Water Paper

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Sikandar ShahJune 2011

The Provision and Violationof Water Rights

(The Case of Pakistan) -A Human RightsBased Approach

DPRC WORKING PAPER


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Sikandar Shah

June 2011

The Provision and Violation

of Water Rights

(The Case of Pakistan) -

A Human RightsBased Approach

DPRC WORKING PAPER

The Development Policy Research Centre (DPRC) is a knowledge centre

structured around core socioeconomic development themes with the objective of

carrying out cutting edge multi-disciplinary research. The centre combines the

disciplines of social sciences and law to strengthen evidence-based policymaking.


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Table of Contents

1 Introduction.............................................................................................................011.1 The Theoretical Basis for Classifying Water as a Human Right..................................................01

1.2 The Human Right to Water under International Law.................................................................02

1.2.1 Historical Overview.......................................................................................................................02

1.2.2 The Scope of the Human Right to Water ....................................................................................05

1.2.3 Whether the Right to Water is a Progressive or Immediately Realizable Right? .......................05

1.3 The Domestic Justiciability and National Implementation of the Human Right to Water.......05

2 Pakistan and the Human Right to Water................................................................. 09

2.1 Pakistan and its International Law Commitments on Water ......................................................092.2 The Constitutional and Legislative Protection to the Right of Water in Pakistan.....................09

2.3 Seminal Judgments on Water Emancipation in Pakistan............................................................12

2.4 An Assessment of the Status of Water Rights in Pakistan ...........................................................14

2.5 Food Security and the Human Right to Water............................................................................15

3 Conclusion ............................................................................................................... 17


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human right, either in the form of a civil-political or socio-

economic right, argue that the human rights framework is

the most effective way to provide access to adequate and

healthy water. Because of the presence of an established

legal framework through which emancipation is most

pragmatically realizable, violations of the right areadequately ascertainable and hence state conduct can be

most effectively monitored for implementation.

The problem with categorizing water as an economic good

is that the inequitable distribution of water is tolerated.7

There is the fear with this approach that access to water

will be determined only by market forces and not by equity

and need.8 For instance the economic good based

approach can be used to promote the privatization of

water9 on the basis of the full cost recovery principle,10 withthe aim to improve the water supply system

infrastructure.11 This phenomenon will however lead to

the non-provision of water to those who cannot afford it,

such as that witnessed in the Cochabamba case.12 Inciden-

tally in the opinion of the leading expert on water law, the

Committee on Economic, Social and Cultural Rights

(ESCR Committee),13 does not per se determine the

privatization of water to be a violation of the human right

to water.14

The problem of confronting water issues via the paradigm

1 Introduction*

We made from water every living thing.1

Water is a basic necessity of life. However, its value is

determined differently in different parts of the world.2 Thescarcity of water causes its value to increase incrementally,

a phenomenon witnessed in the developing world where

in some localities its value is comparable to gold.3 Further-

more, with the process of industrialization accelerating in

the developing world, need for water will increase

incrementally and its main use will not be limited to

agriculture and domestic consumption.4 Over one billion

people globally do not have access to basic water supplies

and half of the developing worlds population suffers from

disease due to the contaminated supply of water.5 The

international governance regimes are therefore faced with

a difficult task; they have to categorize water in a manner

that promotes the standard of living of the global citizenry

most effectively.6

1.1 The Theoretical Basis for Classifying Water as a

Human Right

The quintessential question presented is why should water

be classified as a human right and not viewed as aneconomic good or as an object of environmental protec-

tion. Those in favor of classifying water emancipation as a

*Assistant Professor at the Lahore University of Management Sciences (LUMS), Department of Law and Policy. Thanks to AnoshayFazal, Saba Sheikh and Sana Malik for their research assistance.1 The Quran: Text, Translation, and Commentary (Abdullah Yusuf Ali trans., 2001).2 Note, What Price for the Priceless?: Implementing the Justiciability of the Right to Water, 120 HARV. L. REV. 1067 (2007).3 Id.4 Lee-Yee Huang, Not Just another Drop in the Human Rights Bucket: The Legal Significance of a Codified Human Right to Water, 20FLA. J. INT'L L. 353 (2008).5

