14 November 2016

Water, Health and Social Justice: More Rhetoric than Right

By Shawn H.E. Harmon, Janice Graham, Emma FitzGerald, Tanya Davis

The Arts and Ethics Research Group (AERG) at the University of Edinburgh is an international interdisciplinary research group funded by the Institute for Advanced Studies in the Humanities. Through the collaborative working of individuals from the arts, humanities and sciences, it seeks to encourage new insights and public debate around ethical, legal, and social aspects of the practice and governance of medicine, healthcare, and technologies.[1] While one of its overarching inquiries is about the transformative potential of the arts, its constituent creative teams are exploring three broad themes, one of which is innovation and global justice (i.e., values, interests, and power dynamics in designing and delivering healthcare locally and internationally). In pursuit of this, AERG Creative Team 3 (AERG-3), which consists of a lawyer, anthropologist, visual artist, and poet, has begun an exploration of water, which implicates health, cultural practices, and social justice and wellbeing.

Water is the foundation of life. Everyone needs it. No one can live without it. In its 2006 report, Water: A Shared Responsibility,[2] the UN describes water as a ‘fluctuating resource that is difficult to measure in time and in space’, but contends that it is an essential component of security and development. However, it is widely recognised that population growth, population diaspora, and increasing urbanisation and industrialisation are placing immense pressures on our ability to access, and to equitably distribute, water of sufficient quality to all ‘entitled’ users (a point to which we return), and to sustain water resources for use by future generations. The UN articulates the interaction between water, human activity, and heath as follows:
As human settlements are the major polluters of water resources, good water and wastewater management is essential to limit pollution and minimize health risks. The expansion of urban areas and agricultural frontiers usually present new opportunities for disease. This is likely to continue as the global population keeps growing and pressure increases to develop agriculture, roads and transportation systems in previously unsettled areas. Furthermore, as industries tend to be concentrated in or around cities, and agricultural production predominantly in the surrounding available areas, measures to stem pollution and introduce and maintain efficient and safe drinking water and wastewater disposal mechanisms must be extended. This is essential to ensure the health of populations and particularly the inhabitants of large urban communities. Failure to meet these challenges will have a disastrous effect on the further expansion of cities.[3] 
It is likely not inconsequential that the UN’s report came out just before the release of the Stern Report,[4] which surely shattered the last naysayers’ delusions that global warming was not a clear and present danger. The decade since these reports has seen deniers appropriately sidelined as evidence from a growing variety of sources has made climate change (and the human role in it) irrefutable; the capacity of the earth’s biosphere to self-regulate has been exposed as a myth.

Under Stern’s economic lens, water has gained the attention of public, private and multi-lateral agencies, who have tweaked to its importance and re-analysed it to fit into their (economic) models of ‘public goods’, which rely on the criteria of non-excludability and non-exhaustion. It is difficult to make any sensible argument that water is not in fact a public good. As noted above, no organism can live without water; it is essential to human survival and health, and indeed to ecological survival and stability. Yet, there has been consistent degradation of water through exploitive technologies and practices such as mining and oil extraction, and access to water continues to be threatened by the increasing privatization of water resources. And nation states world-wide continue to adopt neoliberal policies of public-private partnerships. By way of example, the Canadian government is rolling out a strategic infrastructure bank that will provide low-cost financing to infrastructure projects with the aim of encouraging a ‘pipeline’ of infrastructure projects that will draw on outside (private) money so as to achieve bigger impacts.[5] The interests of those providing the outside money for these anticipated ‘transformational’ projects remain speculative, as does how they will value water in oil sands projects, oil pipelines, hydroelectric developments, etc., and balance that with the ways in which other communities value it, such as indigenous communities tasked with conserving sacred lands and associated water tables.

So, here is the question: Should access to safe/clean water be viewed as a basic human right protected under Article 3 of the Universal Declaration of Human Rights (1948), and other international conventions (and domestic constitutions)? Claims to such a right were formally recognised in 2002 by the UN Committee on Economic, Social and Cultural Rights, which monitors the operation of the International Covenant on Economic, Social and Cultural Rights (1966),[6] and thereafter by the UN General Assembly.[7] However, the contents of that right remain unclear,[8] and concerns have been expressed that the right risks becoming an empty signifier.[9] The danger of this is accentuated by the increasing involvement of the for-profit private sector in water supply management.[10]

As evidence of the hollowness of the right to water, it is reported that water remains unequally distributed across and within borders, with poorer families and communities paying much more for water than richer ones, and that this persists despite the fact it is much more costly to maintain the world’s current unequal distribution of safe water than to provide universal coverage.[11] A key difficulty is that the political economy that informs policy decisions is at odds with, and overrides the logic of, human rights:
[B]y making the market an absolute value and an infallible means of rationally allocating all goods, mainstream economics aims to reduce all categories of goods, and thus of rights, to just one: the commodity. Now, this commodification of society, which is at the foundation of mainstream economics discourse, is contradictory with a society whose purpose is to enhance human rights. In this society accountability and universality are keywords and market ideology happens to ignore both. Human rights decline, or at least stagnation, should not be seen, therefore, as the outcome of doing wrongly the right economics, but of rightly doing the wrong economics.[12]
Another difficulty is the corruption that surrounds water policies (in keeping with so many other policy areas).[13]

