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THE HUMAN RIGHT TO WATER: POLICIES AND RIGHTS

UPENDRA BAXI
[U.Baxi@warwick.ac.uk]

1. The tendency to convert basic human needs into fundamental human rights defines the
new Age of Human Rights. In this era, no more do the rights define the needs but rather
needs shape rights. The astonishing proliferation of human rights norms and standards
owes a great deal to the Will to Rights, a faculty that unceasingly develops the notion that
for almost every felt and articulated human need there ought to be in place congeries of
human rights norms and standards. Like all genres of conversion of needs to rights
HRTW (human right to water) seeks to overcome the Humean dilemma (deriving
Ought from Is) by invoking (what the 19th century CE German jurist George Jellinick
aptly termed as) the normativity of the factual. However, that order of the factual is not
always easy to read and poses several analytical nightmares! The distinctions between
needs, wants, desires and interests, the basic and non-basic needs, the material and non-
material needs, social and cultural needs have proved contentious among theorists and
philosophers. Further, an entire domain of development ethics needs to be understood
to arrest the state and market manipulation that generate, sustain, and develop new social
needs and which primarily serve the ends of political and economic domination.

2. Noting this fully, any serious-minded HRTW discourse needs to remain fully engaged
with at least the following critical issues/thematics:

first, the authoritative source of HRTW

second, the principles underlying HRTW

third, the contents or specific components of HRTW autonomous from,
and also as related with other human rights norms and standards

fourth, HRTW as a set of constitutional rights

fifth, HRTW as elaborated by the UN human rights treaty bodies and by
other instruments such as Millennial Development Goals and its program
of action

sixth, the realm of policy as distinct from the realm of rights, and the
consequences this entail for water governance

seventh, the tension between poverty alleviation strategies and goals and
the shift from water as a global public good to water as a commodity and
resource

eighth, making sense of water governance policy statements that is
relating promises to performance in terms of the old and the new water
rights
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ninth, making sense of HRTW activist movements, networks, and

practices; that is, assessing their approaches to HRTW as well as water
governance

tenth, making sense of HRTW and polices in times of the two terror
warsthe wars of, and on terror.

I address here some of these concerns rather generally, guided by the expectation that
future India-based work concerning HRTW may find the observations somewhat
pertinent.

3. Generally speaking, HRTW discourse constantly subverts some old paradigms of

rights distinguishing the negative from positive rights. The distinction roughly
amounts to this: Negative rights ban and exclude government; positive ones invite and
demand government Negative rights typically protect liberty; positive rights typically
promote equality. The former shield a private realm; whereas the latter reallocate the tax
dollars1. In my terms, whereas the negative rights create state-free spaces for individual
and collective lifeprojects, positive rights create state-filled spaces. The dilemma here is
of course acute: disempowerment of the State is a necessary condition for the exercise
and enjoyment of civil and political rights, its re-empowerment is a necessary condition
for the protection and promotion of social, economic, and cultural rights.

4. This tendency to convert human needs into human rights in effect achieves some
different, and even contradictory-looking, results. On the one hand, it seeks to narrow the
scope of difference between human rights-based and human rights-neutral methods,
techniques, and the realms of governance. On the other, it expands the realm of human
rights-neutral realms of governance if only because identification of needs and ways of
meeting these constantly generate technocratic public policy discourse.

5. Further, public polices remain both contingent and negotiable and do not always match
resources with the pronounced goals and targets. The constitutionally baptized weaker
sections of society (I have continually insisted that we instead deploy the expression
progressively weakened sections of society) stand condemned to forms of bare life
under Part IV of the Indian Constitution; condemned because the cruel indifference to
Part IV principles demonstrates cruelly, for about six decades, a wicked truth: the
constitutional haves get rights and the constitututional have- nots get policy
enunciations!

