The Impact of Law on the Right to Water and Adding Normative Change to the Global Agenda

Abstract

A resolution was passed at the United Nations Water Conference in 1977 to achieve universal access to sufficient water by 1990. This bar was lowered significantly as part of the Millennium Development Goals (MDGs). However, as the MDGs come to an end this year, even this reduced benchmark will not be reached. Water is inescapably intertwined with every other MDG, as well as the ability to exercise any human right. Consequently, the failure to achieve this goal implores an exploration of its causes. As the global community embarks on setting a new post-MDG agenda, one currently overlooked aspect is the impact that the law -- in particular international law through the human rights framework -- has on reaching universal access to water. The incorporation of progressive realization into human rights documents and, subsequently, national laws, has enabled governments and the international community to hide behind ambiguous demands and excuses of limited resources and democratic accountability, impeding much needed progress. The South African Constitutional Court decision in Mazibuko & Others v. The City of Johannesburg demonstrates how a government can utilize progressive realization to implement a discriminatory policy, while shielding itself from the responsibility of failing to provide sufficient water to its citizens. The new global agenda should strive to remove the application of progressive realization from the right to water. In doing so, it can empower citizens to hold their governments accountable and create a normative change in how water is viewed internationally. An emphasis on the law's impact will stimulate efficient development not only in terms of water, but in every facet of the global agenda moving forward.

Keywords: right to water, human rights, international law, global health, health law, millennium development goals, South Africa, progressive realization, normative power, global agenda