THE taxonomy of water is a hotly debated subject in international policy circles; it has been classified as an economic good, a commodity, a subject of environmental protection, and even right and commodity at the same time. Its provision, however, is most effectively accomplished through the human rights framework — an established legal order under which state duties and violations are directly ascertainable. Major disagreements in domestic and international human rights circles, however, exist over whether water should be categorised as a civil-political or a socioeconomic right.
Civil-political rights are ‘negative liberties’; they protect the individual’s autonomy and freedom only from unwarranted state interference. Water provision, however, is in essence a ‘positive freedom’; the state is under an affirmative obligation to provide healthy water, rather than merely abstain from directly polluting water sources or depriving citizens of access to clean water.
Both Indian and Pakistani courts have found their states’ inability to provide healthy water to citizens a violation of the constitutional right to life; Pakistan’s courts have found this failure also violates the dignity of man. In both countries, however, the mistaken characterisation of the right to water as a civil-political right has directly contributed to its inadequate realisation, especially when private actors are often responsible for causing these violations.
Access to water is a positive, not negative, liberty.
The two countries’ approach to water rights is inferior because it makes inherent socioeconomic rights (including water) non-justiciable and aspirational, in turn depriving the polity of judicial remedies for the state’s failure to ‘positively’ provide water; it forces the courts to falsely classify water as a negative freedom, which does not lead to an actual fulfilment of water needs, and it leads to judgements which cannot be practically implemented at the grass-roots level.
In contrast, South Africa has been successful in realising the right to water by categorising it as a socioeconomic right in the operative bill of rights section of their constitution. The South African constitution obliges the state in unequivocal terms to provide sufficient food and water to everyone, with the proviso that it must take reasonable legislative (and other) measures to achieve the progressive realisation of these rights.
This approach is preferable to the one adopted by Pakistan and India. It creates a positive right to water; enables those most affected by its deprivation to enforce it through the courts; allows courts to monitor implementation of this right on the basis of law and not policy; promotes the development of clear and consistent case law on positive and negative rights; creates a political environment where judicial decisions are respected by the executive and facilitates the legislature to allocate specific funds for the provision of water.
It also clearly delimits the roles and responsibilities of the legislature, executive, and judiciary with regard to water, drastically improving the government’s performance in fulfilling positive rights.
Under this approach, the legislature is obliged to devise laws and concrete national and regional policies on water. A budget is also allocated to administrative bodies with enforcement authority that are subject to detailed reporting obligations.
The judiciary, besides clarifying laws and policies concerning water, properly assesses the performance of water regulatory bodies and their deliverables, and determines violations by officials in discharging their duties. Judicial oversight can also create the necessary political pressure on the legislature to improve laws and policies. Once the executive realises that it is being assessed on goals which are measurable and practically attainable, it becomes less defensive towards the judiciary, and shows little propensity to disregard court rulings.
At present there exist only a handful of provisions within the Pakistani legal system which relate to water; these are dispersed and deal mostly with water pollution, public springs, or reservoir management. Similarly, generalised national water and sanitation polices and guidelines are of little practical benefit when implementing the legal right to water.
Internationally, the UN has cautioned Pakistan that it is one of the few states where, in the coming decade, water shortages could seriously threaten its political existence. Constitutional reform is one very significant way to better protect water rights and guard against such a dangerous outcome. The state should thus seriously consider amending its Constitution through the insertion of a provision in ‘Chapter I: Fundamental Rights’ on water that (in clear terms) recognises a justiciable and a legally enforceable human right to water for all persons, along with a separate clause that requires the state to take reasonable legislative (and other) measures subject to available resources for the progressive realisation of all positive rights enumerated in the Constitution.
The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Published in Dawn, May 2nd, 2016