6. Understandably, the demand from civil society (global as well local) insists on a
rights-based development policy. I am not quite sure what this may mean because such a
policy is the mix of many a sectoral policy; a rights-based HRTW regime invites
simultaneous attention, for example, to urbanization, inter-state migration, population,
irrigation, forest, biodiversity, health and intellectual property rights polices. This inter-

1
Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on
Taxes, 1 (1999.)
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relatedness is inevitable but it also signifies proliferation of politics of interests rather

than of values. Further, if one were to think that a key attribute or function of human
rights normativity is to limit state prowess. Many of the so-called human rights based
policies, including HRTW- policy talk, simply leaves many tasks to sovereign
governance discretion [hereafter SGD.] If so, the question is: How may such policy may
at least be human rights oriented? Put another way, what constitutional and international
human rights principles (rather than specific sets of norms and standards) should inform
the framework of HTRW policy? How are these orientating principles to be derived?
[Call this the source/origin problem.] What level of abstraction may in devising these
principles may be socially just? [Call this the epistemic violence problem.] What general
obligations arise from these principles? [Call this the obligation problem.] How may
these principles avoid inter se conflict, and who may be endowed /invested with public
authority to resolve the conflicting interpretations? [Call this the adjudicative problem.]
How may we name and engage with collisions between such principles and the actually
existing human rights norms and standards, congealed in the expression HRTW? [Call
this the rights-integrity problem.] Finally, without being exhaustive, one ought to note
fully the interplay between national, regional, supranational, and international policy
postures. [Call this the incest problem.]

7. These five inter-related problems require immensely careful attention as furnishing

interlocutions both for the community of policy-makers and HRTW social movement
activist practices. I here attend only marginally to some of these concerns, all of which
put to gather raise some formidable questions not just about rights oriented or based
water governance but rather about nascent approaches to global justice.

8. Allow me, for the present purpose, to refer to the four cardinal principles that ought
to orientate public HRTW policy suggested by the 1992 International Conference on
Water and Environment at Dublin. First, fresh water is finite and vulnerable resource,
essential to sustain life, development, and the environment. Second, water development
and management should be based on a participatory approach involving users, planners,
and policy makers at all levels. Third, it must be fully acknowledged that women play a
central part in the provision, management, and safeguarding water. Fourth, water has
an economic value in all its competing uses and should be regarded as an economic
good. It is comforting for an activist heart, surely including mine, to say upfront that the
current World Bank and GATS-based approach elevates the fourth over all other
principles Dublin principles.

9. Going beyond this easy polemical recourse, we surely need to ask, in terms of five
problems mentioned earlier, how far this culling of human rights principles remains
coherent. Concerning the second principle, we need to ask some hard questions
concerning participatory policy. The users, planners, and policy makers at all levels
constitute heterogeneous communities comprising diverse pursuits of material interest
and fractured by asymmetrical power relations. While not rejecting out of hand, which
would be a brain-dead thing to do, the platforms of John Rawls (overlapping consensus
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informed by public reason, and constitututional essentials) and Habermasian notions

about the power of communicative reason, it is manifestly clear that these discourse
remain scarcely cognisant of the HRTW contentions. In any event, a cynical recall of an
old acerbic saying about workers participation in the former Yugoslavia under President
Tito stands justified: I participate, you participate but he makes the profit! Michele
Foucault once referred to contemporary politics as an ongoing relation between forms of
infra-power and hyperprofit. The mantra of participation needs a close second look
especially in times when participation threatens these linkages. When not profitable to
the regime of dominant economic and governance and dominant interests, participation
emerges as seditious and treasonous social form which exacerbates the duties of a law
and order security state. This at any rate as I read the saga of HRTW protest-communities
remains the sovereign norm rather than any state of exception. Militarized governance
seeks to contain any authentic understanding (read constitutionally sincere) notions of
participatory governance.

