Blog of law articles

A recent post on the new Water and Sanitation Blog reflects on the normative content of the human right to water in the context of inherent human rights indeterminacy.

The post uses the sting of Mazibuko cases to raise very interesting and timely questions on the concrete minimum core of the human right to water.

As perceptively observed in Katherine Young’s article «The Minimum Core of Economic and Social Rights: A Concept in Search of Content», (2008) 33 Yale J. Int’l. L. 113, Professor Peter Danchin recognises that the «insurmountable problem for the notion of core obligations is that the particular forms of duties are intrinsically polycentric and cannot be subject to a definitive ranking».

However, Professor Danchin also states that the emerging area of benchmarks and indicators provides one possible way for the materialisation of a non-relative normative content for the human right to water.

As argued in a previous post and in a forthcoming article, a more defensible position might be to accept the impossibility of an ex ante determinate normative content for the minimum core of a human right to water.

To imbue the human right to water with a determinate, non-relative content necessarily implies the materialisation of quantitative and qualitative standards generally applicable to ensembles of singular situations. It also implies an underlying standardisation of basic human water needs for groups of individuals regardless of discrepancies in concrete personal situation and needs.

Thus, the ex ante standard setting required by the materialisation of a determinate minimum core for human rights to water inevitably leads to the theoretical acceptance of exceptional situations where more water than actually required to cover basic human needs must be provided to a specific individual, BUT ALSO to situations where less water that actually required to cover basic human needs will be provided to a specific individual.

Because of the latter possibility, the idea of ex ante determination of a standardised minimum core for human rights to water must be rejected.

This becomes apparent through the following example:

The UN independent expert Catarina de Albuquerque refers to the World Health Organisation Guidelines as standards for water quality in the context of human rights to water. However, these guidelines specifically mention that scarce resources require targeted regulation based on a risk-benefit approach (p.2).

A priori, this is reasonable: concentrate first on the most critical threat to public health, the threat that can cause the most harm to the largest number of people before moving to address lesser health threats when and if resources allow it.

However, in the meantime, the minority of individuals that suffer from non-prioritised water contamination cannot claim cleaner water based on a human right because the risk-benefit approach integrated into human rights necessarily implies exceptions where actual basic human needs will not be covered.

Hence, through this approach, human rights become associated to regulatory frameworks that aim at saving a majority by sacrificing a minority, something that could arguably be considered anathema to a more traditional vision of human rights.

This does not mean that the existence of a human right to water should be contested. On the contrary, this post argues in favour of human rights but focuses on their most potent function: ex post discursive recourses to redress or compensate structural imbalances, imperfections or failures in prospective water resources management regimes.

In this context, recourses to gain access to water based on human rights stay open to all in all situations where human rights are violated, but the minimum core remains generally indeterminate only to be specified on a case by case basis by tribunals when confronted with a concrete particular situation.

To finish this post, a quote from Martti Koskenniemi, «The Pull of the Mainstream», (1989-1990) 88 Michigan Law Review 1946 at 1962, seems appropriate:

«Here is a final paradox: late-modern legal, social, and linguistic theory has taught us that rules, whether extracted from behaviour or texts, are of necessity indeterminate. Thinking of human rights in terms of legal rules will extend indeterminacy into those rights as well. The secularization of human rights rhetoric involved in its becoming mainstream, then, may not be the best way to protect human rights. By remaining in the periphery, in the field of largely subconscious, private, moral-religious experience that defies technical articulation, human rights may be more able to retain their constraining hold on the way most people, and by extension most states, behave.»