Erik B. Bluemel, The Implications of Formulating a Human Right to Water, 31 ECOLOGY L.Q. 957, 959 (2004).6 Bluemel, supra note 5, at 959.7 Id.8 Id.9 For a detailed discussion about the cost and benefits for privatization of water for the promotion of human rights see, FitzmauriceMalgosia, Symposium: Environmental Protection and Human Rights in the New Millennium: Perspectives, Challenges, and Opportuni-ties. 18 FORDHAM ENVTL. L. REV. 537 (2007).10 Full cost recovery means that the state or private water supplier should be able to recover the full costs of supplying water to allusers. Id. at 964.11 Bluemel, supra note 5, at 965.12 See generally Erik J. Woodhouse, Note, The "Guerra del Agua" and the Cochabamba Concession: Social Risk and Foreign DirectInvestment in Public Infrastructure, 39 STAN. J. INT'L L. 295 (2003); Andrew Nickson & Claudia Vargas, The Limitations of WaterRegulation: The Failure of the Cochabamba Concession in Bolivia, 21 BULL. of Latin AM. RES. 128 (2002).13 See infra note 31.14 Fitzmaurice, supra note 9, at 552.


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tional liability; 2. It prevents commoditization of water; 3. Itimplies free access to water; 4. It hinders liberalisation orprivatisation of water utilities; 5. It creates obstacles to freetrade; and 6. It facilitates legal harassment of water utilitiesor public authorities.22

In Smets view water can be a commodity and right concur-rently. He supports his point by highlighting the successfulprivatization regime of water in the United Kingdom,

where it is illegal to disconnect water, while even as anenforceable, fundamental and standalone human right inSouth Africa, guaranteed under the South African Constitu-tion, water is frequently disconnected for segments of thepopulation.23

1.2 The Human Right to Water under InternationalLaw

1.2.1 Historical OverviewThe right to water has not achieved the status of customaryinternational law.24 Moreover, foundational internationaltreaties and declarations do not explicitly mention water asa fundamental human right. Proponents of the humanright to water argue that because the right to water is sofundamental and apparent, it was unnecessary to explicitly

enumerate the existence and protection of such a right indocuments such as the Universal Declaration of HumanRights (UDHR).25 Under this view, the existence of thehuman right to water can be assumed and be substantiatedby the fact that other lesser rights and goals are listed inmajor treaties and documents, whose realization iscompletely dependent on the provision of the right to

water.26

of environmental protection is that it focuses solely onconservation and protection, and solutions are derived

from soft law principles and non-binding agreements andarrangements. This approach is also constrained bysovereignty and economic considerations,15 with violations

primarily subject to inter-state negotiation, mediation andarbitration with the interest of non-state parties notadequately factored in.16

The positive of the human right based approach is that itexamines water based rights also from an anthropocentric

perspective and can more concretely identify stateviolations and create pressure on states to fulfil theirobligations to provide and improve water infrastructure.17Furthermore, classifying water emancipation as a human

right brings its enforceability to the grass root level, whereremedies can even be claimed by individuals in interna-tional forums historically not open to non-state basedparticipation18 and at the national and municipal levels

where there are a number of adequate judicial remedies.19

Some experts are, however, critical of the human rightbased approach to emancipation. They argue that theapproach is simplistic; the malleability of human right

language promotes double standards and can be used bydeveloped states to retard the development of third worldnations and as a consequence the classification of water asa human right impedes the realization of other hierarchi-

cally superior human rights.20 Moreover, the approach

does not account for political economy21 that effectivelydictates environmental policy. According to Smets, theproblems with that approach are that 1. It creates interna

