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Revisiting the human right to water Parmar, Pooja 2007

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REVISITING THE HUMAN RIGHT TO WATER by P O O J A P A R M A R L L . B . , Panjab University, 1996 B.A. (Hons.), Panjab University, 1993 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF M A S T E R OF L A W S in THE F A C U L T Y OF G R A D U A T E STUDIES THE UNIVERSITY OF BRITISH C O L U M B I A August 2006 ©PoojaParmar, 2006 A B S T R A C T This thesis critically examines the mainstream discourse on the human right to water and suggests that it is narrow, inadequate, and meaningless to all those who see in such a formulation neither a recognition of their suffering, nor a possibility of its mitigation. In addition to highlighting the limitations of the mainstream discourse, the thesis also sheds light on alternative ways of formulating a more meaningful right to water. The thesis first traces the origin and legal basis of the human right to water within international law. Thereafter, four broad themes that constitute the mainstream discourse on the right to water are identified based on an analysis of the 'soft law' and prominent scholarly literature on the topic. These are - (i) the right to water as an entitlement, (ii) the right to water as a consumer right, (iii) the relationship between the right to water and the right to development, and (iv) the right to water and governance. The abovementioned aspects of the mainstream discourse are revisited and problematized by using critiques of human rights drawn from critical legal pluralism, post-colonial studies, critical development theory, post-modernism and studies broadly referred to as the Third World Approaches to International Law. It is suggested that when viewed from alternative perspectives, the right to water, as conceptualised within the mainstream discourse, appears as being meaningless to people in 'most of the world'. The inability of the mainstream discourse to look beyond the dominant notions of 'rights', 'development' and 'governance' and the assumptions they are based upon, and further, the failure to incorporate other meanings reduces the emancipatory potential of the human right to water. Adopting an alternative approach, the thesis documents a grassroots movement in Plachimada in India which grew from the people's resistance to the excessive extraction of groundwater by a subsidiary of the Coca-Cola Company. The case study illustrates the inadequacy of the mainstream formulation of the right to water. It also reveals opportunities for understanding and defining the right 'from below' and creates hope for the recovery of its emancipatory potential. 11 T A B L E O F C O N T E N T S A B S T R A C T II T A B L E O F C O N T E N T S Il l A C K N O W L E D G E M E N T S V C H A P T E R 1 - INTRODUCTION 1 O V E R V I E W 1 W H Y W A T E R ? 5 T H E W A T E R CRISIS: A SERIOUS CONCERN 6 T H E D E B A T E 8 C H A P T E R 2 - CRITIQUING H U M A N RIGHTS 14 UNIVERSALITY vs. C U L T U R A L RELATIVITY 19 T H E 'DEVELOPMENTALIZATION OF H U M A N RIGHTS' 24 H U M A N RIGHTS AS A L A N G U A G E OF G O V E R N A N C E 26 A N A L T E R N A T I V E A P P R O A C H F R O M B E L O W 32 C H A P T E R 3 - T H E H U M A N RIGHT T O W A T E R 35 T H E H U M A N RIGHT TO W A T E R : SOURCES IN INTERNATIONAL L A W 36 Human Rights 36 Right to Environment 41 Right to Development 46 T H E H U M A N RIGHT TO W A T E R : EMERGING DISCOURSE ON T H E M E A N I N G A N D PRACTICAL IMPLICATIONS 47 The Human Right to Water: An Entitlement 48 Human Right to Water: A Consumer Right 53 Human Right to Water and Development 55 Human Right to Water and Governance 57 i n C H A P T E R 4 - REVISITING T H E H U M A N RIGHT T O W A T E R 64 H U M A N RIGHT TO W A T E R AS AN ENTITLEMENT 65 • Entitlements and Freedoms 65 Need for Water 68 Translating Needs into Entitlements 70 Rights & Duties 71 RIGHT TO W A T E R AS A CONSUMER RIGHT 73 H U M A N RIGHT TO W A T E R A N D T H E D E V E L O P M E N T DISCOURSE 74 H U M A N RIGHT TO W A T E R AS A L A N G U A G E OF G O V E R N A N C E '. 77 C H A P T E R 5 - P L A C H I M A D A ' S RIGHT T O W A T E R 81 W A T E R IN INDIA 82 • T H E S T R U G G L E IN PLACHIMADA 84 A L T E R N A T I V E VISIONS 91 C H A P T E R 6 - C O N C L U S I O N 95 B I B L I O G R A P H Y 101 i v A C K N O W L E D G E M E N T S The completion of this thesis would not have been possible without the support of several people. Much more gratitude than can be expressed in a few sentences is owed to Professor Ruth Buchanan, my thesis supervisor. I am very grateful for her guidance, support and kindness over the last two years. In addition to valuable feedback on my work, I am grateful to Prof. Buchanan for the many opportunities of learning she provided. I would like to thank Professor Karin Mickelson for valuable feedback and for all her help and encouragement, especially during the final stages of the completion of this thesis. I am very grateful to Professor Wesley Pue for his guidance, encouragement and all the support. I am also grateful to the University of British Columbia for financial support in the form of the Special U B C Graduate Scholarship and the partial tuition scholarships that have enabled me to pursue this project. This thesis has been much enriched by all that I learnt during the Water Studies sessions organized by Professor Karen Bakker, and I am grateful to her and the other participants - Alice Cohen, Jennifer Archer and Sue Moccia. I am very grateful to Joanne Chung, for all her help, especially for responding to endless queries related to the graduate program and life in Vancouver. Much gratitude is also owed to Elizabeth Kinney for being a wonderful friend, and to all other friends in the graduate program for helping in so many ways. I would like to thank my family and friends in India, Canada and elsewhere for all their love, support and good wishes. My parents have been a constant source of encouragement and support, as always. I owe a lot to Navneet without whose love, friendship and support this journey would not have been possible. Special thanks also to my sister and brother, and to my uncle Gurpreet Minhas for their support during all the big and small crises in the last two years. Finally, the greatest debt I owe is to Arshia, who has accompanied me on this journey on her tiny yet strong feet. v Chapter 1 - Introduction Overview The concept of Human Rights has emerged as one of the most powerful ideas of the last century. Owing its origins to the recognition of the inherent dignity of the human person and respect thereof regardless of race, caste, religion, sex, age, ideology or social standing, the idea o f human rights has created possibilities o f empowerment and emancipation for millions around the world. It is an idea that has not only changed the way we perceive ourselves, but has also given to many the language for challenging the social, religious, cultural, political and economic orders that constitute the world. This 'age of rights' 1 in fact distinguishes itself by the recognition of a large number of human rights. What has been hailed as a 'common language of humanity' has, however, not brought about an unqualified common acceptance of what the term 'human rights' represents. In fact, everything about human rights - its meanings, sources, norms, languages and understandings, remain deeply contested.3 Critiques of human rights range from those that focus on the often wide gap between the promise and reality of human rights, to those that seek to expose what is sometimes referred to as the dark side or the 1 Louis Henkin, The Age of Rights, (New York: Columbia University Press, 1990) [Henkin 1990]. 2 Boutros Boutros Ghali, Secretary-General of the United Nations at the opening of the World Conference on Human Rights in Vienna, 1993, online: <http://193.194.138.190/html/menu5/aVstatemnt/secgen.htm> (date accessed: 12 June 2006). 3 For a recent analysis see Upendra Baxi, The Future of Human Rights, 2"d ed. (Oxford: Oxford University Press, 2006) [Baxi 2006]. 1 'violence' of human rights 4 The fact that human rights are increasingly being co-opted and deployed by the very power formations that are sought to be challenged has led to a questioning of the human-rights language as the 'sole language of resistance to oppression'5. Crucially, human rights are no longer limited to being a language of resistance, but are increasingly being transformed into languages of governance.6 Protection of human rights is considered as an intrinsic part of 'good governance'. The popular story of the world's march towards development, prosperity, security and peace via human rights and good governance holds immense potential and promise, and would, without any doubt, be a legitimate objective, if 'human rights' and 'good governance' meant the same things universally. Unfortunately, both human rights and governance are perceived and experienced in different ways around the world. The reality is that the transformation of the language of human rights into a language of governance reduces the emancipatory potential of the human rights language and renders it susceptible to being used as a hegemonic tool. 4 See e.g. Gustavo Esteva and Madhu Sun Prakash, Grassroots Postmodernism: Remaking the Soil Cultures (London: Zed Books, 1998) [Esteva and Prakash 1998]; Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance, (Cambridge: Cambridge University Press, 2003) [Rajagopal 2003]. 5 Rajagopal 2003, ibid. c.7. 6 1 have drawn upon Upendra Baxi's description of human rights as 'grammar of governance' and as 'languages of global governance' and the questions he has raised in this context. See Baxi 2006, supra note 3 at 15-19. 2 Yet, for 'most of the world' 7 the value of the human-rights idea lies in its emancipatory potential. The basic premise of this work also recognizes that potential. There is indeed a need to focus on this aspect of human rights in the age of globalization - which not only creates new avenues of oppression, but also of resistance. The need is therefore not to discard the idea of human rights, but to overcome the limitations of the dominant mainstream discourse that has shaped it thus far. Such an endeavour however, necessitates the rewriting of human rights, from below.9 In this context this thesis examines the emerging mainstream discourse on the 'human right to water', and suggests the many ways in which it is inadequate and too narrow. Contemporary attempts to formulate a human right to water tend to focus almost exclusively on the right as an entitlement to water supply while ignoring the implications of such a right as a freedom. The 'human' is reduced to a consumer, a 'right' to only a need, and water to nothing more than a commodity that is to be 'managed' and 'supplied' by the state, the market, or a combination of the two with 'participation' rights to the people. 7 1 borrow these words from a recent work of Partha Chatterjee, who defines 'most of the world' as ".. . in a general sense, those parts of the world that were not direct participants in the history of the evolution of the institutions of modern capitalist democracy." He further defines 'modem capitalist democracy' as that can "in a loose way, be taken to mean the modern West." However, Chatterjee also acknowledges the fact that "the modern West has a significant presence in many non-Western societies" and that "large sectors of contemporary Western society ... are not necessarily part of the historical entity known as the modern West". Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World, (New York: Columbia University Press, 2004) [Chatterjee 2004], 8 This refers to the mainstream human rights discourse that considers human rights as one of the basic principles (two other being 'free market' and 'democratic government') of Western Liberalism. There is a growing body of literature that points to the importance of such a re-writing. M y analysis in this thesis draws upon the work of Upendra Baxi and Boaventura de Sousa Santos. 3 M y study of alternative perceptions of the right to water that emerge from social movements and local community practices illustrates that narrow formulations of the right to water not only fail to represent the lived experiences of the 'social majorities'10 facing the water crisis, but also make it susceptible to being co-opted by the very forces that such a right seeks to challenge. This is being facilitated by the transformation of the language of human rights into the language of governance. What is most crucial is that these formulations are unlikely to address their stated purpose - universal respect for a human right to water. Contemporary formulations of the human right to water fail to represent the numerous possible and existing understandings of such a right and in fact exclude all conceptions that do not traditionally fall within the mainstream human rights discourse. Such exclusions are embedded in the dominant story of the evolution of the right itself -a story based on the problematic assumptions and collective histories of exclusions of the human-rights and development discourses. Having evolved from developments in the fields of human rights and sustainable development, the latter being a troubled culmination of environmental rights and the right to economic development, the contemporary discourse on right to water carries with it the problematic assumptions and the collective histories of exclusion of those disciplines. The critique of the mainstream discourse here is not in any way aimed at discrediting the significant contribution it continues to make to the emerging human right to water, in certain contexts. The focus is rather on identifying the inclusions and 1 0 Esteva and Prakash 1998, supra note 4. 4 exclusions of both values and interests that the discourse embodies, the reasons thereof, and suggesting an alternative vision of the right that emerges by focusing on 'communities in struggle and people in resistance'11. A shift from considering people merely as the objects of human rights norms to an understanding of people as sources of norm creation itself creates possibilities for recovering the emancipatory potential of human rights - a theme I will revisit throughout this thesis. Why Water? Water has always had the power to move people - both literally and figuratively, because it is essential for life and is non-substitutable. Human beings have been aware of the immense value of water for life for a long time. The existence of knowledge of water's ability to create as well as destroy in fact precedes the discovery of the connection between life and water by modern science. This is evident from the significance accorded to^water in ancient traditions connected to births and deaths and in religious texts. Today there is a renewed interest in the value of water, not because anyone denies the existence of water's value, but because there is no agreement on what exactly that value is, how the same is to be determined, and most importantly, who is to determine it. For a world struggling to meet the increasing demands for water, it becomes imperative 111 borrow this phrase from Prof. Baxi. See Baxi 2006, supra note 3. 1 2 For a brief overview of the significance of water in several religions practiced around the world see 'Water in Religion', online: <http://www.thewaterpage.com/religion.htm> (date accessed: 23 February 2006). 5 to find answers to these questions. In fact the one thing that everyone agrees on, regardless of differences in ideologies and consequent visions of the future of water, is that water can no longer be taken for granted. The Water Crisis: A Serious Concern Water is the most widely occurring substance on earth; however, most of it is salt water. Only 2.53 percent of the total water on earth is fresh water, and a further two thirds of this small percentage is unavailable for use, being trapped in glaciers and permanent snow cover.13 While the sources of fresh water remain unchanged, the demand for water is doubling every twenty years - at a rate that is twice that of human population growth.1 4 Currently over a billion people in the world lack access to safe water.15 The situation is likely to get worse, with some estimates suggesting that climate change alone is likely to increase global water scarcity by twenty percent.16 According to the United Nations World Water Development Report, by the middle of this century, the number of people lacking access to adequate water will, at best, be two billion in forty-eight countries, and at worst seven billion in sixty countries.17 13 The United Nations World Water Development Report: 'Water for People, Water for Life' (Barcelona: U N E S C O & Berghahn Books, 2003), online: < http://www.unesco.org/water/wwap/wwdrl/ > (date accessed: 23 February 2006) [UN Water Report 2003]. 1 4 Peter Philips, "The Privatization of water" at 1, online: The Pure Water Gazette <http://www.purewatergazette.net/privatizationofwater.htm> (date accessed: 23 February 2006). 1 5 World Health Organization, The Right to Water, (France: WHO, 2003) at page 7. Online: World Health Organization <http:// www.who.int/water_sanitation_health/righttowater/en/> (date accessed: 30 September 2005) [WHO 2003]. 1 6 U N Water Report 2003, supra note 13, c. 1. "ibid, at 13. 6 The inequitable distribution of naturally available fresh water in different parts of the world, rapid unsustainable industrialization caused by the quest for economic development, urbanization, changing lifestyles, and the increasing world population are some of the factors which have led to a vast disparity in the availability of water. However, the problem is not always simply that of availability of water in different parts of the world. The problem is complicated by issues of access to safe water, and of mismanagement and misuse of water where it is available. The inequality in access to water, however, is not just between different regions of the world as data on 'per capita consumption' of water often suggest, but also within each region. This is so because even within each region, political, economic and social factors determine access to water. It is therefore also very important to look beyond the stereotypical depictions of water scarcity represented in media images of semi-clothed, dark-skinned children. As much as such portrayals represent the unfortunate reality of the world, they present only a part of the larger picture. The impact of complex socio-political and economic arrangements upon ability to access water is a reality in 'most of the world' and as such forces one to look beyond the assumptions pertaining to the 'developed' and 'undeveloped' parts of the world. Regardless of whether one agrees with those who relate the scarcity to conflict or 18 'water wars' or with those who argue that scarcity leads to co-operation and not 1 8 See the Water-Conflict Chronology that traces water related conflicts from as early as 3000 BC. Pacific Institute for Studies in Development, Environment and Security, "Water Conflict Chronology" (2004), online: < http://worldwater.org/conflictchronology.html> (date accessed: 13 July 2006], See also Vandana Shiva, Water Wars: Privatization, Pollution and Profits (Toronto: Between the Lines, 2002) [Shiva 2002a]. 7 conflict,1 9 it is impossible to ignore the fact that water is at the core of several struggles related to environmental sustainability, industrial development, trade, and human rights. The large number of environmental and social movements, which at times take the form of violent public protests, are indicative of the disputes over the different values attributed to water. There is an urgent need to find ways to deal with the struggles over water taking place all over the world. Consequently, there is a marked increase in global interest in water.20 The research on water encompasses diverse fields such as hydrology, sociology and law, and involves a wide range of 'water experts' including scientists, environmentalists, social activists, lawyers, international institutions and corporations. Not surprisingly, there is a diverse array of solutions - often representing extremely polarized opinions - to deal with the 'water problem'. These solutions assign, or at least 2 1 assume, a certain value of water as a natural resource, leading to 'paradigm wars' over water. The Debate The genesis of the debate over a right to water can be traced to the early 1970s, but it is only recently that the debate has attained prominence. There are several reasons 1 9 See e.g. Undala Z. Alam, "Questioning the Water Wars Rationale: A Case Study of the Indus Waters Treaty" (2002) 168:4 The Geographical Journal 341. 2 0 The world's concerns about the growing water crisis are perhaps best represented by the large number of international conferences that have addressed the issue in various forms. See U N E S C O World Water Assessment Programme, "Milestones 1972-2003: From Stockholm to Kyoto", online: UNESCO World Water Assessment Program <http://www.unesco.org/water/wwap/milestones/index_pr.shtml> (date accessed: 10 June 2006). More recently, the World Water Forums held every three years since 1997, and various other global coalitions, such as the Global Water Partnership, are tackling the 'water problem' in its various forms. 2 1 See Shiva 2002, supra note 18. Shiva refers to the conflicts over how different groups perceive and experience water as the 'paradigm wars'. 8 for this, such as developments in the field of international human rights, the cumulative effect of the large number of international environment related conferences with a focus on water, increased accessibility to data on the world's water, inclusion of water in the development agenda, and neo-liberalism and its consequences. The idea of a human right to water continues to be extremely controversial.22 This is not surprising considering that there is no clarity as to what exactly the words 'human right to water' represent. They can be interpreted in several different ways - ranging from 23 a right to 'free water' - an idea that has at times been dismissed as a fantasy, a right to control over use of water, to a right over the sources of water. Much of the current discourse on the human right to water is in fact set in the context of the fierce debate between those who believe that water should be treated as an economic good and accordingly subjected to market forces, and others who are against any such 'commodification' of the same. This debate has been brought to the forefront of every discussion on water primarily due to the political, legal, economic, ecological and 2 2 For accounts of the reluctance of the 'international community' to accept the right to water, see Salman M . A . Salman and Siobhan Mclnerney-Lankford, The Human Right To Water: Legal And Policy Dimensions, (Washington, DC: The World Bank, 2004) [Salman and Mclnerney-Lankford 2004], Also see Peter H . Gleick, The World's Water 2004-2005: The Biennial Report on Freshwater Resources, (Washington: Island Press, 2004) [Gleick 2004]. Gleick points to the lack of agreement between nations on the issue of right to water as illustrated by the absence of reference to the right to water in the ministerial declarations that followed the first three World Water Forums. He describes (at page 209) how the 'language on the human right to water was included and then removed from the final conference statements, at the request of a small number of influential representatives'. Incidentally, the Ministerial Declaration at the 4 l h World Water Forum held in March 2006 also steers clear of any mention of a right to water. 