[RTWS Update] Does Human Rights to Water Improve Access to Clean Water?
Tuesday, March 23, 2010 Mohamad Mova Al'Afghani
Some argue that a *human right* to clean water would improve this situation. This paper shows that human rights have not improved access to clean water and argues that it would be more productive to give people a *property right* to water. Because property rights - unlike human rights - are alienable, some portion of an individual's rights can be exchanged for access to clean water.
In his paper, he distinguished between countries which --de jure-- constitutionally acknowledge the right to water and those which do not. He found that states which incorporate human right to water does show a marginal percentage of two percent increase in terms of access compared to states which do not provide right to water in its constitution. However, upon a careful analysis by looking at the rate of access before the countries amended their constitution, he found no correlation between such phrase and the increase of access. He argued that the access increased because of the number shown in the previous year.
My concern stems from his distinction: which states acknowledge human right to water and which states does not, which leads to his conclusion: that human right to water does not deliver. I do not think it is right to suggests that states does not acknowledge right to water simply because it is not explicitly mentioned in the constitution. Indonesian constitution contains no explicit provision recognizing the right to water. However, the Constitutional Court does recognize right to water by inferring it from other rights. Hence, de jure, Indonesia too, recognize the human right to water. States which are members to the ICESCR too, to a certain extent, acknowledge the right to water.
Second, is his distinction between human right and property right to water and its subsequent application. He argued that explicitly mentioning right to water in the constitution does not guarantee any delivery. By the same token, we can argue that explicitly mentioning the guarantee of property rights in the constitution does not guarantee any delivery. One needs a governance system and a rule of law to enforce property. Let me quote the words of an extreme right-winger, the Nobel Prize Winner Milton Friedmann:
It turns out that the rule of law is probably more basic than privatization. Privatization is meaningless if you don't have the rule of law. What does it mean to privatize if you do not have security of property, if you can't use your property as you want to?
The same thing exactly applies to the human right to water. If property rights does not work without rule of law and governance, so does the right to water. But more importantly, I categorically rejects the antinomy of human right to water and the property right to water. The essence of human right to water is also governance, except that it puts a little more weight on affordability. Human right steers development, but it does not in anyway dictates the constellation of ownership system within a particular state. What human rights does, is that it solves problems in context. No, it does not grants anyone access to free water. But it can give citizen a sufficient armoury in pressing for developments and give guidance to judges in solving water allocation problem, for example.