Observations on the intersections of human rights and local practice: a livelihood perspective on water.

• Author: Derman, Bill

Abstract

The "right to water" has been adopted as a human right in General Comment 15 by the Committee on Economic, Social and Cultural Rights. A critical issue in international, national and local water management is how to balance the concerns of the environment and the poor against the quest for a more effective and productive use of land and water. The 'right to water' provides a framework for water policy quite different from the Dublin Principles. In the African context the Dublin Principles have emphasized water as an economic good which has led to the adoption of the user pay principle. In the following we explore if and how local water management practice incorporates water within a broader right to livelihood. Field research findings in Zimbabwe support the existence of a right to water forming part of a broader right to livelihood. This has significant implications for incorporating local norms and practices into water policies and management practices.

Keywords

Right to water; Land Reform; Water Reform; Water Management; Rural Livelihoods; Zimbabwe.

1. Introduction

   The right to water has been adopted as a human right in General Comment 15 by the Committee on Economic, Social and Cultural Rights. A critical issue in international, national and local water management is how to balance the concerns of the environment and the poor against the quest for a more effective and productive use of land and water. The 'right to water' provides a new framework for water policy quite different from the Dublin Principles. (1) In the African context the Dublin Principles have emphasized water as an economic good which has required getting the 'right price' for water we explore if and how local water management practice incorporates water within a broader right to livelihood. Field research findings in Zimbabwe support the existence of a right to water forming part of a broader right to livelihood. They suggest the basis for incorporating customary norms and practices into water policies and management practices.

   Water forms part of a broad right to life that underlies rural livelihoods in Zimbabwe. It is expressed in the Romwe Catchment in southern Zimbabwe as water is life (hupenyu) (Nemarundwe 2003). It is expressed in Shamva District as drinking water should be for everyone (Matondi 2001) and in Mhondoro Communal area as one can't deny water to anyone (Derman and Hellum 2002). The newly enunciated human right to water accords well with the practices and norms within most, if not all, of Zimbabwe's communal and resettlement areas. The idea expressed in Zimbabwe that to deny water is to deny life indicates the profounder truth that there can be no human life without water. The United Nations has determined that the International Covenant on Economic, Social and Cultural Rights (ICESCR) includes a right to water. The previous global consensus around the Dublin principles seems to be receding in face of a growing movement toward recognizing a human right to water combined with the Millennium Development Goal directed toward doubling the number of people with clean drinking water.

   Water reform involves changing how a nations waters are managed and understood. Zimbabwe's water reforms were conducted principally with the four Dublin principles in mind rather than the human rights frameworks also available. We have found that a common feature of local norms and practices described in rural Zimbabwean studies parallels international human rights laws in the emphasis upon right to resources vital for livelihoods (particularly food and water) We have been surprised at the strength of normative frameworks despite a literature which emphasizes contestation and overlapping spheres of authority. In turn, this has led us to examine if and how these normative local frameworks are consonant with some principles of the right to livelihood and right to water now embodied in a range of international instruments. We suggest that the conceptual division made between land and water in southern African land and water reforms does not fit with local conceptions of livelihoods or the growing evidence of the importance of the land-water interface which includes natural wetlands and irrigation systems. We have chosen to probe these issues in Zimbabwe due to the processes of water reform and the range of studies investigating water management along with our own research. (2) We have not included in any depth the medium and long-term implications of the current fast-track land reform underway for the right to water and the right to livelihood. (3)

   Our studies took place between 1999 and 2003. Since 2004 we have been unable to explore how local management systems have been affected by Fast Track Land Reform and the near collapse of water reform due to the forced removal of most commercial farmers, the politicization of water reform, and the lack of management capacity in the new water management institutions.

   This article proceeds as follows: In Section 2 we detail the emergence of the right to livelihood and the right to water in United Nations, African Union and other international and national documents. We then turn in Section 3 to a discussion of Zimbabwe's water reform and water management. In Section 4 we examine local norms and practices with respect to rights to livelihood and water. In the conclusions, we examine how human rights with its obligations to protect, respect, and fulfil set new responsibilities for states to accomplish. We have added a postscript to update the situation in 2007.

2. Water as a part of the human right to livelihood

   When Zimbabwe passed its new water acts the human right to water had not been explicitly recognized by the United Nations as a whole although it had been included in some conventions (see below). In Africa, the right to clean drinking water has been incorporated into the South African, Zambian, and Ethiopian constitutions. In more general terms, the human right to water derives from the right to life, the right to livelihood and the right to health. It has evolved through piecemeal international, regional and national law-making. It is recognized in Article 24 of The Convention on the Rights of the Child (CRC) explicitly stating that the child has a right to clean drinking water. (4) Article 14.2 h of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) states that rural women have a right to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications on an equal basis with men. Article 15 of the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa on the right to food (5) obliges States Parties to " provide women with access to clean drinking water, sources of domestic fuel, land and the means of producing nutritious food;" The human right to water is also recognized in the United Nations Convention on the Law of Non-Navigational Uses of Watercourses. (6) The SADC Protocol on Shared Water Course Systems of 1995 emphasizes equitable utilization of shared water courses applying existing customary international law and community interest taking into account, among other things, the environmental, social and economic needs and the impact of intended uses of the water course. (7)

   2.1. Safe, adequate and available water

   A major shift in underlying the significance of a right to water was the General Comment No. 15 of July 2002 UN Committee on Economic, Social and Cultural Rights whereby the Committee concluded that there is a human right to water embedded in article 11 in the Convention on Economic, Social and Cultural Rights (CESCR) defining the right to livelihood as including adequate food, clothing and housing. The term including, as understood by the Committee, indicates that the catalogue of rights encompassing the right to livelihood is not exhaustive but must be adapted to changing social and economic concerns such as the global water crisis. (8) Concluding that water is a human right the Committee emphasizes the interdependence between human rights in general and between access to water and the right to health in article 12.1, the right to food in article 11 and the right to life and human dignity enshrined in the International Bill of Human Rights.

   Recognizing that water is required for a range of different purposes that are essential for human life, the Committee on Economic, Social and Cultural rights signalled three elements; water must be adequate for human life, it must be safe and available. Accordingly the water is to be adequate, safe and available physically, economically on a non-discriminatory basis. Adequate water, according to the Committee, encompasses water for personal and domestic uses and the necessary water resources to prevent starvation and disease (6). The scope and extent of the human right to water is defined through its link to the right to life, the right to health and the right to food. In the view of the committee the sustainable access to water resources for agriculture is necessary to realize the right to adequate food.9 Disadvantaged and marginalized farmers (women and men) would be entitled to special attention to have equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology.

   2.2. The state obligation to respect, protect and fulfill

   The obligation to respect, protect and fulfil rights cuts across urban and rural water supplies and services. The obligation to respect includes a duty to refrain from interfering arbitrarily with customary or traditional arrangements for water allocation, unlawfully polluting water or destroying water services and infrastructure during armed conflicts. (10) Taking note of the duty in article 1, paragraph 2, of the Covenant, which provides that people cannot be deprived of its means of subsistence...