The right to water

A nation thirsty

The right to water does not mean that everyone is entitled to a limitless quantity of water for all needs and wants. The right is limited to access of water of sufficient quantity and quality, for fundamental uses relating to the adequate protection of human life and health, for purposes of consumption, for instance in order to prevent dehydration and for hygiene and sanitation.

It is important to look at how the justiciability of the human right to water has been pursued in different jurisdictions. Two countries, India and South Africa, have done it in very different ways. The intrinsic nature of the right, its content and its implementation, has all been viewed differently.

Under the Indian Constitution there is no enumerated-justiciable right to water. The right to water is derivative of the constitutional and fundamental right to life, a justiciable civil and political right. On the other hand, the Indian Constitution lists socio-economic and cultural rights under the Directive Principle of State Policy, which are rights subject to progressive implementation and are non-justiciable under Art 37 of the Indian Constitution. The Supreme Court of India has affirmed the justiciability of the right to water on numerous occasions. Other South Asian states like Bangladesh have followed the Indian model.

Alternatively, the South African approach explicitly recognises the right to water as an independent, justiciable and legally enforceable right under its Constitution. The right however is socio-economic in nature; it is therefore a positive right and unlike negative liberties, is understood not to be subject to immediate realization but to progressive implementation. Therefore, the South African Constitution recognises the right to water, but subjects this right to the state’s ability to fulfill in light of available resources. A number of African nations have followed the South African approach.

The judicial treatment accorded to the right to water in Pakistan, emulates the position of the Indian Judiciary on the matter. In seminal superior court judgments, denial of water rights has been viewed as a violation of the constitutional right to life and the inviolability of the dignity of man.

Pakistan has numerous international and domestic law obligations to its people for the provision of adequate supply of clean uncontaminated water for a diverse number of purposes-some of these uses constitute as fundamental human rights. Yet, the realisation of water rights in Pakistan is on the decline. In practice, the overwhelming majority of the population is deprived of this essential human right or resource.

The reasons why the state continues to fail miserably to meet its water-based obligations are multi-faceted. The main reasons include corrupt and incompetent governmental functionaries, lack of accountability and transparency of water-based regulatory authorities, systematic organizational deficiencies within the regulatory framework and no substantive coordination between the relevant departments. Then there are insufficient resources both monetary and non-monetary including human capital and technical expertise.

Other reasons, include distrust and discord between the federal and provincial governments, unwarranted intrusion from international donor agencies, lack of public discourse and debate, the presence of centralised water policy formation without engaging with and incorporating input from vested stakeholders, including grassroots organisations, civic society groups and national and international non-governmental organisations and lastly the desire from the government at all levels to achieve short term solutions rather than instituting measures that strive to achieve a long term resolution of the problem.

Unfortunately all these deficiencies point to the fact that it will be extremely hard, if not impossible for Pakistan to meet the targets set out by the Millennium Goals relative to the human right to water.

The writer is a Professor of Public International Law at LUMS. He may be contacted at [email protected]