At an international level there is an emerging dynamic around the right to water (Hildering 2006). Arguments have been raised that access to a basic water requirement is a fundamental human right and this is implicitly supported by international law, declarations, and State practice (Gleick 1999: 2). Various formulations have been articulated such as that of WaterAid, which suggest that: ‘The right to water is the entitlement of everyone to have access to sufficient, affordable, accessible and safe water supplies and sanitation services. It places an obligation on states progressively to realise the right to water for all people without discrimination…’ (WaterAid 2007). To date, though, there is no clearly agreed upon and enforceable right to water per se.
At its most expansive, the right to water could capture aspects of human rights based around fundamental ‘needs’ as well as the protection of ecosystems. A rights-based approach could also subsume an ecosystem approach as:
The term ‘right to water’ does not only refer to the rights of people but also to the needs of the environment with regard to river basins, lakes, etc. Realistically, a right to water cannot be secured without attention to this broader context. A failure to recognise water as an environmental resource may jeopardise the rights-based approach, which views water primarily as a social resource. (Scanlon et al. 2004: 22)
Much of the impetus for recognising water as a human right, to ensure a guaranteed level of access to clean, safe water supply, developed from the view that if water is regarded as an economic good then it may lead to a denial of access where some peoples cannot afford the increasing charges associated with full economic recovery of water-provision costs (Bluemel 2004: 1). Further, if such a right was accepted, then its enforcement would presumably oblige the State (and potentially other parties) to provide water when minimal access is lacking (Miller 2005: 8).
While the momentum generated at an international level to recognise rights to water, either as a stand-alone right or as a complex of human rights and environmental protection, has been significant in shifting attitudinal paradigms about the value of water, the lack of overt enforceability of such ‘rights’ remains a barrier to practical effectiveness. Explicit constitutional recognition of rights to water, as it occurs in countries such as South Africa, clearly enhances the legal status of such rights and provides a more discrete mechanism for enforcement. Even so, there remain substantial limitations upon directly enforcing any wide-ranging right to water, not least being the high costs of pursuing enforcement through any court or tribunal system. As Fisher (2007: 16) notes, a right or, perhaps at best, an expectation to receive water is conferred mostly in relation to the supply of water for direct consumptive uses in a residential setting in urban areas. Typically, also, any such right is qualified as it will need to be interpreted in the light of corresponding duties cast upon the suppliers of water which are set within a wider legislative and strategic framework that encompasses water policy, strategies, discrete water plans and an integrated array of water rights and obligations. In each instance, the rights and duties are unlikely to be absolute but may be couched as overriding statutory objectives (Fisher 2007: 122). If private entities are held to have such duties in situations where water resources or some essential component of the delivery infrastructure is held privately, the potential for difficulties of implementation of any ‘right to water’ are exacerbated. Therefore, to date, the main thrust of thinking about the responsibilities that are generated in relation to water has focused on the public dimensions (Fisher 2007).
Clearly also, the formulation of a right to water gains increasing urgency in conditions of scarcity, exacerbated by climate change, where even the most basic access to drinking water may be under threat. However, whether a guarantee to water should be designated as the driver of policies such as ‘water security’ in Australian urban areas is much more contentious, especially where any rights beyond direct human consumption and basic hygiene are being formulated. In Australia, most basic ‘rights’ to water are currently articulated in legislation, including the adoption of specific legislative safeguards to ensure access to water for vulnerable domestic water ‘consumers’. For example, in Victoria the Essential Services Commission, established under the Essential Services Act 2001, regulates water prices. Included in the overarching objectives of the governing legislation is a clause specifying that one goal of the Commission is ‘to ensure that users and consumers (including low-income or vulnerable customers) benefit from the gains from competition and efficiency’. With many basic ‘rights’ to water already largely in place, debates about ‘rights to water’ within Australia in future scenarios of water security are more likely to be understood in terms of more discretionary water uses. These might be argued on the basis of social or cultural needs, as exclusions from an increasingly stringent ‘user-pays’, cost-recovery system of water pricing being introduced through market mechanisms. Typically these needs-based arguments are fairly well accepted in Australia on the basis of consumer- protection or social-welfare outcomes, rather than a more specific human rights categorisation.
The environmental protection component of any putative human right to water is more difficult to prescribe, particularly for urban water. Typically there will be vast distances between the ecosystem and its in-situ functioning and the provision of water to far-off urban water consumers. Arguably the preservation of ecosystem functioning should be a first-order ‘right’ protected prior to any consumptive use of water. However, despite adoption of sustainability objectives across many areas of water management policy and legislative reform within Australia, environmental water is rarely accorded this priority (Foerster 2007). Typically, under current NWI reforms, environmental water is regarded as requiring the same degree of ‘certainty’ and legal status as consumptive entitlements; a measure that is welcomed. Yet, in practice, particularly in severely over-allocated river systems, this has still meant that in many instances the provision of water to support ecosystem functioning occurs after allocation to consumptive users as existing entitlements. Environmental water releases, generally rely on highly discretionary decision-making by relevant government ministers with few direct accountability provisions. While market environmentalism would suggest that both efficiency and environmental objectives could be simultaneously achieved, drought and climate change have highlighted the practical impossibility of resolving the competing priorities for water in many catchments across south-eastern Australia. Only if time and spatial scales for calculating efficiency are abstracted and aggregated as a general overall value, apart from the local and contingent uses of water, are such objectives likely to be synchronised. On the other hand, individual efficiency and utility maximisation for water use may be offset against dispersed community amenity loss. (For the contrasting view that there are greater welfare costs associated with water restrictions, see Quentin and Wood 2007.) In other words, local environmental degradation in a given area may be ‘offset’ against efficiency or security gains across the catchment or indeed across a rural-urban region. Typically the water security ‘offset’ has been in urban areas.
To date, the competing priorities of consumptive water use and environmental water have been primarily seen as rural issues. Yet if we take a more holistic and spatially extensive view of the ecosystems that ‘deliver’ water to urban residents, then clearly urban water consumers compete for priority under assignments of water ‘rights’ that cover a much wider spectrum. If governments increasingly seek to provide water security for urban areas, and if ‘barriers to trade’ are to be progressively removed to facilitate rural to urban water trade, then urban water consumers, whose water supplies are insulated in particular ways, may form a significant competitor for rural water. Moreover, whether a rights-based or social-need argument for urban populations might provide a rationalisation for urban water supplies to be guaranteed vis-à-vis environmental functioning or rural uses of water is an issue to be explored further as part of an examination of the temporal and spatial patterns of market environmentalism as it impinges upon current policies for urban water management.