A right with no consequences

The San-bushmen in Botswana are allowed to return to their ancestral homeland in the Kalahari Desert. They obtained the go-ahead in a court case in 2006. Nonetheless, the state still denies them the right to use the area’s borehole. Therefore, according to the BBC, they are forced to carry water to their homes over a distance of 40 km. In July, Botswana’s highest court decided in favour of the state. If people wished to settle in such a remote region, they would have to suffer the consequences, the judge ruled, as was reported by the NGO Survival International. A San spokesperson said: “This is very bad. If we don’t have water, how are we expected to live?”

Because water is essential for life the United Nations General Assembly adopted the resolution to recognise water as a fundamental human right. This occurred one week after the Botswanan judgement. Of the 192 member states, 122 voted for the resolution and 41 withheld their vote. Botswana was among the latter. What may seem a breakthrough, however, is no more than a statement. Around the world, 884 million people have no access to clean drinking water and 1.5 million children die every year because of unclean water.

The right to clean drinking water, moreover, already existed in international law. Even though there is no specific article, it can be derived from other norms, for instance, the right to life in Article 6 of the International Covenant on Civil and Political Rights. Another international pact – on economic, social and cultural rights – recognises the right to an appropriate standard of living and physical and mental health in the Articles 11 and 12. “In combination of these and other norms, the right to water already exists,” says Knut Bourquain. He is a jurist who wrote his doctoral thesis on the right to water in international law.

“Currently, there is one major problem,” Bourquain says. “On the one hand, states have several basic obligations to provide their citizens with drinking water. On the other, affected persons have very few and ineffective possibilities to claim these rights at the international level.”

One such possibility is a complaint to the UN’s Human Rights Committee. The crux of the matter is that individuals can only file a complaint if their life is thre­at­ened through the lack of access to water. “The right to life is understood in a very narrow sense,” comments Bourquain. If those who complain can get water from another place, their claim is not valid.

Furthermore, only citizens of countries that have signed a specific protocol are entitled to approach the Human Rights Committee. Though Botswana ratified the International Covenant on Civil and Political Rights in the year 2000, it did not sign the additional protocol. Accordingly, international law is of no use for the San in the current case. But even if they could move the Committee that would hardly change their situation.

“When a complaint is filed, the Committee members determine whether the respective state has breached the right of the affected persons,” says Bourquain. “If so, the state is expected to act.” But still, nobody can force the state to fulfil its duties. According to Bourquain, international law gives little scope for individuals to achieve government action by emphasising individual claims. Yet he advocates for a change. If individuals had the chance to file complaints, they would, in his opinion, automatically put pressure on the state to more accountability. “This does not mean, of course, that the state must deliver water to peoples’ doorsteps,” he explains. But it should, at an international level, be verifiable whether the state is actually doing everything within its power to supply its citizens with water. The World Health Organisation is also in favour of an enforceable right to clean drinking water.

Although international organisations have been grappling with the issue since 1977, very little has changed. In 2003, the UNDP’s World Water Development Report found matters discouraging. It also stated that better access of the poor to water resources could play a great role in poverty alleviation. According to Bourquain a first step would be to allow individuals to file complaints to the Committee on Economic, Social and Cultural Rights. They could then claim a right to an adequate standard of living in order to put their governments under pressure.

Claudia Isabel Rittel