The Acknowledgement of Legally Binding Nature of the Right to Water - Essay Example

Legally Binding Nature of the Right to Water Number Department Introduction An array of serious reasonshas been advanced to underscore the need to make the right to water legally binding. These reasons were made in favour of the UN Human Rights Council act of making the right to water and sanitation legally binding, in July, 2010. However, there are dissenting voices such as the US, Israel and Canada that opposed and sought to fight this plan. One of the chief arguments that have been advanced in favour of the need to make the right to water legally binding is that the right to water and sanitation is derivable from the right to an adequate or decent standard of living. This right to an adequate standard of living is in turn enshrined in a number of international human rights treaties. The rationale herein is that it would be impossible to uphold these international human rights treaties without making the right to water legally binding. As a mater of fact, water is one of the most basic needs for mankind. Some of these treaties include the United Nations Convention on the Rights of the Child and the International Covenant on Economic Social and Cultural Rights (ICESCR). The strength of this argument is well underscored by these treaties being binding, since they enjoy near global ratification1. In a closely related wavelength, Nordblom, Reeson and Finlayson2 observe that the rationale behind the argument in favour of the legalisation of the right to water is that this move is a landmark decision that would irrevocably bring ameliorations on the lives of billions of people who are still unable to access water and proper sanitation, with children and women being at the centre of this rationale. Particularly, it is pointed out that about 1.5 million children under the age of 5 years die of diarrhoea, annually, due to the inability to access clean water. This argument is very valid, given that it acknowledges the fact that this inability to access clean water exacerbates gender disparity. The issue of gender comes into play herein, since lack of access to clean water affects women, girls and children than men. Another rationale behind this move is that it had been ratified by major players in international relations. Particularly, according to Gunduz3, the Human Rights Council as the main body of the United Nations on human rights had furthered this move, as a resolution that had been tabled and supported by Spain, Germany, France, Britain and other member states of the UN. This move was pursuant to the July 2010 resolution of the UN General Assembly which had recognised access to water and proper sanitation as a fundamental human right. This move had to have legally binding obligations, in order for this observation to remain binding. Conversely, such a move in the UN General Assembly of 2010 was propounded by the rationale that despite water being an essential commodity or element in human life, yet a very significant fraction of the world’s fraction could not access it. Particularly, the UN quoted research results obtained by its Independent Experts to divulge that while 1 billion people are not able to access improved or standardised sources of water, 3 billion have no taps in their homes. The import of this is that there are billions of people consuming unsafe water. It is also important to note that the report that was tabled by the Independent Experts also helped reinforce the ideas on the legalisation of the right to water because it also aimed at ensuring quality in accessibility to water and sanitation, and not just quantity. Other scholars such as Pink4 and Kibassa5 argue that the move to make the right to water legally binding was also imperative if a larger input by other stakeholder was to be realised. Particularly, the recognition of water as a human right and a legally binding reality by the Human Rights Council set the standard for all water services providers to follow, whether these providers are in private or public ventures. The import of this is that this would serve as the first step in ensuring that all who deal in the provision and distribution of water and sanitation adhere to health and safety standards that have been internationally stipulated. At the same time, the legalisation of the right to water is a matter that was aimed at compelling different governments and member states of the UN to implement the Human Rights Council’s resolution at the local level, so as to raise the standards of water and sanitation services provision. This is in line with the fact that governments of the member states have the legislature and the executive arm to enforce proper standards of water services provision. In this light, every government of every UN member state will be able to use legislation to stipulate proper standards and procedures that are to be used in providing water. According to Bulto6, pertinent matters such as qualifications of the services provider, pricing and the observation of health standards such as having certified dealership, are some of the elements that may be factored into legislation, prior to water services dealers being licensed to partake of the same effort. For instance, introducing certified dealership in the undertaking will ensure that every water dealer has the infrastructure and the wherewithal to supply water, without compromising its quality. Because of this, the legislation will have injected the aspect of quality in accessing water and sanitation, in lieu of only concentrating on the quantitative supply of water. The gravity behind this move is that it assuages the danger of adultered water, as efforts are made to increase