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

Have a look at this interesting clip:



Same old question.

Let me put it another way.
1. Is education a commodity? You'd probably say no. But hey, why do we need to pay for piano and language courses? They should be freely provided by the state, no?

2. Is health service a commodity? If no, then why do you have to pay your health insurance?

3. Is water a commodity? If no, then why do we need to pay for coca cola, starbucks and all those beverages in Tesco's shelves?

If no water can be commodified, every bartender in this earth will lose their jobs. No one can open a Cafe' because all the drinks should be for free.

Now you probably said: no, because they are "processed". Those who process them added the value of water, and is entitled for their labor. But drinking water should be free.

Now wait a minute here. Aren't drinking water "processed" too? If you ask me to get you a bucket of water from uphill, aren't you supposed to pay me for my work? Those plumbing and water treatment plants need funds too, no? The tap's going have to come from somewhere.

But I agree that in some instances water should be provided for free by the state. In times of emergencies, natural disaster or for people in prison, the state should provide them with adequate and safe water. Also for those who can't afford to pay it. Subsidy measures should be available, or payment in arrears facility, or solidarity tariffs.

But we cannot say that water entirely cannot be commodified. Humans are not commodities, that I fully agree, both morally and legally. Sex should not be a commodity too, at least, morally. But some people think it differently. As such there are differences of opinion on whether the commodification of sex should be prohibited by the state.

That human is not a commodity is universal. But whether water is a commodity or not is highly contextual. It depends on what sort of water and in which situation.

Recent developments in the right to water saga points out the unlikelihood of the human right system to pinpoint the exact amount of litres as the 'minimum core' on the right to water. Instead, the system leans towards 'reasonableness' approach. According to the Water Law Blog:

Thus, the ex ante standard setting required by the materialisation of a determinate minimum core for human rights to water inevitably leads to the theoretical acceptance of exceptional situations where more water than actually required to cover basic human needs must be provided to a specific individual, BUT ALSO to situations where less water that actually required to cover basic human needs will be provided to a specific individual.

Here's a quote from what is believed to be a speech of the Indian Chief, Seattle. If you are familiar with property rights theories and the tragedy of the commons, this speech offers another perspective in looking at the environment.

How can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and sparkle of the water, how can you buy them?

Every part of this earth is sacred to my people.

Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.

The white man's dead forget the countryof their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the red man.

We are part of the earth and it is part of us.

The rocky crests, the juices in the meadows, the body heat of the pony, and man--all belong to the same family.

So, when the Great Chief in Washington sends word that he wishes to buy land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves.

He will be our father and we will be his children. So we will consider your offer to buy our land.

But it will not be easy. For this land is sacred to us.

This shining water that moves in the streams and rivers is not just water but the blood of our ancestors.

If we sell you land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people.

The water's murmur is the voice of my father's father.

The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers, and yours, and you must henceforth give the rivers the kindness you would give any brother.

We know that the white man does not understand our ways. One portion of land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs.

The earth is not his brother, but his enemy, and when he has conquered it, he moves on.

He leaves his father's graves behind, and he does not care.

He kidnaps the earth from his children, and he does not care.

His father's grave, and his children's birthright, are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads.

His appetite will devour the earth and leave behind only a desert.

I do not know. Our ways are different from your ways.

The sight of your cities pains the eyes of the red man. But perhaps it is because the red man is a savage and does not understand.

There is no quiet place in the white man's cities. No place to hear the unfurling of leaves in spring, or the rustle of an insect's wings.

But perhaps it is because I am a savage and do not understand.

One thing we know, which the white man may one day discover, our God is the same God. You may think now that you own Him as you wish to own our land; but you cannot. He is the God of man, and His compassion is equal for the red man and the white.

This earth is precious to Him, and to harm the earth is to heap contempt on its Creator.

The whites too shall pass; perhaps sooner than all other tribes. Contaminate your bed, and you will one night suffocate in your own waste.

But in your perishing you will shine brightly, fired by the strength of God who brought you to this land and for some special purpose gave you dominion over this land and over the red man.

That destiny is a mystery to us, for we do not understand when the buffalo are all slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of many men, and the view of the ripe hills blotted by talking wires.

1. Judicial Review. Most activist would blame the Law for its interest in privatizing coastal areas. As such, they would be inclined to invalidate Law 27/2007. But what reasons can be used to submit the JR? Roughly speaking, I would say that any attempt to invalidate Law 27/2007 will have a very minimal chance of success. I do not see any provision under the Law which diametrically contradicts the Constitution. True, that the implementation of the Law may deprive certain members of the societies (such as the Adat Community) from their Constitutional rights, but in general, the black letters of Law 27 guarantees the preservation of existing traditional rights. Thus, if JR is to be opted, the most convincing hole would be to contradict the ill-defined HP-3 rights against "legal certainty" provision of the Constitution. I am not suggesting that this measure would be effective as property rights needs not to to be fully defined (a 'complete' property rights is impossible anyway), but there is a chance of success since "legal certainty" is weighed considerably by the Court. In any case, a move in reviewing Law 27 must not be aimed at winning the case completely (which result in the complete invalidation of the law) but simply in getting partial invalidation of harmful articles or, if not possible at all, in gaining the Court's recommendation for safeguarding its implementing regulations.
2. Legislative Review. If one thinks that the Law is insufficient or defective invalidation may not be the option. The Court's function is in ensuring that provisions of Laws are Consistent with the Constitution. So, if there are provisions of laws which is consistent with the Constitution but is nevertheless defective, the Court may choose to reject the petition to invalidate and recommends it for a legislative review. However, when a Law is recommended for a legislative review by the Court, it does not necessarily follows that the parliament will take the Court's suggestion. There are so many Bills that the Parliament needs to enact in any given year and there are political (as well as administrative) costs for rediscussing an already-enacted bill.
   