This reality has prompted the adoption of the European Declaration for a New Water Culture (2005).[14] Noting that over 1.1 billion people do not have guaranteed access to drinking water, and over 2.4 billion do not have safe sanitation, that the health of Earth’s aquatic ecosystems is breaking down, and that equitable and democratic water governance is a challenge requiring changes in scales of values, conceptions of nature, ethical principles, and lifestyles, the Declaration emphasises that there is a need to adopt an holistic approach recognising the multiple dimensions of ethical, environmental, social, economic, political, and emotional values embodied in aquatic ecosystems, and that water must be considered as the Heritage of the Biosphere.[15]

Water has also featured in the UN’s Sustainable Development Agenda, which is described as a plan of action for people, planet and prosperity, and which claims that the three dimensions of sustainable development are ‘economic’, ‘social’, and ‘environmental’.[16] Comprised of 17 goals and 169 targets, the Agenda seeks to strengthen peace, eradicate poverty, heal and secure the planet, and encourage sustainable development so as to achieve collective resiliency, equality, and prosperity. UN Sustainable Development Goals 6, 9 and 11 all relate to water. Goal 6, the most directly implicated, is aimed at ensuring the availability and sustainable management of water and sanitation for all. Targets include achieving, by 2030:
  • universal and equitable access to safe and affordable drinking water and sanitation; 
  • improved water quality by reducing pollution, eliminating dumping and minimizing hazardous chemical/material release;
  • reduced untreated wastewater and increased recycling and safe reuse; 
  • increased water-use efficiency across all sectors and sustainable supply of freshwater; and 
  • integrated water resources management at all levels, including through transboundary cooperation as appropriate.
These are, of course, laudable objectives which are entirely in keeping with the UN Human Rights Council’s position that the right to water is legally binding on all states (i.e., meaning that they have an obligation to respect, protect and fulfill the right).[17] But many of these objectives, like the right itself, remain entirely rhetorical.

AERG-3 argues that it is (past) time to pay much more attention, both in the legal setting and more generally, to water and social justice, and to give greater thought to how we might better conceive of, and operationalise water rights as locally and internationally juridical rights that people might enforce against governments and other powerful interests and decision-makers, for rights that are not enforceable are not truly rights at all. (In other words, to the question posed above, we answer a resounding ‘Yes’.) We are entering a critical stage (from both species and ecological survival perspectives) in our management of water, so non-enforceability constitutes a state of affairs that will result in further death and degradation. AERG-3 will continue to argue this point as it investigates undestandings and uses of water, and critically explores them both academically and artistically. 

[1] For more on the AERG, see http://www.aerg.law.ed.ac.uk/.
[2] UN, Water: A Shared Responsibility: The UN World Water Development Report 2 (2006), at 6. [3] Ibid, at 10-11.
[4] N Stern, Stern Review on The Economics of Climate Change (HM Treasury, 2006), at http://mudancasclimaticas.cptec.inpe.br/~rmclima/pdfs/destaques/sternreview_report_complete.pdf. [5] CBC Radio, ‘Going Beyond the Fall Fiscal Update’, 4 November 2016, at http://www.cbc.ca/radio/thehouse/going-beyond-the-fall-fiscal-update-1.3834478. And see Liberal Party, Canada Infrastructure Bank, at https://www.liberal.ca/realchange/canada-infrastructure-bank%E2%80%A8%E2%80%A8/.
[6] UN Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, UN Doc E/C.12/2002/11, 20 January 2003.
[7] UNGA, Human Right to Water and Sanitation, UN Doc A/RES/64/292, 28 July 2010.
[8] A Irujo, ‘The Right to Water’ (2007) 23 Water Resources Development 267-283; D Zetland, ‘Water Rights and Human Rights: The Poor Will Not Need Our Charity if we Need Their Water’ (2011), at http://dx.doi.org/10.2139/ssrn.1549570.
[9] F Sultana and A Loftus, The Right to Water (Routledge, 2012), ch.1. In this regard, one might consider the EU Water Framework Directive (2000) (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32000L0060), the significance of which seems to be questioned by the EU itself: see http://ec.europa.eu/environment/water/water-framework/index_en.html.
[10] K Bakker, ‘The “Commons” Versus the “Commodity”: Alter-globalization, Anti-privatization and the Human Right to Water in the Global South’ (2007) 39 Antipode 430-455. For a case study on the power and cultural struggles surrounding access to potable water, see E Swyngedouw, Social Power and Urbanization of Water: Flows of Power (OUP, 2004).
[11] M Branco and P Henriques, ‘The Political Economy of the Human Right to Water’ (2010) 42 Rev Radical Pol Economics 142-155.
[12] Ibid, at 154.
[13] UN, note 1.
[14] See http://www.unizar.es/fnca/euwater/index2.php?x=3&idioma=en.
[15] Ibid.
[16] UN, Transforming Our World: The 2030 Agenda for Sustainable Development, UNGA Res A/RES/70/1, 25 September 2015.
[17] UNHRC, Human Rights and Access to Safe Drinking Water and Sanitation, UN Doc A/HRC/15/L.14, 24 September 2010.

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