Does it Matter: Constitutionalisation, Democratic Governance, and the Human Right to Water

Rebecca Schiel,Bruce M Wilson,Malcolm Langford

doi:10.3390/w12020350

Abstract

States are urged frequently by the UN, policymakers, and activists to recognise the human right to water domestically. However, does such legal incorporation, often in national constitutions, affect water policy and the realisation of the right? While several qualitative studies report positive impacts, initial quantitative assessments have questioned the systematic positive impact of the national recognition of the human right to water. Yet, such quantitative analyses of the effects of constitutional rights to water often overlook important mediating policy factors. We test specifically whether strong democratic governance is a significant condition for ensuring that the constitutional recognition of the human right to water has concrete outcomes. Results of a multivariate regression analysis on a global sample of 123 states over a 15-year period provide two findings. First, the constitutionalisation of the right to water and other economic, social, and cultural rights (ESCRs), in national constitutions alone is not associated with material benefits related to the human right to water. Second, the constitutionalisation of those rights can have positive material benefits for water access when the rights are foregrounded in democratic governance.

Highlights

In its ground-breaking General Comment No 15 (2002), the United Nations (UN) Committee on Economic and Social and Cultural Rights (CESCR) urged states to recognise domestically the human right to water [1].The Committee’s argument was largely instrumental: incorporating the right in the domestic legal order could ‘significantly enhance the scope and effectiveness of remedial measures [1]’
Model 1 examines a count of the total number of judicially enforceable ESCRs, model 2 a count of all aspirational and judicially enforceable ESCRs, model 3 examines constitutionalisation of the right to food and water, and model 4 constitutionalisation of the right to health
The coefficients are largely negative, with the exception of the total number of judicially enforceable ESCRs, though again none reach significance. This sheds considerable doubt on both hypotheses 1a and b, which suggested that the constitutionalisation of specific rights and/or the number of ESCRs alone should produce tangible benefits

Summary

Introduction

In its ground-breaking General Comment No 15 (2002), the UN Committee on Economic and Social and Cultural Rights (CESCR) urged states to recognise domestically the human right to water [1].The Committee’s argument was largely instrumental: incorporating the right in the domestic legal order could ‘significantly enhance the scope and effectiveness of remedial measures [1]’. The Committee has upped the ante, strongly encouraging states to incorporate the Covenant rights in the domestic legal order [1], whether through the constitution or ordinary law [1], and criticized specific states that fail to do so [2]. Activists in many countries—from Bolivia, Ecuador, El Salvador, Colombia and Mexico to Germany, France, Spain, Norway, and the USA—sought to enshrine the right to water as a constitutional or legislative right. These efforts were given further support in 2010 when the UN General Assembly declared ‘the right to safe and clean drinking water and sanitation as a human right that is essential

Methods

Results

Conclusion