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International Law

: Indonesian Law Reporter (ILR)

[RTWS Update] Two Misconceptions about the Human Right to Water (Part 1)

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David Zetland wrote:

To understand the costs, begin with the difference between negative and positive rights. Negative rights (e.g., the right to free speech) should not be taken from you; positive rights (e.g., the right to ?clean and accessible water, adequate for the health?") should be given to you. We can immediately see that it is easier to protect negative rights from violation by an outsider than positive rights, which as violated by a lack of action. Even worse, we cannot tell when action, of a certain quality, quantity or price, is enough. Finally, consider that the cost of positive rights grows with demand (e.g., population); it costs nothing to supply an increased demand for negative rights.

First Misconception: The Right to Water is a 'positive' right.

The distinction between positive and negative rights stems from political discourse, such as that of Isaiah Berlin who distinguishes between positive and negative liberty. Human Rights Courts, such as the ECtHR have argued that human rights provisions have both a 'positive' and 'negative' aspects. The right to life cannot be realized without the state's duty to provide protection. The right to vote is meaningless without the ballots and the infrastructure to support an election. The right to property is a blank cheque if the police is not well supported to enforce the law.

If one day you got robbed in a State, because that State would rather invest on something else rather than paying sallaries to its police officers, what does it mean to you to have the right to property? If the right to property only means a 'negative right' which, as Zetland suggests, requires the state only "not to do anything", then it is sufficient for that state to enforce the right to property by not robbing you. Under this conception, as long as they don't steal and rob from you, no human rights is breached. This means that you can't come to the Court and ask the state to provide funds for the police force.

On the contrary, the right to property also has some positive elements. Not only that it means that the state cannot take away your property (the negative aspect) without due process and compensation, it must provide all available means to protect your property (the positive aspect), for example, by having a police force.

The right to water is also like that. It has both positive and negative elements. The negative element obligates the state not to interfere or impede your access to water, the positive one obligate the state to enact regulation, or, in certain cases, to deliver the water, if public ownership is opted by the state as a mode of delivery.

Full post as published by Indonesian Law Reporter (ILR) on March 25, 2010 (boomark / email).