Just this week, the same corporation has sparked controversy in a municipality of Ontario by outbidding the local community for control of a local water supply. That water now stands to be packaged and sold for profit while the local people’s future water security is compromised. This local situation illustrates a global problem of profits taking priority over people’s vital interests. Meanwhile, the availability of freshwater is now – like our climate – reaching its ‘planetary boundaries’.
Surely, if one accepts the framing of vital moral imperatives in the language of human rights, then one only has to understand the vital importance of access to water in order see sufficient reason for it to be counted among them?
But even supposing that is so, what would follow? This is a question examined in my newly published article on ‘A Global Right of Water’. Some thoughts from that follow.
The moral purpose of invoking a human right might be interpreted in different ways. Some have invoked the right to water to resist privatization of water supplies. Bolivian protesters, for instance, issued the Cochabamba Declaration: ‘water is a fundamental human right and a public trust to be guarded by all levels of government, therefore, it should not be commodified, privatized or traded for commercial purposes.’ A contrasting view is that ‘water has an economic value in all its competing uses and should be recognized as an economic good.’ But if those two views are at odds, the spirit of the first can be maintained without necessarily refuting the second. For one can maintain that a human right should trump any mere right of property, in the event of a conflict between them, while still allowing private sector involvement on condition that it is entirely constrained to respect human rights principles. Where people have little reason to trust in the will or power of their government to enforce such constraints, though, the Cochabamba position would seem morally and politically justifiable.
The unresolved questions about the status of a human right to water, then, are not so much about its moral justification as its status in international law. There are questions such as whether international law generates such a right, what precisely it would mean, and what difference it could make. This is still relatively uncharted territory, since only recently have such questions become live ones.
The uncertain legal status of a human right of access to water is in significant respects similar to that of a right to an adequate environment (Boyle 2012). These ‘new’ rights do not readily fit into inherited understandings of human rights as fundamental freedoms. Nor can they straightforwardly be assimilated to recognized social and economic rights.
Water is not a social good like healthcare, education, shelter and food that can be produced by labour: there can feasibly be obligations to produce and distribute those goods as required. Water, as a resource in sufficient supply to sustain a human settlement, cannot be produced, but can only be found; and if it cannot be found anywhere suitably accessible, there is nothing anyone can feasibly be obliged to do within the scope of social and economic duties. What would have to happen would involve geographically shifting the community (e.g. move somewhere more fertile) or transforming natural geographical features (e.g. divert a river). Either of these more radical shifts is liable to have knock-on effects for other communities whose own access to water (and other territorial resources) will thereby be affected. In fact, transboundary conflicts over water have become increasingly familiar in recent years as populations and their resource demands augment.
Thus, in virtue of its environmental dimension, the just implementation of a right of water is subject to further challenges than are social and economic rights. A particular challenge is that the duties involved in making them good can be about not only ensuring adequate fair access to goods but also constraining aggregate demand on resources.
A question of justice, then, is who has duties to do what in order to assure a right of water is fulfilled for all.
While we do need to know where water is physically to come from, we should not assume that duties to bear the costs of ensuring its supply, where needed, necessarily fall on those with territorial rights over locations with water resources. In fact, we should not assume that the water must come from an unused territorial source at all, rather than from a reduction in others’ demands on the available sources.
We should thus also reflect on what to assume is involved in ‘making good’ human rights deficits with regard to water. Actual patterns of water use around the world are affected by a variety of factors. As Hoekstra and Mekonnen (2012) helpfully summarise, water used can be of three distinct kinds – surface or ground water, rainwater, and polluted water. While the uses of direct concern for human rights are in hydration and hygiene, a great deal of water is used in industrial production, and by far the largest proportion of global water use is in agriculture. Water embedded in agricultural products can be exported, and so a wealthy country that imports this ‘virtual water’ can have large ‘external’ footprint. Large amounts can also be used in poor countries, though, due to inefficient agricultural practices. In view of this, what needs to be done to secure sufficient access to water resources to support human rights is likely to involve quite complex considerations about not just the material location of water but also about the political economy of its use.
