A global water apartheid: from revelation to resolution.

• Author: Kornfeld, Itzchak

ABSTRACT

It is well settled in international human rights law that a human right to water exists. Nevertheless, to date, there has been little scholarship about what the practical contours of the right should be. If legal tools are to benefit the world's poor and disenfranchised, they cannot be void due to the impossibility of implementation. This is the problem with the purported human right to water: it is quixotic.

This Article proposes a pragmatic solution to the potable water problem for the world's poor. The solution offered here is based on a model of privatized access to water grounded in a microfinancing paradigm that is in turn founded on a loan program incorporated into the New Deal's Rural Electrification Act. The proposed paradigm therefore sidesteps the rights-based scheme by resting upon a more concrete foundation based on measurable results (i.e., the number of the world's 2.2 billion people who lack potable water that will obtain access to water versus the number that will not).

TABLE OF CONTENTS I. INTRODUCTION A. The Dilemma with the Right II. A WORLD WANTING FOR CLEAN WATER A. The Enormity of the Problem III. PRIVATIZATION, MULTINATIONAL CORPORATIONS, AND THE WORLD BANK: AN UNEASY MARRIAGE A. Johannesburg, South Africa B. Cochabamba, Bolivia C. Trade Liberalization and Water Scarcity 1. New Delhi, India 2. Tamil Nadu D. Whisper Sweet Dollars in My Ear IV. EXPLORING ALTERNATIVES A. The Case for Community Privatization B. Surefootedness in a Middle Ground: Alternatives to Corporate Privatization 1. Savelugu's Partnership 2. Cato Crest's Standpipes V. A PROVEN MODEL FOR SUCCESS: THE NEW DEAL'S RURAL ELECTRIC COOPERATIVES A. The Rural Electrification Administration: The Early Years B. The Failure of the Market and Government Intervention C. The Stimulation of Supply and Demand VI. APPLICATION TO WATER A. Raising the Capital to Drill Water Wells B. The Inner-Workings of the Microcredit System C. Convergence D. Deploying Experts VII. CONCLUSION "[W]hoever destroys a soul, it is considered as if he destroyed an entire world. And whoever saves a life, it is considered as if he saved an entire world." (1)

1. INTRODUCTION

   In 1992, Professor Stephen McCaffrey authored a seminal article proposing a human right to water. (2) Since then, his efforts have fostered a stream of scholarship affirming his proposed entitlement. (3) Today, the existence of a human right to water is seldom challenged, and it now appears to be well rooted in international human rights law. (4) Nevertheless, to date, there has been little scholarship about what the practical contours of that entitlement should be.

   Furthermore, those international lawyers who promote the right to water generally ground their argument in the International Convention on Economic, Social and Cultural Rights. (5) However, only 66 of the world's 199 countries are signatories to the treaty. (6) Furthermore, even where the Convention has been ratified and found to be justiciable, (7) it is impossible for a court to hold a state actor in contempt due to its inability to provide potable water to its citizens, and refusal by a state actor to provide water has rarely been prosecuted. (8) This is particularly true for the world's Least Developed Countries (LDCs), (9) which cannot afford to provide their citizens with water. Moreover, national and international courts are powerless to enforce the right against any dictator who does hot wish to provide his people with potable water and good sanitation.

   1. The Dilemma with the Right

   There are two fundamental problems with the "right." First, it is unenforceable. (10) Indeed, it is axiomatic that there can be no right without a remedy. (11) In addition, as Joseph Vining observed, "[t]hat which evokes no sense of obligation is Hot law. It is only the appearance of law." (12) Thus, the putative right is of little help or solace to those who have no access to potable water or to the millions who die annually due to its unavailability. (13)

   Second, the rights scholars do Hot address how the issue of privatization of water utilities, especially the failure of corporate privatization and the commodification of water, should fall within the penumbra of the right. (14) These issues have yet to be addressed, leaving this area of the law unsettled and burdened by practical pitfalls.

   This Article proposes a legal and pragmatic solution to the problem of potable water for the world's poor and unpacks the contours of the human right to water. The solution is based on a model of privatized access to water (15) grounded in a microfinancing paradigm that is in turn founded upon a loan program that was part of the New Dears Rural Electrification Act of 1936 (REA). (16) This model therefore sidesteps the rights-based scheme, resting upon a more concrete foundation of measurable results (i.e., the number of the world's 2.2 billion people who lack potable water that will obtain access to water versus the number that will not).