15 Huang, supra note 4, at 359.16

Id. at 361.17 Id. at 359.18 First Optional Protocol to the International Covenant on Civil and Political Rights, art. 1, Dec. 16, 1966, 999 U.N.T.S. 302 [hereinafterFirst Optional Protocol]; American Convention on Human Rights, art. 44, Nov. 22, 1969, 1144 U.N.T.S. 144 [hereinafter AMCHR].19 Huang, supra note 4, at 359.20 Id. at 367. Commoditisation21 Id. at 360.22 Henri Smets, Economics of Water Services and the Right to Water, in FRESH WATER AND INTERNATIONAL ECONOMIC LAW 177(Brown-Weiss et al eds.).23 Amy Hardberger, Whose Job is It Anyway?: Governmental Obligations Created by the Human Right to Water, 41 TEX. INTL L. J. 533,556 (2006).24 Amy Hardberger, Life, liberty and the Pursuit of Water: Evaluating Water as Human Right and the Duties and Obligations it Creates,4 NW. U. J. INTL HUM. RTS. 331, 345 (2005).25 Article 25 of the UDHR is the most relevant provision on the basis of which the right to water can be implied. It states that everyonehas the right to a standard of living adequate for the health and well-being of himself and his family, including food .26 Amy Hardberger, supra note 24, at 345.


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water rights to other fundamental rights, including theright to life, food, housing and adequate standard ofliving.35 For there to be a realization of the right to water,the comments indicate that water emancipation can onlybe achieved when there is availability of water supply for

continuous personal and domestic use. The water shouldbe safe, quality free from hazardous contaminants and ofan acceptable colour, odour and taste and it needs to bephysically and economicallyaccessible in a non discrimina-tory fashion.36

Even though General Comments of the ICESCR committeeare non-binding and of an advisory nature,37 they aremeant to elucidate and interpret existing rights, which

would be binding under the ICESCR. However, the

Committee lacks the power to expand existing rights orcreate new ones.38 The General Comment is a form ofnotice to all the state parties to the ICESCR; its Committeeexpects information on steps taken towards the realizationof enumerated rights, when states submit their generalreports.39 General Comment 15 is a detailed and compre-hensive document and clearly recognizes water as a humanright, however it does not mandate the enforceability ofthe right to water and deference to a states response onaccount of limited resources, is respected.40

In 1977, at the Mar Del Plata Conference in Argentina theidea of the human right to adequate quantity and quality ofdrinking water was explicitly introduced.27 The first humanrights treaty to explicitly recognize the right to water wasthe Convention for the Elimination of All Forms of

Discrimination against Women (CEDAW) in 1979.

28

Subsequently, the Convention on the Rights of the Child(CRC) explicitly recognized the right of children to cleandrinking water.29 Unfortunately explicit reference to theright of water is limited to only these two thematic humanrights treaties, which aim to provide protection for particu-lar vulnerable groups in society.30

The United Nations Committee on Economic, Social andCultural Rights adopted General Comment No.14 in 2000,

linking the enumerated right of health under Art.12 of theInternational Covenant on Economic, Social and CulturalRights (ICESCR), with the right to access to safe andpotable water.31 The Committee further enumerated thatstate obligations included refraining from polluting waterresources.32

The right to water was further established under GeneralComment 15.33 In interpreting Art. 11 and 12 of theICESCR, the Committee indicated that water was one of

the most fundamental conditions for survival34 and linked

27 Report on the United Nations Water Conference, Mar del Plata, G.A. Res. 32/158, U.N. GAOR, 107 th Plen. Mtg., U.N. Doc. E.77.II.A.12(1977).28 States Parties shall ensure to [rural] women the right to enjoy adequate living conditions, particularly in relation to watersupply. See Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, at art. 14 (2)(h), U.N.GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (1979) [hereinafter CEDAW].29 Convention on the Rights of the Child, G.A. Res. 44/25 annex, at art. 24(2)(c), U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49(1989).30 Harberger, supra note 24, at 347.31 U.N. Comm. on Economic, Social, and Cultural Rights, The Right to the Highest Attainable Standard of Health: General Comment

