The Human Right to Water under the Water Law? Yes. But look also at its elucidation.

If there is anything I forgot to upload into this website from the last World Water Week then it is my own presentation and pictures. So here it is. The title of my presentation is the above headline. I argue that the Human Right to Water may be able to correct structural loopholes in the current legal framework for water resources management in Indonesia. There are, however, prerequisites which must be fulfilled for such role to take place, and these are (i) building linkages between the Human Right to Water into the current judicial and legislative system and (ii) developing existing institutions, in terms of capacity, resources and mandate in order to incorporate human rights claims.

I have a draft paper to support my arguments which I decide not to share as it is still in the form of, well, a draft paper. But if you are interested, do email me at movanet(at)gmail.com I await for your feedback and comments.

H.T. Dr. Riant Nugroho for the pics

The World Water Week which ended last September 11th urge participants of the upcoming meeting of MDG High Level Plenary Meeting to pay more attention to water issues. According to the Stockholm Statement: “…water needs more attention: policy, investment and management. Continuing to neglect it is a recipe for disaster, and the failure of all MDGs.”

Read the full statement here.

Just to add some more tips:

1. Don’t forget to bring converters!

2. Use Kindle to read (and skip all the print papers)

3. Make sure everything is fully charged

4. Hassle first, fun later. Meaning: go through security check then find your coffee

UNEP recently released a publication titled “The Greening of Water Law”. The book contain elements to consider for integrating environmental concerns into national and international water law. Read/download here.

H.T to: Bo Magsig

UNDIP e-Journal published a paper about Semarang water utility.  Here’s some interesting facts on the paper:

• In order to obtain the water connection people have to pay installment cost Rp 700.000 (75 US $) and it is equal with minimum wage per month for labor in Semarang.
• According to the State Auditing Agency, PDAM Semarang had a loss of Rp. 21 billion from customer arrears and mismanagement.
• Around 10.000 water connections are suspended for 2 months (Suara Merdeka, 03/20/2007) and will not be activated unless customer paid their debt.

Read more.

Wikislation is the term I used to describe bottom-up law making process using wiki. This has been implemented in one of Philipine’s region. Recently, Brazil came with the more sophiticated Wikislation idea through its website, e-democracia. 

The Techrepublic explains:

The program is a kind of crowdsourcing for legislative purpose. In particular, the e-Democracia website attracts and draws together the diffuse participation of individual citizens and minority groups. The main goal is to permit easier access to the decision-making process by citizens who are not associated with strong interest groups or corporations that usually lobby for access to the center of power in Brasilia where the national government is located.

e-Democracia is driven by a belief that the lawmaking process can benefit from the convergence of political representation and citizen participation in a virtuous cycle in which one model strengthens the other. The backbone of the initiative is its website (www.edemocracia.gov.br), which provides multiple participatory mechanisms with which citizens can:
• Share information about a problem that needs to be addressed by law;
• Identify and discuss possible solutions to the problem; and
• Draft the bill itself.

I argued in my 2006 article that crowdsourcing legislation will benefit from reduced information asymmetry and reduced cost for information interpretation. The concept and methodology for ‘wikislation’ is still far from perfect. But the tools are here. I consider that spending our legislative resources on bottom-up IT will also decrease the cost of deliberation and eventually, the cost of promulgation. To get a complete picture on the concept of wikislation, read and download my 2006 article titled “How Legislative Process Works in the Period of e-democracy”.

An interesting article from Ching Leong at NUS SPP: “Rights and Price: A Pair of Red
Herrings in Water”. She contends:

If water is perceived as a human right, it should be freely available to one and all. But clean water comes at a cost and unless that cost is paid for, it is difficult to ensure universal access.

Before making any comment, have a look at WWC’s FAQ on the right to water here:

10- Does the human right to water mean that water should  be free?
The right to water does not mean that water has to be delivered for free, but it must be affordable, as well as safe, accessible and sufficient.  However, through the acceptance of a right to water, there is explicit recognition that water is a social and cultural good, as well as an economic good. This point was confirmed in CESCR's General Comment 15. Any payment for water services must be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable to all, including socially disadvantaged groups.

