Water: This Rght is Wrong

Thursday, August 05, 2010

By Jacob Mchangama

Jacob MchangamaOn 28 July a big majority of the UN General Assembly adopted a resolution recognizing “safe and clean drinking water and sanitation” as a human right. Considering that some 2,5 billion people lack sanitation and 900 million people do not have access to safe drinking water this might seem like a welcome development. But turning water and sanitation into a human right is a threat to the poor and to law.

Firstly, individually enforceable human rights in international law are things the State cannot take away from you (such as life, liberty and property), not things that the State must give you with taxpayers’ money. But, more importantly, this human right would not help the millions of poor people whose health and quality of life are threatened by the lack of clean water and sanitation.  

For rights to have meaning, it must be clear what they are and who is responsible for upholding them. Take free speech: if a government arrests a dissident for peaceful statements or thoughts, it is breaching its obligation to uphold a clear human right and the courts would then be responsible for upholding it..

The right to clean water and sanitation is far less definable and depends on economic development, technology and infrastructure. Above all, if people have a right to water and sanitation, other people must provide it–in practice, governments using public money. Such privileges are called “positive rights,” as opposed to the “negative rights” to things that cannot be taken away from you. So this is really a call for state intervention, at the expense of other priorities and freedoms–and water is no more a practically enforceable human right than other essential commodities such as food, clothing or shelter.

This resolution follows naturally from activists’ ideological resistance to the privatization of water. This ignores the countless examples from Bolivia to Egypt where governments have failed to provide clean water due to corruption, cronyism (usually including massive subsidies to inefficient farmers), mismanagement and waste. It also ignores successful private models in Bolivia, Chile, Denmark and elsewhere. Giving governments ultimate control over the supply of water may even be dangerous because authoritarian regimes can use their power to punish the recalcitrant and reward their supporters.

The resolution also devalues true human rights. By demanding that developed countries “provide financial resources and technology transfer” to developing countries, the resolution implies that the rich are responsible for violating the human rights of people without water in poor countries. This allows many countries like the proposer Bolivia to deflect criticism away from their own violations of real human rights by arbitrary detentions, torture and censorship, while portraying themselves as victims of the West.

So far, defenders of traditional human rights have been reluctant to criticize this political agenda: no-one wants to be perceived as being against not only clean water for the world’s poorest but human rights too. So democratic countries such as Belgium, Italy, Germany, Spain and Norway voted for the resolution with Egypt, China, Pakistan and Cuba, which deny human rights to their citizens, while 41 countries such as the USA, Australia and the United Kingdom fearfully abstained: no country had the courage to reject it, leaving the way open for the adoption of a legally binding protocol.

Those who are against the idea, such as the USA, hope this non-binding resolution will not matter because “the legal implications of a declared right to water had not yet been fully considered,” as US diplomat John Sammis told delegates. Such procedural theory ignores the political reality of States gaining greater power over their citizens’ lives, particularly in poor countries where oppressive economic regimes are supported by Western charities and activists.

If democratic states abandon the freedoms of true human rights, they abandon the poor to many more decades of State-imposed poverty, corruption and inefficiency.

Jacob Mchangama is head of legal affairs at CEPOS, a Danish think-tank, and an external lecturer of international human rights law at the University of Copenhagen.