To meet these points, I propose, we should adopt the alternative understanding of what it means to think of a country – or, indeed, any other entity for which a water footprint might be calculated – as availing of more than its fair share of the Earth’s freshwater and thus as presumptively carrying the greater burden of obligation. If we grant the premise that no individual has a greater right to water than any other does, then we can allow a defeasible presumption that a just distribution can make reference to per capita water use. On this basis an entity with a larger water footprint per capita can be designated a presumptive over-user. Over-users may be under presumptive obligations to make do with less water.
Adopting the perspective I have commended, we would identify as potential sources of water not only territorial reserves but also those amounts of water that are currently subtracted from territories. Industrial production, and especially agricultural production – which accounts for the vast majority of water consumption globally – use water extensively in the production of their goods. Many of these are exported and thus serve the interests of non-residents of those territories. The water thereby absorbed into the footprint of foreign businesses that could potentially be released may or may not be sufficient to supply the entire need – since demographic and climatic changes may also affect patterns of need – but there are several reasons for thinking it an avenue worth pursuing before recommending mass migration as a solution. In general, to prevent a problem, by removing its cause, is better than having to remedy its effects. When doing so means allowing people to stay in their homelands and preserve their accustomed livelihoods rather than have to make their way in foreign and not necessarily so hospitable parts, it also has more to commend it in terms of basic human values.*
* A fuller version of this argument has just been published as Tim Hayward, ‘A Global Right of Water’, Midwest Studies in Philosophy, 40.1 (September 2016): 217-233. Open access pre-print available on my Academia page.
Boyle, Alan 2012. “Human Rights and the Environment: Where Next?” European Journal of International Law 23: 613–642.
Committee on Economic, Social and Cultural Rights (2002) General Comment 15, The right to water (Twenty-ninth session, 2003), U.N. Doc. E/C.12/2002/11.
Hoekstra, A.Y., Mekonnen, M.M. (2012) The water footprint of humanity. Proceedings of the national academy of sciences 109, 3232–3237.
Rockström, Johan, et al*. 2009. “A Safe Operating Space for Humanity’.” Nature 461: 472–5.
Salzman, J.E. (2005) ‘Thirst: A Short History of Drinking Water’. SSRN Scholarly Paper No. ID 869970). Social Science Research Network, Rochester, NY.
Shue, H. (1980) Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy. Princeton, NJ: Princeton University Press.
Vörösmarty, C.J., McIntyre, P.B., Gessner, M.O., Dudgeon, D., Prusevich, A., Green, P., Glidden, S., Bunn, S.E., Sullivan, C.A., Liermann, C.R., Davies, P.M. (2010) ‘Global threats to human water security and river biodiversity’. Nature, 467, 555–561.
 Brabeck’s statement having provoked public outrage, Nestle ‘clarified’ his view:
 Not only is consumption globally increasing, but interdependence of consumption patterns also affects the situation: ‘about one-fifth of the global WF in the period 1996–2005 was not meant for domestic consumption but for export. The relatively large volume of international virtual water flows and the associated external water dependencies strengthen the argument to put the issue of water scarcity in a global context’ (Hoekstra and Mekonnen, 2012: p.3236)
 (Vörösmarty et al. 2010) (Rockström et al. 2009)
 The moral demand, put simply, would be of a right of access for everyone to such water as is required for the possibility of a healthy life. This would be a basic right, in the sense of Henry Shue (1980), because non-enjoyment of its substance would preclude enjoyment of any other rights whatsoever. See also the UN Committee on Economic, Social and Cultural Rights, (2002), Art. I.1: ‘The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.’
 (In Salzman 2005: p.2)
 This is from the Dublin Statement, issued by governments represented at the 1992 International Conference on Water and the Environment declaring (Salzman 2005: p.2n15)
 Water did not feature in authoritative statements on human rights until, in 2002, the United Nations’ Committee on Social, Economic, and Cultural Rights referred, in its General Comment 15, to a human right to water that ‘entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.’ (Committee on Economic, Social and Cultural Rights, 2002: Art. I.1) Subsequently, in 2010, the UN General Assembly recognized rights to water and sanitation; and in the same year the Human Rights Council adopted a resolution acknowledging those rights to be implied by the right to an adequate standard of living.
 Some countries may have large per capita footprints because their agricultural use of water is inefficient. For instance, ‘For Niger, the consumption of cereals per capita is 1.4 times the global average, but the WF of cereals per ton is six times the world average.’ (Hoekstra and Mekonnen 2012: p.3234)]