10. While fully appreciative of the sentiment of the third Dublin principle, it is difficult to
grasp its historic pertinence. In the Indian context the Chipko movement (Andolan) has
been globally celebrated as an affirmation of this principle; now it remains submerged by
the Theri Dam! More generally, and crucially, though this principle entails a fully
feminised approach to HRTW policy-frameworks, scarcely in sight in India and
elsewhere. Here again the distinction between the old and the new water rights
assumes a special significance. Anne Hellum brings this to our attention in her gifted
narratives of studies of conflicted water rights in Zimbabwe.

11. The source/origin problem remains sparsely contemplated by HRTW discourse.

While the interpretation of human rights treaties by the United Nations treaty bodies, and
other fora, variously nurture HRTW, national constitutions continue to fail to provide any
secure niche for it. Only three postcolonial constitutions provide explicitly for HRTW
(Uganda, 1995; South Africa, 1996; Ecuador, 1998.) And thirteen constitutions provide
for specific explicit obligations (Cambodia, 1995; Colobia,1991; Eritrea, 1997;
Ethiopia,1995; Guyana, 1980; The Gambia, 1996; Iran,1979; Laos,1991;
Mexico,1927;Nigeria,1999;Panama,1994;Venezuela,1999; Zambia,19962.) The much
vaunted and frequently amended Indian constitution features nowhere significantly either
in terms of explicit guarantees or implicit obligations as providing for HRTW. Surely, at
this deliberative event we at least ought to ask why this is the case

12. One may provide a series of related explanations. First, it may be the case that that
Indian activist community regard statements of policy as superior frameworks for
assuring HRTW as compared with explicit constitutional guarantees or implicit
constitutional obligations. Second, some may believe that policy frameworks offer better
opportunities for social action directed to the modification of old laws and for new forms
of legal regulation. Third, some activist and movement folks prefer recourse to activist
judicial policy-frameworks, which offer increasingly functional substitutes for

2
See the excellent survey, COHRE: Centre for Housing Rights and Evictions, Right to
Water Program, January, 20004.)
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constitutional textual revisions/amendments. Fourth, some activist folks seem genuinely

to believe that the various interpretations by the United Nations Human Rights Treaty
Bodies provide a more viable framework for the pursuit of HRTW? Fifth, despite
networks of South- South solidarity, it also remains the case that some Indian epistemic
communities remain hegemonic in relation to learning from the Global South; that is they
remain insufficiently postcolonial and favour the flow of learning and wisdom from
primarily the Euroamerican sources. Sixth, it is also the case that some militant forms of
social and human rights activism believe that HRTW may best be enhanced by constant
struggles, even insurgencies, against SGD which promotes large-scale development
project governance inimical to right to water and equitable access to water-based
resources.

13. Seventh, the elected officials and bureaucrats prefer large leeways of discretion in
fashioning water governance. And these interests further coalesce with substantial
number of special economic interests, with some having the power and influence to make
or break coalitional governments. Making water governance a relatively human rights-
neutral affair suits manifold regime and special economic interest groups. In this respect
it needs to be said upfront, curious tough it may appear at the first sight, that the lack of
interest among the activist communities in specific articulation of a constitutional HRTW
coalesces with, and reinforces, leading political and regime interests, both at the level of
States and the federal government.

14. All these elements of explanatory approach, I believe, needs serious-minded

empirical analysis. No such analysis as Vandana Shiva3, Radha DSouza4, and Shalini
Randeria5 have especially shown may escape a serious examination of ideologies at
work. Even pending the much-needed efflorescence of critical sociological studies both
of water governance and civil society rsistance to it, we also need to engage a bit with
the question: What difference to water governance may result, if any, by the insinuation
of human and constitutional rights languages, logics, and paralogics6?

3
See Vandana Shiva, Resisting Water Privatization, Building Water Democracy, a
paper presented to World Water Forum, Mexico city, March 2006.
4
See her analysis, The Third World and Socio-Legal Studies: Neoliberalism and
Lessons from Indias Legal Innovation Social and legal Studies 14:4, 487-513 (2005.)

