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According to Law, what is the current status of water? Is it a commodity?

 

Answer: It depends on the country. In some countries, water can be bought and sold by volume (see concessions in the United States, or the water banks in Australia). In other countries the law is silent on the actual value of water itself, leaving its property to the State. At the same time, it often clearly regulates the selling of "water services". To give an example: Getting the water from the river for personal consumption is free, but the service of cleaning the water and transporting it has a cost.

In each case, the recognition of the "right to water and sanitation" as a human right in international law leaves the door open for states to choose whether to give a financial value to water or not, as well as to allow private actors to sell water or not. On the other hand, it clarifies the obligations of the State in three areas:

  • Commitments to respect access to water for the people: any new legislation or government activity, should not have a negative effect on the current access to water and sanitation populations.
  • Commitments to protect access to water populations: the State is obliged to establish a monitoring framework for all stakeholders with a potential impact on access to water and sanitation populations (including in cases of negative impact, effectiveness of legal remedies against these violations)
  • Obligations of improving access to water for the people: The state is obliged to budget for activities aimed at improving access to water and sanitation of the people (if they do not enjoy secure access to water (+ details given on the conditions of physical accessibility, financial, in sufficient quantity and quality).

 

To which extend does the recognition of the 'right to water' have an effect on the ground?

 

First of all, the recognition impacts directly to law of these States, because they have the obligation to ensure consistency between the international commitment and the national legal and policy framework. In countries in which the rule of law has a meaning, the obligation to ensure consistency with international legal commitments has a standing before local courts. Ensuring such a consistency helps mitigating, stopping and preventing activities which have a negative impact, as well as promote those activities which have positive impact on population's access to basic water and sanitation services. This is why we put a lot of emphasis on evaluating the degree of coherence of national legal and policy frameworks.

 

Why do you believe that International Environmental Law conventions are not implemented?

Environmental Law conventions tend not to give enough power to their compliance committee to ensure efficient control and monitoring. Secondly, the only accepted complaint mechanism are State driven, which has encompasses a high diplomatic risk. We believe that international law should not be a fragmented into families and rather seen as unified body of law. Environmental Law convention, should for example definitely consider the integration of individual complaints mechanisms which are very strong in Human Rights Conventions, as this would allow States to sit at a table because of an individual complaint without diplomatic risk (cf. Aarhus Convention) 

What are the legal means to limit corruption, and therefore bad governance?

Answer: The first way is through transparency, rooted in "the right to information" (+ details on request; recognized in several human rights conventions and interpretation of international courts). In many countries, governments have an obligation to publish (see "Public Disclosure Acts). Citizens and NGOs can appeal to the courts to obtain the details of negotiations between firms and states (on a water concession, for example). The implementation of the 'right to water' effect allows it. The second way is through public participation in decision-making (see through consultations, or even in rural areas participating in the project management). This "right to participation", is also a component of the "right to water". States have an obligation to clarify the implications of this 'participation' on the process for any proposed development of the field water / sanitation. This is where all our work to strengthen the coherence of the legal framework at national levels.

Why, despite thirty years of focus and global debates, is there still no international convention on the right to water?

This is not correct. Several international human rights law agreements recognize the 'right to water'. [You can find quotes by following the link: http://www2.ohchr.org/english/issues/water/iexpert/standards.htm.] For non-lawyers it is difficult to believe, but a single word in these agreements may enable the supervisory body to develop the content of rights. Thus, the supervisory body of the UN Convention "ICESCR" derived from "the right to descent standard of living" his whole understanding regarding the mere existence, and rooting of the 'right to water' in this particular convention (cf. General Comment 15, available at: http://www.waterlex.org/attachments/File/Documentation/GC15_G0340230.pdf) . Today the legal framework of human rights is quite advanced and we do not need an additional specific agreement on the "right to water". We need to tackle cons for its implementation and that is all our challenge.