Translating Legal Norms into Quantitative Indicators: Lessons from the Global Water, Sanitation, and Hygiene Sector
64 Pages Posted: 29 Mar 2018 Last revised: 31 Oct 2018
Date Written: March 1, 2018
Legal norms that are translated into quantitative indicators have the potential to shape behavior, even absent legal penalties, because numbers are easy to understand and provide a basis for accountability, comparability, and performance benchmarking. In the field of international environmental law, where legal enforcement options are often limited, quantitative indicators that facilitate comparison between nations can be a particularly important way of fostering compliance with emerging norms. However, quantitative indicators are like double-edged swords: the very simplicity that enables them to have strong communicative power often comes at the cost of a complete and accurate understanding of the problem. This Article analyzes both sides of this proverbial sword through a case study of the global water, sanitation, and hygiene sector.
Drawing on the environmental law literature on information disclosure and the social science and human rights literature on global indicators, I first develop a conceptual framework that examines (1) when information disclosure is more likely to promote legal compliance, which is described as a “governance effect;” and (2) how the form of the information disclosed, i.e., the choice of certain quantitative indicators, can shape policy options and alter—or even distort—the meaning of the original legal norm, which is known as a “knowledge effect.”
I then apply this new approach for studying the dynamic interaction between legal norms and statistics to a case study on global water. I argue that through quantitative information disclosure, these nonbinding “soft law” declarations to expand access to water, sanitation, and hygiene have had a governance effect by influencing international and national development agendas. I also demonstrate how quantitative indicators can have unintended knowledge effects with perverse policy consequences; for example, a person with access to a water tap was considered to have met one global target even if the water was contaminated or the tap was broken. Finally, I show how the development of these statistical tools has been influenced by the conception of water and sanitation as human rights. An analysis of this unusual dialogue offers insights to human rights advocates who want to translate their ideas into numeric terms that policymakers can understand.
This Article makes a unique contribution through its original interdisciplinary conceptual framework and comparative analysis of domestic and international law. It underscores the importance of studying how quantitative indicators are created to ensure that the knowledge they impart reflects the original legal norms.
Keywords: Sustainable Development Goals (SDGs), Millennium Development Goals (MDGs), water, sanitation and hygiene (WASH), human right to water, indicator, Toxics Release Inventory (TRI), new governance
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