2 3 John Briscoe, Senior Water Advisor, World Bank, while raising the question of what it means to say 'human right to water' at the 3 r d World Water Forum held at Tokyo in 2003, stated that a government's obligation to provide free water to everyone is a fantasy. Source: 'Thirst' (2004), a documentary film by Alan Snitow and Deborah Kaufman (Snitow-Kaufman Productions), information online: Public Broadcasting Services <http://www.pbs.org/pov/pov2004/thirst/about.html> (date accessed: 18 August 2006) [Thirst 2004]. 9 social struggles over what is broadly referred to as the 'privatization of water' . The debates over this growing phenomenon represent the ideological differences in the various approaches and the primary value attributed to water. The violence during protests in the Bolivian city of Cochabamba against the privatization of water supply 25 services clearly illustrates the dangers of leaving such conflicts unresolved. The mainstream discourse on the human right to water, with its focus on the entitlement to a supply of water, is also predominantly set in the context of privatization of water supply systems. Arguments in support of and against a right to water draw upon the significant but narrower debate between the supporters and opponents of private sector involvement in water supply systems.26 Considering the unprecedented increase in 2 4 Privatization of water, in a broad sense, refers to a range of contractual arrangements that involve the private sector in the management of water sources or services. The degree of private sector involvement, and also the rights and liabilities of public and private parties varies across the different types of contractual arrangements. Some popular forms of'privatization' are Service Contracts, Management Contracts, Lease Contracts, Divestitures, Concession agreements, and Build-Operate-Transfer arrangements. For more details, see The World Bank, Approaches to Private Participation in Water Services: A Toolkit (Washington, DC: The World Bank, 2006), online: <http://rru.worldbank.org/Documents/Toolkits/Water/Water_Full.pdf> (date accessed: 18 August 2006); Mathias Finger & Jeremy Allouche, Water Privatisation: Transnational Corporations and the Re-Regulation of the Water Industry, (London: Spon Press, 2002) [Finger & Allouche 2002]. 2 5 In 1999 the municipal water supply in Cochabamba was privatized on the recommendation of the World Bank. The privatization led, inter-alia, to an increase in the water tariff. The public's resentment culminated into violent protests, leading ultimately to the government's decision to cancel the concession agreement with the private investor. See Oscar Olivera and Tom Lewis, Cochabamaba!: Water War in Bolivia, (Cambridge, Massachusetts: South End Press, 2004); Andrew Nickson & Claudia Vargas, "The Limitations of Water Regulation: The Failure of the Cochabamba Concession in Bolivia" (2002) 21:1 Bulletin of Latin American Research 99. 2 6 For the privatization debates see e.g. James Winpenny, Managing water as an Economic Resource, (London and New York: Routledge, 1994); Vandana Shiva, Corporate Hijack of Water: How World bank, IMF and GA TS- WTO Rules are Forcing Water Privatization, (New Delhi: Navdanya, 2002) [Shiva 2002b]; Shiva 2002a, supra note 18; Riccardo Petrella, The Water Manifesto, trans. Patrick Camiller (London: Zed Books, 2001); Richard Macrory, "The Privatisation and Regulation of The Water Industry" (1990) 53:1 The Modern Law Review 78; Henry Gottlieb, "Gold at the End Of the Pipeline: Privatize or Regionalize?" (1996) 146 N.J.L.J. 1009; Patrick Bond, "Water Commodification and Decommodification Narratives: Pricing and Policy Debates from Johannesburg to Kyoto to Cancun and Back" (2004) 15:1 Capitalism Nature Socialism 7. 10 privatization of municipal water supply systems,27 it is important to look closely at its impacts in different parts of the world. Analysing the implications of an internationally recognized human right to water for many countries that are being forced to privatize water services is also essential. The failures of water privatization efforts, such as in Cochabamba, raise important questions that are yet to be answered. The rights approach is likely to play an important role in this debate. However, as I will demonstrate, the debate over private sector involvement in water supply services has limited the emerging human right to water. I will suggest that the discourse on the right needs to go beyond the confines of the framework provided by this debate. A critical analysis of the emerging human right to water such as I seek to present here requires a closer look at the mainstream rights discourse itself. Accordingly, I begin with a theoretical framework for this project in the following chapter. I use critiques of human rights drawn from critical legal pluralism, post-colonial studies, critical development theory, post-modernism and studies broadly referred to as TWAIL or the third world approaches to international law. In the third chapter I will recount the dominant story of the origin and legal basis of the human right to water. Thereafter, I identify the broad themes that constitute the 2 7 A n increase of 7300 percent has been noted in the private sector annual investment in the water sector. See Bronwen Morgan, "The Regulatory Face of the Human Right to Water" (2004) 15:5 Water Law 179 [Morgan 2004]. 2 8 A recent report reveals that the percentage of World Bank's water loans that required privatization in the year 2002 was over 80%. Centre for Public Integrity, "The Water Barons - Promoting Privatization" (2003), online: < http://www.publicintegrity.org/water/report.aspx?aid=45> (date accessed: 10 August 2006). For a detailed analysis of the World Bank's policy on water see also Finger & Allouche 2002, supra note 24; Shiva 2002b, supra note 26. 11 mainstream discourse on the right to water. These themes emerge from recent 'soft law' initiatives pertaining to the human right to water and prominent scholarly analysis of the said right and its implications. The 'soft law' and literature I refer to continue to shape and formulate the right to water, a fact that makes it important to take a closer look at them. Thereafter, in chapter Four I will demonstrate how the 'human right to water' that emerges from the mainstream discourse is narrow and meaningless to people in 'most of the world'. It is based upon and in turn reproduces the exclusionary dominant discourses on human rights, economic development and increasingly, sustainable development. The right is inadequate as it fails to represent or even facilitate a recognition of the numerous forms of suffering associated with access to water in many parts of the world. Such non-recognition ensures that the 'universal' human right to water in fact fails to offer to many the hope for a mitigation of their suffering. Such a formulation is also susceptible to being used as a hegemonic tool. Chapter Five presents a case study of a grassroots movement in Plachimada, a small village in the state of Kerala in the southern part of India. This study of the movement born out of the people's resistance to the excessive extraction of groundwater by a subsidiary of the Coca-Cola Company, a multinational corporation, illustrates and strengthens the arguments advanced in the preceding chapters. It brings to light the incapability of the mainstream discourse to incorporate understandings of the right to water that originate outside the traditional legal sources, making it meaningless for many. 12 In their resistance to the agents of hegemonic globalization and rejection of the imposed understanding of the notions of human rights, progress, development and governance, such movements reveal possibilities for alternative ways of understanding and defining a more meaningful human right to water 'from below'. 13 Chapter 2 - Critiquing Human Rights Human rights are rights that inhere in a person by virtue of being human. They are rights that are derived from the inherent dignity of the human person and are inalienable. It is this foundation of the recognition of the dignity of every human person that holds the potential for the emancipation of those denied such recognition. It is indeed this core of the human rights ideal that gives voice to the vast sections of humanity that have been and often still are treated as less human than others based on their race, sex, caste, status or ideologies. It is also this core of equality that makes critiquing human rights a highly problematic and even agonizing experience. Therefore, before I embark on this journey, in the present chapter I explain what makes it a necessary one. Diversity in the meanings of 'human', 'right' and 'human rights' ensures that all humans in fact do not have 'human rights'. The plurality of meanings begins with the two words that constitute the expression - 'human' and 'right'. The Oxford English 29 Dictionary defines the noun 'human' as a 'human being, a member of the human race'. Used as an adjective, the word means 'belonging to, or characteristic of mankind,3 0 and since it is defined by humans, is also 'distinguished from animals by superior mental 31 development, power of articulate speech, and upright posture' . Humans can therefore be identified as distinct from non-humans. At this basic species level, it is easy to say that all humans have human rights. 29 Oxford English Dictionary, 2 n d ed., s.v. "human". 30 Ibid. 31 Ibid. 14 The realities of cultural, moral, religious, social, political and legal differences in what it means to be human, or to have attributes considered essential for being human disturb this homogeneity at various levels and draw lines between humans and those that are not-yet-humans. More crucially, these divisions determine which humans can claim how many rights, who formulates those rights, and who those rights are 'applied to'. The hegemony of certain ideologies over others also ensures that some attributes are considered better than others and are thereby favoured.32 Consequently, there are those that are in a sense less human than others. It cannot be denied that rights of humans with preferred and 'valid' attributes are taken more seriously than those of the 'lesser humans' - reincarnated throughout human history as slaves, women, the uncivilized, the undeveloped, the uneducated, the poor, the 'lower' castes, the 'inferior' races, the tribals, the refugees, etc. The word 'right' also has several meanings,33 the most appropriate in the current context being 'a justifiable claim, on legal or moral grounds, to have or obtain something, or to act in a certain way' 3 4 . This language of justification is also however, very problematic as a variety of claims can be projected as justifiable; hence the use of the language of rights both by the powerful and the disadvantaged. Thus the numerous possible interpretations of 'justifiable' claims, and also meanings of 'legality' and 3 2 Nothing illustrates this better than the evolution and dominance of the homo oeconomicus - the rational, self-interest maximising being that lies at the core of the all-pervading economic ideology. 33 Oxford English Dictionary, 2 n d ed. s.v. "right". 34 Ibid. 15 'morality' in different contexts over time and space further make defining 'rights' a complex task. Used together, the two words form the expression 'human rights' which is used to refer to rights that inhere in all humans, but in reality, the term means different things to different people. As pointed out by Upendra Baxi, "[fjhere is no simple way of reading forms of plurality and multiplicity of [this] fecund expression".35 The consequence of this plurality is that everything about human rights - its meanings, sources, norms, forms and languages - remains deeply contested. There are struggles over the 'generation of rights', the 'hard law' and 'soft law' formations of rights, and challenges posed by debates about 'universalism versus relativism', 'the individual versus the collective' and 'rights versus responsibilities'. Even as the critiques of human rights repeatedly and continuously problematize the conventional understanding of human rights, the mainstream and dominant rights discourse remains firmly embedded in the Western paradigm. Dominant stories of the history and origin of human rights have long sought to establish the hegemonic claims of authorship and ownership of the West over human rights.36 Consequently, all non-Western traditions, cultures and societies are considered bereft of any notions of human rights. These dominant stories thus separate 'the West' from 'the Rest', the superior 3 5 Baxi 2006, supra note 3 at 12. 3 6 See Baxi 2006, ibid., at 33- 38. In his discussion on 'modern' and 'contemporary' human rights, Baxi identifies the three claims as i) the 'historical claim' which is that human rights traditions 'originated historically in the West'; ii) the 'evangelical claim' that projects that human rights 'have been propagated from the West'; and iii) the strong claim put forward by the 'impossibility thesis' that seeks to establish that human rights traditions 'could only have originated in the West'. 16 'giver' of human rights from the inferior 'receiver' of the same, thereby paving the way for the justifiability of universalization of what has been called the 'monoculture of 37 human rights' . Human rights as a language of a cohesive 'global' morality in fact represents values derived from Western liberal ideology,38 and excludes all other values and interests. The assumptions of the superiority of the West, and the blindness towards the rest, both result in projects seeking to 'bring' human rights to the rest of the world, thereby justifying the violence of replacing the multiple cultures of the 'pluriverses' people inhabit with a 'monoculture'.39 As a result of the exclusions it embodies and its limitations, the human rights discourse - a discourse that ironically is aimed at minimizing human suffering, remains oblivious of many forms of suffering and violence.4 0 This calls for a re-examination and even a re-formulation of the dominant human rights discourse. Richard Falk proposes a 'fundamental rethinking of the Western human rights paradigm' from 'without'.4 1 He suggests that this view from 'without' enables one to appreciate the 'limitations and distortions' of the human rights discourse.42 Such a view Esteva and Prakash 1998, supra note 4. 3 8 This refers to the mainstream human rights discourse that considers human rights as one of the basic principles (two other being 'free market' and 'democratic government') of Western liberalism. See e.g. Frank J.Garcia, "Trade and Justice: Linking the Trade Linkage Debates" (1998) 19 U. Pa. J. Int'l Econ. L. 391 [Garcia 1998]. 3 9 See Esteva & Prakash 1998, supra note 4. 4 0 For invisibility of certain forms of violence to the rights discourse, see also Rajagopal 2003, supra note 4. 4 1 Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York, London: Routledge, 2000) at 87-93. 4 2 Ibid, at 89. 17 also facilitates recognition of the "broader patterns of global dominance - the distortions of priorities, the long-term deprivations and the deformations of cultural identity being produced in non-Western societies by Western modes of popular culture and consumerism"43. Boaventura de Sousa Santos looks upon the dominant 'universal' human rights discourse as 'a globalized Western localism' 4 4. The widespread human rights violations across the world are seen by him as "a cruel comment on the human rights dominant discourse and a flat denial of the practical validity of international declarations on normative consensus".45 Some causes of such violations recognized by Santos are the manipulation and subordination of the human rights agenda by hegemonic states and the lack of cultural legitimacy of human rights.46 Upendra Baxi, in his recent analysis of the future of human rights, points to the necessity of revisiting the dominant 'Euro-American discourse' of human rights, including "the originary meta-narratives of the past of human rights" that remain confined within "the timespace of the European imagination, even in its critical postmodern incarnations".47 A re-writing of human rights can however only commence when one acknowledges the limitations of the existing rights discourse. Baxi refers to these limitations when he notes both the inadequacy of human rights languages in Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation, 2 n d ed. ( London: Butterworths LexisNexis, 2002) at 271 [Santos 2002]. 45 Ibid, at 263. 4 6 See ibid, at 257-289. 4 7 Baxi 2006, supra note 3 at 40. 18 addressing several 'forms of human violation', and the inability of 'all violated people' to 48 have equal access to such languages. The limitations of the dominant rights discourse can be examined in several ways, including, as suggested above, from 'without' or 'below'. My critique of the limitations of the mainstream discourse on the right to water also draws upon similar approaches to critiquing the dominant human rights discourse. A reconsideration of three aspects of the mainstream human rights discourse is however essential for this project: the assumptions of universality of human rights, the 'developmentalization' of human rights, and the transformation of human rights into a language of governance. Universality vs. Cultural Relativity Several scholars have engaged with the various aspects of the universality-versus-relativity debate, and have adopted different positions vis-a-vis universality of human rights. These positions range from arguments for a universality that reflects cultural values to aspirations for universality within cultural contexts.49 Such arguments problematize the imagined universality of human rights discourse and challenge the categorization of the human rights language as the sole language of emancipation, considering that it is built upon exclusion of values and ideologies. ' The discourse on human right to water also, as I will illustrate in subsequent chapters, in its uncritical acceptance of the dominant ideology, reproduces the same **Ibid. at 2. 4 9 For a brief overview of the various strands of prominent relativist critiques see Rajagopal 2003, supra note 4 at 208-212. 19 exclusion of values. In its validation of the contested standard narrative of human rights, the evolving discourse also facilitates the transformation of 'human right to water' from a language of emancipation to a hegemonic language of governance. Having said that, it is important to keep in mind that it is not the human rights ideals - dignity of the human person and equality - that are rendered meaningless by the limitations of the Western paradigm, but rather the emancipatory potential of these ideals. What I suggest is therefore not the rejection of the notion of a universal human right to water, but a questioning of the uncontested acceptance and reproduction of the narrow vision, and non-universal context and meanings that it represents. I whole-heartedly believe and endorse that every human being has a right to water, and its recognition as human rights law (as yet a 'soft law') is an important step towards ensuring access for all. I make this unequivocal endorsement based on the belief that human rights languages, to borrow Baxi's words, are "all that we have to interrogate the barbarism of power"5 0 - the kind of power that is an intrinsic part of human existence and as such, not limited to the West. It is also here that I disagree with those who support a "breaking free from the oppressiveness of the Universal Declaration of Human Rights" 5 1 in order to take "countless other cultural paths"52. Such 'manifestations of human rights wariness'53 undoubtedly make outstanding contributions in highlighting the need for questioning the oppressiveness of human rights discourse. As stated above, I draw upon these critiques 5 0 Baxi 2006, supra note 3 at 4 [emphasis omitted]. 5 1 Esteva & Prakash 1998, supra note 4 at 126. 52 Ibid. 5 3 Baxi 2006, supra note 3 at 83. 20 while analysing the mainstream discourse on human right to water. However, I suggest that there is also an equally crucial need to be wary of overlooking and undermining the immense potential of the core human rights ideals, especially in the face of the complexities of community-based cultural arrangements. It cannot be denied that communities and cultures also frequently fail to respect and protect the dignity of, and equality among, all human beings, and that is what provides the impetus for people to adopt the languages of human rights. Any such denial would amount to discrediting the immeasurable pain and suffering that countless people continue to experience in their struggles for access to rights. Water provides an excellent opportunity to illustrate this argument. Access to water has always been determined by various social, political, economic and cultural factors in addition to geographical factors all over the world. 5 4 An example is the denial of access to water on the basis of caste - one of the painful realities of the history of the caste system in India. A culture that considers offering water to the thirsty as a virtue and a duty, also endorsed separating sources of water in order to prevent 'contamination' of a 'common resource' by allowing access to the 'untouchables'. Viewed as a subject of theoretical analysis, injustices caused by states and hegemonic global forces on one hand, and traditional societies on the other, can perhaps 5 4 See e.g. Lyla Mehta, "Problems of Publicness And Access Rights: Perspectives From The Water Domain" in Inge Kaul, Pedro Conceicao, Katell Le Goulven, Ronald U . Mendoza, eds., Providing Global Public Goods: Managing Globalization (New York: Oxford University Press, 2003) 556. Mehta refers to 'feudal legacies, gender, class, caste, and power relations' as some factors that often determine use of water. 21 be segregated as per 'scale and severity'. Thus theoretically, such segregation might indicate that injustices of traditional societies are indeed 'miniscule in scale or severity' as suggested by those who, often rightly, challenge the hegemony of human rights as the language of global morality.55 However, in the present context, how much, i f at all, do differences in scale and severity of injustice in denying water caused by different forces matter to a person who is thirsty and incapable of accessing water? Given a choice, would a person who is suffering not want to state his/her claim in every available language that offers hope? It is this hope that the human rights languages (and not the one approved language) offer to many - the possibility of the 'bettering of the bad' which has the potential of creating a 'just and humane' world in the long run. 5 6 Similarly, the various 'cultural paths' too hold the potential of addressing human violations and suffering. How, then, does one make sense of this debate within the current discussion on a human right to water? It appears to me that it is necessary to acknowledge human-rights languages that go beyond the debate on universalism and cultural relativism, and focus instead upon ensuring recognition and mitigation of human suffering. Santos has suggested that the debate on universalism and cultural relativism is "an inherently false debate, whose polar concepts are both and equally detrimental to an 5 5 Esteva & Prakash make this argument in the context of traditional village governance. They suggest that the 'evils and injustices of traditional village self -governance ... are miniscule in scale and severity when compared with those of national governments; or their contemporary descendants'. Esteva & Prakash 1998, supra note 4 at 114. 