Again, before making any comment, have a look at Ms. Leong’s closing statement on her article:

Water in short should be priced as an economic virtue. At the same time, it should be free to those who cannot pay because of a moral imperative that is sometimes captured by the declaration that it is a human right. There is no reason that public policy cannot fulfill both roles because, in this happy instance at least, the imperatives from economics and morality are not in contradiction.

To me, that sounds like a human right after all. A cross subsidy is in place, those who cannot afford should have it for free. So that’s what human right to water is all about. It seems that we’ve agreed on this all along!

Stockholm, September 09, 2010 (ILR). ACCRA, BothENDS, Swedish Water House, UNESCO Etxea, WaterLex and the UNDP Water Governance Programme convened a seminar at the World Water Week, Stockholm, September 09, 2010. The presenters explains the potentials of Human Rights Based Approach to Integrated Water Resources Management.

On the media statement received by ILR, the conveners stresses the importance of  stakeholders involvement in ensuring the realization of the Human Right to Water.  According to the Press Release:

A key element of the human right to water is the water quality prerequisite that water used for personal or domestic uses should be – among other things - free from micro-organisms and chemical contaminants that constitute a threat to individual health, thus embracing the work of professionals working in the realm of water quality and Integrated Water Resource Management (IWRM). At the same time, even in the context of conflicting and competing demands on water resources, human rights law is clear in determining that water for personal and domestic uses, i.e. for realising the right to water, has priority in relation to other water uses.

In this side event, we will demonstrate the validity of a number of principles. First of all, the Human Rights-Based Approach (HRBA) provides a useful and comprehensive framework from which to analyse water and sanitation issues and holds the potential to support and strengthen the Millennium Development Goal approach. In other words, while the concept of the ’right to water’ requires a focus on law, it is not just an effort to define normative standards (cf. World Health Organization quality standards), it is also about procedural rights, which ought to be clarified and illustrated so as to demonstrate how the realisation of rights should be managed in practice. Furthermore, the actual realisation of these rights is dependent on the governance structure and the quality of interactions between the state and civil society against the background of each particular social, political and economic setting.

Secondly, it is therefore of key importance to continue to promote national case studies that serve to highlight the key areas in which the implementation of the right to water and sanitation can be improved in each setting through a HRBA.

Universitas Ibn Khaldun Bogor, Indonesia, endorses the case-base approach to HRBA. It offers support in the form of expertise, networking and grass-root empowerment for the HRBA case studies. In its endorsement letter, the University Rector Prof. Dr.  H. Ramly Hutabarat, SH., MHum pointed that application of IWRM in Indonesia would require tremendous investment in the form of knowledge and financial resources. IWRM has large potentials in improving the quality of Indonesia’s water resources. However, there are always possibilities that those with less capacity and bargaining power to participate in IWRM processes would be left out. The Rector suggests that HRBA would be necessary to empower stakeholders in the decision making process of IWRM.

This is the full version of Dr. Riant Nugroho’s Presentation at the World Water Week. The presentation is packed with the latest statistics on Indonesia’s water supply/sanitation and resources. A true reference indeed. Enjoy!

The UN General Assembly will hold a two day summit from September 20 to 22 this year in New York. Download the 2010 MDG Report here. Click here for the Summit’s website.

Packing for Stockholm: BothEnds and several other NGOs/IGOs are planning to hold a side event on this September’s Stockholm world water week. The topic: Human Rights Based Approach to Improving Water Quality. 

If I can find some wi-fi there,  Indolawreport may hold a series of live-blogging. More details to follow. If you happens to be in the World Water Week, join us.

Good news and an honor for Indonesia law Report. I have received the following email from the Library of Congress:

The United States Library of Congress has selected your website for inclusion in the historic collection of Internet materials related to Legal Blawgs. The Library of Congress preserves the Nation's cultural artifacts and provides enduring access to them. The Library's traditional functions, acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and the American people to foster education and scholarship, extend to digital materials, including websites.

With your permission, the Library of Congress or its agent will engage in the collection of content from your website at regular intervals over time and make this collection available to researchers both at Library facilities and, by special arrangement, to scholarly research institutions.  In addition, the Library hopes that you share its vision of preserving Internet materials and permitting researchers from across the world to access them.