5
Shalini Randeria, Glocalization of Law: Environmental Justice, World Bank, NGOs,
and the Cunning Indian State, Current Sociology 51:3/4, 305-328.
6
Concerning this I may here only cite the following: Victor Barjer and Wade E. Martin,
Water Rights Markets and Legal Considerations, American Journal of Economics and
Sociology 49:1, 35-44; Luis Gabriel and Alexander M. Balter, Water Pricing reforms:
issues and Challenges of Implementation, Water Resources Development 21:1, 19-29
(2005); and Jeff Romm and Sally K. Fairfax, The Backwaters of Federalism: Receding
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15. Recognizing at the outset that both the human rights and policy languages, logics, and
paralogics remain rather poor guides to governmental as well as social action, because
they coequally fail to provide obligations of conduct as well as result, the difference
between the two forms remains may still remain worthy of elucidation. Manifestly,
HRTW constitutional enunciations serve to limit the excesses of ad hoc national policy
frameworks that so routinely begin to regard water as a commodity rather than as a public
good or service. Constitutionally enacted normative thresholds may have the virtue of
facilitating public contestation over the nature and limits of water governance. A series of
constituted elements of HRTW furnishes at least some minimal regimes for
accountability and democratic responsibility arresting the runaway forms of
denationalization, disinvestment, and deregulation that define the current moment and
situation of a hyperglobalizing India. A constitutional rights based approach to water
governance provides a more secure human rights niche than that offered by pubic
contestation over national enunciations of this or that water policy regime. Additionally,
it would also secure a more democratic foundation for responsible practices of judicial
activism, Indian-style. It is true, of course, that constitutional enunciations of HRTW at
the end of the day depend on policy frameworks. What matters, however, that HRTW
discourse directs attention to the importance of constitutionally based human right polices
rather than executive-determined water rights ones.

16. In this respect, I simply adore the 1999 Venezuela Constitution that reincarnates,
through Article 127 the right and duty of each generation to maintain the environment
for their own benefit and for the benefit of the future world (emphasis added) and
prescribes a fundamental duty of the State along with the active participation of society ,
to guarantee that the population develops in an environment free form pollution , where
the air, the water, the soil, the coasts, the climate ad the ozone layer and all living species
are particularly protected according to the law. Further, Article 184[2] mandates

the participation of the community and citizens, through local associations and non-
governmental organizations, in the formulation of investment proposals before
governmental bodies in charge of the elaboration the respective investment plans,
as well as in the implementation, evaluation and control of works, social production, and
public utilities within their jurisdiction.

It is crystal clear that the Indian Directive Principles and much of judicial activism
enunciations concerning HRTW emerge comparatively as impoverished cousin of the
nomrative forms of Venezuelan constitutional sincerity.

17. The spheres of Indian constitutional and judicial activism simply pale into
insignificance in the presence of Section 3 of the South African National Water Act 36 of
1998 which enunciates the doctrine of public trusteeship of nations water resources.

Reserved Warer Rights and the Management of National Forests, Policy Studies Review
5: 413-430.
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This, at least normatively, obligates the National Government to so act as to ensure

water is protected, used, developed, conserved, managed and controlled in a sustainable
manner, for the benefit of all persons and in accordance with its constitutional mandate.
Further, Section 56 encodes constitutionally mandated guidelines concerning pricing
policies for access to water. I here desist from saying more concerning the distinctive
Indian constitutional backwardness, from a Global South comparative constitutionalism
perspective.

18. All this having been more or less for the present purpose being fully said, we need to
direct attention to analytic segregation of the very notion of HRTW. The right to water
means very many different things to diversely affected peoples.

19. In any event, it is now increasingly realized, in the first place that the more
generalized derivation of the HRTW as concretizing component human rights of the right
to life, health, human survival and well-being etc is necessary but by no means sufficient.
Thus, HRTW emerges as an autonomous normative regime (as well described by the
COHRE analysis and elsewhere) concerned with the indicators of availability,
accessibility, affordability, quantum and quality of potable water7.

