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106 Am. Soc’y Int’l L. Proc. 49

American Society of International Law Proceedings

March 28-31, 2012

The Emergence of a Human Right to Water and Sanitation: The Many Challenges

*49 WATER: A PUBLIC GOOD OR A COMMODITY?

Itzchak E. Kornfelda1

Copyright © 2013 by The American Society of International Law; Itzchak E. Kornfeld

INTRODUCTION

We have two resources: air and water. Both are critical for life. Why is air free, i.e., why are we not charged for breathing air,

while water is generally not free?

In the 1962 movie Lawrence of Arabia, about the life of T.E. Lawrence, Lawrence’s Bedouin guide is killed by the Saudi

prince Sherif Ali for drinking from a well without permission. Clearly, the desert is a terrible place to be stuck without water,

particularly when it is available, but one is not allowed access to it. At that point we have a conflict: the commodification of

water versus the right to it.

Today, the situation is different from that in the last century, but the outcome is similar. For example, in sub-Saharan Africa,

among other locales, another type of water oppression *50 occurs on a daily basis. There one finds the struggle that women,

who are the primary gatherers of water, go through every day. They walk two and sometimes three miles, while carrying

buckets and pots filled with water on their heads for hours simply to purvey water for their families. For these people,

Western notions of the right to water may seem quaint given the magnitude of their problems.

Moreover, as Joseph Vining has observed, “[t]hat which evokes no sense of obligation is not law. It is only the appearance of

law.”1 So it follows that the putative right is of little solace to those who have no access to potable water or to the millions

who die annually due to its unavailability.2 Consequently, in my view, any discussion about the commodification of water

must be seen along a continuum of water as a common good and its adaptation into a property right--whether a usufruct or a

right incidental to the ownership of land (e.g., a common-law riparian right). Stated differently, today we must evaluate the

attempt to “recast clean water as an essentially economic, [as opposed to a] public, good.”3 Moreover, one must recall that “a

property right is a form of power and ‘a sanction and authority for decision-making’--over resources ... i.e. it refers to

property as ‘a set of rights to control assets,’ which naturally include water and other environmental goods.”4

THE JUXTAPOSITION: COMMODITY VERSUS RIGHT

Although the contrast between water as commodity and the expansion of a legal right to its access may appear to be

incompatible or divergent, I posit that they are the two major strains that the international legal community will have to

address within the foreseeable future. As I asked earlier, why are we not charged for breathing air, and why is water generally

not free? The answer, I believe, is quite simple. Legally, water falls under or is incident to property rights, and air is not!

Consequently, if the right to water is viewed through the property law prism, I believe that we can gain a better perspective

into the problem, particularly into water’s commodification.

Indeed, Professor Edith Brown Weiss recently pointed out that “[i]n the past, water law has been fragmented and balkanized.

Within countries, rules governing the allocation of rights to surface water have normally been completely separate from those

governing the exploitation of ground water, with the result that pumping of ground water may defeat surface water

allocations.”5 These legal complications notwithstanding, I generally default to Justinian, who in 529 C.E. asserted that “By

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the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the

sea.”6 However, both continental and common-law lawyers and policymakers abandoned Justinian’s principles hundreds of

years ago.

Moreover, while the putative “right to water” is a phenomenon rooted in the developing world, property law there mirrors

that of the colonial powers that colonized them. Accordingly, the rural poor may put themselves in harm’s way when they

cross private property lines of which they have no knowledge, in order to access water.

*51 THE CHANGING REGIME: THE DEVELOPMENT OF THE RIGHT TO WATER

Nevertheless, the water rights regime may be retrograding and, to a small extent, returning to Justinian’s Code in the guise of

human rights. Today we have new law: General Comment 157 outlines the right to water, and on July 28, 2010, the General

Assembly adopted a resolution on the human right to water and sanitation, which “recognizes 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.” In

addition, as Laurence Boisson de Chazournes and her coauthors pointed out last year, other instruments that may be

employed in sustaining water resources as a public good include multilateral environmental agreements (MEAs).8

Likewise, national constitutions such as those of India and South Africa provide constitutional rights to water. However, the

reality is that neither South Africa nor India can financially afford to honor that constitutional right. Moreover, government

privatization of water systems--most of which has been required by the World Bank when governments from the developing

world seek funds--has routinely been a failure, resulting in shutoffs when the poor are unable to pay their water bills.

