THE HUMAN RIGHT TO WATER: SIGNIFICANCE, LEGAL STATUS AND IMPLICATIONS FOR WATER ALLOCATION
by Inga T. Winkler. Oxford and Portland, Oregon: Hart Publishing, 2012. 376pp. $110 hardback. ISBN: 978-1-84946-283-9.
Reviewed by Sanghamitra Padhy, Assistant Professor of Law and Society, Ramapo College. Email: spadhy [at] ramapo.edu
Inga T. Winkler’s THE HUMAN RIGHT TO WATER is a comprehensive volume on the legal status of the human right to water. Through extensive legal documentation, Winkler provides insight into how the recognition of water as a human right evolved in international law, and its normative and procedural implications for the countless struggles to access water for human needs. From a human rights perspective, the book provides a tool to understand the United Nations General Assembly and Human Rights Council’s resolution recognizing Human Right to Water in 2010, its legal significance and its implications for state responsibility. From a sustainability perspective, Winkler demonstrates that human rights can bridge the tension in water allocation debates through prioritization of human needs and addressing discriminatory practices of water allocation. The ability to intertwine human rights with water allocation makes this book invaluable to the scholarship on the human right to water and sustainability.
The human right to water, despite being critical to survival and the realization of most other human rights, has been a neglected subject in International Law until the 2010 recognition by the UNGA and Human Rights Council. While these resolutions were not the first to recognize water as a human right, they provided a universal tone to the right to water and ignited a discussion – in political and legal arenas – on the interpretation of the right. The resolutions revealed, on the one hand, the need to address changing demand for water through human rights, and on the other, raised questions about the nature of the right’s legal status, especially since the human right to water is not explicitly mentioned in human rights law. Winkler’s intervention in this discourse is enlightening. She has navigated through the rich tapestry of laws, to show the right to water is at the core of the human right to life, the right to an adequate standard of living and housing, and the right to decent health, and is integral to not only the International Bill of Rights, but also to Human rights treaties such as the Convention on Rights of Children (CRC), , Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Banjul Charter and is protected in the national constitutions of some countries.. This implies that states are obligated to protect water rights not withstanding ratification of the Covenant on Social, Economic and Cultural Rights.
Winkler’s discussion of the human right to water is embedded in the context of growing scarcity and urgency to attend to water needs. While recognizing [*610] the water crisis to be a multifaceted issue – shrinking resource, shortage in supply, pollution, availability – her work focuses specifically on the “human dimension of water – in particular the neglect of basic human needs in the allocation of water resources” (p.2). Winkler notes that the lack of access is not about scarce resources as much as it is the neglect of human needs in the allocation of water. She claims access, availability, affordability and safety, which ought to be the key factors, have received short shrift in water allocation. She takes the example of watering golf courses at the cost of restricted supply for domestic use to show the paradox of allocations; the classic Tale of Two Cities. She proposes a human rights framework to redress inequality and discrimination in water allocation. The recognition of a human right to water will not only ensure protection from discrimination in the allocation of water, but also establish state responsibility to protect individuals' right to water and empower communities. It obliges states to act upon lack of access and hence, transforms a basic need of water to a rightful claim and gives rise to corresponding obligations.
Winkler underscores the substantive importance of human rights in resolving unequal access to safe water owing to structural inequalities and power relations in society. Given the enormous importance of water, the right is justifiable. Through careful evaluation of the Millennium Development goals and human right to water, she demonstrates the legal and normative power of human rights in enabling realization of human needs for water. She argues “the focus of a human rights approach is a different one. It requires the prioritization of basic human needs regardless of the economic impact. For instance, the basic human needs of elderly people have to be fulfilled with the same priority, regardless of their productivity” (p.144). She extensively draws on examples from national legislation and human rights declarations to prove the priority of needs and domestic water use.
However, the commitment to the human right to water is fledgling due to lack of clarity about its meaning and legal status. Winkler explores this terrain, showing readers the foundation of the right in human rights treaties, resolutions, national laws and the possible status of customary international law. Through detailed analysis of the statutory evolution of the right in International law beginning with General Comment no. 15 by the Committee on Economic, Social and Cultural Rights, in 2003, she effectively demonstrates the legal capacity of a human right to water in concrete terms. She validates that the right to water underlies many rights acknowledged in the social covenants, and in the process, establishes state responsibility to protect the human right to water. For instance, she argues that even though the right to an adequate standard of living did not explicitly mention water – even the travaux preparatories remained silent – water’s importance to survival needs and a life of dignity demands its inclusion in a similar capacity as housing and food (p.42). The linkage between adequate living standards and water has been affirmed in latter treaties such as CEDAW and CRC and CRPD (Convention on Rights of Persons with Disabilities). Winkler affirms that the right to water is an underlying determinant of the right to health and [*611] right to adequate standard of living; it may be derived from right to housing and to a limited extent is constitutive of the right to life.