20. Crucial as all this remains, this way of instancing HRTW enacts at the end of the day
a series of what we have known since the days of Immanuel Kant as imperfect
obligations. In the contemporary moment, the General Comment No. 15 adopted by the
UN Committee, helpfully and hopefully, develops via these indicators these obligations
variously further in terms of state obligations to prevent death from dehydration, to
reduce the risk of water- related disease, and an aspect inextricably related the right to
the highest standard to health. In this genre, understandably enough, the HRTW
constitutes a series of means towards the fulfilment of other social and economic human
rights ends, constituting an ever-widening larger human rights mission.

21. Of course, the HRTW enunciation possesses a clear and compelling advantage over
ad hoc policy statements, at national, regional, supra-national and international levels.
Human rights statements remain important because they constrain SGD. The 2002 World
Bank Report understandably rejects a rights-based approach, for the very reason that
human rights resist expedient policy trade-offs.

22. The theatre of contention then necessarily shifts to the contents, or component rights
configured by HRTW. The question no longer stands represented by the logics of human

7
The first two indicators have poignant Indian pertinence, given that some water wars
continue to signify, sixty years after the Indian Independence, the high-caste denial of
access to drinking water to Indias untouchable populations. I have commented this
aspect in my contribution to Upendra Baxi (Ed) Law & Poverty: Critical Essays (1989,
Bombay, N.M. Tripathi.) I have also elsewhere demonstrated the importance of the
contrast between Mahatma Gandhis temple entry movement with Babasaheb
Ambedkars Mahad satyragraha: see Upendra Baxi and Bhikhu Parekh (Ed) Crisis and
Change in Contemporary India (1995; New Delhi, Sage.)
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rights but by, as one study puts this rather starkly, as a longer-term goal to pass on the
entire costs step-by-step to the user8.

23. HRTW remains a portmanteau label! I had the privilege of de-segregating this in my
leadership role of the Indian Law Institute Project on water law and rights there
proposed, and a six volume exploration of water rights project in terms of human rights
to access to access to water and to water-based resources. We worked, in these studies
the notion of access variously. All I can say at this moment that it remains deeply
unfortunate that these inaugural Nineties studies should have been so speedily confined to
oblivion! These demonstrated, on my present recall, the importance the need to
contextualize HRTW discourse, and social action to secure this, in terms of history,
culture, and contemporary Indian politics.

24. Of course, the hyperglobalizing moment raises a crowd of new activist concerns and
policy-law responses. In the main, they remain investment friendly rather than
people/citizen-friendly. Indian water governance policy framework overall provides no
adequate flood control legislative response, no civil or criminal liability for state and
private agencies for faulty constructions of large irrigation projects, no effective human
rights policies addressing the citizen project affected persons, families and communities,
no real relief from capacious submergence in the management of major irrigation works
actually constructed ( recall the South Gujarat tragedy of 2006) , no code of conduct for
public officials, and no means of establishing the truths of human, and human rights
violations thus overall caused. At the same moment, India leapfrogs its HRTW
Neaderthalism by establishing corporate rights over exploitation of water as resource and
water-based resources. These remain of course judgemental comments but no less true
for that reason, reinforced by massive evidence. At the same time, new policy and
academic disciplines emerge, for example, concerning water privatization, public-private
partnerships formats, and some newly instituted regulatory cultures. All this requires non-
polemical attention and analysis.

25. The human right to water in-the-making provides the last if not the best refuge for
rethinking both post- modernity and the various self-cancelling forms of
multiculturalisms. Zygmut Bauman has named this via the metaphor of liquid
postmodernity. Even as an activist critique may flay this genre for its being bereft of
any trace of HRTW discourse, it has some merit for understanding the inevitable water
rights struggles, even water wars, ahead.

8
See, Uew Hoering, Ann Katharine Schneider et. al., King Customer: The World Banks
New Water Policy and its Implementation in India and Sri Lanka , WEED ( World
Economy , Ecology, and Development( Berlin/ Stuttgart , 2004..)