Changing conceptions of rights to water

What do we really mean when we talk about a right to water? A human right to water is a cornerstone of a democratic society, but what form that right should take is hotly debated.

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Article by Bettina Lange and Mark Shepheard, from the Oxford University Press blog

Recently 1,884,790 European Union (EU) citizens have signed a petition that asks the EU institutions to pass legislation which recognizes a human right to water, and which declares water to be a public good not a commodity.

But a right to water has various facets. It includes rights of economic operators, such as power stations and farmers to abstract water from rivers, lakes, and groundwater sources. The conundrum here is that an individual human right to water, including a right to drinking water and sanitation, can be in conflict with the rights of economic operators to water. More importantly such human rights to water may be in conflict with a right to water of the environment itself. The natural environment needs water to sustain important features such as habitats that support a wide range of animals and plants.

There is a growing trend under the label of ‘environmental stewardship’ that prompts us to think not in terms of trade-offs between different claims to water, but to change how we think about what a right to water entails. Environmental stewardship means that human uses of water – by individual citizens, consumers and economic operators – should pay greater attention to the needs of the natural environment itself for water. This raises some thorny issues that go to the heart of how we think about fundamental rights in contemporary democracies. Should we abolish the possibility to own natural sources, such as water and thus limit the scope of private property rights? Should we develop ideas of collective property, which involves state ownership of natural resources exercised on behalf of citizens? Should we simply qualify existing private property and administrative rights to water through stewardship practices? It is the latter approach that is currently mainly applied in various countries. How does this work? Water law can impose specific legal duties, for instance on economic operators to use water efficiently, in order to promote stewardship practices. Whether this will be of any consequence, however, depends on what those who are regulated by the legal framework think and do.

recent study therefore explored how English farmers think about a right to water and its qualification through stewardship practices. The study found that three key factors shape what a right to water means to farmers.

First, the institutional-legal framework that regulates how much water farmers can abstract through licences issued by the Environment Agency defines the scope of a right to water.

Second – and this struck us as particularly interesting – not just the law and the institutions through which water rights are implemented matter, but also how natural space is organized. The characteristics of farms and catchments themselves, in particular whether they facilitated the sharing of water between different users, influenced how farmers thought about a right to water. Water sharing could enable stewardship practices of efficient water use that qualified conventional notions of individual economic rights to water.

Third – and this touches upon key debates about the ‘green economy’ – the economic context in which rights to water are exercised has a bearing on how ideas about rights to water become qualified by environmental stewardship.

In particular ‘green’ production and consumption standards shape how farmers think about a right to water. There are a range of standards that have been developed by the farming industry, independent certification bodies, such as the Soil Association, as well as manufacturers of food stuffs to whom farmers sell their produce and supermarkets. These standards prompt farmers to consider the impact of their water use on the natural environment. For instance, the Red Tractor standard for potatoes asks farmers to think of water use in terms of a strategic plan of environmental management for the farm, which also addresses ‘accurate irrigation scheduling’, ‘the use of soil moisture and water application technology’, as well as ‘regular and even watering’. These are voluntary standards, but they matter. They can render farmers’ practices in relation to water stewardship more transparent and thus also promote accountability for the use of natural resources.

Supermarket standards were considered as most influential by farmers, particularly in water scarce areas of the United Kingdom such as East Anglia. But these standards revealed an interesting tension between their economic and environmental facets.

Somehow paradoxically green consumption and production standards could also reinforce significant water use by farmers, such as spray irrigation in order to achieve good product appearance. For instance, some manufacturers of crisps seek to reduce the impact on water use of the crops they source for their products. But farmers who want to sell their potato crops to crisp manufacturers still have to achieve ‘good skin finish’, because ‘nobody wants scabby potatoes’!

So, next time you go grocery shopping ask how your consumer choice shapes a right to water.

Dr Bettina Lange is an Associate Professor in Law and Regulation at the Centre for Socio-Legal Studies, Oxford University. Her research draws on social theory and qualitative empirical methods in order to understand how political and economic contexts shape how environmental legal rules are interpreted and implemented. Dr Mark Shepheard is a postdoctoral fellow at the School of Law at the University of New England, Australia. His research interests are natural resource stewardship, regulation and governance, virtue ethics as well as land and water management obligations. Together, they are the authors of ‘Changing Conceptions of Rights to Water? An Eco-Socio-Legal Perspective‘, which won the 2014 JEL annual Richard Macrory best article prize and is available to read for free for a limited time in the Journal of Environmental Law.