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Can the recognition of the right to water contribute to more sustainable water services delivery?

The other day I had a heated discussion with a human rights lawyer on the merits, drawbacks and possible implications of the recognition of the right to water. Although I welcome the principle behind it, as a self-declared sceptic on about everything, I have my reservations on its practical potential. A specific question that interests me is whether the right to water can speed up the realisation of sustainable WASH services for all, or only the speed up of the realisation of the increase in coverage. Rightfully so, activists and lawyers want to use this human right to encourage governments to speed up implementation, which we know is not necessarily the same as providing a sustainable WASH service. And even the speeding up may not happen. Most courts would grant a condition of gradualism in a tangible human right like access to water, i.e. government should ensure the right in a reasonable time-frame. What a reasonable time-frame is, is of course open to many interpretations. Whether it translates into sustainable services is another matter. For example, the right to water is not very specific in terms of the level of access to be provided, or about how services are to be provided. The other point we discussed is that the right to water is not specific on what then rights and obligations are for those receiving a water service. Should they pay for it? If so, how much? And what, if users claim they cannot pay? The right to water doesn’t give answers to that. And, some activists fear it may even backfire. For example, when users refuse to pay for services, utilities and governments may take it even more slowly in extending services to the poorest. Or, if governments are forced to (partially) subsidize operation and maintenance costs of service delivery, wouldn’t that go at the expense of extending coverage to those currently unserved?

If we want to see whether the right to water can reach its potential, then South Africa is the country to follow, as it has seen various court cases around this issue, and it is a country where government genuinely tries to increase access to water and provide services. So if there is one country where we may see the right to water really work out, it is there. But, if I talk from the Honduras experience (Honduras was one of the first signatories to the right to water) the situation is quite different. Currently, the country is developing its WASH policy, and IRC is involved in that. The current draft of the policy (still to be finalised and ratified) only wants to commit to universal coverage by 2038! Extrapolations of trends in growth of coverage would indicate universal coverage could be reached earlier, but it is also true that the costs of covering the last few percent of the population are higher (my next blog post will be about predicting when universal coverage will be reached – promised!). And then the discussions on service provision are the same as they were before: for example users are expected to pay for the operation and maintenance costs of service provision. The human right to water doesn’t alter the discourse on cost recovery. Probably, the only thing the right to water is contributing in Honduras is putting the idea of universal access a bit firmer on the agenda, but still not with ambitious targets.

What I do like about the rights-based approach, is that it assumes that water is a good thing that everyone should have, irrespective of whether it represents a cost-effective investment. This contrasts starkly with some of the (well-intended) sector discourse, from for example Sanitation and Water for All (SWA). In SWA much emphasis is put on showing evidence that WASH is a good thing to invest in because it yields a return of X dollars for every dollar invested. I can understand where this argument comes from in wanting to convince ministers of finance that WASH is a worthwhile investment. But this is not an approach without risks. What if the calculations show that there is even a higher return by investing in roads or in education rather than in WASH. I think the whole approach of comparing WASH to other sectors is a bit of nonsense anyway. We know investments in all those sectors are needed and when resources are scarce
it is honestly a bit arbitrary whether to put 5% of your budget into WASH and 7% into education or the other way around. The rights-based approach at least has the potential to move away from the argument for gathering evidence of investing in WASH and accepting that everyone should get access to water, full stop. All the dollars currently invested in collecting costly evidence of the usefulness of investing in WASH, can then better be invested in improving the efficiency of the WASH sector.

But, let’s give it a fair chance to see what the right to water is really worth. I would put my hope that it can make a difference in countries, with a strong legal system and genuine efforts to go beyond gradualism in implementing rights, like South Africa. But, in countries where even current capacity to implement services is stretched, I doubt it can make a difference.

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