No. 14: art. 12 of the International Covenant on Economic, Social, and Cultural Rights, 4, U.N. Doc. E/C.12/2000/4 (2000).32 Id. at 30, 34.33 See U.N. Comm. on Economic, Social, and Cultural Rights, Substantive Issues Arising in the Implementation of the InternationalCovenant on Economic, Social and Cultural Rights: General Comment No. 15: The right to water: arts. 11 and 12 of the InternationalCovenant on Economic, Social and Cultural Rights, P 1, U.N. Doc. E/C.12/2002/11 (Nov. 26, 2002) (stating that the "depletion andunequal distribution of water is exacerbating existing poverty") [hereinafter General Comment 15].34 Id. at 3.35 Id. at 1-2.36 Id. at 5-6.37 Huang, supra note 4, at 357.38 Hardberger, supra note 24, at 8.39 Stephen C. McCaffrey. Small Capacity and Big Responsibilities: Financial and Legal Implications of a Human Right to Water forDeveloping Countries. 21 GEO. INTL ENVTL. L. REV. 679, 684 (2009).40 U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc., & Cultural Rights, Substantive Issues Arising in the Implementation ofthe International Covenant on Economic, Social and Cultural Rights, P 41, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003) [hereinafterECOSOC], available at http: //www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94/$ FILE/G0340229.pdf.


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the 1949 Geneva Convention Relative to the Treatment ofPrisoners of War, drinking water has to be providedadequately.47 Art. 89 of the Fourth Geneva Conventionpertaining to civilian protection, states that sufficientdrinking water shall be supplied to internees ...48 Art. 54 of

Protocol I of 1977 to the Geneva Convention (Protocol I),prohibits a state to attack, destroy, remove or renderuseless ... drinking water installations and supplies andirrigation works.49

Specialized International agreements, such as the Prohibi-tion of Military or Any Other Hostile Use of EnvironmentalModification Techniques (ENMOD), which relate to theprotection of the environment under humanitarian law,include the right to protect water.50 As regard this agree-

ment, apart from environmental protection, four otherprovisions in the agreement are relevant to watersecurity.51

The incorporation of legal protection for the right to wateris also witnessed in multilateral agreements that relate to

water issues, but are not human rights treaties. Oneexample of such a treaty is the 1997 United NationsConvention on Non-Navigational Uses of International

Watercourses.52 Furthermore, numerous regional treatieshave explicitly recognized not just the right to water buthealthy water, as a fundamental human right.53

Recently numerous international conferences or declara-tions have either explicitly or implicitly recognized accessof the right to water. Prominent ones include the Declara-tion on the Right of Development,41 the 1992 DublinStatement on Water and Sustainable Development, the

2000 Ministerial Declaration of the Second Water Confer-ence and the 2005 Millennium Project, commissioned bythe Secretary General of the United Nations, under whichone goal is to ensure that the proportion of people

without access to safe drinking water and basic sanitation ishalved by 2015.42

Importantly, the United Nations High Commissioner forHuman Rights has stated that "it is now time to consideraccess to safe drinking water and sanitation as a human

right, defined as the right to equal and non-discriminatoryaccess to a sufficient amount of safe drinking water forpersonal and domestic uses drinking, personal sanita-tion, washing of clothes, food preparation and personaland household hygiene to sustain life and health."43 In2006, The United Nations Development Fund (UNDP)recommended that states should make water a humanright.44 The right to water is also protected under Interna-tional Humanitarian Law. Deprivation of water and protec-tion of water sources are most at issue. The HagueResolutions,45 the Geneva Conventions and CustomaryInternational laws are often invoked.46 For instance, under

41 Declaration on the Right of Development, G.A. Res. 44/128 (1986), art. 8.42 Fitzmaurice, supra note 9, at 547.43 U.N. General Assembly, Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the Scopeand Content of the Relevant Human Rights Obligations Related to Equitable Access to Safe Drinking Water and Sanitation UnderInternational Human Rights Instruments, P 66, U.N. Doc. A/HRC/6/3 (Aug. 2007).44 U.N. Dev. Programme, Beyond Scarcity: Power, Poverty and the Global Water Crisis 4 (2006), available at http://hdr.undp.org/en/media/HDR06-complete.pdf; But see Editorial, Clean Water Should be Recognized as a Human Right, 6 PLoS Med. 6, June 30, 2009,available at http://www.plosmedicine.org/article/info%3Adoi%2F10.1371%2Fjournal.pmed.1000102.( In 2009 at the World WaterForum, among other nations United States, Canada and Russia all rejected classifying water as a human right).