Our Web Archives are important because they contribute to the historical record, capturing information that could otherwise be lost. With the growing role of the Web as an influential medium, records of historic events could be considered incomplete without materials that were "born digital" and never printed on paper.

The library of congress recently archive a number of high-quality blawgs. You can access them here. I have also accepted their proposal for off-site access. To know more about Library of Congress Web Archiving program, click here.

Hopefully, we can soon see Indolawreport to be listed there and accessible to everyone in the future. Happy blogging and participate in writing history!

The WWF launched postcard campaign to encourage more ratification of the UN Watercourses Convention. In order for the convention to be in force, another 16 ratification would be necessary. Indonesia has land border with East Timor, New Guinea and Malaysia. As such, there might be possibilities that transboundary water is shared.

According to the WWF:

We encourage you to download copies of the postcards and of their accompanying leaflet, in order to find out more about the 2011 target and what YOU can do to help achieve it, whether you are an influential individual, a government official, or a representative of an NGO or other interested institution. Join the numerous individuals and institutions that have already vowed to support the UN Watercourses Convention Global Initiative.

Click on the picture above to download “Everything you need to know about the UN Watercourses Convention”

.

Last April, the Ministry of Health updated drinking water quality regulation. The Permenkes 492 contains minimum obligatory standard of drinking water quality parameters that should be followed. The Permenkes also obligates examination of drinking water quality by water quality providers and government agencies. In practice, regional governments enumerate this rule through regional by-laws. The previous drinking water quality regulation – issued in 2002 – is therefore repealed.

Download the Permenkes here.

Here a list on what evernote can do to enhace your legal practice:

1. As a blogging tool for legal bloggers (of course!)
2. Research tool (collection of snippet and bookmarks) and digital filing cabinet.
3. Customer relation management (CRM) tool
4. Client tagging, note taking, auto forwarding from website contact form

I think evernote is good to be used for start-up lawfirms or those with SOHO (Small Office Home Office) practices. Recently I connected my inexpensive Lexmark s.305 Wi-FI printer to send scanned files (PDF or Pictures) directly to evernote so that it can sync with the system there. But if you have a scanner with autofeeder, I think it would be much faster and better to scan documents, deeds, contracts and all those boring stuffs :) No need to use expensive Knowledge Management softwares, its a waste of money!

Read our previous post: Evernote for Lawyers.

Many lawfirms are investing thousands of dollars for Knowledge Management software only to discover that their lawyers and workers find a hard time implementing it because they are not user-friendly. The reason why most KM software doesn’t work is because they are not embedded in your daily life; the inputs are tedious and time-consuming.

It’s time to liberate yourself. Someday you will quit working for that lawfirm and set-up your own (or do better things like enjoy your life) so you better have your own Knowledge Management system to satisfy your future need of information.

With evernote, you can write notes, clip web pages, take picture notes and voice notes directly from your desktop and mobile. Evernote has apps for ipads, blackberry, android and other OS. All of them are synced together in the cloud. The software is also equipped with integrated OCR (optical character recognition), so every text in the picture you take or document you scanned will be recognized. Some printers can also directly send scanned files to evernote.

Here’s a list of things that a lawyer can do with evernote:

1. Take pictures of/scan business cards
2. Use the voice note for interviews (using blackberry – silently :)
3. Take a snapshot of important clauses
4. Scan your meeting notes
5. Scan legal documents
6. Take pictures during site visit (and tag it in your project folder)

Evernote is linked with many other apps: your email (you can forward your mail to evernote), twitter and google reader, just to name a few. The most important of all: it’s free!
Click here to sign up.