5 6 Baxi 2006, supra note 3 at 3. See Baxi's discussion on the relationship between the 'actuality' and 'possibility' of human rights at pp. 2-4. 22 emancipatory conception of human rights". Therefore, instead of universalism and relativism, he argues for 'cosmopolitanism' that implies "globalization of moral and 58 political concerns with and struggles against social oppression and human suffering". He suggests that making the 'cosmopolitan politics of human rights' the point of reference facilitates the recognition of 'fundamental weaknesses' within cultures - both Western and non-Western, and of their relative incompleteness. Further, a reciprocal recognition of such weaknesses and incompleteness creates opportunities for cross cultural dialogues aimed at the elimination of the weaknesses.59 Prof. Baxi's examination of the various aspects of the universalism/relativism debate60 also concludes with insights into the relationship of the human rights theory and practice to human suffering.61 He has suggested that "human rights discourse must be related to the voice of struggle and of suffering".62 Human rights languages -universalistic or culturally relativistic, when based on exclusions that make them blind to numerous forms of violence and suffering, therefore, are of no use to those that rely upon them for expressing their pain. A narrow formulation of the human right to water too, in its failure to represent the numerous possible conceptions of such a right, thus, becomes meaningless to all those who see in such a formulation neither a recognition of their suffering, nor a possibility of its mitigation. 5 7 Santos 2002, supra note 44 at 271. 58Jbid. at 272. 5 9 This is by no means a simple process. For the complexities involved in the process of creation of a cross-cultural dialogue between different knowledges and cultures, especially due to the incommensurability of the 'universes of meaning', see Ibid, at 271-278. 6 0 See Baxi 2006, supra note 3 at 160-199. 6 1 In fact, Prof. Baxi extensively examines the complex relationship between human rights and suffering in 77je Future of Human Rights. Some themes he revisits are the human suffering caused by human rights -both 'modern', and 'contemporary' and the processes that make human suffering 'invisible'. 6 2 Baxi 2006, supra note 3 at 199. 23 The 'Developmentalization of Human Rights'" The adoption of the Declaration on the Right to Development64 by the United Nations General Assembly in 1986 has played a significant role in bringing together the human rights and development discourses.65 Despite the potential of a right to development for bringing about a 'fundamental transformation' in the way development is 'done', 6 6 'development' is understood primarily, as economic growth with the basic framework provided by the 'catching-up' rationale.67 In such a scenario, the relationship between human rights and development has a significant impact on the mainstream formulations of human right to water. The pervasiveness of the development discourse ensures that the human rights discourse remains blind to the violence caused by the dominant economic model, the market and development.68 Rajagopal explains the violence of the 'development encounter' by focussing on the idea of the homo oeconomicus, and the concept of scarcity as perceived in and defined by the West. I will elaborate upon the relevance of this concept to the analysis of the discourse on human right to water further in subsequent chapters. It is however, imperative to recall my earlier discussion on the significance of identifying the numerous possible ways of understanding who the 'human' of human-rights discourse is. The established superiority 6 3 1 borrow this phrase from B. Rajagopal. Rajagopal 2003, supra note 4. 64 Declaration on the Right to Development, GA Res. 41/128, G A 97 t h Plen., Un Doc. A/Res/41/128 (1986). 6 5 For a detailed discussion see Rajagopal 2003, supra note 4 at 216-222. 6 6 See ibid, at 222. 6 7 For critiques of'development as a particular worldview' see Wolfgang Sachs, ed., The Development Dictionary: A Guide to Knowledge as Power (London, New York: Zed Books, 1992) [Sachs 1992]. 6 8 For a discussion on the reasons for this blindness see Rajagopal 2003, supra note 4 at 197-202. 24 and preferred status of the rational, self-interest maximizing being as embodied in the homo oeconomicus over all other 'humans' is too obvious to require illustration here. What is troubling is the legitimization of this preferred status in the rights discourse, a fact evident from certain mainstream approaches to the human right to water. While tracing the process of this legitimization, I will draw upon Rajagopal's analysis of the process of 'developmentalization' of the human rights discourse - a process identified by him as one whereby the "human-rights discourse became part of a larger discourse of development",69 and started drawing the same lines between the preferred 'modern' and the ought-to-be-replaced 'traditional'. What is challenged is not the concept of development as a natural process of evolution or even the aspirations of 'betterment' of peoples or nations, but the 'catching-up' rationale that provides the framework for all 'development'. An inevitable consequence of the process of developmentalization is the non-recognition of large forms of suffering by the mainstream human rights discourse. The process leads to marginalization of suffering in two ways: firstly, by strengthening the trade-offs arguments, i.e. forgoing human rights in the pursuit of economic development; and secondly, by establishing a rationale for sacrificing the human rights of some (primarily the lesser humans) in order to protect the rights (including the right to development) of others. While instances of the former abound with states in the South as well as the North advancing the trade-offs argument whenever it 6 9 Ibid, at 208. 25 appears useful for the purpose of retracting from international obligations, the latter manifests itself in more insidious ways. I will illustrate how the mainstream discourse on the right to water, by its uncritical acceptance of the dominant understanding of 'development', reproduces marginalization of suffering. Human Rights as a Language of Governance Transformation of human rights into the 'language of governance'70 is another process that limits the emancipatory potential of human rights. It distances hope from those that need it the most, rendering the human rights language meaningless. The transformation also facilitates the use of human rights as a hegemonic tool. This is achieved in two ways: firstly, by legitimization of a particular dominant role of the state vis-a-vis human rights of those that are governed, which leads to the second process of validation of various forms of violence inflicted on the 'lesser' humans as 'necessary' to 71 the mission of governance. Governance is an extremely popular term today. It is indeed 'the new buzzword' 7 2 that has also "become a key concept within academic debates"73. It however does not seem to have a precise meaning. As pointed out in a recent work, there are "as many definitions of governance as there are researchers in the field". 7 4 Since it means different See Baxi 2002, supra note 3 at 17 for 'human rights as languages of global governance' where several questions that 'need critical response' are raised in the context of 'global good governance' and human rights. 7 1 1 draw upon a similar discussion by Rajagopal. Rajagopal 2003, supra note 4 at 199. 7 2 Chatterjee 2004, supra note 7 at 4. 7 3 Monique Nuijten, "Governance in Action: Some Theoretical and Practical Reflections on a Key Concept" in Don Kalb, Wil Pansters & Hans Siebers, Globalization and Development: Themes and Concepts in Current Research (Boston: Kluwer Academic Publishers, 2004) [Monique 2004]. 74 Ibid, at 103. 26 things to different people, there are a variety of conceptual formulations related to governance.76 Governance has been defined as "the processes and institutions, both formal and 77 informal, that guide and restrain the collective activities of a group". It is also conceived as involving "a relocation of authority from public to quasi-public, and to private agencies"78. The degree or extent of such 'relocation of authority' is open to debate, 79 however, governance is not synonymous with or limited to government. Governance is in fact 'a more encompassing phenomenon than government' and involves 'informal, O A non-governmental mechanisms'. Thus, international institutions, multinational corporations and civil society organizations, also contribute to the mission of governance. Multiplicity of meanings of 'governance' has given rise to several debates around the concept. These range from whether the world needs less or more governance,81 the changing role of the nation-state in a globalizing world, 8 2 to debates over what are, or 75 Ibid, at 119. 7 6 See James N . Rosenau, "Governance, Order, and Change in World Politics" [Rosenau 1992] in James N. Rosenau & Ernst-Otto Czempiel, eds., Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992) [Rosenau & Czempiel 1992], For a short overview of the history of the concept of'governance' and the different approaches to it also see Monique 2004, supra note 73. 7 7 Robert O. Keohane & Joseph S. Nye Jr., "Introduction" in Joseph S. Nye Jr. & John D. Donahue, eds., Governance in a Globalizing World (Washington, D . C : Brookings Institution Press, 2000) at 12 [Keohane & Nye 2000]. 7 8 David Held & Anthony McGrew, "Introduction" [Held & McGrew 2002a] in David Held & Anthony McGrew, Governing Globalization: Power, Authority and Global Governance (Cambridge: Polity Press, 2002) [Held & McGrew 2002b]. 7 9 Rosenau 1992, supra note 76 at 4. 80 Ibid. 8 1 See e.g. Rosenau & Czempiel, supra note 76. 8 2 Keohane and Nye 2000, supra note 77. 27 should be the primary constituents of governance, and to what end. There are also debates over the concept of 'global governance' that seek to determine the need for the 84 same and the best approaches for making it successful. As a result of the ongoing debates over governance, there is an emergence of the concepts of 'participatory governance',85 'collaborative governance',86 'genuine and effective governance',87 the 'right kind of governance'88 and even 'humane governance'89. A l l these concepts are, in a broad sense, subsumed within the idea of 'good governance', which is the accomplishment of the ideal model of governance "in a manner essentially free of abuse and corruption, and with due regard for the rule of law" 9 0 . Transparency, accountability and participation are also significant attributes of 'good governance'.91 In recent times there has been an increased focus on democracy and human rights within the governance debates.92 In this context, governance has also been defined as "the 8 See also Don Kalb, W i l Pansters & Hans Siebers, Globalization and Development: Themes and Concepts in Current Research (Boston: Kluwer Academic Publishers, 2004) [Kalb, et al 2004]. 8 4 For definitions and different approaches to 'global governance' see David Held & Anthony McGrew 2002b, supra note 78. 8 5 See Monique 2004, supra note 73. 8 6 Jody Freeman, "Collaborative Governance in the Administrative State" (1997) 45 U C L A Law Review 1. 8 7 Held & McGrew 2002, supra note 78 at 18. 8 8 Robert O. Keohane, "Governance in a partially Globalized World" in Held & McGrew 2002b, supra note 78 at 325 [Keohane 2002]. 89 Ibid, at 345. 9 0 U N Commission on Human Rights, "Human Rights in Development", online: < http://www.unhchr.ch/development/governance-01.html> (date accessed: 26 June 2006) [UN CHR]. 9 1 See Monique 2004, supra note 73; Don Kalb, et al, supra note 83; and The United Nations Economic and Social Commission for Asia and Pacific, "What is good governance?", online: <http://www.unescap.org/huset/gg/governance.htm> (date accessed: 15 May 2006). 'Good governance' is described as governance that is "is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law". 9 2 Monique 2004, supra note 73 at 106. 28 process whereby public institutions conduct public affairs, manage public resources, and guarantee the realization of human rights"93. Protection of human rights is considered essential to governance.94 In fact, human rights, democracy and governance today represent the designated path towards modernity. They delineate progressive states and peoples from those that are stuck in a pre-modern stage. The three are also intrinsic to 'development'. Human rights, development and democracy have not only become a 'hegemonic political ideal', but also constitute the language of legitimacy.95 There is a human right to development - sustained economic development is a necessary precondition for the protection and fulfilment of human rights - yet, neither of these is realisable in the absence of good governance and democracy. A l l of them are therefore considered as mutually constitutive.96 Each one of them legitimizes the others, thereby justifying the involvement of the 'international community'9 7 in the project of 'bringing' democracy, human rights and good governance, in the pursuit of development, prosperity and peace, n o to every corner of the world. See U N C H C R , 'Human rights in development', Online: < http://www.unhchr.ch/development/governance-01.html> 9 4 See e.g. U N CHR, supra note 90 which states that "the true test of "good" governance is the degree to which it delivers on the promise of human rights...". 9 5 See Jack Donnelly, "Human Rights, Democracy, and Development" (1999) 21 Hum. Rts. Q. 608. 9 6 But see Ibid, for challenges to the assumption that democracy, human rights and development are interdependent and mutually reinforcing. 9 7 For insightful perspectives on 'international community' see Ruth Buchanan and Sandhya Pahuja, "Law, Nation and (Imagined) International Communities" in Catherine Dauvergne & W. Wesley Pue, eds., Challenging Nation (2004) 8 Law Text Culture. 9 8 There are a large number of projects based on these goals. See e.g. Canadian International Development Agency's 'Policy for CIDA on Human Rights, Democratization and Good Governance' that explains the relationship as follows : "Respect for human rights, democratization and good governance are important, in their own right, for the security of individual children, women and men and the development of the societies in which they live. These three issues are integral to CIDA's purpose, to promote sustainable 29 The preceding discussion is important for understanding, albeit in a broad sense, the process that orchestrates the transformation of human rights into a language of governance. Of the four concepts mentioned above - human rights, development, democracy and good governance, human rights is the most crucial. This is because the 'success stories' of the economic development of 'undemocratic' states challenge the argument that all four are 'inextricably linked'. But, the one thing that such 'successes' have been unable to trump is the ideal of human rights - of the inherent dignity of the human person, and of equality. It is the human-rights ideal that tells us that it is not development per se that should be pursued, but development of every man, woman and child. And in order to achieve that goal, reliance on good governance, i.e. transparency, accountability and participation, is imperative. This story of the journey towards development, prosperity, security and peace via human rights and good governance holds immense potential and promise, and would, without any doubt, be a legitimate objective i f the concepts that it is built upon meant and implied the same things universally. Unfortunately, that is not the case. Human rights and good governance are perceived and experienced in different ways around the w o r l d " However, the mainstream human rights discourse and the dominant conceptions of governance create limited possibilities of understanding the plurality of meanings of the relationship between the two. Therefore, in order to understand the implications of the development in developing countries in order to reduce poverty and to contribute to a more secure, equitable and prosperous world." CIDA Publication (December 1996), Catalogue No.: E94-239/1996E. Online:< http://www.acdi-cida.gc.ca/CIDAWEB/acdicida.nsf/prnEn/REN-218124821-P93> (date accessed: 21 May 2006). 9 9 See e.g. Fiona Robinson, "Human Rights and the Global Politics of Resistance: Feminist Perspectives" in David Armstrong, Theo Farrell & Bice Maiguashca, eds., Governance and Resistance in World Politics (Cambridge: Cambridge University Press, 2003). 30 transformation of the language of human rights from that of emancipation to governance, it is important to take a closer look at what both human rights and governance mean in 'most of the world'. The conceptions of governance and good governance 'from below' do not necessarily coincide with the hegemonic perceptions.100 Unfortunately, this reality is yet to be integrated in the mainstream human rights theory and practice. As suggested by Partha Chatterjee, governance is in fact "the body of knowledge and set of techniques used by, or on behalf of, those who govern".1 0 1 Similarly, components of 'good governance' such as democracy, rule of law, transparency and participation emerge as possessing multiple and often opposite meanings when viewed from the perspective of 102 those that govern and those that are sought to be governed. M y analysis of the concept of governance in the context of the right to water in the following chapters will illustrate the dangers involved in an uncritical adoption of the popular concepts of 'good governance', 'participation' and 'democracy'. I will also highlight the divergent yet co-existing conceptions of governance that comprise the reality of the world today. As suggested by Chatterjee, '[djemocracy today ... is not government of, by and for the people'. 1 0 3 Instead, it is better understood as the 'politics of Hegemonic perceptions here refers to those that make governance "a business for experts rather than for political representatives" (Chatterjee 2004, supra note 7 at 35) and thereby seek to turn away from the lived experiences of people in order to serve the purpose of dominant 'top-down' ideologies. 1 0 1 Chatterjee 2004, supra note 7 at 4. 1 0 2 See ibid for a discussion on the two views. See also Monique 2004, supra 73 at 114-116. 1 0 3 Chatterjee 2004, ibid.. 31 the governed'.1 0 4 Similarly, 'participation' too is not simply 'a category of governance' as it may appear from above, but 'a practice of democracy'.1 0 5 Unfortunately, the mainstream human rights discourse, even as it seeks to draw on global ideals of 'good governance', remains oblivious of the reality of the existing multiplicity of visions. Despite its vision of solving global problems through participatory processes, the governance approach remains essentially a top-down one. 1 0 6 In such processes, "those at the bottom are either incorporated only once the institutional blueprint has been fully laid out or are not incorporated at all". An Alternative Approach From Below In the preceding sections I have discussed how dominant understandings of rights, development and governance reduce and limit the emancipatory potential of human rights. As will become clearer in the following chapters, this discussion is necessary for recognizing the limitations of the mainstream discourse on the human right to water. In addition to identifying the limitations of the current dominant formulations of the right to water, I will also shed light on the possible alternatives. Alternative human rights discourses and practices offer hope for the recovery of the emancipatory potential of human rights. Being anchored to human suffering and arising out of endeavours for a mitigation of that suffering, such alternatives create 104 Ibid. 105 Ibid, at 69. 1 0 6 See Boaventura de Sousa Santos & Cesar A. Rodriguez-Garavito, "Law, Politics, and the Subaltern in Counter-Hegemonic Globalization" [Santos & Rodriguez-Garavito 2005a] in Boaventura de Sousa Santos & Cesar A . Rodriguez-Garavito, eds., Law and Globalization from Below: Towards a Cosmopolitan Legality (New York: Cambridge University Press, 2005) at 9 [Santos & Rodriguez-Garavito 2005b]. 1 0 7 Santos & Rodriguez-Garavito 2005a, ibid, at 9. 32 possibilities for more meaningful 'human rights'. Neither the dominant discourses on development and governance, nor the 'approved' language of human rights have however been able to incorporate the existing plurality of meanings. As mentioned earlier, the alternative visions emerge by focusing on 'communities in struggle and people in resistance'108. It involves "turning our analytic gaze to plural forms of resistance and embryonic legal alternatives arising from the bottom the world over". 1 0 9 This calls for adoption of an alternative approach. A recent work suggests the 'subaltern cosmopolitan legality' 1 1 0 as a methodological approach. Such a 'bottom-up approach to the study of law' involves documenting 'experiences of resistance' and an assessment of "their potential to subvert hegemonic institutions and ideologies, and learn from their capacity to offer alternatives".111 In documenting the struggle over water in Plachimada I have adopted a similar approach for uncovering the possible alternative meanings of the right to water. Social movements, such as the Plachimada case study, illustrate how 'people in resistance' modify the available languages, combine them, and reject imposed notions of 'rights', 'development' and 'governance' to create new meanings that reflect their own 'lived experiences'.112 In doing so, such struggles offer hope for what is possible.1 1 3 1 0 8 Baxi 2006 supra note 3. 1 0 9 Santos & Rodriguez-Garavito 2005a, supra note 106 at 12. 1 1 0 For a detailed discussion of the concept of 'subaltern cosmopolitan legality' see Santos 2002, supra note 44, c. 9; for 'subaltern cosmopolitan legality' as a perspective and an approach see Santos & Rodriguez-Garavito 2005a, ibid. 1 1 1 Santos & Rodriguez-Garavito 2005a, ibid, at 15. 1 1 2 For an insight into how people seek to redefine the meanings of'governance' and 'govemmentality' see Arjun Appadurai, "Deep Democracy: Urban Govemmentality and the Horizon of Politics" (2001) 13:2 3 3 In this chapter I have set out the theoretical basis for my analysis of the human right to water. I have identified three primary arguments drawn from critiques of human rights discourse that provide the framework for this project. I have also indicated briefly how these arguments relate to a critical analysis of the right to water. In the following chapters I will refer to and engage further with these arguments in order to identify and expose the limitations of the current dominant formulations of the right to water. Finally, I have also indicated how an alternative approach from below creates possibilities for the creation of a more meaningful right to water. Environment & Urbanization 23; for creation of new meanings see Santos and Rodriguez-Garavito 2005a, ibid. 1 1 3 See in this context, the concept of 'sociology of emergence' in Santos 2002, supra note 44 at 465. 34 Chapter 3 - The Human Right to Water The legal basis and the normative content of the human right to water were set out by the United Nations Committee on Economic, Social and Cultural Rights in the year 2002. 