45 See Convention Respecting the Laws and Customs of War on Land art. 23 (a), annexed to Convention [No. IV] Respecting the Lawsand Customs of War on Land, Oct. 18, 1907, 37 Stat. 2277. (Prohibiting use of poison and the conventions general scope allows itsapplication to the purposeful contamination of water sources) Hardberger, supra note 23, at 552.46 Hardberger, supra note 23, at 549.47 Geneva Convention Relative to the Treatment of Prisoners of War arts. 20, 26, 29 and 46, Aug. 12, 1949, 6 U.S.T. 3316, 74 U.N.T.S.135, available at http://www.ohchr.org/english/law/prisonerwar.htm.48 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War art. 89, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T.3516 [hereinafter Fourth Geneva Convention].49 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International ArmedConflicts, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3, art. 54 [hereinafter Victims of International Armed Conflicts].50 Convention of the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31U.S.T. 333, T.I.A.S. No. 9614, [hereinafter ENMOD].51 (1) poison as a means of warfare; (2) destruction of enemy property; (3) attack on objects necessary for civilian survival; and (4)attacks on installations that contain dangerous forces. Hardberger, supra note 23, at 552.52 Fitzmaurice, supra note 9, at 544.53 Id. at 544.

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54 Leticia K. Nkonya. SOCIOECONOMIC RIGHTS: EMPOWERMENT FOR GLOBAL JUSTICE: Realizing the Human Right to Water inTanzania. 17 HUM. RTS. BR. 25 (2010).55 Fitzmaurice, supra note 9, at 543.56 State parties to the ICESCR are obliged to only take steps ... to the maximum of its available resources, with an eye towards achiev-ing progressively the full realization of the rights recognized in the Covenant.57 General Comment No. 15, supra note 33, at P 37-38.58 Id. at P 40.59 Note, supra note 2, at 1080.60 INDIA CONST. art. 38. The Directive Principles provide that "the State shall strive to promote the welfare of the people by securing

and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions ofthe national life.61 Id. art. 37 ("The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down arenevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in makinglaws.").62 See Attakoya Thangal v. Union of India (1990) 1 K.L.T. 583 (the administrative agency cannot be permitted to function in such amanner as to make inroads, into the fundamental right under Art. 21. The right to life is much more than the right to animal existenceand its attributes are many fold, as life itself. A prioritisation of human needs and a new value system has been recognized in theseareas. The right to sweet water, and the right to free air, are attributes of the right to life, for, these are the basic elements which sustainlife itself. ) See also A.P. Pollution Control Bd. II v. Prof. M.V. Nayudu, (2001) 2 S.C.C. 62, 69 (holding that the right of access todrinking water is fundamental to life, by creating a state duty under Article 21 to provide such access to its citizens); Vellore Citizens'Welfare Forum v. Union of India, (1996) 5 S.C.C. 647, 660 ("the constitutional and statutory provisions protect a person's right to freshair, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environ-ment."). The Court has also articulated the idea that the right to life necessitates a right to a "healthy environment," making waterpollution a justiciable issue. See, e.g., Kumar v. Bihar, (1991) 1 S.C.C. 598, 604 (holding that the right to life "includes the right toenjoyment of pollution-free water and air for full enjoyment of life").

where does it stand in the hierarchy of rights? Is it anindependent human right, or is it a subordinate right? Andis it a means for achieving an explicitly established right,such as the right to life or health? It is also important todetermine that as a right, whether primary or subordinate,is it subject to immediate realization? Or it is programmaticin nature, subject to only progressive realization and imple-mentation based on state resources?