OK, maybe not quite a ‘vs’. Tension might be the right word. And here is a paper discussing the topic. Of all the criticism towards the human right to water, this paper might be among those which are most coherent. According to the author:

Abstract:
Water resources management has been shaped by a variety of paradigms reflecting the evolution of government policies and transient societal values. Integrated Water Resources Management (IWRM) became a predominant management framework in the 1990s. The Human Rights-Based Approach (HRBA) to development has also emerged recently as an influential approach in the water sector. IWRM and the HRBA to development in the water sector overlap significantly. The interactions between the two approaches remain largely unexplored although their repercussions may be significant. Because they do not share identical premises and objectives, the concurrent implementation the two approaches might also lead to tensions detrimental to water resources management. The aim of this article is to explore the interactions between IWRM and the HRBA to development in the water sector. Questions raised by perceived conflicts are identified to help address potential tensions when the two approaches coexist. Synergies between IWRM and the HRBA are also detailed to establish how the two approaches are aligned.

Title:

A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management and the Human Rights-Based Approach to Development

Keywords: Water, Human Rights, Human Rights-Based Approach to Development (HRBA), Integrated Water Resources Management (IWRM)

There are four points of potential and existing tensions which the author raised. They are:

1. The HRBA as an anthropocentric approach and the need for an ecosystemic contextualisation of claims on water resources;
2. The HRBA as an vehicle for developmental aspirations and the acknowledgement of limits in water resources availability;
3. The indistinct duties of right-holders in regards to the user-pays principle;
4. Economic water management and the need to protect marginal groups and the poor;

Download yourself directly from the SSRN.

I am currently writing a paper for a conference and all of these four aspects above will be considered.

Enjoy reading….

High tide floods 2007: “Signs of a sinking Jakarta”

Source: Presentation by Hongjoo Hahm and Janjaap Brinkmann (World Bank)

Brinkman’s statement that Jakarta might sink by 2025 was widely quoted by the media:

'The major reason for this is not climate change or whatever, but just the sinking of Jakarta,' said Mr Jan Jaap Brinkman, an engineer with Dutch consultancy Delft Hydraulics, who worked on the study. By 2025, estimates from the Inter-governmental Panel on Climate Change show, sea levels would have risen by only about 5cm. But Mr Brinkman said that Jakarta, which spans a plain between coast and mountains, will be between 40cm and 60cm lower than it is now. The study shows that without better defences, the sea will reach the presidential palace, which is around 5km inland, in 2025 as well as completely inundate Jakarta's historic old city.

What you may not have seen is their full presentation:

Now, on to water services. VOA interviewed Jakarta Water Regulator who told that the rate of non-revenue water in Jakarta’s Water Supply System is around 50%. NGOs such as the Mercy Corps has been quite successful in engaging with local community in Penjaringan district in order to help them build water storage infrastructure. 

ADB is planning several million dollars project to restore the quality of Citarum river in West Java, the main supplier of bulk water to downstream cities such as the capital, Jakarta. The ICWRMIP will restore riverbanks along the Citarum. The project involves the resettlement of hundreds of households currently residing in the riverbanks. NGOs argued that not enough room for public participation is provided, something which the ADB denied.  NGOs also claim that the project will not likely to change anything as no mechanism for pollution control is included. I am not able to confirm any of these allegation but some documents relating to the project is available in the ADB website.

Read also: Finding a cure for Indonesia’s sick river (CNN)

Access your PC files using Dropbox for blackberry.

Dropbox is a tool for back-up and syncing files across computers. Now you can access files stored in your Dropbox using the blackberry app (beta). First of all, sign up for Dropbox here (if you click on that referral link you will get extra 250 MB). Secondly, download the jad file over the air (through your blackberry device) here.

Enjoy!

H.T. to: Mr.Bo

I argued once that one of the method in curbing corruption in the judiciary is by enhancing its transparency. Most of you might be familiar with the famous formula developed initially by Klitgaard: Corruption= (Monopoly+Discretion)-(Accountability+Transparency).

The World Bank series in Governance recently issued a publication on how to enhance transparency/access of information in the judiciary in Latin America. The analytical framework might be valuable for a future Indonesian case-study. Enjoy reading!

Click here to download the file.

Two confidential reports about Lapindo mudflow were uploaded to wikileaks. Here’s an excerpt from the wikileak page:

UK geologists downplayed Lapindo's argument and concluded that the earthquake was merely coincidental. While it could have generated a new fracture system and weakened strata surrounding the Banjar-Panji 1 well, it could not have been the cause of the formation of the hydraulic fracture that created the main vent 200 m (660 ft) away from the borehole. Additionally there was no other mud volcano reported on Java after the earthquake and the main drilling site is 300 km (190 mi) away from the earthquake's epicenter. The intensity of the earthquake at the drilling site was estimated to have been only magnitude 2 on Richter scale, the same effect as of a heavy truck passing over the area.