1 1 4 This enunciation is by way of a General Comment which is non-binding in nature115 and therefore the right enumerated therein is largely considered as 'soft law' that expands and clarifies the right to water which is derived and inferred1 1 6 from other human rights. Legal analyses of the subject before and since the General Comment 15 also infer the human right to water from rights set out in international human rights and environmental law instruments, conventions, statements, declarations relating to development, regional and national laws and state practice. Due to this the right is also sometimes referred to as a 'derivative right' 1 1 7 and not an independent right in itself. The absence of a clear definition and scope of the right and the resultant debates have drawn considerable attention from scholars who continue to make valuable contributions towards a better understanding of the emerging human right to water. The primary focus of commentators has been on establishing the legal basis of the right as per the recognized sources of law, its practical implications for international institutions and states - both at the national and international level, and possibilities of regulation and global governance. 1 1 4 Committee on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water. U N ESC, 29 t h Sess. U N Doc. E/C.12/2002/11 (2002) [General Comment 15]. 1 1 5 For evolution, purpose, role and status of General Comments see Salman & Siobhan Mclnerney-Lankford 2004, supra note 22. ' 1 6 According to Salman & Mclnerney-Lankford the Committee on Economic, Social and Cultural Rights employed 'three analytic devices: derivation and inference; centrality and necessity; and prior recognition' to establish the human right to water. See ibid, at 55-64. 1 1 7 Peter H. Gleick, "The Human Right to Water" (1998) 1 Water Policy 487 [Gleick 1998]. 35 This chapter is divided into two parts. In the first part I take a brief look at the sources relied upon by commentators to infer the human right to water. It is important to look at these sources as it is these sources that have shaped the mainstream discourse on the human right to water. In the second part of this chapter I will identify four principal aspects of the emerging mainstream discourse on the human right to water. Parti The Human Right to Water: Sources in International Law There is an emerging consensus among commentators that the basic human rights instruments should in fact be interpreted in favour of a human right to water. Although the three basic human rights instruments, the Universal Declaration on Human Rights [UDHR] and the two Covenants of 1966 are primarily relied on while determining the legal basis of a human right to water, significant instruments, agreements and conferences aimed at the protection of the environment, and those with a focus on development are also cited in support of such a right. I now proceed to discuss some important international instruments and conferences pertaining to human rights, environment and development that have contributed to the evolution of the human right to water. Human Rights The only human rights instruments that specifically refer to a right with respect to water are the Convention on the Rights of the Chi ld , 1 1 8 the Convention on the Convention on the Right of the Child, 20 November 1989, article 24 (2) (c) [CRC]. 36 Elimination of A l l Forms of Discrimination against Women , 1 1 9 and the third and fourth Geneva Conventions. 1 2 0 A right to water does not find any specific mention in either the Universal Declaration of Human Rights 1 2 1 or the two principle instruments - the International Covenant on C i v i l and Political Rights 1 2 2 [ ICCPR] and the International 123 Covenant on Economic Social and Cultural Rights [ ICESCR] . However, such a right is usually inferred from other specific rights mentioned in these instruments. Article 25 of the U D H R recognizes the right to an adequate standard of living, health and well-being, and to food. 1 2 4 Stephen McCaffrey, in an early and significant contribution to the literature on the right to water, suggested that such rights do in fact presume an 'adequate supply of water ' 1 2 5 . The argument that a right to water is in fact implicit in the right to an adequate 'standard of l iving ' finds favour with most scholars who support such a r ight . 1 2 6 The U D H R itself, being a resolution o f the U N General Assembly, is not binding upon States, but most of its provisions have been re-affirmed by 119 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, article 14 (2) (h), online: < http://www.un.org/womenwatcbydaw/cedaw/text/econvention.htm#intro> [CEDAW]. 1 2 0 See Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, articles 20, 26, 29 and 46; Geneva Convention relative to the Treatment of Civilian Persons in Time ofWar.ll August 1949, articles 85, 89 and 127. Also see Geneva Convention Additional Protocol II, 8 June 1977, articles 5 and 14. 121 Universal Declaration of Human Rights, U N G A Res. 217(111), U N GAOR, 3 r d Sess., U . N . Doc. A/810 (1948) [UDHR]. 122 International Covenant on Civil and Political Rights, G.A. Res. 2200, 21 U N . GAOR Supp. 52, U . N . Doc. A/6316 (1967), reprinted in 6 I .L .M. 368 (1967) [ICCPR]. 123 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, 21 U N . G A O R Supp. 49, U . N . Doc. A/6316 (1967), reprinted in 6 I .L .M. 360 (1967) [ICESCR]. 1 2 4 UDHR, supra note 121, Art. 25. 1 2 5 Stephen C. McCaffrey, " A Human Right to Water: Domestic and International Implications" (1992) 5 Geo. Int'l Env. L . R. 1 at 8 [McCaffrey 1992]. 1 2 6 See Gleick 1998, supra note 117 at 490-491. Gleick analyzes the U D H R and debates on the declaration to support his argument. 37 127 various international instruments and/or are considered as customary international law. There is also considerable consensus on the fact that the UDHR sets 'common standards' for all and 'is a source of inspiration'.128 Article 11 of the ICESCR reiterates the right to an adequate standard of living recognized earlier in the UDHR. As suggested by some commentators, it is self evident that a right to an adequate standard of living includes a right to access water required to 129 meet basic human needs. The basis for the view that the right to water emanates from and is indispensable for the realization of the right to an adequate standard of living clearly being that water is more valuable than and even a precondition for ensuring food which finds a specific mention in the ICESCR. This position has been significantly strengthened by the General Comment 15 on the right to water. Unfortunately, the ICESCR, unlike the ICCPR, is generally regarded as only a commitment towards the progressive realization of rights (sometimes referred to as 131 132 'goals') recognised therein by states. Thus in order to infer a more effective right to 12 Ibid, at 491. However, there is an ongoing debate on which of the provisions have in fact achieved the status of customary international law. See generally Hugh M . Kindred, Karin Mickelson, Ted L. McDorman, eds., International Law: Chiefly as Interpreted and Applied in Canada 6 t h ed. (Canada: Edmond Gomery Publications Limited, 2000). 1 2 8 Preamble to Vienna Declaration and Programme of Action, World Conference on Human Rights, 1993, U N G A , U N Doc. A/CONF. 157/23 (1993). 1 2 9 See McCaffrey 1992, supra note 125 at 11; Gleick 1998, supra note 117 at 492. 1 3 0 See ICESCR, supra note 123. Article 11 of the ICESCR enumerates a fundamental right to be 'free from hunger'. 1 3 1 The difference in the language used to set out the undertakings of the state parties in article 2 of both the Covenants is at times considered as supporting difference in the nature of obligations created by the two Covenants. This view is, however, not supported by all. A detailed analysis of the perceived differential obligations created by the two covenants is beyond the scope of this project. A number of commentators have analyzed this issue at length creating literature too vast to mention here. However, for a brief analysis in the context of the right to water see McCaffrey 1992, supra note 125 at 12-15. See also Y . Danieli, E. 38 water reliance is placed on Article 6 paragraph 1 of the ICCPR which recognizes every human being's 'inherent right to life' . The basis for such an inference clearly being that it is impossible to sustain life without water. This view finds favour with several commentators who have elaborated upon the legal basis of the right to water, but the difference of opinion in 'narrow' or 'broad' interpretations of Article 6 itself makes it difficult to infer a clear human right to water from i t . 1 3 4 As stated earlier, the General Comment No. 15 - The Right to Water, issued by the Committee on Economic, Social and Cultural Rights in 2002 contains the clearest articulation of a human right to water to date. While recognizing that the 'human right to water is indispensable for leading a life in human dignity' and 'a prerequisite for the realization of other human rights', 1 3 5 it clarifies the legal bases of the right to water and elaborates upon its normative content. Paragraph 10 of the General Comment is of particular significance to a broader understanding of the right and is reproduced below. 10. The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. By contrast, the entitlements include the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Stamatopoulou, & C.J. Diaz, The Universal Declaration of Human Rights: Fifty Years and Beyond (Amityville, N Y : Baywood Publishing Co., 1999); Gleick 1998, supra note 117. 1 3 2 Even i f one considers such differences as being erroneous or 'illusory' (as suggested in McCaffrey 1992, supra note 125 at 14), it is a fact that although Article 11 of ICESCR can be interpreted to support a clearer right to water, the nature of the covenant itself and its current treatment under international law create obstacles for the establishment of a legally binding right to water. 1 3 3 Art. 6(1) of the ICCPR states as follows: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." 1 3 4 For an interesting discussion/summary on the broad and narrow interpretations of Article 6 see McCaffrey 1992, supra note 125 at 9-11. 1 3 5 General Comment 15, supra note 114 paragraph 1. 39 While recognizing that "[t]he human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses",136 the General Comment clearly sets out that water "should be treated as a social and cultural good and not primarily as an economic good". 1 3 7 There is a reiteration of this view in its mandate to the states to ensure that "investments [in water projects] should not disproportionately favour expensive water supply services and facilities that are often accessible only to a small, privileged fraction of the population, rather than investing in 138 services and facilities that benefit a far larger part of the population." Recognizing that some sections of the society have traditionally faced more difficulties in exercising the right to water, paragraph 16 of the General Comment contains a clear mandate to states to give special attention to such groups and individuals that include "women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees".139 Provisions such as these make it evident that the notion of a human right to water has indeed come a long way. It is, as I have said before, an important step towards making access to water a reality for many. However, this enunciation relies heavily upon concepts of 'standards of living' that indicate the imagined universality of human life, and a general understanding of socio-economic rights such as to water, as mainly entitlements against the state. This anchoring limits the right to water, as I will illustrate in the next chapter. 136 Ibid, paragraph 2. 137 Ibid, paragraph 11. 138 Ibid, paragraph 14. 1 3 9 Paragraph 16. 40 Right to Environment Concerns for the detrimental effect upon human life being caused by the abuse of nature for the sake of development have provided the impetus for several international conferences related to the right to 'an environment of a quality that permits a life of dignity and well-being'. 1 4 0 There is considerable focus today on the responsibility to protect the constituents of the environment. Established human rights principles and fora are in fact increasingly being considered as means of strengthening environmental protection.141 There have been over fifteen international conferences that have considered the different aspects of the water crisis and have repeatedly highlighted the need for safeguarding water.142 Even though the declarations and statements emerging out of these conferences are not legally binding documents, they are considered as proof of the international intent and general consensus. Several commentators recognize the contribution of these initiatives and consider them as a valuable source for inferring the human right to water. The genesis of the association between human rights, environment and development (an association that has proved to be crucial for the right to water) is traced to the Declaration of the United Nations Conference on the Human Environment held in 140 Declaration of the United Nations Conference on Human Environment, 16 June 1972, U N Doc. A/CONF.48/14, Principle 1 [Stockholm Declaration]. 1 4 1 For a recent collection of essays that addresses the relationship between human rights and environmental protection see Romina Picolotti & Jorge Daniel Taillant, eds., Linking Human Rights and the Environment (University of Arizona Press: Tucson, Arizona, 2003). 1 4 2 See U N E S C O World Water Assessment Programme, "Milestones 1972-2003: From Stockholm to Kyoto" online: <http://www.unesco.org/water/wwap/milestones/index_pr.shtml> [Milestones]. 41 Stockholm in the year 1972.1 4 3 This conference highlighted the relationship of protection of the environment to the right to life and to economic development.144 The Stockholm Declaration identified water as one of the natural resources that needed to be 'safeguarded for the benefit of the present and future generations through careful planning or management'.145 This Declaration is therefore considered to have lent considerable support to the recognition of the right to water.146 In 1977 the United Nations Water Conference, the first international conference to focus exclusively on the problems relating to water, issued the Mar del Plata Action Plan. 1 4 7 The Action Plan dealt extensively with a wide range of issues related to water, such as the need for international cooperation, policy recommendations, assessment of water resources, environmental pollution, and future research. This conference is a significant milestone which, according to the first United Nations World Water Development Report, 'initiated a series of global activities in water'. 1 4 8 The debate on the right to water has been traced1 4 9 to this conference which for the first time specifically declared the right of 'all peoples' to 'have access to drinking water in quantities and of a quality equal to their basic needs'.1 5 0 Notably, the relationship of the human right to water to the concept of basic needs - a relationship I will revisit later, can also be traced 143 Supra note 140. 144 Ibid, paragraph 2. 145 Ibid. Principle 2. 1 4 6 See McCaffrey 1992, supra note 125 at 16. 147 Report of the United Nations Water Conference, Mar del Plata, March 14 - 25, 1977. No. E.77.II. A. 12, New York: United Nations publications. 1 4 8 U N Water Report 2003, supra note 13 at 5. 1 4 9 Salman & Mclnerney-Lankford 2004, supra note 22 at 8-9. 150 Supra note 147. Resolution II (a). 42 to this conference. This focus on the basic water needs was subsequently reaffirmed in the Rio Summit in 1992.1 5 1 Another significant milestone that has an important place in the story of the evolution of the right to water is the International Conference on Water and the Environment held in Dublin in January 1992. Attempts at striking a balance between the 'right to environment' and the 'right to development' resulted in the Dublin Statement on Water and Sustainable Development152 that contains the four guiding principles which are considered as having "defined the basic guidelines for water resources management in the years to come". 1 5 3 It would be worthwhile to take a brief look at what these principles represent. The principles read as follows: 1 5 4 (i) fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment (ii) water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels (iii) women play a central part in the provision, management and safeguarding of water (iv) water has an economic value in all its competing uses and should be recognized as an economic good. 1 5 1 U N Conference on Environment and Development (UNCED Earth Summit), Rio de Janeiro (1992). See the two documents related to the conference: Rio Declaration on Environment and Development, Report of the UNCED, U N Doc. A/CONF.151/26 (Vol. 1) (1992), online: <http://www.un.org/documents/ga/confl51/aconfl5126-lannexl.htm>; Agenda 21, Report of the UNCED, 1(1992), online: < http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm>. For reference to 'basic needs' see section 18.8 of Agenda 21. 152 The Dublin Statement on Water and Sustainable Development (1992),online: <http://www.wmo.ch/web/homs/documents/english/icwedece.html> (date accessed: 10 May 2006) [Dublin Principles]. 1 5 3 Finger & Allouche 2002, supra note 24 at 24. 1 5 4 Dubin Principles, supra note 152. 43 The Dublin Principles recommend some broad approaches to water management, such as recognition of its relevance to life, development and environment, and the need for a participatory approach. Like most international instruments seeking wide acceptance, the Dublin Principles are also open to a range of interpretations.155 Out of the four principles however, the one that has attracted the most international attention and controversy is Principle 4 which considerably strengthens156 the 'economic approach' to water. Interestingly, the fact that the Dublin Statement on one hand underlines the need 'to recognize first the basic right of all human beings to have access to clean water', while also clarifying that such access be available 'at an affordable price' clearly illustrates that even though groups with vastly differing ideologies can, and will seek to rely on these principles for very different ends, such reliance will only serve the purpose of fuelling the 'free water versus cost of water' kind of diversionary debates. I call these debates diversionary because such debates present the controversy over the human right to water merely as between those who want free water and those that advocate 'better' water management and governance that 'necessitates' cost recovery. In doing so, the debates evade the deeper issues of questioning the fundamental premises of either view, that are highlighted in this thesis. See e.g. Finger & Allouche 2002, supra note 24 at 29. 1 5 6 See ibid, at 25. Finger & Allouche refer to Principle 4 as the "main innovation, leading directly to an economic approach to water resources". 44 157 The Dublin Principles were subsequently reiterated in Agenda 21 of the Rio Summit at the United Nations Conference on Environment and Development held in 1992. 1 5 8 Agenda 21, which strengthened the evolving nexus between water, human rights, environmental rights and development,159 devotes an entire chapter160 to freshwater resources. The focus was on freshwater needs for 'sustainable development',161 reconciling the different 'needs for water in human activities' with a priority for 'satisfaction of basic needs'.1 6 2 Other international initiatives aimed at bringing about the as yet elusive balance between the competing needs for water include the World Water Council (WWC) 1 6 3 established in 1996, the Global Water Partnership (GWP) 1 6 4 and the four World Water Forums held every three years since 1997. These initiatives have made a significant contribution to drawing the world's attention to water issues and also create spaces for dialogue and debate between diverse interests and ideologies. Supra note 151. 158 Ibid. 1 5 9 See paragraph 18.47 that reiterates the right of all peoples to access drinking water and paragraph 18.8 that refers to safeguarding of eco-systems and sustainable development. 1 6 0 Chapter 18 - Protection of the Quality and Supply of Freshwater Resources: Application of integrated approaches to the development, management and use of water resources. 1 6 1 Defined as "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs" in the Brundtland Report. See Report of the World Commission on Environment and Development, U N GA, 42 n d Sess., U N Doc. A/42/427 (1987). For a critique of the Report and the concept of'sustainable development' see e.g. Shiv Visvanathan, "Mrs. Brundtland's Disenchanted Cosmos" (1991) 16:3 Alternatives 377. 1 6 2 Agenda 21, Paragraph 18.8. 1 6 3 See the website of the WWC, online: <http://www.worldwatercouncil.org/>. 1 6 4 See the website of the GWP, online: <http://www.gwpforum.org/servlet/PSP>. 45 Right to Development Article 8 of the Declaration on the Right to Development adopted by the U N General Assembly in 1986 1 6 5 calls upon states to ensure equality of opportunity to access basic resources to all. Considering that water has been acknowledged as a basic resource by the U N , article 8 is also considered as a source that supports the human right to water.1 6 6 A subsequent resolution on the Right to Development167 was also adopted by the U N General Assembly reiterating the universal right to development. Paragraph 12 of this Resolution which refers, inter alia, to the fundamental human right to clean water,168 is in fact considered by some as the 'strongest and most unambiguous' declaration of the human right to water, and of the link between this right and the broader right to development.169 The eight Millennium Development Goals 1 7 0 set out by the United Nations Millennium Declaration1 7 1 adopted on September 18, 2000 include the goal to reduce by half the proportion of people without sustainable access to safe drinking water by the year Supra note 64. 1 6 6 See Gleick 1998, supra note 117 at 494. 167 The Right to Development, G A Res. 54/175, U N GA, 54 t h Sess. U N Doc. A/RES/54/175 (1999), online: <http://daccessdds.un.Org/docAINDOC/GEN/N00/279/l 1/PDF/N002791 l.pdf?OpenElement> (accessed May 10, 2006). 1 6 8 The relevant portion of paragraph 12 of the resolution reads as follows: "12. Reaffirms that, in the full realization of the right to development, inter alia: (a) The rights to food and clean water are fundamental human rights and their promotion constitutes a moral imperative both for national Governments and for the international community; 1 6 9 See Salman & Mclnerney-Lankford 2004, supra note 22 at 11-12. 1 7 0 For more information on the Millenium Development Goals see online: UNDP homepage <http://www.undp.org/mdg/>. 171 United Nation Millennium Declaration, G A Res. 55/2, U N Doc. A/RES/55/2 (18 September 2000), online: < http://daccessdds.un.Org/docAJNDOC/GEN/N00/559/51/PDF/N0055951 .pdf?OpenElement>. 46 2015. 1 7 2 Reiterating the need for 'a greater focus on water related issues', the U N General Assembly also adopted another significant resolution proclaiming the period from 2005 to 2015 as the International Decade for Action, "Water for Li fe" . 