explores the philosophical and legal arguments pro and against considering access to sanitation as a right, and its potential impact. The authors defend the HRS, propose a new definition integrating technical and human rights elements (pp. 348-9), argue that it is a "hybrid right", as it encompasses both individual (basic needs, dignity) and collective aspects (a safe and healthy environment), and contend that there are good reasons to separate the HRS from the HRW both conceptually and in their implementation. The section also discusses the problematic relationship between development cooperation and human rights, including the HRW. Development programmes often contribute to worsening discrimination and inequality, for example by promoting water policies that exclude the poor, but existent human rights jurisprudence and agreements could be applied to protect recipients of development aid from negative impacts, while also making donor countries and agencies more accountable regarding their extraterritorial human rights obligations. The final chapter examines the obstacles facing the implementation of the HRW in the occupied Palestinian Territory (OPT). Although the Palestinian National Authority (PNA) is the entity responsible for implementing the HRW, it lacks State status and in practice is subject to strict political and military control by the occupying power, the State of Israel. Most water resources in the OPT are controlled by Israel, which results in a highly unequal distribution of available water detrimental to the Palestinians and a regression in the fulfilment of the HRW. The authors argue that the PNA, Israel and the international community overseeing the situation in the OPT must act "or be held accountable for their actions under international law" (p. 458), particularly Israel as the occupying power responsible for gross violations of human rights, including the HRW.
The four chapters in Part 3 focus on legal and institutional urban water reforms mostly associated with privatisation of WS utilities. The section discusses the conceptual and normative aspects of the relationship between the HRW and privatisation, exploring its contradictions and nuances. It examines empirical examples from several countries showing how the actors participating in social struggles against privatisation and in defence of the HRW have appropriated and redefined its contents, and also successfully adopted the discourse of human rights and the legal tactics associated with it. A case examined in some detail is Jakarta’s, in Indonesia, where though the National Constitution considers water as a social good with multidimensional values, in practice it is treated as an economic good subject to the political interests of the government. It discusses the privatisation of Jakarta’s water services in 1998, where the failure to comply with contractual obligations gave way to massive mobilisations that eventually succeeded in getting the Jakarta District Court to order the cancellation of the contracts and the remunicipalisation of WS services in 2015. The section also addresses the legal implications of international economic law, agreements, and treaties for the regulatory autonomy of governments in contexts of water privatisation. It examines ongoing debates about the potential influence that World Trade Organization (WTO)’s initiatives, such as the General Agreement on Trade in Services (GATS) launched in 1995, have on governments’ autonomy to regulate water services. It argues that claims that WTO/GATS "may formally require privatisation of water services" or represented "a strong push to open water services markets" either lacked enough ground or have not been proven right, taking into account the decline in privatisation contracts since the mid 2000s (pp. 532, 534). Although critics would be right to be concerned about the potential 'creative interpretations' that could be made of WTO/GATS in particular circumstances, overall it would represent "a careful balance between the two goals of trade liberalisation and regulatory autonomy" and would provide mechanisms that human rights activists can use to articulate their arguments (pp. 580-1). The final chapter in this section presents a critical examination of bilateral investment treaties and arbitration arrangements, which in most cases concern disputes involving foreign investors making claims against national governments. Most investments treaties lack any reference to human rights, while often the claims concern government policies or regulations associated with the HRW that private investors claim have a detrimental impact on their business. It discusses several examples of such cases. The arbitration system keeps a substantial (but unknown) number of its rulings outside the public domain, seriously affecting the transparency of proceedings and decisions.
Part 4 also features four chapters and addresses rural water reforms since the 1990s, examining to what extent they have contributed to the universalisation of WS. The section focuses on the policy shift from supply-led to demand-responsive approaches largely inspired by the "ideology of consumer choice" (p. 607), aimed at reducing the role of the State to that of guarantor of WS delivery by transferring the actual responsibility to regional or local authorities and empowering local communities through participation. The authors cite evidence from Sub Saharan Africa, Latin America, and India suggesting that despite some progress in improving water access, these reforms have failed to enhance people’s meaningful participation in actual decision making. For example, the evidence shows that the diverse socio-cultural norms related to WS existing in rural areas tend to be deliberately ignored in policy design and implementation, which is a major factor in the low adoption of these policies by local communities. A relevant example of this cultural insensitivity is the treatment of open defecation in rural areas of India, where policy interventions tend to ignore the social function that the practice has for women as a space for social interaction. Another is that although customary law and practices incorporate notions of the right to water including multiple uses, the adoption of these principles in national legislation is prevented by the processes of water commodification introduced by recent reforms. The authors in this section argue that future progress will likely depend on how the "progressive realisation" of the HRW is interpreted in local contexts and the role that genuine social participation can have in practice. The key for success would not be in the permanent revision of legal frameworks or the implementation of conventional development interventions in local communities, but in enhancing more meaningful interactions between "the implementation context and the socio-cultural context of the right holders" (p. 642).
The editors suggest that possibly the HRWS has a higher degree of "hermeneutic determinacy" and economic and institutional feasibility than many other human rights, but that the key obstacles to success may lie in the "politics of practice" (p. 46). Although this provides a succinct summary of the book’s main conclusions, I think that the comment also invites further reflections on topics that were covered by the authors but could have been given more prominence in the analysis because of their potential impacts, whether as obstacles or facilitators of the HRWS in practice. Several chapters deal in some detail with the implications of neoliberal reforms at the legal and policy level, including international economic law and treaties, bilateral investment protection agreements, direct and indirect privatisation of water resources management and WS utilities, and the corporatisation and mercantilisation of public utilities, among other. The authors also make reference to the high direct or indirect abstention by countries when the HRW was voted at the UN in 2010 (p. 357). Still, the reference to these and related processes could have provided the ground for a sharper critique of water politics at the highest level, given that any meaningful and sustained change in direction, particularly at the levels of policy design, implementation and funding is ultimately dependent on decisions taken by a few powerful countries. Most of them voted against the HRW for years and then abstained or were absent in the 2010 vote, and often operate in alliance with multinational corporate actors that have long-term strategic interests in global water resources and services. The available evidence suggests that the prevailing mindset at the highest level of international water politics remains solidly committed to the defence and promotion of neoliberal reforms, paying only lip service to the HRWS and human rights more generally, and that this mindset has also influenced the work of key sectors in UN institutions. Another significant aspect that could have received greater attention is the relationship between human rights, including the HRWS, and democratisation processes. This is particularly relevant in the current context where authoritarian, if not openly undemocratic, politics are on the rise, even in the core Western countries that have such a prominent role in protecting and expanding human rights.
There may be other suggestions to further enhance the very important message that the reader gets from the excellent contributions presented in the collection. This is a thorough volume that provides an in-depth treatment of the subject. It will benefit specialists and practitioners engaged in the ongoing debates about the HRW and the role it can play in the universalisation of safe and affordable water and sanitation services. Perhaps more importantly, its reading will certainly benefit all those engaged in trying to make it happen.