   Part II provides a background for the remedy by establishing the magnitude of the problem created by a lack of clean potable water and sanitation. As part of this discussion, the Article examines the environmental burden of waterborne disease. Part III examines multinational corporations' failed efforts at privatizing water systems in the developing world. Part IV explores substitutes to privatization by corporate entities and the World Bank, including various communities' efforts to privatize water systems that they use daily and partnerships between communities and water utilities. Part V addresses the New Deal's Rural Electric Cooperatives and assesses this model's potential use in resolving the current dearth of potable water in the developing world. Finally, Part VI outlines the microcredit system and suggests how it can be implemented to meet the goal of attaining potable water for the poor.

2. A WORLD WANTING FOR CLEAN WATER

   1. The Enormity of the Problem

   "Safe drinking water, sanitation and good hygiene are fundamental to health, survival, growth and development." (17) Accordingly, the World Health Organization (WHO) recently observed that "[s]afe drinking water and basic sanitation are so obviously essential to health that they risk being taken for granted." (18) Unless people gain access to sources of drinking water that are clean, safe, and reliable, "[e]fforts to prevent death from diarrhea or to reduce the burden of such diseases as ascaris, dracunculiasis, hookworm, schistosomiasis and trachoma are doomed to failure." (19)

   The problem is so pervasive that former South African President Thabo Mbeki recently asserted that "[w]e have a duty to fight against

   domestic and global apartheid in terms of access to water." (20) The United Nations (UN) similarly declared that "[o]vercoming the crisis in water and sanitation is one of the great human development challenges of the early twenty-first century. [In addition, s]uccess in addressing that challenge through a concerted national and international response would act as a catalyst for progress in public health." (21)

   Unfortunately, the average person in the developing world will hot realize the universal availability of faucets or water piping at home "in the short--or even medium term." (22) Such persons will be bereft of safe water for the foreseeable future. (23) Of course, the burdens of polluted water, lack of access to potable water, and basic sanitation deficiencies fall on the poor. (24) They are not only much "less likely to have access to safe water and sanitation, but ... also less likely to have the financial and human resources to manage the impact of this deprivation." (25)

   Additionally, the laws and policies of many states offer scant protection for the vulnerable. (26) Even where laws providing state support for destitute persons do exist, they are seldom enforced. (27) The rural poor also have little or no access to the political process, (28) and yet they comprise "[s]ome 80% of those who have no access to improved sources of drinking water." (29) In 2002, the WHO estimated that more than 1.1 billion people worldwide lack clean drinking water and that "2.6 billion people have no sanitation." (30) The WHO also estimates that at least 1.8 million people die annually from diarrheal diseases, including cholera, with children below the age of rive, mostly in developing countries, constituting 1.6 million (or 90%) of these deaths. (31) This figure is rive times the number of children who die annually from HIV/AIDS. (32) Of the deaths caused by diarrheal disease, 88% are fully ascribed to unsafe water and deficient sanitation. (33)

   It is for these reasons that the WHO declared in 2003 that providing water to the peoples of the developing world was an urgent priority. Similarly, the UN adopted the Millennium Development Goals, (34) which seek to halve the number of people who do not have access to water by 2015. (35) Without any financial support, however, these programs have done little. (36)

   Finally, the "[l]ack of basic sanitation indirectly inhibits the learning abilities of millions of school-aged children who are infested with intestinal worms transmitted through inadequate sanitation facilities and poor hygiene." (37) It also adds to a higher rate of wasteful and unproductive time caused by adult illness and the need for parents to stay home to take care of children. (38) If the world's poor are to climb out of their morass, the status quo must change. One option for those who seek to aid those in need is privatization.

3. PRIVATIZATION, MULTINATIONAL CORPORATIONS, AND THE WORLD BANK: AN UNEASY MARRIAGE

   "Water privatization in the developing world has been met with public opposition and conflict, as opponents argue that water is a human right and that global corporations are exploiting the needs of the world's poor for profit." (39)

   Privatization of water systems in developing countries has been taking place for...