1 7 3 One fact clearly emerges from the above stated story of the evolution of the right to water within international law - that the concepts of human rights, environmental rights and the right to development are inextricably linked. This relationship strengthens the case for a human right to water at one level. However, i f this relationship, and the assumptions it is based upon ('universality', 'basic needs', 'standard of living', and 'development') are viewed through a different lens, a different story emerges. It is, however essential to identify the primary aspects of the dominant story that need to be revisited in order to understand the alternate story. The following section is an attempt to do that. Part II The Human Right to Water: Emerging Discourse on the Meaning and Practical Implications The preceding section traces the sources in international law that are relied upon to infer and derive the human right to water. However, not everyone who supports the recognition of a right to water expects any real improvement in conditions due to the See ibid, paragraph 19. 173 International Decade of Action, "Water for Life", 2005-2015, G A Res. 58/217, G A 58 , h Sess., UN Doc. A/Res/58/217 (2004), online: < http://www.unesco.org/water/water_celebrations/decades/water_for_life.pdf> (date accessed: 10 May 2006). 47 acknowledgement of the right. 1 7 4 This is perhaps understandable as recognition of a human right by the United Nations per se does not guarantee immediate universal acceptance or access to the exercise of such a right. In fact, such recognition is usually just a beginning of the longer struggle to ensure a continued universal respect for the right. Accepting that every human being has a right to water naturally raises several questions as to the practical implication of such a right. What precisely does (or should) such a right seek to guarantee? What are the social, economic, political, cultural and environmental obstacles to making such a right a reality? How can these limitations be overcome? While examining prominent analyses that have raised these or similar questions, I identify four broad themes that constitute the mainstream discourse on the human right to water - (i) the right to water as an entitlement, (ii) the right to water as a consumer right, (iii) the relationship between the right to water and the right to development, and (iv) the obligations of the State, the international community, and increasingly, the market to ensure all the above under conditions of 'good governance'. The Human Right to Water: An Entitlement I have highlighted in the preceding section the significant place that 'basic needs' hold in the story of the evolution of the human right to water. As a result, contemporary discourse on the human right to water also focuses chiefly on the right to water as an entitlement to a basic need. In his preliminary exploration of the legal framework for the human right to water, Stephen McCaffrey emphasises that such a right would have to be 1 7 4 See Gleick 1998, supra note 117. 48 defined carefully "so as to take into account all-too-prevalent instances of region-wide water shortages".175 Accordingly, while urging the recognition of 'access to adequate amounts of safe, usable fresh water as a human right' 1 7 6 McCaffrey suggests that such a right would include a right to sufficient supply of safe drinking water to sustain l ife. 1 7 7 The concept of water to meet basic human needs is further developed by Peter H. Gleick who defines the right as follows: " A l l human beings have an inherent right to have access to water in quantities and of a quality necessary to meet their basic needs. This right shall be protected by law." 1 7 8 Gleick clarifies that a human right to water is not a right to an unlimited amount of water.1 7 9 Instead such a right should apply only to the 'basic needs' or a basic water requirement (BWR) which ranges from 20 to 50 litres per person per day 1 8 0 depending on the needs - drinking, food preparation, bathing and sanitation - that are considered.181 Gleick further urges adoption of an overall B W R to meet basic domestic needs by international organizations 'independent of climate, technology and culture' even as he qualifies the same by saying that a 'specific number' is less important than setting a goal. 1 8 2 1 7 5 McCaffrey 1992, supra note 125 at 1. McCaffrey's analysis, in his own words, was "preliminary and tentative" at the time but it undoubtedly made a significant contribution to the evolution of the human right to water by highlighting the necessity of establishing such a right, and examining some of its practical implications a decade before such a right was explicitly recognized by the U N in the General Comment 15. 176 Ibid, at 7. 177 Ibid, at 12. 1 7 8 Gleick 1998, supra note 117 at 501. 179 Ibid, at 494-495. 180 Ibid, at 496. Gleick has recommended 50 liters per person per day as the basic water requirement for four human domestic needs - drinking (5 liters), sanitation services (20 liters), bathing (15 liters), and preparation of food (10 liters). There are however other views on the minimum requirement of water for these activities. See e.g. WHO, The Right to Water (France: WHO, 2003) at 17. 181 Ibid. See also at 495 'water for basic needs'. iS2Ibid. 49 Since more than a billion people in the world today lack access to safe water, the General Comment 15 also highlights the importance of a right to water as an entitlement to 'sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses'. 1 8 3 However, even though the General Comment 15 categorically states that the right to water contains both entitlements and freedoms,184 the document essentially focuses on the former as reflected by paragraph 37 that enumerates the core obligations of states that are of immediate effect.185 Subsequent commentaries on the human right to water, its normative contents, justiciability, scope and need to prioritize competing needs also focus mainly on the right as an entitlement to access water in adequate quantity and quality. 1 8 6 The core obligations enumerated in the General Comment 15 are indeed some of the most important components of the existing 'soft law' on the right to water and paragraph 37 that sets out the obligations of the states, read with paragraph 38 that emphasizes the obligations of 'other actors' to assist the sates are important and significant steps towards fulfilment of the human right to water.1 8 7 The significance of the Supra note 114, paragraph 2. 184 Ibid, paragraph 10. 185 Ibid, paragraph 37 contains nine core obligations which are of immediate effect. 1 8 6 See Amanda Cahill, "The Human Right to Water: A Right to Unique Status" (2005) 9:3 Int'l J. Hum. Rts. 389; Thorsten Kiefer & Catherine Brolmann, "Beyond State Sovereignty: The Human Right to Water" (2005) 5 Non-State Actors and International Law 183, in addition to other commentaries analyzed in this thesis. 1 8 7 It is bound to produce familiar reactions suggesting that the General Comment seems to have gone too far in mandating all states to ensure immediate access to water facilities and services. As in the case of other social, economic and cultural rights, such reactions are based on the treatment of obligations under ICESCR as being of 'progressive realization' as all states do not have the resources to ensure the protection of such rights. Although, it is often the political ideology of a state that shapes its commitment to a human right more than the prescribed resources at its disposal. This is best illustrated by the reluctance of United States to acknowledge the human right to water. See Gleick 2004, supra note 22 at 205. 50 clear articulation of the obligations can in fact be appreciated by looking at the reluctance of the international community (or at least those of its members who play a decisive role in shaping international consensus) in accepting water as a human right. I will illustrate in the next chapter how the 'right' to water is much broader and more significant than its current understanding as mainly that of an 'entitlement' to fulfilment of a 'basic need' for water. The debates over 'human right to water' are important in this context. Salman and Mclnerney-Lankford, in their analysis of the origin and evolution of the human right to water1 8 8 refer to various international instruments which vacillate between declaring water to be a 'right' or a 'need'. 1 8 9 Peter H. Gleick also presents an interesting account of how the word 'right' has been replaced by 'needs' in international conference statements and ministerial declarations.190 The replacements are often made at the last minute under pressure from some influential members of the 'international community', that at times even result in grammatically awkward sentences i 191 in the statements. I suggest that the reason for preferring the language of 'entitlement to needs' to that of 'rights that include freedoms', is that the former is a familiar terrain for the international community. It doesn't disturb the recognizable 'north-south' and 'developed-undeveloped' dichotomies. The former also fits well with the story of'givers' Salman & Mclnerney-Lankford 2004, supra note 22 at 17. The work admittedly focuses on such instruments while tracing the evolution of the human right to water that are 'contemporary' and 'western'. 1 8 9 See ibid, at 7-16 for the discussion. 1 9 0 See Gleick 2004, supra note 22 at 204-205, 208-209. 51 and 'receivers' of human rights. 1 9 2 A 'right' to water on the other hand, as I w i l l illustrate, takes us into uncharted, much more controversial waters. This aspect has however not been explored in the mainstream rights discourse related to water so far. While commenting upon the lack of any attempts to define or distinguish between the two words - 'needs' and 'rights', Salman and Mclnerney-Lankford suggest that "[t]he term "need" implies some sense of charity, and represents the recipients as passive beneficiaries, whereas "right" conveys a sense of legal entitlement, which should, in turn, result in a corresponding duty" . 1 9 3 The 'right' here is limited to a legal entitlement to fulfilment of a need - water. The 'freedoms' associated with the right go unrecognized, and are in fact unrecognizable. The following suggestion makes this clearer: "In some respects, the right to water can more accurately be characterized as a need or an entitlement embodied as a r ight . " 1 9 4 The fact that water is indispensable for life and non-substitutable does indeed make it a basic requirement. Considering that more than a bi l l ion people today lack access to safe water, it is essential to focus on the entitlement to water. A s evident from the preceding paragraphs, a considerable body of literature contributes towards this end, thereby strengthening the legal basis of the human right to water. Unfortunately, the focus on entitlements to water requirements or needs limits the potential of the right. See Chapter 2 for reference to 'givers' and 'receivers' of human rights. Salman & Mclnerney-Lankford 2004, supra note 22 at 15-16. Ibid, at 66 [emphasis added, footnote omitted]. 52 Human Right to Water: A Consumer Right There are many today who believe that a right to water does not imply an entitlement to 'free water'.1 9 3 The idea is at times dismissed as a fantasy,196 and at others considered as an 'invitation for misuse and abuse'.1 9 7 Relying on the idea of management of water as an economic good as set out by the Dublin Principles, and its reasoning for the same, and other international initiatives that call for full-cost pricing in order to promote the conservation and efficient use of water, it is suggested that pricing of water is in fact a necessity in order to achieve the goals set out in the General Comment No. 15. 1 9 9 It is for the same reason that the General Comment's call to states parties to ensure that water is affordable by adopting measures that "may include ... policies such as free or low cost water"200, is in fact considered as problematic by some.2 0 1 It has even been suggested that 'those upon whom the human right to water is conferred', have 202 certain obligations, such as the duty to conserve water and the duty to pay for water. The narrowness of the mainstream discourse is obvious from such suggestions. It is difficult to overlook the apparent reiteration of the 'givers' and 'receivers' of human rights framework here. The complete blindness to ways of life based upon conservation 195 196 See e.g. Salman Mclnerney-Lankford 2004, supra note 22 at 70-71. Thirst 2004, supra note 23. 1 9 7 Salman and Mclnerney-Lankford 2004, supra note 22 at 70. 198 Supra note 152. See Principle No. 4 which declared that "[p]ast failure to recognize the economic value of water has led to wasteful and environmentally damaging uses of the resource". 1 9 9 Salman and Mclnerney-Lankford 2004, supra note 22 at 70-71. 2 0 0 Paragraph 27. 2 0 1 See Salman and Mclnerney-Lankford 2004, supra note 22 at 70. 202 Ibid, at 74. 53 as against 'consumption' is also very problematic. Even more problematic is the fact that 'global' policies are based on such broad assumptions about all human beings. The blurring of the distinction between the human right and the consumer right to water is evident from the market-friendly language used in some recent initiatives relevant to the right to water as highlighted by Bronwen Morgan in her article on the regulatory implications of the human right to water.203 While exploring the regulatory dimension of the human right to water, Morgan reviews three 'soft law' initiatives2 0 4 to illustrate the emerging compatibility of the 'water as a commodity' approach and private sector participation with 'water as a human right'. She highlights an identifiable increasing focus on the consumer-oriented approach to the issue. This approach is however, based on a particular understanding of socio-economic rights, as made clear by the following suggestion: "The complementarity of market-based provision of water services and the human right to water might suggest that socio-economic rights are in practice little different from consumer rights, since they are necessarily implemented by regulatory norms that protect consumer (public) interests 205 by establishing minimum standards of provision" Even while examining the implications of institutionalizing the human right to water, Morgan suggests that the current politics of water services "revolve around an overly simplistic dichotomy between water as human right versus water as 2 0 3 Morgan 2004, supra note 27. 204 Ibid, at 180-182. The three initiatives reviewed are the General Comment 15, the Draft Declaration on the Right to Access to Essential Services, and ISO Technical Committee 224. 205 Ibid, at 182 [emphasis added]. 54 commodity".2 0 6 Morgan argues that in the current global context the human right to water depends critically upon the local right to regulate. Further, it is this dependence that indicates that "the bearer of a 'human right to water' is less distinct than might be expected from a consumer exercising his or [her] legal rights under a local regulatory framework".208 Even though Morgan raises the issue of a possible 'ill-fit' between regulatory standards based upon human rights and those based upon consumer welfare,2 0 9 the very acceptance of the idea of transformation of a human right to a consumer right, increasingly in a market-led provision of water, is extremely problematic. An uncritical acceptance of the consumer approach is, I suggest, possible only within the narrow framework of the mainstream rights discourse. Such a reconciliation might provide some limited solutions in certain contexts, such as in some cases of urban municipal supply of water. It is however, un-imaginable i f one considers the innumerable alternative perspectives on the relationship between human beings and water, which are not necessarily focused merely upon 'consumption' of water. Human Right to Water and Development The fact that water is essential for economic development is acknowledged by all and is regularly mentioned in environment and development related conferences and declarations. The relationship between the 'right to water' and development, and also, the 206 Ibid, at 179. 207 Ibid. Morgan, however, does not rule out the relevance of this dichotomy completely, only that it needs to be analyzed in more detail. 208 Ibid. 209 See ibid, at 182. 55 right to water as a means of furthering development - also an internationally recognized right - is also endorsed in the literature dealing with the right. McCaffrey pointed out that economic development cannot be sustained without water. He posits international human rights law as an effective means of encouraging governments to manage their water resources in a sustainable manner.210 Peter Gleick, while being doubtful of any real improvement in conditions worldwide due to the acknowledgement of the right to water,211 also suggests that an expression of the willingness to meet the right would provide 'the water community' with a 'useful tool for addressing one of the most fundamental failures of 20th century development'212. Although his focus here is on 'human development',213 and he clarifies that meeting basic needs of water should take precedence over spending on economic development by States.214 Increasing awareness of the costs to the environment of economic development has raised consciousness about the need for thinking not just about the present, but also the future. 'Sustainable development' seeks to guarantee for present and future generations the simultaneous fulfilment of the rights to development and environment, as well as furthering the cause of human rights. This widely accepted and celebrated idea also finds a place of prominence in mainstream water discourse. The fact is evident from several recent international initiatives, especially the U N General Assembly Resolution 2 1 0 McCaffrey 1992, supra note 125 at 24. 2 1 1 Gleick 1998, supra note 117 at 501. 2nIbid. at 488. 213 Ibid. 2 1 4 Ibid, at 499. 56 on the International Decade of Action, "Water for Life", 2005-2015. The Resolution emphasizes at the very outset that 'water is critical for sustainable development, including environmental integrity and the eradication of poverty and hunger, and is 215 indispensable for human health and well-being'. The U N General Comment 15 also incorporates the idea of sustainable development by requiring States to 'ensure that there is sufficient and safe water for present and future generations'.216 The measures it suggests for achieving this include the reduction of depletion through unsustainable extraction, diversions and dams; reducing contamination; monitoring water reserves; ensuring that proposed developments do not 2 1 7 interfere with access to adequate water; encouraging efficient use; etc. Such suggestions are however unlikely to change substantially the way 'development' is actually done. In fact the 'developmentalization' of the right-to-water discourse is already proving this in many ways as illustrated in subsequent chapters. Human Right to Water and Governance The principal components of the right to water as identified above - the right to water as an entitlement, as a consumer right, and the promotion of the mutually beneficial relationship between the rights to water and development - are all pursued through the vehicle of 'good governance'. According to the latest U N World Water Development 2 1 5 International Decade of Action, "Water for Life", 2005-2015, G A Res. 58/217, G A 58 t h Sess., U N Doc. A/Res/58/217 (2004), online: < http://www.unesco.org/water/water_celebrations/decades/water_for_life.pdf>. 2 1 6 Paragraph 28. 2 1 7 Ibid. 57 Report, the water crisis is in fact a crisis of governance?x% This view is supported by i 219 others too. Most analyses of the human right to water focus on the obligations of the state to fulfil, protect and respect the right. However, increasingly, non-state actors are also called upon to contribute to the 'good governance' of water. People, as users of water are also urged to add to the success of good governance by participating in the management of water resources. Therefore, as discussed earlier, the notion of 'governance' here extends well beyond the government. Before looking at the broader understanding of 'governance', I will first summarise early discussions on the implications of the human right to water that focused mainly on the obligations of states, both towards the people and towards other states. McCaffrey, in his analysis,2 2 0 relied on the concept of a state's 'due diligence obligation' to safeguard the right to supply of water.221 According to him, the implementation of the right to water through the United Nations framework was an appropriate albeit, not very effective, approach.222 The basis of such an approach would be the strengthening of aid and assistance initiatives by appropriate U N agencies and organs, especially during 218 The 2nd UN World Water Development Report: Water, A Shared Responsibility, (2006), online: <http:// www. unesco.org/ water/w wap/>. 2 1 9 See e.g. the perspective of the Asian Development Bank, online: <http://www.adb.org>. For perspectives on the overall 'global environmental governance crisis' see Adi l Najam, "The Case Against a New International Environmental Organization" in Paul F. Diehl, ed., The Politics of Global Governance: International Organizations in an Interdependant World (Boulder, Co: Lynne Rienner, 2000); also Klaus Bosselmann, "Environmental Governance: A New Approach to Territorial Sovereignty" in Robert J. Goldstein, ed., Environmental Ethics and Law (Hants: Ashgate, 2004). 220 Supra note 125. 221 Ibid, at 15. 2 2 2 Ibid at 16-17. 58 crises. McCaffrey urged increased funding for such assistance programs and a greater involvement and support from the 'world powers' in such efforts in the non-Western 223 countries. In addition to directly addressing the issue of lack of access to water, McCaffrey also examined the implications of recognising the human right to water for international water disputes. He has elaborated on how the human rights approach to access water is likely to provide legal remedies to people in transboundary water disputes between states, such as those regarding interference in water availability between co-riparian states.224 Such remedies, based on the principle of injury to an individual arising out of a violation of a fundamental right, as well as international humanitarian law, are considered likely to prove more effective than the traditional remedies available to states under existing international laws dealing with water.225 Peter H . Gleick has expanded on McCaffrey's analysis of state obligations. 2 2 6 Linking the issue to the basic human need for water he stressed that a state must provide for the basic needs in situations where individuals are unable to meet such needs for reasons beyond their control. 2 2 7 He reiterated this view further by stating that "meeting this minimum need should take precedence over other allocations of spending for 228 economic development". 223 Ibid, at 17. 224 Ibid, at 17-23. 225 Ibid. 226 Supra note 117. 227 Ibid, at 499. 228 Ibid. 59 Part III of the General Comment 15 sets out both general and specific legal obligations of state parties towards the realization of the right to water. Paragraph 2 0 of the General Comment specifies three types of specific legal obligations that the right to water imposes on states, viz. obligations to respect, obligations to protect, and obligations to fulf i l . 