accessibility of water. Harnum7 is poignant that it is important to note that the standpoint above has its gravity in the fact that contrary to popular perception, the private sector does not solely consist of transnational organisations, despite the pivotal role that the private sector plays in water services distribution. On the contrary, small, medium scale and even informal services providers are some of the players that feature significantly in the private sector, as far as the distribution of water services is concerned. In fact, it is pointed out by Harnum that 50% of Africa and 25% of Latin American countries get their water from informal and small scale water services dealers. The presence of small, medium scale and informal dealers in water services providers underscores greatly, the need to implement policies that would see conformity to health and safety standards, since small, medium scale and informal dealers are the parties that are under the most intense pressure to bend operational rules, as an artifice to escaping extra or higher operational costs. Conversely, Daci8 observes that it is given that with the Human Rights Council’s resolution to make the right to water legally binding; these governments can easily use the executive arm to enforce the decision. While the UN does not have the executive arm, these UN member states may use the police force and the municipal authorities to ensure that the standards of dealing in water and sanitation services are adhered to, to the letter. In this light, the government through its executive arm is able to ensure that even as efforts are made to widen or increase accessibility of water, quality is left intact9. The rationale behind the support for the involvement of the government in the provision of water services is underscored by the fact that it is the mandate of the government to: guarantee democratic and transparent decision-making; ensure coverage of/ on the most marginalised; stem disconnections that come about because of the failure to pay for water services; address corruption; and facilitate regulatory enforcement and capacity in water services provision. The immediately foregoing is in order, given that it is indisputable that the government is the chief decision maker in the provision of water, determining the price of water, tackling (runway) corruption that accosts the water and sanitation services department, regulating the distribution of water, and determining the fate of those whose water supplies are disconnected because of the failure to pay for the services (in time, or wholly) and those who are unable to afford water. In the same vein, Collins10 argues that the sacrosanct role that the government makes in the provision of water and sanitation services is underscored by the fact that the government must play key roles in ensuring sustainable accessibility to water. Particularly, Gavouneli11 is categorical that governments must fully implement their responsibility of creating an enabling environment that monitors and regulates private providers and dealers. Klein12 and Narain13 divulge that governments can do this by setting up services provision, in a manner that is consistent with the goal of universal coverage on non-discriminatory basis and human rights standards. The gravity and validity of Klein’s standpoint is based on the fact that non-state actors and services providers usually do not extend their services to undeserved areas, unless there is a contract that has explicitly stated so. In light of this, it is the government that possesses the mandate and the responsibility to steer clear of the temptation to prioritise and invest in areas where interventions are very rewarding or less expensive. At the same time, Francis and Firestone14 point out that without the role and presence of the government, there can never be state-imposed constraints that would compel non-state actors to practice due diligence and to become more aware and tackle the need to address prospective or real negative impacts that their activities bring upon human rights. Likewise, in light of governments’ involvement, non-state actors are able to exercise or take proactive measures, so as to ensure that their actions in water services provision do not contravene international human rights standards. On the one hand, experts such as Boyce15 have been categorical that the rendering of the right to water as a legally binding reality is instrumental in entrenching competence among governments, as far as the provision of water is concerned. The qualifier to this argument has it that over 70% of developing countries grapple with inadequate provision of clean water. Thus, it is by this Human Rights Council’s resolution that governments that fall within this rubric will get more accountable for the problem of water shortage in their respective countries. As such, member states that do not meet the demand for clean water or show any improvement on the same, are to be brought to account, concerning the same. On the other hand, Misra and Chantia16 state that the move to declare the right to water as legally binding would be instrumental in conscientising the world on the seriousness of the shortage of water. Van de Loo17 divulges that for the most part, the dearth of clean water is exacerbated by the failure to appreciate the gravity of water shortage and thereby helping underscore this standpoint. On the converse, there are actors who have withstood the legislation of the right to clean water. For one, Israel cites the need to consolidate its security, when it places restrictions on the Palestinians’ access to clean water for household use and agricultural purposes. This restriction takes the form of a blockade that Israel