Read more.

Quick blogging. For those of you who are looking for the text of Doc A/64/L.63/Rev.1 , adopted as the UN General Assembly Resolution on the Right to Water and it’s voting records, click here for the resolution and here for the voting records.

Reiterating my previous post that international human rights law is basically agnostic with respect to the choice of ownership, you will now find an interesting press release from Aquafed, the federation of 300 strong private water providers.

In a July 29 Press Release, Aquafed conveyed that private water operators “…celebrate the recognition of the Human Right to water and sanitation by the United Nations General Assembly.” Furthermore, they call that the resolution “…must be used to turn the Right into a Reality for the billions of people who do not enjoy proper water services”.

Certainly, Aquafed are suggesting implicitly (and explicitly in its other submissions to the HRC) that the private sector are among those who can turn the right to water into reality.

Read Aquafed’s Press Release, along with its involvement in the right to water process here.

Anti-privatization movement must now stop advocating alternative service provision using the language of human rights. As I argued previously:

Just to note, literature provide explanation as to the genealogy of the right to water movement (see paper by Bakker here – you may need an access). On the one hand, there is the anti-privatization movement which utilizes the language of human right to water in their campaign against privatization and on the other hand, there is the ‘alter-globalization’ movement which also seeks to foreclose the neoliberalization of waterresources and services but does not utilize the language of human rights. They use the language of the ‘commons’ instead.

Bakker noted in her paper that the campaign against privatization by utilizing the human right to water language are prone to fallacies. Indeed, right to water activists tend to conflate human rights with property rights. If water is a human right, then it should not be a commodity – they think. This is inherently wrong. The right to life does not entitle you not to pay the emergency room service fee, or your medication. The same works for the right to food or education and other rights. Water is by no means different from them.

UN finally adopted the text Resolution on the right to water and sanitation (122 in favour, 0 against and 41 abstentions) yesterday. I had predicted that more vagueness on the text may be necessary in order to attract a higher degree of compromise. I have not seen the adopted text myself, but the UN press release mention Spain’s position which may depicts the trade-off:

Still, water and sanitation were components of the right to a suitable life under the International Covenant on Economic, Social and Cultural Rights, he said, expressing regret that proposals to include language on the independent expert’s work had not been taken into account

But anyway, this is just my guess.

What is more interesting the reference from the representatives towards the “Geneva Process”. Some expressed their disappointment that the Resolution was too premature. The UK voted abstention under the reason that:

… the text pre-empted the work going on in the Human Rights Council, she said, noting that the United Kingdom had supported the resolution establishing the independent expert, as well as the text on human rights and access to safe water and sanitation, adopted in 2009.  Indeed, the work in Geneva had been progressing, she added.

Similar stance was adopted by the US:

 

He said his delegation had hoped to negotiate and ultimately join the consensus on a text that would uphold the process under way at the Human Rights Council.  Instead, the text fell far short of enjoying unanimous support among States and might even undermine the work under way in Geneva.  It described the right to water and sanitation in a way not reflected in existing international law since there was no “right to water and sanitation” in an international legal sense, as described by the resolution.

Expressing regret that the text had diverted the Assembly from the serious international efforts under way to promote greater coordination on water and sanitation issues, he said it attempted to take a short cut around the serious work of formulating, articulating and upholding universal rights.  It had not been drafted in a transparent, inclusive manner, and neither the Assembly, nor the Geneva process had yet considered fully the legal implications of a declared right to water.  For those reasons, the United States had called for a vote and would abstain in the voting, he said.

and Turkey:

The representative of Turkey, recalling that the Human Rights Council had recently created the mandate of the independent expert and passed a resolution on the same subject, said the matter was before the Council and the Geneva process was ongoing.  The text prejudged the outcome of those discussions and Turkey would therefore abstain from the vote.

