Tag: World Water Forum

Water, a good and a right in danger?

This article is a preface to the recently published book “L’eau, un bien commun?” published by mare & martin. Following this article, you can read Sabine Boussard’s introduction and discover the book’s cover. This publication inaugurates a series of articles to be published in next month’s edition to mark World Water Day on March 22.

A pond in the village of Dhokandpur, India, collects rainwater which is then used by villagers for drinking purposes only. UNDP India/Prashanth Vishwanatha

 

Foreword

Alain Boinet.

Founder of the humanitarian organization Solidarités International and the online magazine http://www.defishumanitaires.com Director of the Partenariat Français pour l’Eau de la Fondation Véolia and Think Thank (re)sources.

The first quality of this book is to present water as a common good of humanity. And yet, the right to water is not self-evident – it has yet to be realized!

Not only is water distributed very differently around the world, with abundance here and scarcity there. What’s more, drinking water, even in sufficient quantity, may not be safe to drink.

Before going any further, I must say that I am not a lawyer, unlike the directors of this research project, Sabine Boussard and Clémentine Bories, who rightly plead, with the help of the contributors to this book, for the common good of water to be brought within the scope of the law, both to protect it and to distribute it more effectively.

I’m a humanitarian who acts with a sense of duty towards populations in danger around the world as a result of conflict, disaster or epidemic, to meet their vital daily needs: drinking water, food, shelter, care and protection. In the course of my work, I have discovered that water is a common good essential to all life, and that its status needs to be promoted to the “existential level” it deserves.

Today, of the eight billion people on our planet, more than two billion do not have access to drinking water and more than four billion do not have access to sanitation, i.e. toilets worthy of the name. This is what is at stake in the close link between water and health.

Two young boys carry water on the outskirts of an IDP camp near the town of Jowhar, Somalia. UN Photo/Tobin Jones

Unclean water is a major cause of death for millions of people worldwide, particularly children under the age of five, due to water-borne diseases such as diarrhea, cholera, typhoid, hepatitis, bilharzia and poliomyelitis. Lack of access to drinking water is a major obstacle to the development of populations in the least developed countries.

Yet the right to water and sanitation was recognized by the United Nations General Assembly Resolution 64/292 of July 28, 2010, which “recognizes that the right to safe drinking water and sanitation is a human right, essential for the full enjoyment of life and the exercise of all human rights”. What a gap there is between law and reality! The aim of this book is to bridge this gap, highlighting and analyzing it through the application of theory to practice.

While the international community has mobilized with the Millennium Development Goals (MDGs 2000-2015), which have enabled real progress to be made. Goal 6 on water has fallen considerably behind, among the 17 Sustainable Development Goals (SDGs 2015-2030) voted unanimously by 195 States in 2015 and which aims for universal access to water, for everyone in the world, by 2030.

However, at the midway point of the SDGs in 2023, the causes of the delay have been clearly identified, as highlighted by the French Water Partnership: dispersed global governance at the UN, a lack of strategic steering as well as a lack of will and tools in many countries. From a financial point of view too, funding needs to be quadrupled to achieve the goal of universal access to drinking water by 2030, and multiplied by 23 in fragile countries in crisis. We therefore look forward to the decisions that will be required at the World Summit on the SDGs in New York in September 2023.

The 17 UN Sustainable Development Goals © 2023 UN/DSG Summit

The most developed countries are not immune to certain shortcomings. The Covid-19 crisis, and the need to avoid areas where the pandemic is spreading, has led humanitarian associations involved in international crises concerning access to drinking water, sanitation and hygiene, such as Solidarités International, to mobilize in shantytowns in mainland France itself, where, as reported by Coalition Eau, almost 400,000 people are not connected. And in the French Overseas Territories (Mayotte, Guyana, Martinique, Guadeloupe, La Réunion), where critical situations remain.

