Adapting Human Rights

Governmental leaders, scholars, and activists have advocated for human rights to food, water, education, health care, and energy. Such rights, also called positive rights, place an affirmative duty upon the state to provide a minimum quantity and quality of these goods and services to all citizens. But food, education, water, and health care are so different–in how they are produced, consumed, and financed–that the implementation of a positive right must be adapted to the distinctive characteristics of the good or service it guarantees. The primary aims of this adaptive implementation are transparency, enforceability and sustainability in the provision of positive rights. Only by adapting a positive right to its policy environment can such a right function as a viable means of protecting disadvantaged members of society. This article uses the example of positive rights to public utilities, such as water and energy, to illustrate adaptive implementation of positive rights. In doing so, this article explains why and how a positive right must be adapted to the unique policy environment of a given public utility

The Case of Canadian Bulk Water Exports

Canada has twenty per cent of the planet’s total fresh water supply. Canada’s water wealth raises the possibility of shipping water in bulk, through tankers or pipelines, to regions suffering from drought. On the one hand, bulk water exports could be an economic boon for Canada and a possible solution to the rising concerns over global water security. On the other hand, bulk water exports could deplete Canada’s water supplies and thereby impact the environment, while creating unsustainable water dependences in its trade partners who may be better served by conserving water, rather than importing water. Canada can engage in sustainable and responsible bulk water exports if it implements necessary legal and regulatory reforms. First, Canada’s treaties should characterize bulk water exports as a “good” for purposes of international trade and investment law. This will allow water pricing and international law to more effectively encourage sustainable management. Second, Canada can formalize already-existing bulk water export relationships through treaties that encourage localized transboundary cooperation. Third, Canada should include water embedded in its agricultural and energy imports and exports to more accurately account for possible water trade deficits

Law in the Time of Cholera

Thousands die each day from infections related to water, as evidenced in the ongoing crises of cholera in Haiti, Zika in the Western Hemisphere, and Legionnaires’ Disease in Flint, Michigan. Yet water law focuses primarily on two agendas. First, the “Blue Agenda” aims to provide an equitable allocation of water to individuals and communities while encouraging sustainable water management. Second, the “Green Agenda” aims to efficiently protect water in the natural environment from pollution. These two agendas often ignore, and can be inconsistent with, the “Red Agenda.” The Red Agenda addresses prevention of waterborne infections, like cholera, and the habitat of water-related disease vectors, like mosquitoes transmitting malaria. Additionally, the Red Agenda focuses on access to water for sanitation and hygiene, with implications for epidemics like Ebola. In simplified terms, the Blue Agenda is about water quantity, the Green Agenda about water quality, and the Red Agenda about water diseases. Laws made in pursuit of the Blue Agenda, like building a dam or irrigation system, can interfere with the Red Agenda by bringing mosquito habitat closer to human communities. And laws made in the pursuit of the Green Agenda, like prohibiting discharges of pesticides into a river, can interfere with the Red Agenda by preventing a response to a malaria outbreak. This Article is the first to introduce the Blue, Green, and Red framework for water law, and explains why these agendas often conflict with each other and how to more effectively integrate these agendas into water law

The New Right in Water

This Article divides all rights into two broad categories— provision rights and participation rights. With a provision right, the government makes substantive guarantees to provide some minimum quantity and quality of a good or service. With a participation right, the government is legally proscribed from interfering with an individual citizen’s access to institutions and resources controlled or held in trust by the state, and the state is required to facilitate access to those institutions and resources equally and transparently. A growing number of national constitutions guarantee a right to water. Without exception to date, these constitutions frame the right to water as a provision right. A provision right to water raises serious problems of enforceability, equity, and sustainability. This Article critically evaluates the provision right to water and suggests an alternative participation right in water. The foundation of such a participation right in water is laid in many nations by the public trust doctrine, wherein the state holds title to water resources for the benefit of its citizens. Unlike the typical formulation and implementation of the provision right to water, a participation right is sustainable, equitable, and enforceable, and would facilitate public participation, accountability, and experimentation in water policy