2 2 9 The obligation to respect requires states to avoid interfering with the enjoyment of the right and "includes, inter alia, refraining from engaging in any practice or activity that denies or limits equal access to adequate water [and] arbitrarily 230 interfering with customary or traditional arrangements for water allocation". The obligation to protect takes this idea of non-interference further by requiring states to 23 1 prevent third parties, including corporations, from interfering with the right to water. Lastly, the obligation to fulfil requires states to facilitate, promote and provide the right to water.2 3 2 In addition to these, the General Comment also lists certain 'core obligations' of the states to ensure the satisfaction of minimum essential levels of the right to water that 233 are of immediate effect. The transformation of the role of states generally2 3 4 is reflected in the water discourse. There is an increased involvement of the private sector in the management of water resources and distribution systems. The General Comment on the right to water 2 2 9 See supra note 114, paragraphs 21-29. 230 Ibid, paragraph 21 [emphasis added]. Ibid, paragraph 23. 2 3 2 Ibid, pargraph 25. 2 3 3 See ibid, paragraph 37. 2 3 4 1 refer here to the relocation of the authority of the 'government' and the ways in which the nation-sate is replaced and/or supplemented by non-state actors and the private sector in various functions of 'governance'. For the changing role of the nation-state, see Keohane and Nye 2000, supra note 77; Rosenau 1992, supra note 76. See also Ashis Nandy, "State" in Sachs 1992, supra note 67. 6 0 also does not rule out the involvement of third parties.235 There are today various models of 'water governance'236 that go beyond the dominant role of the states reflected in earlier water discourse.237 While most models suggest some form of participatory management involving both state and non-state actors, in some models the role of the state is in fact downplayed. The following excerpts from the Global Water Partnership's document 'Effective Water Governance' makes this clear: "Governance is more inclusive than government per se: it embraces the relationship between a society and its government (p 4) ... Governance includes but is not restricted to the perspective of government as the main decision-making political entity (p 7) ... For many years the question was 'can the state steer society' ... the question currently posed is less statist: 'can society coordinate and manage itself (p 10) ... Today government can no longer exercise a monopoly on the orchestration of government (p 10) ." 2 3 8 Models of governance with visions of participation and transparency seek to introduce better management of water resources in order to deal with the water crisis. Many of these models emphasize the importance of 'cost recovery' and a 'muted role of the state'.239 They suggest a complementarity of human right to water with private sector involvement and market-based provision of water.2 4 0 The stated aim however remains the 2 3 5 General obligations of non-state actors find mention in Part VI of the General Comment. The entities included in this category are the several U N agencies, the WTO, the IMF and World Bank, international humanitarian organisations and NGOs. 2 3 6 According to the UN Development Program "water governance refers to the range of political, social, economic, and administrative systems that are in place to develop and manage water resources and the delivery of water services at different levels of society. It comprises the mechanisms, processes, and institutions through which all involved stakeholders, including citizens and interest groups, articulate their priorities, exercise their legal rights, meet their obligations and mediate their differences". This basic definition is widely accepted by several institutions and coalitions that focus on water governance, online: <http://www.undp.org/water/about_us.html> (date accessed: 18 August 2006). 2 3 7 See e.g. Karen Bakker, "Good Governance in Restructuring Water Supply: A Handbook", online: <http://www.geog.ubc.ca/~bakker/Good_Governance_handbook.pdf> (date accessed: 24 May 2005). 2 3 8 Global Water Partnership, "Effective Water Governance" (2002), [excerpt quoted in Morgan 2004, supra note 27 at 180]. 2 3 9 See Morgan 2004 ibid. 240 Ibid. 61 protection of human rights, albeit, as understood by those that govern. Not surprisingly, in such a scenario the human right to water appears to be nothing more than a right to a 'reasonable regulatory approach'. 2 4 1 Such formulations reduce the emancipatory potential of the human right to water. They are also a result of the narrow understanding of the right which is that of only an entitlement to water. For example, Salman and Mclnerney-Lankford suggest that "rather than placing emphasis on the recognition of a human right to water, a more pragmatic approach would be to address the right to manage, or participate in the management of, the water resources"242. The fact that a right to water is not envisaged as including a right to participate and manage clearly shows the distinction between the ways that participation, management and primarily 'governance' are understood by those that seek to govern and those that are sought to be governed. The critique of the mainstream discourse and the case study presented in the following chapters will further illustrate this premise. In this chapter I have examined the mainstream discourse on the human right to water. I began by tracing the dominant story of the evolution of the right, and it's anchoring to the rights discourse as visualised from above. I have explained how the water-rights discourse uncritically draws upon and reproduces the deeply contested standard narratives of human rights and rights to environment and development. In the second part I identified four themes that emerge from the right-to-water discourse that are Salman & Mclnerney-Lankford 2004, supra note 22 at 75. 62 the result of the narrow framework provided by the aforesaid standard narratives. This understanding will facilitate the revisiting of the mainstream discourse in the next chapter. 63 Chapter 4 - Revisiting the Human Right to Water In the last chapter I identified four principal themes that constitute the 'human right to water' under international law. The principal words that the right-to-water discourse is built upon derive their meanings from a predominantly Western understanding of both human rights and development that reflects the hegemonic economic ideology. In the present chapter I revisit these key aspects of the mainstream discourse. I draw upon critiques of human rights and development discourses to contest and problematize the meanings ascribed to the key terms and the understanding of the human right to water that they help articulate. I will also establish the existence of several alternative ways of conceptualising the human right to water that the mainstream discourse excludes. The purpose of this critique is to highlight the fact that the narrow focus of the discourse on right to water fails to represent the lived experiences of 'most of the world' facing a water crisis today. Even as the ideal of a universal human right to water is a worthy aspiration, the discourse that seeks to formulate the right in fact limits the right. The anchoring of the right to 'accepted' sources of international law prevent the discourse from expanding beyond the narrow confines of the Western liberal paradigm. The inevitable focus on entitlements, development and governance makes the human right to water susceptible to co-optation. Such formulations of the right to water enable its use as a hegemonic tool, reducing its emancipatory potential and thereby, making it meaningless to most. 64 Before examining each aspect separately, I'd like to begin by suggesting that the very context of the mainstream discourse is narrow. Even while talking about a 'universal' human right to water, it primarily sets as a framework for engagement the system of municipal supply of water. I've stated before that this is partly because the debate on the right to water itself has become a focus of attention due to the phenomenon of privatization of municipal water supply systems around the world. Unfortunately, this limited vision excludes all other ways in which people access water. I suggest that this exclusion itself makes it impossible for the right being formulated to be of much consequence to many around the world. Human Right to Water as an Entitlement As illustrated in the preceding chapter, the contemporary discourse on the right to water focuses chiefly on the right being an entitlement to a 'basic need'. This formulation is a result of a combination of factors, such as a particular understanding of social and economic rights, the role of the state within the international law of human rights, and assumptions that form the basis of the development discourse. Entitlements and Freedoms Water is indispensable for life and non-substitutable. It is therefore a basic requirement. The suffering caused due to lack of access to safe water makes it essential to focus on the entitlement to water and the consequent rights and obligations. A right to water enables human beings to make a claim for water needed by them against the state which would be obligated to provide the same, and thereby respect the right to water. Unfortunately, the significance of the other and, for many, the more crucial aspect - the 65 human right to water as a freedom - is largely marginalised in the literature dealing with the right. Even where they are included, such as in the General Comment 15, the freedoms are primarily considered as the negative obligation of the state to not interfere with access to water, understood mainly as protection against an arbitrary disconnection of water supply. There are however, other freedoms that could be associated with the right to water that would mean more to people, such as the freedom to explore alternatives to access water based on traditional knowledge and local experiences, the freedom to define and determine one's 'need' for water, and the freedom to reject imposed notions of sustainability, conservation and development. One expression of such a freedom can be found in the initiatives of the local people in creation of Johads244 - traditional structures for harvesting rain water in the desert area of Rajasthan, a state in western India. 2 4 5 Decades of mining and commercial exploitation of forests had contributed to the destruction of forests and damage to the watershed in parts of the state. The rivers, streams and wells in the area dried up which adversely affected the agriculture. The shortage of water resulted in widespread See General Comment 15, supra note 114 Paragraph 10. 2 4 4 A johad is described as a 'concave structure' where rain water is collected and stored. See "Rajendra Singh" An interview, online: lndianNGOs.com <http://www.indiarmgos.com/interviews/allinterviews/rajendrasingh.htm> date accessed: 10 August 2006. 2 4 5 See Thirst 2004, supra note 23; see information available on the website of Tarun Bharat Sangh < http://www.tarunbharatsangh.org>; For more information on community based rain water harvesting initiatives see Centre for Science and Environment, "Community Based Water Management Initiatives", online: <http://www.rainwaterharvesting.org/Rural/Bhaonta-Kolyala.htm> (date accessed: 10 August 2006). 66 migration from the area. Those that stayed, primarily women and children, continued to face immense hardships, such as the need to walk for miles in search of water. This scenario is typical of many parts of the world that face shortage of water. What distinguishes the people of this region is that they did not wait for the state, the market or the international community to provide for their 'entitlement to water'. The people instead revived an abandoned tradition of building johads.246 This technique of rain water harvesting has led to recharging of wells and revival of rivers in the several parts of the state and has benefited agriculture. It has also enabled many who had migrated to cities to return to the area.247 Clearly, the people here understand their 'right to water' as a freedom. The freedom is more important than an entitlement to provision of water by the state or the market. Ironically, the government is now planning to privatize the revived sources of water in the state in order to fulfil its obligation to ensuring access to water. The people are however against such a move. 2 4 8 The entitlement approach is also rendered problematic by two important issues that the mainstream human rights discourse fails to appreciate: firstly, the problems 2 4 6 This local initiative was led by Rajendra Singh who also received the Ramon Magsaysay Award for community leadership in 2001. See Sunny Sabastian, "The Water Man of Rajasthan" (2001) 18: 7 Frontline, online: < http://www.frontlineonnet.com/fll817/18170810.htm> (date accessed: 18 August 2006); "Profile of Shri Rajendra Singh", online: Tarun Bharat Sangh < http://www.tarunbharatsangh.org/about/rs.htm > (accessed: 18 August 2006). 2 4 7 See Ambuj Kishore, "Taking Control of their Lives" Ecologist Asia (2003) 11:3, online: sanctuary asia <http://www.sanctuaryasia.com/features/detailfeaturescategory.php?id=558&catid=41> (date accessed: 10 August 2006); Tarun Bharat Sangh, supra note 245. 2 4 8 Tarun Bharat Sangh, ibid. 6 7 created by defining needs of others and of transforming those needs into entitlements, and secondly, the different perceptions of entitlements themselves and the resultant variations in the relationship between rights and duties around the world. Need for Water Water is a basic necessity for life, hence, the importance of the 'need for water' in the right-to-water discourse. The right arises from and also remains anchored to the 'need'. It is this need that is translated into an entitlement. Since it is essentially the 'need' for water that is the basis of the human right to water, it is important to look closely at this need. Visualizing and discussing needs in universal terms - as a given -renders the discourse problematic. Specifying a basic minimum requirement for water is one possibly effective way of approaching the issue, but it is by no means the only way. Moreover, I suggest that it is a limited and limiting approach. This is because the need for water is determined less by a scientifically measured human requirement and more by 'habits of needing' 2 4 9. Thus talking about needs without considering the habits of needing does more harm than good. The greatest harm being that despite the good intentions that produce them, the 'prescribed needs' can end up disempowering the people they are meant to empower. The focus on needs in the right to water discourse is once again a consequence of the limits of the Western liberal paradigm. This approach is unaware, even dismissive, of other ways of living with limits of nature, the countless ways in which people have 2 4 9 1 borrow this expression from Ivan Illich. See Ivan Illich, "Needs" [Illich 1992] in Sachs 1992, supra note 67. 68 traditionally adapted to limited water availability. For instance, the recommended 'basic 250 water requirement' for bathing is 15 litres and for sanitation services it is 20 litres. Such a recommendation is however based on a certain lifestyle that is neither shared nor preferred by all. Cultures in areas that have less water, such as deserts, might even consider the use of such quantities as waste. In fact, it is said that while forbidding excessive use of water Prophet Mohammed (P.B.U.H.), set an example for others by bathing in two litres of water and performing ablutions with half a litre. 2 5 1 Given the fact that Islam as a religion was born in a 'water scarce' part of the world, combined with the fact that it accords great importance to personal cleanliness, this illustration is significant for understanding the cultural variability of the 'need' for water. Another illustration that comes to mind is that of the use of water for cleaning dishes understood as another important human requirement. Any suggestion of the possibility of cleaning dishes without water is likely to elicit responses ranging from surprise to a shocked disbelief from most people today. However, this was a long-time practice in certain parts of the world where dishes were cleaned with sand, ash, coconut husk, lemon or some combination of these requiring little or no water.2 5 2 Such practices have now, by and large been replaced by ones that involve use of 'modern' cleansers and, 2 5 0 See Gleick 1998, supra note 117 at 496. Similar 'basic water requirements' have been determined and adopted by other international agencies. 2 5 1 Mohamed Haitham Al-Khayyat, "On the Preservation of the Environment: An Islamic Perspective" (1998) The Hassanian Lectures, quoted in Jason Morgan-Foster, "Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement" (2005) 8 Yale H.R. & Dev. L.J. 67 at 91-92. 2 5 2 Fast disappearing practices in most parts of India. 69 increasingly, dishwashers. Such 'progress' however does not take into consideration the limited availability of water in certain regions. It is evident that a universally defined 'need' for water ignores innumerable ecologically sustainable ways of coping with limited available water, primarily because it is based on a technical construction of necessity.253 hrrmense increase in the use of water has resulted from changes in personal habits and 'scientific progress'.2 5 4 The 'modern' lifestyle prescribes that we 'need' more water than what is really required.2 5 5 The 'adequate standard of living' that many in non-Western societies aspire for prescribes a lifestyle that often disregards local conditions. Traditional practices are discarded and 'modern' ones adopted. As discussed above, such practices and lifestyles often require more water than is available in most places. Thus even as we talk about 'water scarcity' and 'basic water needs', it is important to determine how much of the scarcity of water is in fact a result of the prescribed needs. Translating Needs into Entitlements Once measured and prescribed, needs are translated into entitlements.256 1 suggest that the anchoring of the right to water solely to an entitlement to such prescribed needs 2 5 3 See Illich 1992, supra note 249. Also see WHO, The Right to Water, supra note 180 at 10 where it is stated that a "rights-based approach may deliver more sustainable solutions because decisions are focused on what communities and individuals require, understand and can manage, rather than what external agencies deem is needed'' [emphasis added]. 2 5 4 H.A. Smith, "The Economic Uses of International Rivers" (1931), ref. in McCaffrey 1992, supra note 125 at 4. 2 5 5 The fact that the average daily use of water per capita is more in the 'developed' industrialized countries than in the 'developing' countries illustrates this. However, unmindful of the environmental limits, many people in 'developing' countries (primarily in the urban areas), inspired by the same lifestyles are rapidly moving towards unsustainable practices. See also Ashok Swain, "Water Scarcity: A threat to security or an incentive to cooperate?" in Ashok Swain, Managing Water Conflict: Asia, Africa and the Middle East (London: Routledge, 2004) c. 1. 2 5 6 See Illich 1992, supra note 249. 70 for water is a problematic formulation as it limits the scope of the right. It does so by constricting the 'right' to entitlements against the state, and if that fails, increasingly to the market. It makes the human right to water dependant on the ability or willingness of the powerful (the state or the market) to fulfill the 'need' of the powerless - those who lack access to water. Such a formulation also denies the possibility of alternatives to the people. This is because the 'needs' are no longer the familiar 'coping with the historically given', 2 5 7 or what is available. The universalization of problems and solutions has marginalized the efforts inspired by the natural human urge to evolve and find better ways to deal with a situation within a certain context. Faced with needs governed by the 'habits of needing' people feel powerless to look for and develop solutions that might work for them, and instead simply wait for their 'needs' to be fulfilled by those who have assumed upon themselves such a burden. Rights & Duties Duties of individuals towards other individuals and communities are acknowledged by the core instruments of human rights law. Mainstream human rights discourse has not accorded the necessary importance to duties in relation to rights. This is because the term 'duty' is not a 'fundamental word ' 2 5 8 within the normative universe 2 5 7 See ibid. For this argument I draw upon Illich's analysis of the construction of 'poverty' in the development discourse. 2 5 8 Robert M . Cover, "Obligation: A Jewish Jurisprudence of the Social Order" (1987) 5 J. L. & Religion 65. 71 created by Western liberal thought or legal culture. It is nevertheless a 'fundamental word' that seeks to address issues of welfare and justice outside of this culture. I refrain from a detailed discussion of the inconclusive debates on the focus on individual rights and marginalization of duties within the Western liberal ideology and how it has shaped the rights discourse. I will however discuss how this focus on 'rights' within the dominant human right to water discourse renders meaningless the equilibrium between rights and duties as understood by most of the world. Many traditional practices around the world reflect people's respect for nature, and the duty to protect and preserve it. Water, considered as a part of nature, was accorded the same respect. A careful use of and protection of water sources in order to ensure continued access to safe water are part of a traditional way of life for many. The World Health Organization mentions the Karen in Myanmar as an example of such practices.259 The attention to water conservation for the benefit of all living creatures in Islam as noted above is another illustration.2 6 0 The duty to offer water to the thirsty is also reflected in social practices. Examples include the tradition of setting up piyaos -free water for the public and for travellers in India, and the fast disappearing Indian tradition of offering water to anyone who knocks on one's door, especially during the hot summer months. See WHO 2003, supra note 253 at 27. See supra note 251. 72 Such concepts of one's duties vis-a-vis water clearly show that there are many possible interpretations of the right to water that are presently missing from the mainstream rights discourse with its focus on the entitlement to the basic 'need' for water, despite being invaluable to the stated cause - access to water for all. The above discussion on entitlements and freedoms is aimed at highlighting the dangers of ignoring the wider freedoms associated with the right to water. These are the freedom to decide upon one's need for water, the best course for meeting those needs, the freedom of drawing upon traditional practices, freedom to aspire for a balance between one's rights and duties vis-a-vis water, and most importantly, the freedom to reject all imposed notions of water 'problems' and 'solutions'. The dominant discourse of entitlements unfortunately marginalizes these freedoms. Right to Water as a Consumer Right There is a general global trend to reconcile human rights with international trade -two normatively distinct sub-disciplines of international law, allegedly in the interest of the former. Depending on one's point of view, this phenomenon can either be seen as a convergence for mutual development of both, or an acquisition of one by the other for furthering the agenda of the hegemonic forces of globalization.261 A reflection of this phenomenon can be seen in the emerging literature on human right to water as well. The use of 'market-friendly' language in recent initiatives relevant 2 6 1 For a detailed analysis see a recent debate: Ernst-UIrich Petersmann, "Time for a United nations 'Global Compact' for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration" (2002) 13 EJIL No. 3, 621-650; Philip Alston, "Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann" (2002) EJIL Vol.13 No. 4, 815-844; and Petersmann, "Taking Human Dignity, Poverty and Empowerment of Individuals More seriously: Rejoinder to Alston" (2002) EJIL Vol . 