by Carly Gibbs, University of Chicago Law School ‘18
Water is unquestionably the essential building block of life. We divert rivers to grow crops and provide electricity. We can’t last more than a few days without a drink of the stuff. But in an era of climate change, resource competition, and continued population growth, our access to freshwater as a species has never been more at risk. According to the United Nations Office of the High Commissioner for Human Rights, more than 884 million people lack access to improved sources of drinking water and a whopping 2.6 billion of us don’t have access to improved sanitation facilities as of 2015. But even the United States worries about having access to water — take California’s recent drought as an example. Protecting access to water is critical for every person.
But is there actually a right to protect? After all, there’s nothing about protecting a right to water in the United States Constitution or that of many other countries. International law, however, may provide the answer. In 2010, the United Nations General Assembly recognized the “right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” As far as the UN is concerned, human rights treaties protect the right to water in a way that is “legally binding.” So while there is support for the claim that the right to water is protected by international law, many questions remain about the exact nature of the right, the available remedies, and the ways in which legal tools can be made to fit the complex reality of how people and states access water.
What treaties protect this right? Articles 11 and 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), ratified by many countries (though not by the United States), provides for the right to an adequate standard of living and enjoyment of the highest attainable standard of mental and physical health. Since access to water is crucial to developing agriculture, providing adequate sanitation, and otherwise leading a life in human dignity, some have argued that the UN Committee on Economics, Social, and Cultural Rights (CESCR) has read into the treaty an implied right to water. And what about the right to life as protected by the International Covenant on Civil and Political Rights (ICCPR)? While the treaty does not explicitly define the right to water, both the UN and the International Court of Justice have suggested that “violations of certain economic, social and cultural rights may amount to violations of the right to life.” And signatories of the ICCPR can’t derogate, or refuse to comply with the provision for the right to life. There’s a strong argument that international human rights law protects our right to water.
Recognizing that right matters more now than ever. Underground water resources in the form of freshwater aquifers are quietly vanishing. In the United States, farmers are drawing down water from the Ogallala Aquifer at an unsustainable rate despite being aware of the risk of depletion for more than six decades. Cities around the world are sinking as soil collapses into empty spaces left by depleted groundwater. Multiple years of drought in Syriawiped out many farmers’ livelihoods and may have helped spur the conflict that began in 2011. As population growth and climate change draw down freshwater resources, the value of recognizing a right to water becomes ever more important.
The problem gets even thornier when we realize that many of these are sharedwater resources in the form of rivers crossing from country to country or aquifers straddling international borders. Divvying up access to such water sources is already problematic. The mountain aquifer underneath the West Bank, for instance, is entirely controlled by Israel. Israel allocates about 80% of the flowing water to Israel and Israeli settlements and only 20% to Palestinians, sparking anger among Palestinians who claim the unequal share has crippled their agriculture. International law is a bit less clear on the issue of shared access to water sources. Some conventions on waterways, like the 2004 Berlin Conference and the 1997 Watercourses Convention, suggest that states are bound by customary international law to take measures to prevent significant harm from coming to neighbor states. Does that translate into a requirement that states refrain from drawing down on shared resources at an unsustainable rate? What do we do if one state takes more than its fair share of such a resource? And how do we determine what makes a “fair share” in the first place?
Even if we can point to a consensus about what should happen under international law, how do we make sure countries actually follow through on their promises? One way is for countries to bind themselves by signing treaties that proscribe certain consequences for violations. Countries may allow for the International Court of Justice to be responsible for settling water disputes based on international law and agree to abide by any orders. Another way is international pressure. Many countries care about their international reputation. If we create an international norm requiring respect and the equal allotment of shared resources, countries may bind themselves to avoid shame.
Declaring that water should be a human right is simple. The logistics of actually enforcing that right are much more complicated. But in an era of depleting water resources, we can’t just bury our heads in the sand. Countries need to step up to the plate and take an active role in safeguarding everyone’s access to water resources.