In examining this issue it is important to look at how thejusticiability of the human right to water has been pursuedin different jurisdictions. Two countries, India and South

Africa, have determined justiciability of the right to water,but have done it in very different ways. The intrinsic natureof the right, its content and implementation, has all been

viewed differently.

Under the Indian Constitution there is no enumerated-justiciable right to water.59 The right to water is derivativeof the constitutional and fundamental right to life, ajusticiable civil and political right. On the other hand, theIndian Constitution lists socio-economic and culturalrights under the Directive Principle of State Policy,60 whichare rights subject to progressive implementation and arenon-justiciable under Art. 37 of the Indian Constitution.61The Supreme Court of India has affirmed the justiciability

of the right to water on numerous occasions.62

OtherSouth Asian states like Bangladesh and Pakistan have

1.2.2 The Scope of the Human Right to WaterThe right to water does not mean that everyone is entitledto a limitless quantity of water for all needs and wants. Theright is limited to access of water of sufficient quantity andquality, for fundamental uses relating to the adequateprotection of a human life and health, for purposes ofconsumption, for instance in order to prevent dehydra-tion, for hygiene and sanitation and for cooking, cleaningand subsistence agriculture, it does not include the rightto water for commercial, industrial or large-scale agricul-tural or irrigation activities.54

1.2.3 Whether the Right to Water is a Progressive orImmediately Realizable Right?As the source of authority of General Comment 15 isderived from Art. 11 and 12 of the ICESCR, the realization

of this right under the covenant is progressive in natureand states are under no obligation to give immediate effectto this right.55 This determination is affirmed by Article 2(1)of the ICESCR.56 This raises a conflict of sorts with the coreobligations enumerated in General Comment 15, whichare to be realized immediately57 and states cannot justifynon-compliance on the non-derogable core values, set outin paragraph 37 of General Comment 15.58

1.3 The Domestic Justiciability and National Imple-

mentation of the Human Right to WaterIf one is to assume that water is a human right, then


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63 Note, supra note 2, at 1079 n.51. See also, Jona Razzaque, Access to Environmental Justice: Role of the Judiciary in Bangladesh 1, 2(unpublished manuscript), available at http://www.eng-consult.com/BEN/papers/Paper-jona.PDF.64 See M.C. Mehta v. Union of India ( 1988) 1 S.C.C. 471. (The government was ordered by the apex court to improve the sewage systemand stop the throwing of burnt corpses into the river Ganges); See Vellore Citizens' Welfare Forum v. Union of India ( 1996) 5 S.C.C.647, (tanneries were violating citizens' rights by emptying untreated waste into local drinking water supplies and agricultural areas);M.C. Mehta v. State of Orissa, A.I.R. 1992 Ori. 225. (the court after finding out that the government knew before hand that sewage wasmixing with river water and causing water borne diseases held the State was obligated to stop and prevent the pollution for themaintenance of wholesome water for consumption). See A.P. Pollution Control Bd. v. Prof. M.V. Nayudu, 2000 S.C.A.L.E. 354, P 3, (thecourt held that the right to access to drinking water is fundamental to life and that the state has a duty under Article 21 to provide cleandrinking water to its citizens. In M.C. Mehta v. Union of India, (2004) 3 S.C.R. 128, PP 45- 47, the apex Court recognized groundwater

