The New Right in Water

Table of ContentsI. Introduction 2182IL The Purpose and Formulation of the Right to Water 2193A. The Rationale Behind a Rights-Based Approach to Water Policy 2194B. Delineating Provision Rights and Participation Rights 2200C. The Predominant Provision Rights Approach to Water 2204III. The Limitations of a Provision Right to Water 2209A. The Provision Right to Water and Enforceability 2213B. The Provision Right to Water and Economic Sustainability 2220C. The Provision Right to Water and Ecologie Sustainability 2230IV. Toward a Participation Right in Water 2236A. A Participation Right in Water and the Public Trust Doctrine 2239B. Evaluating the Limitations of the Participation Right in Water 2250C. A Participation Right in Water and Water Provision 2260V. Conclusion 2266I. IntroductionCurrently, 2.3 billion people live without access to adequate water supplies and approximately 6,000 children under the age of five die every day from water-related diseases.1 Two-thirds of the world's population, or 5.5 billion people, are predicted to live in areas of "water stress" by 2025 due to climate change, population growth, and economic development leading to increased consumption.* 2 As nations face increasing water stress, droughts, famines, and epidemics could lead to greater conflict over scarce and disputed water resources.3 Water stress represents the preeminent global challenge of the coming decades.4 Those who are socially or economically disenfranchised suffer disproportionately from water stress.5In response to the growing crisis of water stress in many parts of the world, there is growing advocacy for a human rights-based approach to water law and policy at both the national and international levels.6 For example, the United Nations (UN) General Assembly adopted a resolution recognizing an international human right to water in 2010.7 The 2010 U.N. Resolution declared that the "right to safe and clean drinking water . . . [is] a human right that is essential for the full enjoyment of life and all human rights."8 To date, fortyone countries recognize a right to water similar to that of the 2010 UN Resolution in their respective constitutions, including South Africa, Uganda, and Argentina.9Nevertheless, forty-one counties abstained from signing the 2010 UN Resolution when it was first introduced, and the vast majority of nations do not have a constitutionally protected right to water.10 Reluctance to embrace a rightsbased approach to water policy arguably stems from the uncertain effect of such an approach. Formulations of the right to water often leave unanswered the most fundamental and important questions of water policy, including questions of who owns water, how to price water, whether to subsidize water services, and whether such a right is sustainable and enforceable. The challenge of a rights-based approach to water policy is how to frame such a right so as to effectively answer these fundamental questions.Rights are typically framed in one of two ways.11 On the one hand, rights could be characterized as negative rights.12 These rights include freedom of speech, freedom from religious, racial, or ethnic discrimination, and freedom from arbitrary deprivations of life, liberty and property by the government. …