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[RTWS Update] Two Misconceptions about the Human Right to Water (Part 1)

Thursday, March 25, 2010

David Zetland wrote:

To understand the costs, begin with the difference between negative and positive rights. Negative rights (e.g., the right to free speech) should not be taken from you; positive rights (e.g., the right to “clean and accessible water, adequate for the health…") should be given to you. We can immediately see that it is easier to protect negative rights from violation by an outsider than positive rights, which as violated by a lack of action. Even worse, we cannot tell when action, of a certain quality, quantity or price, is enough. Finally, consider that the cost of positive rights grows with demand (e.g., population); it costs nothing to supply an increased demand for negative rights.

First Misconception: The Right to Water is a 'positive' right. 
The distinction between positive and negative rights stems from political discourse, such as that of Isaiah Berlin who distinguishes between positive and negative liberty. Human Rights Courts, such as the ECtHR have argued that human rights provisions have both a 'positive' and 'negative' aspects. The right to life cannot be realized without the state's duty to provide protection. The right to vote is meaningless without the ballots and the infrastructure to support an election. The right to property is a blank cheque if the police is not well supported to enforce the law.

If one day you got robbed in a State, because that State would rather invest on something else rather than paying sallaries to its police officers, what does it mean to you to have the right to property? If the right to property only means a 'negative right' which, as Zetland suggests, requires the state only "not to do anything", then it is sufficient for that state to enforce the right to property by not robbing you. Under this conception, as long as they don't steal and rob from you, no human rights is breached. This means that you can't come to the Court and ask the state to provide funds for the police force.

On the contrary, the right to property also has some positive elements. Not only that it means that the state cannot take away your property (the negative aspect) without due process and compensation, it must provide all available means to protect your property (the positive aspect), for example, by having a police force. 

The right to water is also like that. It has both positive and negative elements. The negative element obligates the state not to interfere or impede your access to water, the positive one obligate the state to enact regulation, or, in certain cases, to deliver the water, if public ownership is opted by the state as a mode of delivery.  







 

[RTWS Update] Does Human Rights to Water Improve Access to Clean Water?

Tuesday, March 23, 2010

Prof Zetland argued in his paper that the right to water does not improve access to sufficient and safe water (download paper here):

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.




 

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The Bonn Charter for Safe Drinking Water

Friday, March 19, 2010

  According to the WHO website :

The IWA Bonn Charter for Safe Drinking Water sets out the principles of an effective drinking water quality management framework and the responsibilities of key parties. The Charter presents a framework for drinking water safety, which incorporates the development of water safety plans. The goal of the Charter is good safe drinking water that has the trust of consumers.

Click here to download International Water Association (IWA) Bonn Charter of 2004. The pfd links to this charter is broken in many websites, so the document is rather difficult to obtain online. Fortunately watsan.net kept a copy of it.

 

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E&P Sharing Contracts and Agreements 2010 (Update 1)

Tuesday, March 16, 2010

I have been informed that Tariq Shafiq, who is involved in writing the new Iraqi Oil Law will be joining the event. Here's the tentative schedule for the speakers for Day Two:


Plenary One | 09.00 - 10.45
The post-recession E&P industry agreements and the
challenge of recovery
Chairman’s Opening Remarks
Mr Tariq Shafiq, Founding Executive, Iraq National Oil
Company
Next-generation E&P engagement: Outlook for the world and
Asia in 2010
• To what extent will the downturn bring fundamental change
to the nature of E&P contracts in Asia and how will IOCs,
NOCs and service contractors respond?
• What are the bright spots and challenges for the service
contractors?
Ministry of Energy and Mineral Resources, Indonesia*
Transforming PSAs: Evolving contracting models and the push
to abolish the PSA
• Revisiting and transforming the original PSAs to more win-win
commercially viable arrangements
• What are the alternatives available to successfully transform a
PSC into a more economically viable contract?
Hardiono, Deputy Chairman, BPMigas*
Structuring advanced models of cooperation in the form of a
Joint Venture or Partnership
• What specifi c terms have to be adopted for safeguarding your
agreements and ensuring successful collaboration?
• How changing roles of IOCs and NOCs contribute to the
shape of the partnership agreement and what you should
expect?
Ms Karen Agustiawan, President Director, Pertamina*
Revising ineffi cient contracts: Holistically reducing
uncertainties from E&P projects
• Evaluating alternatives under different scenarios, i.e. reserve
discoveries, variations in oil prices, operating costs, and fi eld
development
• Cost recovery system and ‘excess profi t’ adjustment
mechanism
• Hedging against exploration uncertainties of no discovery,
discovery not being commercial and costs
• Hedging against production uncertainties, derived through
operating costs and commodity prices fl uctuations
Mr Joseph Amudi Tobing, Sr Legal Counsel, Hess Limited


Click the latest brochure to get more detailed information on the list of speakers and venue.

Another good news: the reader of this blog may get 10% discount. I am still working on the arrangements with the organizers.

 

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Google's exit and the Great FireWall of China

Monday, March 15, 2010

According to news agencies, it is very likely now that Google will exit China. A recent interview in the BBC revealed a targetted attack to gmail account owned by Chinesse Human Rights activists.

Will this triggers the creation of a new web-block? Will the future of the Chinese Web goes different way from the mainstream Internet? The Berlin wall did collapsed but the great firewall remains because the firewall has no direct effect on the Chinese economy. 

This could be the beginning of an entirely new internet culture.

 

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Sony -- don't take away my friend's name

Detik reported that Sony corp sent a sommation* letter to a blogger named Sony, for using sony-ak.com for his domain name. Now the blogosphere strikes back at Sony and organize a facebook group called 'Sony -- don't take away my friend's name'.


Will the wisdom of the crowd(ed) facebook beat Sony corp and its lawyers? We shall see.

Shall we name our cats Google and assign a domain name for it?

* I am not sure how to translate the term. There is 'Abmahnung' in German and 'Sommation' in French. Is Cease and Desist the equivalent common law concept?

 

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[RTWS Update] Questionnaire on Good Practices

Sunday, March 14, 2010

The UN Independent Expert on the right to water and sanitation recently launches a good practice questionnaire on the right to water and sanitation. If you have been or is involved in watsan related projects or is doing a research on watsan related policies, you are invited to make a contribution.

Read this page at the IE Water website to get a more comprehensive explanation. To download the good practices questionnaire, click here.