We have two resources: air and water. Both are critical for life. Why is air free, i.e., why are we not charged for breathing air, while water is generally not free?
In the 1962 movie Lawrence of Arabia, about the life of T.E. Lawrence, Lawrence's Bedouin guide is killed by the Saudi prince Sherif Ali for drinking from a well without permission. Clearly, the desert is a terrible place to be stuck without water, particularly when it is available, but one is not allowed access to it. At that point we have a conflict: the commodification of water versus the right to it.
Today, the situation is different from that in the last century, but the outcome is similar. For example, in sub-Saharan Africa, among other locales, another type of water oppression occurs on a daily basis. There one finds the struggle that women, who are the primary gatherers of water, go through every day. They walk two and sometimes three miles, while carrying buckets and pots filled with water on their heads for hours simply to purvey water for their families. For these people, Western notions of the right to water may seem quaint given the magnitude of their problems.
Moreover, as Joseph Vining has observed, "[t]hat which evokes no sense of obligation is not law. It is only the appearance of law." (1) So it follows that the putative right is of little solace to those who have no access to potable water or to the millions who die annually due to its unavailability. (2) Consequently, in my view, any discussion about the commodification of water must be seen along a continuum of water as a common good and its adaptation into a property right--whether a usufruct or a right incidental to the ownership of land (e.g., a common-law riparian right). Stated differently, today we must evaluate the attempt to "recast clean water as an essentially economic, [as opposed to a] public, good." (3) Moreover, one must recall that "a property right is a form of power and 'a sanction and authority for decision-making'--over resources ... i.e. it refers to property as 'a set of rights to control assets,' which naturally include water and other environmental goods." (4)
THE JUXTAPOSITION: COMMODITY VERSUS RIGHT
Although the contrast between water as commodity and the expansion of a legal right to its access may appear to be incompatible or divergent, I posit that they are the two major strains that the international legal community will have to address within the foreseeable...