FINDING RIGHTS IN OLD AND NEW DOCTRINES

Nevertheless, litigants are employing municipal constitutional law--the UN Covenant for Social, Economic and Cultural

Rights, and General Comment No. 15-- in their quest to gain a right to water. In a June 2011 decision, the Supreme Court of

Israel, sitting as the High Court of Justice (akin to a constitutional court) found that the right to water exists both under

national law and under human rights law.9 The Court found that

[t]here exist three levels in the normative recognition of a person’s right to water: the right to water on the level of a regular

law, both by virtue of a statutory arrangement and by virtue of customary law; the constitutional right to water, derived from

another recognized constitutional right, by virtue of the Basic Law [Israel’s equivalent of a constitution]: Human Dignity and

Liberty--in our case, the right to live in dignity; and finally, at the top of the pyramid, the legislative right to water that is

recognized by virtue of itself. This constitutional right for water is recognized in different countries, particularly in those that

suffer from a severe shortage of water.

The court also found that a person has a right to water on a legislative level, holding that water is a public resource pursuant

to Section 1 of the Israeli Water Law, which “states the basic norm for regulating water sources and their uses in Israel:

‘Water sources in the country are public property, subject to State control and intended for the needs of its inhabitants and the

development of the land.”’10 The Court also noted that

Water sources are, therefore, public property, and the State acts as a trustee for the public in order to fulfill the public’s need

for water, and to promote development plans in Israel. It has already been ruled that: “Water sources are public property, and

the *52 need to safeguard them derives not only from principles of good governance, but also from the protection provided to

this precious and limited proprietary resource, shared by all state citizens”11

Likewise, the Court found that under Section 11 of the Covenant a person has a right to maintain a suitable quality of life.

Quoting the relevant sections as follows:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of

living for himself and his family, including adequate food, clothing and housing, and to the continuous

improvement of living conditions. The States Parties will take appropriate steps to ensure the realization

of this right, recognizing to this effect the essential importance of international co-operation based on free

consent.12

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Finally, the court invoked the Committee for Economic, Social and Cultural Rights determination “in General Comment no.

15 that water is included within the boundaries of the right for suitable living conditions.”13

CONCLUSION

Although water commodification by corporate entities such as Coca Cola, Pepsico, Nestle, Perrier, and others continues

apace, the human rights regime is beginning to channel its way into various national legal systems. Armed with a growing

number of instruments, municipal courts are finally beginning to tackle the issue of the right to water.

Footnotes

a1

Of the Faculty of Law, the Hebrew University of Jerusalem. The author can be reached at kornfeld.itzchak@mail-huji.ac.il.

1

JOSEPH VINING, FROM NEWTON’S SLEEP 34 (1995).

2

Itzchak E. Kornfeld, A Global Water Apatheid: From revelation to Resolution, 43 VAND. J. TRANSNAT’L L. 701, 705 (2010).

3

Jeffry S. Wade, Privatization and the Future of Water Services, 20 FLA. J. INT’L L. 179, 179 (2008).

4

Daniel H. Cole, 1910 New Forms of Private Property: Property Rights in Environmental Goods, in 1 ENCYCLOPEDIA L. &

ECON. § (Boudewijn Bouckaert & Gerrit De Geest eds., 2000).

5

Edith Brown Weiss, The Coming Water Crisis: A Common Concern of Humankind, 1 J. TRANSNT’L ENVTL. L. 153 (2012).

6

THE INSTITUTES OF JUSTINIAN (J.B. Moyle trans., 5th ed. 1913).

7

United Nations Economic and Social Council (ECOSOC) issued a General Comment to the International Covenant on Economic

Social and Cultural Rights (ICESCR), which found a right to water implicit in Articles 11 and 12. See generally General Comment

No. 15 (2002): The Right to Water (Arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN

Doc. E/C.12/2002/11 (Jan. 20, 2003).

8

Laurence Boisson de Chazournes, Christina Leb & Mara Tignino, Environmental Protection and Access to Water: The Challenges

Ahead, in THE RIGHT TO WATER AND WATER RIGHTS IN A CHANGING WORLD 9 (Michael R. van der Valk &

Penelope Keenan eds., 2011), available at http://

www.hydrology.nl/images/docs/ihp/nl/21_Sep_2010/2011.10_The_right_to_water_and_ water_rights.pdf.

9

Abu Musad v. Water Commissioner, No. 9535/06 (2011).

10

Id. para. 30.

11

Id.

12

Id. para. 27.

4

13

Id. para. 29.

106 ASILPROC 49