Fortunately, in December 2022, the European “Drinking Water” Directive 2020/2183, Article 16 of which governs access to drinking water for vulnerable and marginalized populations, was transposed into French law with the publication of Ordinance no. 2022-1611 of December 22, 2022 on access to and quality of water intended for human consumption. One week later, two implementing decrees were published, including decree no. 2022-1721 on improving access for all to water intended for human consumption.

But this won’t solve everything – far from it! On July 17, 2023, the French Cour des Comptes published a highly critical report on water management in France. The quantity of water available fell by 14% between the period 1990-2001 and the period 2002 – 2018: and the situation is set to worsen towards a 30 to 40% drop by 2050. According to the Cour des Comptes, “Only a determined strategy of reduced abstraction and reasoned use” constitutes “the only possible solution”. Duly noted.

More generally, water is a victim of pollution, exponential growth in consumption and global warming. Indeed, the water cycle is dangerously disrupted by rising temperatures, which accelerate evaporation while increasing drought and extreme flooding. The risk is so great that it could trigger an irreversible phenomenon in the form of melting ice and its impact on rivers, leading to a rise in sea levels. Water is thus a decisive marker of temperature rises and their most damaging consequences.

Droughts have a considerable impact on the availability of water for vulnerable communities. WMO/Edward-Ryu

Similarly, Africa’s exponential population growth is a cause for concern, given that only 24% of sub-Saharan Africans have access to a safe source of drinking water, and that drinking water is in decline in the informal settlements of Africa’s major cities.

There were 2.6 billion inhabitants in 1950, there will be 8 billion in 2023 and almost 10 billion in 2050. Africa’s population will rise from 1.4 billion today to 2.5 billion in 2050: what a challenge for Africa and for the planet!

The figures are there for all to see, and their telescoping makes us wonder. More than a quarter of the world’s population, living in seventeen countries, is under water stress, while at the same time, global demand for water is set to grow by at least 30% between now and 2050. If water is a common good, beyond the recurrent debate between the public and private sectors, it has to be said that water has a cost, even in humanitarian aid, if we want to go beyond the emergency and ensure a sustainable supply for populations.

This tension around water explains why, according to statistics, among water-related conflicts, we saw around a hundred between 1960 and 2010, then an acceleration from 2010 to 2021, with more than 800 clashes, and a record 124 incidents in 2021 alone.

Local clashes between water users (between nomads and farmers, between agriculture and industry, between town and country) and possible clashes between states in several regions of the world in the absence of integrated management of transboundary water resources.

More than ever, water, the source of life, is a common good to be protected and shared. It is to the credit of the authors of this book that they have mobilized the law in the service of this great cause.

Alain Boinet

“L’eau un bien commun”

Clémentine Bories is Professor of International Public Law at Toulouse Capitole University, member of the Institut du droit de l’espace, des territoires et de la communication (IDETCOM) and specialist in international cultural heritage.

Sabine Boussard is Professor of Public Law at the University of Paris Nanterre, Director of the Centre de recherches en droit public (CRDP) and a specialist in administrative property law.

With Anne Danis-Fatôme and Béatrice Parance, Professors of Private Law, Sabine Boussard and Clémentine Bories led a research project funded by the ComUE Paris Lumières entitled Les biens communs, un outil juridique à aiguiser? The aim of this research was to use the functionalities of the “commons” or “common property” to help certain legal regimes evolve. The characteristics attributed to the commons, which can articulate private property with collective access, concurrent control and dedicated governance, were likely to provide a remedy to certain legal blockages to enable better accessibility, greater sharing and stronger protection of certain essential goods or vital resources.

“L’eau un bien commun ?” is a restitution of the work of a seminar that was organized on this theme in 2019, and which constituted a high point of this research project. Reflections on water take on an experimental dimension when crossed with the debates surrounding the “battle of the commons”, fought more than 25 years apart between ecologist Garrett Harding (1968) and political scientist Elina Olstrom (1990). Olstrom’s early research on the commons focused on entrepreneurial and institutional action to prevent the flooding of a water table in Los Angeles (1965).