13 No. 4, 845-851. 73 to the right to water and also the 'blurring distinction' between human right to water and a consumer right mentioned in the previous chapter illustrate this. I suggest that this imposed compatibility and the acceptance of the idea of transformation of a human right to water to a consumer right can only lead to a further disempowerment of the people. The suggested compatibility of the right to water with a consumer's right is transformed into reality by a combination of the factors I have discussed earlier. The narrow context of the discourse on right to water, with its focus on entitlement to a supply of water within a municipal supply system is an important factor. It fails to consider other ways in which water is accessed by people both in urban and rural settings. Another important cause is the imagined universality of the relationship between people and water. There is no scope here for the respect for water as an intrinsic part of nature, and for traditions of 'conservation' as a way of life as opposed to 'consumption'2 6 2 of water, or the sharing of water as a commons as against establishing individual ownership over it by 'buying' it. There is also no acknowledgement of the absence of wasteful and environmentally damaging use of water in many rural areas despite the water being 'free'. A l l these factors challenge the very basis of prescribing a universal value of water that is currently sought.263 Human Right to Water and the Development Discourse In the mainstream discourse, better management of water resources is advocated for the purpose of sustaining economic development, and the formulation of an 2 6 2 For a critique o f consumption' and 'degeneration of people into consumers' generally see Esteva & Prakash 1998, supra note 4. 2 6 3 For different visions of the 'value' of water see Shiva 2002, supra note 18 at 137-138. 74 international human right to water is seen as an effective measure in this regard. The linking of the human right to water and development reflects and reproduces the 'developmentalization' of the rights discourse discussed earlier. The mainstream discourse on the right to water accepts and builds upon the assumptions that the dominant development discourse is based on. It has failed to recognize and incorporate the alternative visions that contest most of those assumptions.265 In practice this non-recognition facilitates the validation of 'modernizing' of water supply and mega-projects that require millions of dollars, and rules out any alternatives. Rajagopal provides an illustration of the hegemonic use of human rights language as a justification for the suffering of some. In proceedings related to the Sardar Sarovar dam before the Supreme Court of India, the state of Gujarat argued that the controversial dam was necessary to enable the state to fulfil its duty "to guarantee the human right to water to its population".2 6 6 The Court also accepted this position of the state's obligation to fulfil a 'basic need' of people as one of the justifications for the dam project that has resulted in the displacement of large number of adivasis from the Narmada valley. 2 6 7 This adoption of the human rights language by the state is part of its overall stance that the dam was necessary for the 'development' of Gujarat - a position that entails treating any McCaffrey sees international human rights law as an effective means of encouraging governments to manage their water resources in a manner that will sustain economic development. See supra note 125 at 24. Also see Gleick 1998, supra note 117 for relationship between right to water and 'human development'. 2 6 5 See Sachs 1992, supra note 67; Majid Rahnema & Victoria Bawtree, eds., The Post-Development Reader (London: Zed Books, 1997). 2 6 6 Balakrishnan Rajagopal, "Limits of Law in Counter-Hegemonic Globalization: The Indian Supreme Court And the Narmada Valley Struggle" in Santos and Rodriguez-Garavito 2005b, supra note 106 at 210. 2 6 7 See ibid, for a detailed account of the legal and political struggles over the construction of dams on the river Narmada. 75 criticism of the dam or of the inadequate rehabilitation measures for the displaced as 'anti-Gujarat'. Such a formulation invariably leads to the marginalization of human suffering. The suffering of the displaced in the Narmada valley in order to facilitate provision of water required for development elsewhere is one instance of the 'price' people are being forced to pay. Numerous other instances can be found in the suffering of all those who are unable to pay the price of water that 'developed' and 'modern' arrangements of water-supply impose. The Gujarat example also points to the dangers of narrow interpretations of the human right to water. I suggest that the case illustrates the limitations of the dominant understanding of a right to water. It highlights the need for uncovering and recognizing other broader meanings of the right that go beyond the conceptions of entitlements against the state and hegemonic formulations of governance. The divisions between 'developed' and 'undeveloped' parts of the world that development discourse is built upon also have the effect of limiting the human right to water. The mainstream discourse concentrates on the right to water vis-a-vis the 'developing' parts of the world. It fails to elaborate upon the crucial relevance of the right in the developed world. Firstly, this enables the non-recognition of the suffering of many within the 'developed' world who are unable to exercise the right to water in its entirety. Secondly, it avoids identifying the relevance of the right to water in the West in terms of 7 6 a serious questioning of widespread wastage of water that is an intrinsic part of the 'developed' lifestyles. The above discussion indicates the need to reconsider the problematic relationship between the human right to water and 'development'. I suggest that in order to make the human right to water more meaningful, it is important to de-link it from the dominant concept of development and its assumptions. Social movements, such as the one in Plachimada, show how this is being imagined and achieved by many. Human Right to Water as a Language of Governance In the preceding chapter, I have discussed how the crisis over increasing and competing demands over water is being reformulated as a crisis of governance. I suggest that within the water governance discourse, the human right to water becomes nothing more than a tool for the furtherance of a hegemonic economic agenda through projects that take away people's control over water. 'Management' of water by experts (who assume upon themselves the twin responsibility of identifying water 'problems' and 268 'solutions') serves to make invisible the suffering of many. It takes away their freedoms and facilitates disempowerment. Formulation of the human right to water as a language of governance thus reduces its emancipatory potential. For an analysis of the 'production of nonexistence' and the concept of'sociology of absences' (the latter described as "an inquiry that aims to explain that what does not exist is in fact actively produced as nonexistent, that is as a noncredible alternative to what exists") see Boaventura de Sousa Santos, "The World Social Forum: A User's Manual" (2004) at 14 - 18, online: <http://www.ces.uc.pt/bss/documentos/fsm_eng.pdf> (date accessed: 26 July 2005). 77 A controversy created by efforts to privatize the water services in the city of Stockton in California created an opportunity for appreciating the multiple ways in which 'governance', 'democracy' and 'participation' can be visualized. The mayor of the city, convinced that privatization was the only way out for the city that would need 'millions of dollars' for maintaining and improving water supply, initiated the process of privatizing the water services in the city. 2 6 9 Other factors that seem to have contributed to this position is the mayor's vision of 'Stockton enter [ing] the twenty first century', and of the need to 'think of our citizens as customers'.270 Some residents of the city were against the proposed twenty year $600 million operations contract with a multinational water company, OMI-Thames, for the management of Stockton's drinking water, storm water and wastewater system.271 The residents repeatedly asked for an opportunity to vote on the proposal, which was not considered necessary by the city council, as in their view, they had been 'elected as representative governments to make these decisions'. 2 7 2 Despite efforts by a local coalition of residents, the contract was approved and OMI-Thames started operations in the city in August 2003. Citizens' groups challenged this move by initiating legal proceedings. In December 2003 the Superior Court declared 2 6 9 Thirst 2004, supra note 23. 270 Ibid. 2 7 1 Public Citizen, "The Stockton Battle Continues", online: <http://www.citizen.org/california/water/stockton/> (date accessed: 16 June 2006). 2 7 2 Statement by Gary Podesto, mayor of Stockton in Thirst 2004 supra note 23. 78 the contract void. An appeal filed by the city against this decision is pending. In the meantime, the former mayor of Stockton who initiated the privatization process failed in his bid to win a state Senate seat - a fact that is attributed by some to the privatization controversy. The issues raised in Stockton throw light on the divergent yet co-existing conceptions of governance that comprise the reality of the world today. Thus, as suggested by Chatterjee, '[djemocracy today ... is not government of, by and for the people'. 2 7 4 Instead, it is better understood as the 'politics of the governed'.2 7 5 Similarly, 'participation' too is not simply 'a category of governance' as it may appear from above, but 'a practice of democracy'.2 7 6 Unfortunately, the mainstream human rights discourse, even as it seeks to draw on global ideals of 'good governance', remains oblivious of the reality of the existing multiplicity of visions. Governance is understood in different ways by those who govern and those that are governed. The hegemonic vision of governance,277 including its various components, is not shared by the intended subjects of such governance models. People's movements around the world today are challenging imposed models of water governance and management that seek to legitimize the involvement of the private sector in this regard. People's response to privatization of water resources and services indicate that a vision of 2 7 3 'Stockton's Water Privatization Contract Reversed'; and Cheryl Miller, "Stockton back to square one on utilities - Judge deals blow to privatization deal" Stockton Record (6 December 2003), both online: <http://www.arena.org.nz/water38.htm> (date accessed: 16 June 2006). 2 7 4 Chatterjee 2004, supra note 7. 275 Ibid. 276 Ibid, at 69. 2 7 7 The Narmada valley illustration above is one example of the hegemonic vision of governance. 79 'participation' that aims at the fulfilment of a pre-defined agenda is not acceptable to many. Such opposition also exposes the hollow promise of 'transparency' and 'democracy' as defined by those that govern. In this chapter I have revisited the mainstream discourse on the human right to water and presented alternative ways in which the right is being imagined. A broader conceptualization is needed if the right is to be meaningful to those in 'most of the world'. This is unlikely within the narrow confines of the dominant paradigm. An alternate paradigm that focuses on people does, however, create possibilities of a more meaningful right to water. This is because the languages of human rights used by people's movements do not reflect imposed meanings of rights, development or 278 governance; rather they continuously formulate new meanings that reflect their own understanding and experiences, thereby keeping alive the possibilities of emancipation and mitigation of suffering. The case study I present in the next chapter illustrates this. Supra note 112. 80 Chapter 5 - Plachimada's Right to Water In this chapter I document a people's movement in the village of Plachimada in the state of Kerala in southern India in order to identify the possibilities such movements create for the formulation a more meaningful 'human right to water'. The movement began with residents' opposition to the extraction of large quantities of water by a multinational corporation that had led to fast depletion of ground water and acute shortage of drinking water in the region. The movement has inspired many all over the country. Thousands of people across India, led primarily by women, adivasis (the indigenous peoples), dalits (traditionally the 'lower' castes), agricultural laborers and farmers, are now protesting against the excessive exploitation of water sources by large 279 corporations, such as the Coca-Cola Company. The people's movement in Plachimada also illustrates the arguments I have made so far with respect to the need to revisit the mainstream discourse on human right to water. Through their rejection of imposed notions of development and governance, and the dominant meaning of human rights, the people in Plachimada have created the possibility of formulating a more meaningful and effective human right to water. 2 7 9 The company's facilities in Mehdiganj (Uttar Pradesh), Kala Dera (Rajasthan) and Gangaikondan (Tamil Nadu) are also facing resistance from people. See India Resource Centre, "Coca-Cola Affected Community in India Promises Escalation of Campaign, Despite Court Ruling" 8 April 2005, online: <http://www.indiaresource.org/press/2005/cokeplachimadahc.html> (date accessed: 20 July 2005); India Resource Centre, "Coca-Cola Challenged on Human Rights Abuses" 20 April 2005, online: <http://www.indiaresource.org/campaigns/coke/2005/cokechallenged.html> (date accessed: 20 July 2005); India Resource Centre, "Villagers Begin Hunger Strike to Close Coca Cola Plant in India" 23 June 2006, online: <http://www.indiaresource.org/news/2006/1071.html> (date accessed: 25 July 2006). 81 A detailed analysis of the inadequacy of the existing international and national laws and regulations with respect to the protection of sources of water and the impact of judicial pronouncements are extremely important, but beyond the scope of this project. The questions that the matter raises with respect to the multilayered and complex relationship between a people's movement and law also need to be addressed in another project. What I focus upon here are the possibilities created in Plachimada of recognizing the limitations of the mainstream discourse on the right to water and uncovering an alternative understanding of the right to water.280 Water in India India is a riparian civilization with many large rivers. A large number of religious rituals and social practices associated with rivers throughout the country are a testimony of their relevance to the culture of the country. Unfortunately, according to some estimates seventy per cent of India's rivers are polluted with industrial waste.281 Apart from the rivers, people depend on rain water and the groundwater for meeting their water requirements. Years of neglect, changing lifestyles, rapid industrialization, the shift to unsustainable agricultural practices, and the increasing population have all contributed towards creating widespread water shortages in the country. The country is now categorized as one facing 'water stress'.282 2 8 0 The story of the struggle in Plachimada that I present here is based on an analysis of the perspectives reflected by reports on the movement and action taken by the people, as well as the facts that emerge from the litigation between the various parties involved. This story is undoubtedly incomplete due to the absence of the real voices of the people in Plachimada. The inclusion of the languages used by the people to articulate their claims would enrich this study, however, the empirical research necessary for achieving that was beyond the scope of this thesis project. I hope to complete the story through further research in the future. 2 8 1 Swain 2004, supra note 255 at 10. 82 The availability of water in the country is only 2500 cubic meters per person per year, which is less than the average availability of fresh water in Asia (estimated as being 3000 cubic meters per person per year, the lowest for any continent).283 This data does not however, present the whole picture. As mentioned before, the 'scarcity' of water does not affect everyone in the same way. Access to water, as always, is determined by a combination of social, economic and political factors and the existing power dynamics. The seriousness of the problem of lack of access to potable water in India can nevertheless be assessed from the fact that 80% of the children in the country suffer from water borne diseases and of these, 700,000 die each year.2 8 4 Just as in most other parts of the world, the growing shortage of water is giving rise to conflicts in several parts of India. Struggles over the various competing users -domestic, industrial and agricultural, for a finite resource are being transformed into social and political struggles that raise serious questions regarding the government's policies of economic liberalization. There is renewed consciousness about preservation of water and the need to revisit the concept of 'development'. The questions with respect to the right to water - what the right constitutes and whose rights are primary - are constantly being posed. The conflicts over water are therefore increasingly being transformed into debates over the question of the human right to water and the need to prioritize 'water for life' over all other use. 2 8 3 Shiva 2002, supra note 18. 2 8 4 Ruchi Pant, "From Communities' Hands to M N C ' s BOOTS: A Case Study From India on Right to Water" (2003), online: <http://www.righttowater.org.uk/pdfs/india_cs.pdf> at 16 (date accessed: 18 August 2006). 83 The Struggle in Plachimada The Coca-Cola Company is a multinational corporation engaged in the business of manufacture, distribution and sale of a variety of beverages and packaged drinking water under a number of brand names across the world. Its largest bottling plant in India is situated in Plachimada in Palakkad district of the state of Kerala. The plant was established by the company's subsidiary in India, namely, Hindustan Coca-Cola Beverages (P) Limited. The company's investment in the plant is said to be 25 million US dollars. Incidentally, India is said to represent the company's fastest growing market, with expansions in the year 2004 estimated as 23 percent. The plant started production in March 2000 after obtaining a license from the Perumatty Gram Panchayat, the village council. The establishment of a large plant near a remote village created employment opportunities in the area and other possibilities for the economic development of the area. The plant was therefore initially welcomed by the state, the village council and the people.2 8 6 Water constitutes the primary 'raw material' for manufacturing the beverages produced by the company. It uses 3.75 liters of water to produce one liter of beverage. In order to produce this beverage that is 'needed' by people in other parts of the country, the company began extracting the required water through bore-wells in Plachimada. Soon, the surrounding areas started experiencing acute shortage of drinking water, and the farmlands began to turn dry. The wells and ponds in the area dried up and the quality of 2 8 5 Mark Williams, "Drought - It's the Real Thing" The Globe and the Mail (12 February 2005) at F2. 2 8 6 See "Rain or No Rain, Water for Coke", online: <http://www.indiatogether.org/2005/may/env-plachimada.htm> (date accessed: 16 June 2005). 84 the water available also deteriorated.287 These changes in the availability and quality of 288 water were attributed to the operations of the company. The local residents, primarily adivasis, raised objections against the excessive 289 exploitation of ground water by the company. In April 2002, Mayilamma, an old adivasi farmhand led a satyagraha - a Gandhian 'sit-in' agitation, by the people outside the company's gate. The agitation is still continuing and has received support from non-governmental organizations and local political leaders. Like other movements against Coca-Cola in India, the agitation in Plachimada is now also part of an international movement that aims to hold the company accountable by focusing on the company's neglect of issues that link human rights, labour rights and environmental justice. 2 9 0 The increasing water scarcity and the agitations held by residents and 'political and mass organizations'291 forced the Panchayat to initiate proceedings for cancellation of the company's license. On May 12, 2003 the Panchayat unanimously resolved not to 2 8 7 Panchayat's Resolution dated 12 May 2003, quoted in the judgment of Kerala High Court in Perumatty Grama Panchayat v. State of Kerala, 2004 (1) K L T 731, online: Environmental Law Alliance Worldwide homepage <http://www.elaw.org/resources/text.asp?ID=2360#> (date accessed: 16 June 2005) [Perumatty Grama Panchayat 2004]. 2 8 8 In addition to excessive extraction of groundwater, Coca-Cola has also been accused of polluting water and land around its facilities, distributing 'toxic waste' as fertilizer to villagers, and even selling beverages with high levels of pesticides in India. See e.g., Karthika Thampan, "Court to the Rescue of Coca Cola" (4 June 2004), online: <http://www.countercurrents.org/gl-thampan040605.htm> (date accessed: 16 June 2005) ; India Resource Centre, "Coca-Cola: Poisoning Water, Land and People" (14 March 2006), online: <http://www.indiaresource.org/campaigns/coke/2006/cokepoisoning.html> (date accessed: 21 July 2006); "More Water Woes for Coke?" Times Of India (21 July 2006), online: <http://timesofindia.indiatimes.com/articleshow/msid-1789403,curpg-l.cms> (date accessed: 21 July 2006) . 2 8 9 Mayilamma, known as 'the face of the anti-Coca Cola movement in Plachimada' is a grandmother who has had no formal education. 2 9 0 See India Resource Centre, "Massive Support for Coca-Cola Campaign at World Social Forum", online: <http://www.indiaresource.org/press/2005/cokeewsf.html> (date accessed: 20 July 2005). 2 9 1 See Panchayat's notice to the company dated April 4, 2003, quoted in the judgment of Kerala High Court dated 16 December 2003. Perumatty Grama Panchayat 2004, supra note 288. 85 renew the license. The company, which has consistently denied all allegations, challenged the Panchayat's decision. The state government directed the Panchayat to re-consider the decision on the basis of an independent investigation to be conducted by a team of experts from the departments of ground water and public health, and the State Pollution Control Board. 2 9 3 The Panchayat filed a Writ Petition in the Kerala High Court against the government's order, its position being that the government could not interfere with the Panchayat's authority over decisions related to protection and preservation of water sources. There have since been several rounds of litigation over the dispute involving analysis of relevant laws, conflicting 'scientific' data on water availability in the area and the amount of water used by the company, and the positions of parties involved. The Kerala High Court, in its judgment dated December 16, 2003 held, inter alia, that the excessive extraction of water by Coca-Cola was illegal, and that it had no legal right to extract such large amounts of a 'national wealth'. 