It appears to me that states who were previously thought to vote against the resolution are now moving their stance into ‘abstention’ instead by citing the ongoing process in Geneva.

Germany who had been quite active in the human right to water movement, on the other hand, perceives that the Resolution text is not a threat to the Geneva process:

Unlike some, Germany saw the text not as a threat to the European Union-led “ Geneva process” on water and sanitation, but rather as another component of that process, he stressed.  At the same time, Germany would have preferred that the text include more language proposed by the European Union.  It nevertheless included important elements of the work going on within the Human Rights Council and that of the independent expert on the subject.  Germany invited delegations to support and participate actively in the Geneva process in order fully to understand the right to water and sanitation.

Hence, I don’t really know if this move towards a resolution is somewhat premature – as the Independent Expert will only complete and report her work by next year – and therefore counterproductive or this is somehow some sort of diplomatic fait accompli with the purpose of safeguarding the Human Right to Water movement by giving it a more weigh through a resolution and at the same time giving direction to the Geneva process.

Just to note, literature provide explanation as to the genealogy of the right to water movement (see paper by Bakker here – you may need an access). On the one hand, there is the anti-privatization movement which utilizes the language of human right to water in their campaign against privatization and on the other hand, there is the ‘alter-globalization’ movement which also seeks to foreclose the neoliberalization of water resources and services but does not utilize the language of human rights. They use the language of the ‘commons’ instead.

Bakker noted in her paper that the campaign against privatization by utilizing the human right to water language are prone to fallacies. Indeed, right to water activists tend to conflate human rights with property rights. If water is a human right, then it should not be a commodity – they think. This is inherently wrong. The right to life does not entitle you not to pay the emergency room service fee, or your medication. The same works for the right to food or education and other rights. Water is by no means different from them.

This is proven by the recent report (see previous post) arising out of the the Geneva Process. It is explicitly stated there (see Para.63) that:

The human rights framework does not call for any particular form of service provision. It is well established that, from a human rights perspective, States can opt to involve non-State actors in sanitation and water services provision. But the State cannot exempt itself from its human rights obligations and hence remains the primary duty-bearer.

That paragraph should sent a blunt message to anti-water privatization movement that their endeavour in foreclosing the neoliberalization of the water sector through human rights language may not  be successful.

Relevant posts:

Draft UNGA Resolution on the Right to Water – What is Indonesia’s Diplomatic Position?
Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector
The Economist and the human right to water
Transparency Agenda in Water Utilities Regulation
Papers:
Safeguarding water contracts in Indonesia
Constitutional Court review and the future of water law in Indonesia
Presentation:
Anticipating water trade

Quick blogging. Sponsored by Bolivia, next July 28th the UN is moving towards embodying the human right to water in the form of a UNGA Resolution. The current content of the right to water is clarified by the General Comment 15 (GC-15) and reports produced by the Independent Expert on the Right to Water and Sanitation. The GC-15 is not binding as a legal instrument to state parties of the ICESCR, although it is an authoritative source of interpretation.
A UNGA Resolution on the other hand, may constitute an evidence of state practice which reinforces the bindingness and (the legal) existence of the right to water under International law [International Law experts are welcomed to argue on this :) ].

However, I consider the resolution’s draft text to be vague. It only recalls the GC-15 and two previous reports by the Independent Expert (IE). There is no clarification whatsoever on the content of the right. It may be that the strategy of interpretation is to link the Resolution with the GC-15 and the IE reports.

Note that some countries including the UK, USA and Canada opposes this move. As such, a vote might be required. Main supporters are likely to be Southern states. In order for this resolution to be supported by more states, more vagueness might be necessary. Nevertheless, this is already an important diplomatic move.

Read also, Maude Barlow’s and Mikhail Gorbachev’s op-eds on the right to water. The Draft Resolution (July 19th) is accessible here.
Does anyone know Indonesia’s diplomatic position?

In the previous posts, I explained two significant uses of Dropbox: to sync your MS Word Document across computers and sync your Endnote libraries, styles, filters and connections.  What I forgot to explain is what dropbox is all about.

This video explains it all:

And, as Professor Farnsworth says: good news everyone, if you join through this referral, you will get 2.250 GB of free storage (and sync).