Today, water is considered a common heritage at both international and national level, echoing the realization that water is a scarce, dwindling resource that must be accessible to all, and that it is also a space to be preserved for the biodiversity that the aquatic environment harbors. The water crisis and the solutions needed to overcome it are at the heart of today’s news. At a time when a quarter of the world’s population has no access to drinking water, the United Nations organizes an annual Conference on Water, which should lead to the recognition of freshwater as a common heritage of humanity. At the same time, negotiations for the adoption of the Biodiversity beyond national jurisdiction (BBNJ) agreement on the conservation and sustainable use of marine biological diversity were completed on June 19, 2023, resulting in the enshrinement of a legally binding instrument that extends protection of the sea to areas beyond the jurisdiction of individual states.

With the battle for mega-basins in full swing, on August 1, 2023, France adopted an action plan for “resilient and concerted water management”, comprising 53 measures targeting three major issues: sobriety of use, quality and availability of the resource.

The book “L’eau, un bien commun ?” proposes to analyze water – in all its forms and components – as a model of common goods, in order to reflect on the legal changes needed to improve access, sharing, governance and protection of this vital resource. It brings together some twenty contributions that offer innovative reflections thanks to cross-fertilizations between philosophy, law (legal history, international, French, local and Italian law) and anthropology.

The question of access to water brings us back to the recognition of a right to water, and helps us understand that the dynamics of the commons do not necessarily accommodate the recognition of a subjective right.

The sharing of water is the subject of a transdisciplinary historical, anthropological and legal analysis, drawing on local examples (the Dombes in France, the river resources of Tabasco in Mexico and the conflicts linked to the sharing of water on the Spanish-Lusian border) and international examples (international waterways and the sharing of the sea as organized by the 1982 Montego Bay Convention).

The section on water governance recalls that the concept of governance is at the heart of thinking on the commons, and demonstrates that the logic of the commons makes it possible to overcome the fragmentation of legal regimes and the public/private water dichotomy. She also discusses public water management and the management of protected marine areas in the Seychelles Islands. It also looks at the case of “beni comuni” water in Naples, in reaction to the scandal caused by water privatization, and the lessons to be learned from the work of the Rodotà Commission.

The final section looks at water protection, beginning with reflections on the effectiveness of certain water protection tools and institutions. First of all, the personification of watercourses, which affects several rivers such as the Ganges, the Whanganui or the Amazon, and whose movement continues on a local scale: the hearings of the Loire Parliament, the Tavignano river in Corsica, the Mar Menor lagoon in Spain. Next, social and environmental responsibility are analyzed through the standards of protection and use imposed on water companies. Finally, the latest developments in the law governing the conservation of the public maritime and river natural domain are presented, making it possible to crack down on water pollution and effectively supplement the repressive arsenal found in the Environmental Code.

Secondly, the issue of water protection raises the question of liability mechanisms. On the one hand, the civil liability of polluters and compensation for environmental damage, which allows us to look back at the shipwrecks of the Amoco Cadiz (1978) and the Erika (1999). Secondly, we look at the process of penalizing behavior in the name of water protection, thanks to the concept of water as a common good.

Thirdly, water and environmental protection regimes are analyzed through examples drawn from French law (hydroelectricity), European law (maritime spatial planning) and international law (marine biodiversity and the work that led to the BBNJ agreement).

 

Clémentine Bories

Clémentine Bories is Professor of International Public Law at Toulouse Capitole University, a member of the Institut du droit de l’espace, des territoires et de la communication (IDETCOM) and a specialist in international cultural heritage.

 

 

 

 

 

Sabine Boussard

Sabine Boussard is Professor of Public Law at the University of Paris Nanterre, Director of the Centre de recherches en droit public (CRDP) and a specialist in administrative property law.