The affirmation of water as a right comes with corresponding state obligations. Winkler blends the standards of Civil and Political Rights' emphasis on no discrimination, and Social, Economic and Cultural rights' articulation of responsibility to respect, protect and fulfill, to develop a framework of state duties. Winkler qualifies the generic set of obligations with two important mainstays of state responsibility: core obligations and obligations to progressive realization. Core obligations establish a minimum core of rights protection, and provide the baseline from which progressive realization of human right to water will evolve. Winkler builds upon the minimum core approach to develop a framework of water allocation: the survival level, the core level, the level of full realization of human rights and the level beyond human rights guarantees (p.153). This articulation of state responsibility and a framework to support the right addresses a big gap in the literature on the human right to water.
To what extent are states bound by these human rights obligations? The enforcement of rights is an important challenge. Human rights establish obligations and empower citizens; however, state implementation of specific treaty provisions is subject to ratification. Winkler takes a daring step forward, and through meticulous analysis of the Universal Declaration of Human Rights, the General Assembly, the Committee of Human Rights and Human Rights Council resolutions, political declarations at UN conferences, statements by individual states, and national constitutions and judicial opinions, she weighs the prospect of considering the human right to water as customary international law. Noting the widespread acceptance and yet vacillation by state parties, she puts forth the argument that the right only allows the assumption of a customary human right in statu nascendi. This is an important contribution to the debate on water rights, as it shows the possibility of the emergence of customary status of this right and hence, moral obligation on the part of states to enforce the right.
Evidently, the discussion on customary law shows that international law and state practice are univocal in their acknowledgment of the right; however, there are differences and inconsistencies in the interpretation of the right. It will be worth exploring this trajectory of acceptance of the human right to water in varied socio-legal contexts, and taking social ecology into account. Water as a natural resource has multiple meanings, and its roles and needs are relative to these social contexts. The prioritization of water needs, as Winkler’s framework suggests, into survival, core and full realization certainly helps realization of the fundamental human need for water. However, the consideration of need may not necessarily be independent of contexts, and it is here that social ecology can provide a valuable tool to understanding human needs. For instance, can a state prioritize a big dam project to satisfy a fundamental need for people in urban centers at the cost of depriving indigenous peoples of their land, livelihood and culture? [*612]
The last segment of the book addresses the critical need to address structural inequalities through the human right to water. This takes the work through a terrain of political questions, and hence departs from the legalistic approach of the first two sections. Here, Winkler speaks to the empowering vocabulary of human rights. While this is a powerful segment of her work, it needs to pay attention to social movement struggles and how the human right to water is evoked in local contexts. It is important to note that the normative space of human rights is complex, and rights evolve through multiple vocabularies and spaces. The examples of people’s struggle against Coca-Cola in Plachimada, India or the protests in Cochabamba against privatization of water are indicative of the power of rights vocabulary coming from below. It will be interesting to see how scholarship on the human right to water will engage in an understanding of the interactions between legal and social actors.
Organizationally, the book can be divided into three sections. The first section, chapters one and two, articulates the problem of water allocation and significance of a human rights approach. This segment underscores the need to prioritize basic human needs and argues that access to water is not a crisis of scarcity, rather one rooted in power and inequality in society. Winkler brings a compelling intervention here, arguing that the world will have enough water to satisfy human needs by adopting a human rights perspective of water allocations. The next segment, chapters three, four and five, explore the legal basis of the claim to the human right to water and defines state responsibility. These chapters provide insight into the juridical meaning of water rights, obligations of state, and how a more equitable distribution of water can be achieved through prioritization of human needs, which precede the human right to water. In the final section, chapters 6 and 7 address the power of addressing human needs for water through the lens of human rights.
THE HUMAN RIGHT TO WATER no doubt fills a very important vacuum in discussions of the legal status of the human right to water. It asserts the importance of human rights as a tool to provide water, and also establishes the implications of the numerous declarations, resolutions, treaties, Constitutional affirmations and judicial opinions legalizing water as a human right. However, as she points as well, the book opens many forays: particularly, how does context shape the discourse on water rights and the possibility of developing a universal discourse that would incorporate the multiple contexts in which rights are contested, framed and negotiated.
Copyright 2013 by the author, Sanghamitra Padhy.