Mobilising the law and lawyers to help make the right to water a reality for all
Water is essential for life, human dignity, and the health of people and planet. To rise to the challenge of delivering SDG 6, Peter Newborne, specialist researcher and consultant on water policies and programmes, first shares his thoughts on the issue of equitable access to water using a case study from Burkina Faso.
Then, in the following text, A4ID highlights how a project led by the Center for Water Security and Cooperation to build an online water law database for Africa, is contributing to strengthening legal infrastructure around SDG 6.
Peter is one of the speakers of our 2019 Law & Development Training Programme. He will be delivering a session on ‘The Right to Water: Legal Forms and Political-Economy Challenges’ during the 5th module devoted to Socio-Economic Rights (13 April 2019). Further details on the 2019 Law & Development Training Programme here.
The Right to Water: where’s the remedy?
An earlier version of this article was first published on the ODI website: https://www.odi.org/comment/10627-right-water-where-s-remedy.
Rural Community in Burkina Faso (still from PRISE film). Photo: PRISE CC-BY-NC-ND
It is 15 years since the UN defined the human right to water. The primary focus of the definition is on water for drinking and domestic use – sufficient, safe, acceptable, physically accessible, and affordable – but the human right also applies to water for producing food. The UN states that attention ‘should be given to ensuring equitable access to water for farmers, including those that are marginalised’.
In Burkina Faso, a low-income country in West Africa, the human right to water for drinking and domestic use is recognised in national law. The government has pledged to ‘satisfy or reconcile’ the demands of other water uses, including agriculture. The national economic and social plan aims to increase the contribution of irrigated agriculture to gross domestic product (GDP), but the focus is on ‘growth zones’ around large dams. In developing national capacity for water storage matching supply to demand, a combination of small and larger reservoirs is key to an integrated water management system capable of adapting to demand.
The capital city, Ouagadougou, has the water it needs, thanks to a major investment project supported by international donors. The reservoir of the Ziga dam provides water for households, and businesses, in the city and – after an ODI and University of Ouagadougou study commissioned by WaterAid highlighted the need for better socio-economic targeting of water services – also offers poor households in peri-urban areas improved access to water. Progress, then, towards realisation of the human right in the big city.
But what of rural communities? The villages in the Ziga area are prohibited from accessing the reservoir water for irrigation because of the risk of pollution from pesticides. They understand the ban, but complain about the lack of other, small irrigation infrastructure. ‘Where’, the villagers ask, ‘are the small dams we were promised?’
These farming communities are struggling to make ends meet. The men of the villages migrate in great numbers, to places in Burkina Faso where there is irrigation access. In the central semi-arid zone of Burkina, climate variability – longer and more unpredictable dry seasons – is making it increasingly difficult to rely on rain-fed agriculture alone. The men are away for 6 months of the year, leaving the women with a very heavy burden of work and responsibilities.
Documented examples of other communities in Burkina Faso and elsewhere in West Africa, show how the construction of small, built water storage infrastructure in low-lying areas (bas fonds) can help local development.
That is what the marginalised Ziga communities need. Currently, equitable access is lacking.
Whether a remedy is available depends on whether the authorities (and donors) fund investments in small dams for these villages – and others like them.
The legal grounds on which advocates on behalf of the local communities in Burkina Faso can argue the case are as follows. Article 2 of the Water Policy Management Act, 2001 (La loi d’orientation relative à la gestion de l’eau) formally recognised the human right to water, thereby incorporating it into the national law of Burkina Faso. As for international law, the resolutions of the UN General Assembly and UN Human Rights Council in July and September 2010 confirmed the right to water as a human right – as being essential for securing an adequate standard of living, and for health, in accordance with Articles 11 and 12 of the 1966 International Covenant on Economic, Social and Cultural Rights. That includes the right of equitable access to water for marginalised communities.
Donors should take proper account of that right when planning their investments. The 2005 Paris Declaration outlined the fundamental principles for relations between donor and recipient countries, for making aid more effective. The Declaration included the key principles of ‘alignment’ by donor countries with the national objectives and strategies of developing countries – the ‘ownership’ principle. Burkina Faso has adopted the human right to water. Donor funding should align with that, supporting its progressive realisation, including helping to fund small dams in rural communities.
Peter Newborne, Research Associate, Water Policy Programme, Overseas Development Institute – ODI
*The views, opinions and positions expressed within these guest posts are those of the author alone and do not represent those of A4ID
A4ID adds a further dimension to the debate on the role of the law and lawyers in delivering SDG 6
In addition to investing in adequate physical infrastructure, A4ID examines how strengthening legal infrastructure will allow lawyers to contribute to achieving SDG 6.
National water law frameworks are critical to guarantee equitable access to quality water. This may include laws concerning water quality, water quantity, energy and mining, land-use, international financing and agriculture. However, there are no existing water law databases which cover all countries and allow for the impartial evaluation of existing water law frameworks.
To this end, the Center for Water Security and Cooperation (CWSC) (ourwatersecurity.org), a charity whose mission is to advance water security by building a unified body of laws, policies, practices and standards that ensure the availability of water for current and future generations, recently requested assistance from A4ID’s legal partners to collect and catalogue water laws in several African countries.
The CWSC is creating the first water law database for Africa – called RENEWAL – and to support them, A4ID partnered CWSC with law firms from South Africa (Baker and McKenzie), Rwanda (K-Solutions), Ethiopia (Mehrteab Leul & Associates), Senegal (Fall & Partners) and Nigeria (Udo Udoma & Belo-Osagie), who agreed to make their legal expertise and knowledge of these jurisdictions available pro bono.
Publicly available at no cost, the online database will be a crucial resource for policy-makers, researchers and citizens to identify the best practices to water management and, by doing so, will contribute to the realisation of the right to water. The platform is expected to be launched December 2019.