places on Gaza and the forced evictions that Israel has always subjected Palestinians to. Although it is easy to lambast Israel for the blockade, yet the validity of this action and argument is underscored by the UN not having been able to craft a feasible and sustainable peace treaty between Israel and Palestinians. It is most likely that no sooner will Israel impose a laissez faire condition in Israel, than for terrorists to sneak in among the Palestinians. It is also unlikely that Palestinians will cooperate with Israel during terrorist onslaughts or military combats against Israel, due to nationalism. Banerjee18 observes that others who are opposed to the legislation of the right to water wax polemical that international human rights treaties, their interpretation and domestication on the right to water should be taken as referring to implementation of measures, programmes, policy dialogue and extra measures. While this group postulates that this may in turn pave way for extra expenses because of the need to jumpstart water projects, others are categorical that the same will pave way for political hegemony and compromise of sovereignty. The latter is considered to be the case, since member states will have to open their frontiers to international organisations that may be interested in providing water services. These have it that international organisations carry with them, political goals, alongside the provision of water. According to Speelman, Frija, Buysse and Van Huylenbroeck19, the issue of extra expenses is more real when one considers that the domestication of this legislation will compel governments to regulate tariffs on water, in order to ensure affordability and accessibility for all, while upholding commercially sustainable operations and maintenance infrastructural facilities. This will be a delicate balance to strike when one attempts to reconcile the need to charge higher unit rates for private water consumption at one end, and to impose non-discriminatory and more subsidized measures for the vulnerable, disadvantaged and poor, at the other end. Likewise, the regulation of tariffs on water may definitely translate into another liability for the government. Conclusion In light of the foregoing discussion, it emerges clearly that there are both gains and drawbacks that accost the legislation of the right to water. However, the need to protect the right of the vulnerable, the disadvantaged and the poor to access water remains paramount. Likewise, the plight of the vulnerable, the disadvantaged and the poor who are distributed across the entire globe underscores the need for the Human Rights Council (under the aegis of the UN), to marshal a universal approach to this legislation. Because of this, it is needful that this legislation is consolidated and re-modified to incorporate the shifting dynamics of world politics and state interests, if this legislation is to succeed. References Banerjee, T. “Right to Water: Some Theoretical Issues.” Contemporary Issues & Ideas in Social Sciences, [2010] 6 CI&ISC1, 1-17. Boyce, J. “Wrestling with the bear: A compact approach to water allocation.” [1996] 10 BYUPL 2, 301. Bulto, T. S. “The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?” [2011] 12 MJIL 2, 290-314. Collins, L. “Environmental Rights on the Wrong Side of History: Revisiting Canada's Position on the Human Right to Water.” [2010] 19 REC&IEL 3, 351-365. Daci, J. “Protection of the Human Right to Water under International Law: The Need for a New Legal Framework.” [2012] 2 Academicus 6, 71-77. Du Plessis, A. “A Government in Deep Water: Some Thoughts on the State's Duties in Relation to Water Arising from South Africa's Bill of Rights.” [2010] 19 R EC & I El L 3, 316-327. Francis, R. & Firestone, L. “Implementing the Human Right to Water in California's Central Valley: Building a Democratic Voice through Community Engagement in Water Policy Decision Making.” [2011] 47 WLR 3, 495-537. Gavouneli, M. “A Human Right to Groundwater?” [2011] 13 ICLR 3, 305-319. Gunduz, Z. Y. “Water: On Women's Burdens, Humans' Rights, and Companies' Profits.” [2011] 62 MRAISM 8, 43-52. Harnum, J. “Deriving the Right to Water from the Right to Life, Liberty and Security of the Person: Section 7 of the Canadian Charter of Rights and Freedoms and Aboriginal Communities in Canada.” [2010]19 REC&IEL 3, 306-315. Kemerink, J. S. Ahlers, R. & Van der Zaag, P. “Contested water rights in post-apartheid South Africa: The struggle for water at catchment level.” [2011], 37 WSA 4, 585-594. Kibassa, D. “The impact of cost recovery and sharing system on water policy implementation and human right to water: a case of Ileje, Tanzania.” [2011] 63 WS&T 11, 2520-2526. Klein, C. A. “Water Bankruptcy.” [2012] 97 MLR 2, 560-624. Misra, P. & Chantia, A. “Right to safe drinking water vs. Right to health - the contours of water right and water right management in India.” VIDHIGYA: The Journal of Legal Awareness. [2009] 4 VIDHIGYA: JOLA 1, 72-84. Narain, V. “Water as a Fundamental Right: A Perspective from India.” [2010] 34 VLR 4, 917-925. Nordblom, T. L. Reeson, A. F. & Finlayson, J D. “Price discovery and distribution of water rights linking upstream tree plantations to downstream water markets: experimental results.” [2011] 13 WP 6, 810-827. Pink, R. “Child rights, right to water and sanitation, and human security.” Health & Human Rights: An International Journal, [2012] 14 H&HR: AIJ 1, 1-10. Speelman, S., Frija, A., Buysse, J. & Van Huylenbroeck, G. “The importance of irrigation water rights: lessons from South Africa and Tunisia.” [2011] 13 WP 5, 663-676. Van de Loo, E. “Influence of privatization of water delivery on access to the right to water in Kenya.” [2011] 13 WP 2, 208-219. Read More