2 9 4 It rejected the company's claim to an 'unfettered right' to extract ground water, primarily on the basis of the principle of inter-generational equity - an emerging concept in international environmental law, 2 9 5 the doctrine of public trust, and the 'right to life' guaranteed under Article 21 of the Constitution of India. Panchayat's Resolution dated May 12, 2003 quoted in Perumatty Grama Panchayat 2004, ibid. See order passed by the government quoted in the judgment ibid. Ibid. See e.g. Principle 2 of the Stockholm Declaration, supra note 140. 86 Coca-Cola appealed against the judgment and it was set-aside by a Division Bench of the Kerala High Court on April 7, 2005. 2 9 6 The court allowed the company to extract up to 500,000 liters of ground water per day. Incidentally, the company's original position with respect to its right to extract any amount of ground water had by now changed to projecting itself as a company that was 'frugal while dealing with natural resources'.297 It highlighted before the court the 'environmentally friendly policies' adopted by it worldwide, along with its contribution to social welfare and economic development in the region. The company's position is that there is no evidence to support the claims of the people and that the agitations are being 'stage managed for extraneous reasons'.298 While allowing the company to extract ground water, the court also directed it to utilize 'a reasonable amount of the water' drawn by it for the benefit of the 'general public' . 2 9 9 These directions were preceded by the following observations and directions that relate to my earlier discussion on entitlements and freedoms, and 'water governance': "...we feel that taking notice of the commitment to which reference and claim is made by the company, we have to direct that the company should actively involve in the community development programs for the people residing in the locality, especially in the matter of health and drinking water supply, at the supervision of the Panchayat. ... Since the early settlers and general public are apprehensive about the shortage of drinking water, this becomes an essential duty of the company."™ See Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat dated 7 April 2005, online: <http://www.thesouthasian.org/archives/Kerala_High_Court_judgement_on_Coca_Cola-April-2005.txt> (date accessed: 16 June 2005) [Hindustan Coca-Cola Beverages 2005]. 2 9 7 See ibid, paragraph 11; and Perumatty Grama Panchayat 2004, supra note 287 paragraph 13. 2 9 8 Hindustan Coca-Cola Beverages 2005, ibid. 299 Ibid, paragraph 54. 3 0 0 Ibid. [Emphasis added]. 87 The people's right to water here is limited to an entitlement to a supply of water that is deemed as 'needed' by them. A reflection of the 'givers' and 'receivers' of rights is visible, as is the notion of 'managing' water within a pre-defined paradigm. There is also a legitimization of the concept of 'sustainable development' here, where 'sustainability' is determined by scientific data on availability of water in the area,301 and not the lived experiences of the people. Noticeably absent are alternative understandings of rights, and of governance, and the freedoms I outlined in the previous chapter. The Panchayat has taken the dispute before the Supreme Court of India where the matter is currently pending adjudication. Two local coalitions have also approached the National Human Rights Commission to decide the issue. So far there is no conclusive judicial pronouncement upon the issue. However the protest against the company has further intensified pursuant to the judgment of the Division Bench of the Kerala High Court. 3 0 2 Protests against the operations of Coca-Cola have in fact spread to other parts of the country.3 0 3 The company however, maintains that "as the world's most-visible brand name, [it] is being demonized by activists to further an anti-globalization 3 0 1 See Hindustan Coca-Cola Beverages 2005, supra note 296 for the Court's reliance on the report of a committee of experts appointed to conduct a scientific investigation. For subsequent critiques of the report see Vandana Shiva, "The Struggle for Earth Democracy: The People of Plachimada Vs Coca-Cola" (28 May 2005), online: Navdanya homepage <http://www.navdanya.org/articles/plachimada-vs-coke.htm>; "Rain or No Rain, Water for Coke", supra note 286. 3 0 2 See "Coca-Cola Affected Community in India promises Escalation of campaign, Despite Court Ruling", supra note 279. 3 0 3 For more information on the widespread protests against Coca-Cola see the information available on the India Resource Centre Homepage <http://www.indiaresource.org>. 3 0 4 Mark Williams, supra note 285. 88 As mentioned at the outset, the litigation raises several questions that are relevant to conflicts over water not just in India but all over the world. It is indeed imperative to find answers to questions of 'right to extract water', 'ownership' of water sources, reconciliation of 'needs' of competing users, the complex realities of 'sustainable development', 'rights' of a water based industry with a huge investment, and the reliance upon and the reliability of 'scientific' data in such situations. The struggle in Plachimada clearly shows how crucial it is to explore the ambiguous relationship between legal processes and a social movement, as well as the relationship between politics and law. I do not attempt to address all these issues in detail here. M y focus instead is on what the movement in Plachimada tells us about the possible meanings of a human right to water in 'most of the world'. The company sought to rely upon the promise of 'development' in order to counter objections to its operation. As mentioned above, its focus has been on the millions of dollars invested in the area, the employment opportunities created, revenue for the village, and its contribution to social development in the area. Strategically, such a position is very crucial in a country where development discourse dominates most policies and practices. Its claims of contributing to the development of the area were, however, rejected by the people. The state (Kerala) too, though initially supportive of the company's position, was forced to change its position due to the public pressure , 3 0 5 The position of the state government had initially been that of reconciling the concerns of the people and the Panchayat with the 'interest of industrialization'. The continuous pressure from the people and its impact on the local political situation however, seems to have forced the state government to change its stand. 89 The community has continued its agitation outside the gates of the company's plant. In April 2005 an Anti-Coke protest march to the Kerala High Court was organized.3 0 6 During the same month, that also marked the third anniversary of the agitation, an 'Anti-Cola Confluence' was organized at Plachimada 'to commence the next phase of intense agitation'.3 0 7 In June 2005 too hundreds of residents and their supporters marched to the gates of the plant demanding that it be permanently shut down. As per some reports, about five hundred people were arrested and a woman was also beaten up by the police. 3 0 8 Local politicians from different political parties have also supported the struggle which is continuing despite the judicial pronouncement in favor of the company's right to extract water for its operations. A 'Member of Parliament has also suggested that the 'cause of the struggle was not within the purview of the judiciary' and that the struggle that 'involved the survival of the local people' would continue.309 The recently elected state government of Kerala 3 1 0 also claims to be committed to 'resolving the crisis' in Plachimada. A delegation of community leaders from Plachimada that met the Chief 3 0 6 See "Anti Coca-Cola Campaign: Happenings on the Ground at Plachimada and India", online: <http://www.thesouthasian.org/archives/000358.html> (date accessed: 16 June 2005). 307 Ibid. 3 0 8 See Environment News Service, "500 Anti-Coca-Cola Demonstrators Arrested in India" (9 June 2005), online: <http://www.waterconserve.info/articles/print.asp?linkid=42795> (date accessed: 16 June 2005). 3 0 9 See R. Krishnakumar, "Plachimada's Loss", The Frontline 22:9, online: <http://www.flonnet.com/fl2209/stories/20050506001104000.htm> (date accessed: 16 June 2005). 3 1 0 After the recent assembly elections in the State, the Congress led front (with strong neoliberal'policies) has been defeated and the people have voted for the Left Democratic Front. Incidentally, the present Chief Minister of the state was a supporter of the people's movement against extraction of ground water by Coca-Cola and other companies for profit. See e.g. R. Krishnakumar, "Clear Choice" Frontline 23:10, online: <http://www.flonnet.com/fl2310/stories/20060602003501500.htm> (date accessed: 28 May 2006); R. Krishnakumar, "Left Set to Grow Among A l l Sections: Interview with Chief Minister V.S. Achuthanandan" Frontline 23:10, online: < http://www.flonnet.com/fl2310/stories/20060602002502000.htm> (date accessed: 28 May 2006). Also see Praful Bidwai, "Policy Lessons from the Polls" Frontline 23:10, online: < http://www.flonnet.com/fl2310/stories/20060602001508700.htm> (date accessed: 28 May 2006). 90 Minister and cabinet members of Kerala in June 2006 was assured of the government's cooperation. The government has in fact promised to 'take proactive measures against the Coca-Cola bottling plant' in Plachimada.311 As a consequence of the 'politics of the governed'3 1 2 in Plachimada, the company's plant has been non-operational since March 2004. In addition to the company's dispute with the Panchayat over the non-renewal of its license, in August 2005 the Kerala State Pollution Control Board directed that the plant be shut down due to the absence of adequate waste treatment systems in the plant which led to pollution of the drinking water in nearby villages. 3 1 3 Even as the Panchayat, the state and the company are busy in the pursuit of a judicial determination of their respective 'rights' over the water in Plachimada, the people are exercising their right to water as understood by them. Alternative Visions The struggle in Plachimada illustrates the inadequacy of the mainstream rights-discourse on water. The people here are not merely seeking an entitlement to fulfill 'basic needs' for water. The concept of exercising the right as a consumer of water also carries no meaning in their context. The people have also clearly de-linked their right to water from the dominant notions of development, sustainable or otherwise. The movement also illustrates the difference in the ways that concepts like 'democracy', 'participation' and 3 1 1 India Resource Centre, "Kerala Government Assures Proactive Action Against Coca-Cola" (19 June 2006), online: <http://www.indiaresource.org/news/2006/1069.html> (date accessed: 25 July 2006). 3 1 2 Chatterjee 2004, supra note 7. 3 1 3 See D. Rajeev, "India: Everything Gets Worse With Coca Cola" (22 August 2005), online: <http://www.commondreams.org/cgi-bin/print.cgi?file=/headlines05/0822-01.htm> (date accessed: 30 September 2005). 91 'governance' in relation to water are understood by the ones who govern and those who are governed. A water policy drafted by the Plachimada Solidarity Committee, one of the local coalitions involved in the struggle in Plachimada, in April 2006 indicates the existence of plurality of meanings of these popular concepts.314 Even as the coalition uses the language of rights (the 'natural right' and 'collective right' to water), governance and democracy, the meanings they ascribe to these terms are different. The document, to the extent that it can be regarded as an encapsulation of the multiple voices and visions in Plachimada,3 1 5 clearly expresses the desire to have the freedom to make decisions over water resources at the local level. It also indicates the existence of a different vision of development and sustainability. For the people of Plachimada, the right is clearly a matter of emancipation and not of governance as understood from above. The continuation of the struggle, despite the judgement of the High Court in April 2005, illustrates that the people's right is not limited to an entitlement to fulfillment of 'prescribed' needs for water. 'Solutions' such as the company's 'duty' to provide water are clearly not acceptable to people. A discourse that focuses on entitlement to pre-defined 'basic water needs' is in fact not of much use. 3 1 4 See The Southasian, "Plachimada Resistance Drafts Water Policy" (2006), online: <http://www.thesouthasian.org/archives/2006/plachimada_resistance_drafts_w.html> (date accessed: 16 August 2006). 3 1 5 The caution here stems from two facts that cannot be determined in the absence of empirical research: firstly, the extent to which the water policy drafted by the Committee has been able to include the visions of all the people involved in the struggle, and secondly, to what extent has the document (available in English) been successful in transmitting the visions expressed in local languages. 92 The struggle indicates that the 'right to water' as understood by the people here holds within it the promise of many freedoms. These freedoms include the freedom to reject any models of water governance that rely on 'scientific' data and experts' analysis of their 'water problems' and solutions while marginalizing their own experiences and knowledge, the freedom to resist imposed notions of 'development', and the freedom to challenge the forces of hegemonic globalization. Even while struggling for their 'right to water', the people do not visualize that right as formulated by the human-rights discourse within the Western liberal paradigm. This alternative understanding finds no representation in the mainstream discourse on the right to water, a fact that makes it meaningless to the people in Plachimada. Despite this, the people use the language of rights, but the 'right' as I have stated above is not interpreted in the same way. The people, while drawing upon the human rights ideals of inherent dignity and equality, ascribe meanings to the right to water that represent their suffering and their understanding of the alleviation of the same. In doing so, they create opportunities for recovering the emancipatory potential of human rights. This reality is however, yet to be incorporated in the mainstream human rights theory and practice. In this chapter I have documented the movement in Plachimada that focuses on the right to water. It is obvious that the mainstream discourse on the right has no meaning for the struggle in Plachimada. A right to water as being formulated within the international human right law is inadequate to address the suffering of the people here. In 93 fact with its focus on entitlements, needs, development and governance, such a formulation, even when it goes beyond its current position as a 'soft law', will be of little consequence to many people who increasingly find themselves positioned against hegemonic global forces today. But as illustrated by the case study, such movements also create possibilities that cannot be ignored by law. In order to retain its position as an emancipatory discourse, human rights theory and practice have to recognize these possibilities. 94 Chapter 6 - Conclusion Water is essential to life and non-substitutable. Yet, more than a billion people in the world do not have access to potable water, and the situation is likely to get worse. The resultant human suffering makes it imperative that the 'water crisis' be understood and addressed. Recognition of the concept of a 'right to water' that embodies respect for every human being's right to water is a significant step forward in that direction. In this thesis I have examined the controversial idea of the human right to water. My analysis of the existing 'soft law' on the right to water and the emerging mainstream human rights discourse on water reveals that the right being formulated is in fact narrow, inadequate and even evasive. By questioning the assumptions that the discourse is built upon, I have highlighted its limitations in both recognizing and addressing the suffering of people in 'most of the world'. Three problematic aspects of the mainstream human rights discourse provide the framework for my engagement with the 'human right to water'. These are the assumptions of universality of human rights, the 'developmentalization' of human rights, and the transformation of human rights into a language of governance. By revisiting these facets in the context of the rights-discourse on water I have identified how they shape the mainstream conceptualization of the human right to water. In particular, I have highlighted how the uncritical adoption of the popular concepts of development and governance (including its constituents such as participation and democracy) in the right-95 to-water discourse limits the potential of the right, especially by making invisible the suffering of many. In tracing the evolution of the right to water within international human rights law, I have highlighted how it has been shaped by and in turn reproduces the assumptions and exclusions of the mainstream discourses on human rights, and the rights to environment and development. I have suggested that it is this embodiment of the collective histories of exclusion of values and perspectives that confines the right. In uncritically drawing upon the deeply contested narratives within the Western liberal paradigm, the right to water fails to recognize other ways of understanding the right. The anchoring of the right to the dominant narratives also facilitates the use of the right to' water as a means of furthering hegemonic agendas. I have identified four broad themes that constitute the mainstream discourse on the human right to water. These are: (i) the right to water as an entitlement, (ii) the right to water as a consumer right, (iii) the relationship between the right to water and the right to development, and (iv) the obligations of the state, the international community, and increasingly, the market to ensure all the above under conditions of 'good governance'. B y revisiting these aspects through an alternative perspective, I have illustrated that even as they represent possible meanings of a human right to water in certain contexts, they do not constitute a universal understanding of the right. 96 The assumptions of an unproblematic universal 'basic need' of water and the translation of defined needs into an entitlement to water, the linking of the right-to-water and 'development', and the transformation of the language of rights to that of governance, have all resulted in a non-recognition of the suffering of many. This has also reduced the emancipatory potential of the human right to water. Since for many the value of a right lies in its emancipatory potential, and the hope for alleviation of suffering, the mainstream rights discourse on water emerges not only as inadequate, but also meaningless in certain contexts. A human right to water, when framed narrowly, thus offers no hope to those that need it the most. I have shown how contemporary mainstream discourse tends to focus almost exclusively on the right to water as an entitlement to water supply, while ignoring the implications of such a right as a freedom. The 'human' is being reduced to a consumer, a 'right' to only a need, and water to nothing more than a commodity that is to be 'managed' and 'supplied' by the state, the market, or a combination of the two with 'participation' rights to the people. Such formulations fail to represent the experiences of all people experiencing the 'water crisis' today. By focusing on some such 'lived experiences', I have illustrated how dominant formulations fail to represent the numerous possible and existing understandings of a right to water and in fact exclude all conceptions that do not traditionally fall within the mainstream human rights discourse. The language provided by the mainstream rights-discourse on water neither makes it possible for 'most of the world' to express its suffering, nor offers any hope for 97 its mitigation. Such a human right being formulated from above, despite its potential and promises, becomes meaningless for many. In order to understand this failure, however, it is important to understand what human-rights, development and governance mean to 'most of the world ' . It is also crucial to understand how these meanings shape alternative notions of a human right to water. The narrow framework provided by the Western liberal paradigm however, limits such an understanding. The discourse on right to water, like all other 'approved' discourses within international human rights law, continues to exclude voices, meanings and practices from below. Being close to everyday suffering that results from the inability to access water, and arising out of efforts to ease such suffering, alternative visions of the right to water create possibilities for a more meaningful right. Such human rights discourses and practices from below offer hope for the recovery of the emancipatory potential of human rights. Recognition and understanding of the alternative voices and meanings however, calls for a different approach than is traditionally adopted in the study of law. Such an approach involves learning from the experiences of people engaged in resisting hegemonic ideologies. I have adopted a similar approach for discovering alternative meanings of the right to water. In documenting the struggle over water in Plachimada in India I have attempted to shed light on other ways in which a human right to water can be understood. 98 While the study illustrates and strengthens my arguments regarding the inadequacy of the mainstream discourse on the right to water, it also reveals the existence of other formulations of the right. Another crucial aspect the case study emphasises is the need for empirical research with a focus on discovering legal perspectives and alternatives from below. This bottom-up approach has an immense potential for enriching the study of law. The alternative meanings are based on the peoples' experiences and knowledge, and as such go beyond the narrow space created by the dominant understanding of 'rights', 'development', and 'governance'. The people use these concepts to state their claims, but the meanings ascribed to them are clearly not the same as understood from above. The languages are thus modified and transformed in order to resist hegemonic ideologies and to express the desire for emancipation. The case study shows that a right to water in Plachimada is not limited to an entitlement to 'basics needs' for water, but encompasses the promise of many freedoms. The concept of a 'consumer right' also appears irrelevant here. The struggle also forces one to look beyond the imposed dominant notions of 'development' and 'governance' and the assumptions of universality they are based on. Such other understandings of the human right to water, unfortunately, find no recognition within the mainstream right discourse. Being closer to human experience, a human right to water from 'below' offers more hope than current mainstream definitions. 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