3. Implementing Regulation and Its Reviews. Law 27 will require plenty of government regulations and regional regulations to be implemented. In terms of technicalities, this measure is the most technically feasible. It is easier to change implementing regulation than annuling a provision of a Law or modifying it through legislative measures. Option #1 involves proceedings at the Constitutional Court and option #2 involves deliberation by parliament members. Option #3 however, only involves the government. It is easier for the government to enact regulations which are friendly to the cause promoted to Civil Societies. But because Option #3 rests on the discretion of the government alone, there is always a chance of capture by business interests. A way of rejecting an enacted government regulation is by conducting an appeal to the Supreme Court. Note however that the appeal for Government Regulation (against a Law) in the Supreme Court would take a very long time, as the Supreme Court has a very high case-load.
   

I published an article in today's Jakarta Post:

Law 27/2007 enables private ownership of coastal zones through a system called HP-3 (which governs the right to commercialize coastal waters). The idea behind this system is to allow the exploitation of the currently neglected, but potentially profitable, 81,000 thousand kilometers of Indonesian coastline and its 12 mile wide territorial sea.

A HP-3 grants ownership to water columns (above the seabed to the water surface) in Indonesian territorial zones. In most cases, the Law stipulates that HP-3s will be granted by local governments. The Law says that the first period of ownership is granted for a period of 20 years but can be extended. As the law does not impose any limitation for extension, it is presumable that HP-3s could be owned perpetually. It is also worth noting that a HP-3 certificate can be used as collateral to secure a loan.

We know from theory that in order to be functional, property rights must fulfill the "3Ds" rule: definability, defensibility and defeasibility. Property rights can only be efficient within these three aspects, and only if transaction costs are low.

With respect to definability, the Law stipulates that a HP-3 covers a three dimensional space from the seabed up to the surface. This would mean that the seabed falls under another system of regulation. There is however, some interface between the seabed and the water column, and this becomes an issue in sea mining operations. If there is an overlap of ownership between the two (the seabed is granted to an oil company and the HP-3 on the surface is granted to an aquaculture company, for example).

A way of preventing this problem is by coordinating the awarding of property rights between the two areas. That is to say, the awarding of any marine mineral resources exploitation license by the central government must be coordinated with local government.

In another scenario, if both a seabed exploitation licenses and a HP-3 for the adjacent surface are owned by the same entity, disputes could occur from one area to another, which could dilute the value of the property of the neighboring HP-3 owner. One way to anticipate this is for the local government to stipulate which area is used for what. Zoning mechanisms must be very solid in order to prevent property rights disputes.

The law also does not define exact rights within a water column. A water column may be an area passed-though by highly migratory species protected under international law, which therefore cannot be harvested, even by HP-3 owners. A way to address this issue is by clarifying the dos and don'ts for HP-3 owners when implementing regulations.

Another significant problem is that marine boundaries constantly change because of natural phenomenon. HP-3 limits could be confused if the baseline used to measure a sea boundary also changes because the sea level rises. I am not certain as to what mechanism could be used to adapt to this problem.

As for defensibility; defending a property rights in the ocean is relatively more difficult than on land. On land, one can install fences in order to defend and mark their property. This is not possible in the sea. Nets can be used, but if used too extensively they could capture protected species. The surface structure could be used, but that should not hinder navigation for vessels passing through the area. And in any case, it is difficult to exclude traditional fishermen from fishing in HP-3 zones, as they may not be equipped with GPS.

HP-3s are interestingly defeasible enough. Defeasible basically means that the property rights can be transferred. In theory, a property right must be defeasible in order to enable exchange, so that a market can develop. The Law does stipulate that HP-3s can be transferred or encumbered with a mortgage. It is not yet clear which government department would be responsible for the registration of the mortgage. As long as the government has not clarified any institution responsible for the mortgage registration, the idea of mortgaging the sea will not be enforceable. Mortgage is an important part of the whole scheme, as it allows banks and other investor to enter and finance the project.

As we can see from the above explanations that property rights in the sea could be very costly in terms of its definability, defensibility and defeasibility. A huge amount of information would be required to define the property rights. Sonar imaging, GIS interpretation or anthropological studies on the existence of traditional fishing rights would expend a huge of amount of cost.

But these things are essential because, without a clear definition of property rights, future disputes may occur. Defending property rights is also difficult and the costs will be borne by the owners. If the cost of defending the property rights is more than the benefit of exploiting it, then it will not be a worthy investment. As for defeasibility, there is a high cost for institutional set-up. An institution will need to be established in order to maintain marine cadastre and administer HP-3 titles and their encumbrances.