Access to Water is an American Human Right

Post written by Wilfredo Lopez, J.D., Elisabeth Haub School of Law at Pace University, May 2017.

Issues involving the access to water have been in the news lately in relation to the crisis in Flint, Michigan. News outlets focus on who is to blame, but fail to recognize that, by not securing access to clean water, the local government violated its residents’ human rights. On July 28, 2010, the United Nations General Assembly, through Resolution 64/292, explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realization of all human rights. The Resolution calls upon States and international organizations “to provide financial resources, help capacity-building and technology transfer to help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.” See also Resolution 15/9, “Human Rights and Access to Safe Drinking Water and Sanitation,” UN Human Rights Council, Oct. 6, 2010, A/HRC/RES/15/, para. 3  (affirming that the right to “safe and clean drinking water” is “derived from,” among other things, the international human “right to life and human dignity”).  However, this right was not recognized for the first time in 2010. America has recognized this right since its founding.

Yet some argue that access to water is not an American human right, because it is not mentioned in the Bill of Rights or anywhere in the Constitution. However, by this logic, access to air or food, all essential to life, are also not protected. These rights are all implied by the protections of “life, liberty, and the pursuit of happiness.” Thomas Jefferson’s words in the Declaration of Independence in context are as follows:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (emphasis added.)

Without clean water, there is a real risk to “life,” and there can hardly be a “pursuit of happiness.” Since America’s founding, the right to water has been at the core of protections guaranteed by the government.

Although the United States and 40 other countries abstained from Resolution 64/292, some argue that the US is bound to provide this right, because the right to water has crystallized into customary international law. See, e.g., Adele J. Kirschner, The Human Right to Water and Sanitation, 18 Max Planck Y.B. United Nations L. 445, 464-65 (2011). Note that 122 counties voted for the resolution and none voted against.

In 2012, California became the first state to recognize the Human Right to Water, yet no other state nor has the US government adopted a similar measure. With the crisis still continuing in Flint, it is now the time for other states to expressly adopt statutes or ordinances guaranteeing every person’s right to water. The US cannot, on one hand, declare that everyone has the right to life, liberty, and the pursuit of happiness and, on the other hand, deny people the right to water. See “The Human Right To Water In The United States,” International Human Rights Clinic at Santa Clara University School of Law Before the Interamerican Commission on Human Rights, Sept. 15, 2015. Recognizing this fundamental right will avoid the same issues that caused the crisis in Flint, Michigan.

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