Water Security

Climate change, as the dominant paradigm in natural resource policy, is obsolete and should be replaced by the water security paradigm. The climate change paradigm is obsolete because it fails to adequately resonate with the concerns of the general public and fails to integrate fundamental sustainability challenges related to economic development and population growth. The water security paradigm directly addresses the main reasons climate change ultimately matters to most people—droughts, floods, plagues, and wars. Additionally, this new proposed paradigm better integrates climate change concerns with other pressing global sustainability challenges—including that economic development and population growth will require 50% more food and energy and 30% more water by 2030 regardless of climate change. The water security paradigm orients all natural resource policies toward achieving a sustainable quantity and quality of water at acceptable costs and risks. Water security improves upon the climate change paradigm in several ways: it (1) replaces carbon footprints with water footprints as the metric for sustainability monitoring and reporting, (2) restructures natural resource governance at the watershed level with regional, rather than hierarchical, leadership, (3) integrates security and public health concerns into natural resource policies, (4) encourages investment in infrastructure for drought and flood resilience, and (5) facilitates the sustainable implementation of human rights

New Water for Water Dispute Resolution

Water scarcity often leads to water disputes. New water supplies—such as bulk water imports, desalination, cloud seeding, or increased stream flows from improved forest management—can mitigate water scarcity and thus help avoid water disputes. However, new water supplies can also aggravate water disputes if not developed in concert with legal reforms. This Article evaluates the role of new water in two cases of water disputes in arid regions and proposes legal reforms to promote new water as a means of water dispute resolution. The first case is the adjudication of water rights in the Gila River basin in Arizona. Improved forestry management could increase water supplies and help resolve this decades-old dispute, but Arizona law should reconsider how property rights are assigned to such increased supplies and what legal mechanisms could encourage investment in forestry management. The second case involved disputes over water resources in refugee host communities in Lebanon and Jordan. The influx of Syrian refugees into cities in Lebanon and Jordan can give rise to water disputes. Laws in the countries can be reformed to facilitate water augmentation and thereby provide increased supplies to refugee host communities

Reconciling Energy and Food Security Law

This article argues that making water security a more predominant policy aim can help reconcile and integrate energy security and food security. Water security is the condition of a nation and its citizens having reasonable physical and economic access to sufficient and sustainable water, combined with acceptable levels of water-related risks (e.g., drought, flood, and water-related plagues)

Water, Workship, And Wisdom: Indigenous Traditional Ecological Knowledge And The Human Right To Water

Water is used in ceremonies or as a symbol in nearly every religious community

La resolución de la ONU sobre el derecho humano al agua después de una década

In the ten years since the UN General Assembly recognized an international human right to water, that right has remained largely unenforceable in both international and domestic law and efforts to implement it have proven mostly ineffective or even counterproductive. The UN General Assembly’s Declaration in 2010 could have catalyzed progress in achieving the UN’s Sustainable Development Goals aimed at improving access to water and sanitation. Nevertheless, scholars, activists, and practitioners can reimagine the international human right to water as a civil and political right, rather than as a substantive guarantee of water, in ways that would make the implementation of the human right to water more sustainable, equitable, and enforceable.En los diez años transcurridos desde que la Asamblea General de las Naciones Unidas reconoció como derecho humano al agua, el mismo ha permanecido en gran parte inaplicable y los esfuerzos para implementarlo han resultado en su mayoría ineficaces o incluso contraproducentes. No obstante, académicos, activistas y profesionales pueden volver a imaginar el derecho humano internacional al agua como un derecho civil y político, en lugar de una garantía sustantiva al agua, de manera que la implementación del derecho humano al agua sea más sostenible, equitativo y ejecutable

The Energy-Water Nexus

Speakers for the 2013 Symposium included Professor Joshua P. Fershee of West Virginia University; Professor Gabriel E. Eckstein of Texas A&M University School of Law; Professor Keith B. Hall, Louisiana State University; Professor Donald T. Hornstein from the University of North Carolina; Professor Shi-Ling Hsu, Florida State University; Professor Rhett Larson, of the University of Oklahoma; Professor Amanda Leiter, American University; Professor Uma Outka, University of Kansas; Professor Justin Pidot, of the University of Denver; Professor Melissa Powers from Lewis & Clark College; Mr. Jefferson D. Reynolds, Virginia Department of Environmental Quality; Dr. Benjamin K. Sovacool & Mr. Alex Gilbert from Vermont Law School; and Ms. Andrea Wortzel, of Troutman Sanders LLP