as a public asset with citizens having the right to the use of air, water, and earth as protected under Article 21 of the Constitution. Seealso M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.65 S. AFR. CONST. (1996) 27((1) Everyone has the right to have access to b. sufficient food and water (2) The state must takereasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights).66 Note, supra note, at 1083; S. AFR. CONST.(1996) 27(2).67 Residents of Bon Vista Mansions v. Southern Metropolitan Local Council 2002 (6) BCLR 625 (W) (S. Afr.); See also Lindiwe Mazibuko& Others v. The City of Johannesburg & Others 2008 High Court of South Africa (Witwatersrand Local Division) Case No. 06/13865 P3 (S. Afr.) [hereinafter Mazibuko].( Prepayment water system was "unconstitutional and unlawful" and the city must "provide eachapplicant and other similarly placed residents of Phiri Township with ... free basic water supply of 50 litres per person per day and ...the option of a metered supply installed at the cost of the City of Johannesburg.) Id at P 183. (City water policy also held to be discrimi-natory against women because of water cut off, women where the ones who were generally forced to travel long distance to obtainwater). See Id. P 159.68 See Constitutions of Gambia, Uganda, and Zambia. GAM. CONST. art. 216(4). UGANDA CONST., Nat'l Objectives and DirectivePrinciples of State Policy XIV. ZAMBIA CONST. (Constitution Act 1991) art. 112(d).69 See generally, supra note 2, at 1086.70 Id. at 1088.

followed the Indian model.63 In addition to access to water,

the Indian Supreme Court has also held the pollution of

water as a violation of the human right to water.64

Alternatively, the South African approach explicitly recog-

nizes the right to water as an independent, justiciable andlegally enforceable right under its Constitution. The right

however is socio-economic in nature; it is therefore a

positive right and unlike negative liberties, is understood

not to be subject to immediate realization but to progres-

sive implementation. Therefore the South African Consti-

tution recognizes the right to water,65 but subjects this

right to the states ability to fulfil in light of available

resources.66 The South African courts have held the

non-provision of water to be unacceptable when there is a

proven inability to pay for basic water service.67 A number

of African nations have followed the South African

approach.68

As a whole the South African approach has been favoured.

From a development rights perspective, the Indian

approach has been criticized for not being effective in

securing affirmative rights and entitlement to water. This is

because the vessel for protection, the right to life is a

negative right that protects individuals from interference;

what is needed however is for states to be obligated to

provide healthy water in adequate quantities to their

population. The Indian approach is focused more on

respect and protection, rather than on the fulfilment of

rights.

As the Indian approach safeguards the negative right of

freedom from interference, water freedom as a derivative

negative right, leads to a passive approach to water eman-

cipation which is ineffective in dealing with the prevalent

global water crisis being witnessed today.69 There is also a

limit to which the expansive reinterpretation of negative

rights can lead to the provision and realization of positive

rights through judicial activism.

The South African approach provided legislative protec-

tion to the right to water by enumerating it as a positive

state based obligation, with the role of the judiciary limited

to determining whether the government is fulfilling its

constitutional obligations, or violating the law. Unlike the

Indian approach, which also gives rise to judicial

unpredictability,70 such vesting of authority in the judiciary

makes its assessments primarily legal and hence judges are

not forced to indulge in policy making which is not within

the ambit of their jurisdiction. This in turn also accords


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more sanctity to legal decisions and allows the judiciary toeffectively monitor the government for compliance,

without infringing upon the authority of other governmen-tal organs.

Furthermore, courts are in a position to direct the govern-ment to allocate funds for water emancipation initiativesand then subsequently monitor such spending.71 Thejudicial power to monitor the government to positivelyprovide is not unfettered, but is constrained by the reason-ableness test, as enumerated in the South African Constitu-tion under Art. 27 (2).72

71 Id. at 1087.72 See generally South Afirca v. Grootboom, 2000 (11) BCLR 1169 (CC)(S. Afr.).


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73 Pakistan ratified the Convention on the Rights of the Child on 12/12/90.74 Pakistan ratified the Convention on the Elimination of All forms of Discrimination Against Women on 12/03/1996.75 Pakistan ratified the International Covenant on Economic, Social and Cultural Rights on 17/04/2008; the International Covenant onCivil and Political Rights on 28/06/2010 and the United Nations Convention Against Torture on 3/06/2010.76 See for instance Pakistans reservation to Art. 6 which relates to the right to life. The Islamic Republic of Pakistan declares that theprovisions of Articles ... 6... shall be so applied to the extent that they are not repugnant to the provisions of the constitution of Pakistanand the sharia laws.77 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949;Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva,12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.Convention (IV) relative to theProtection of Civilian Persons in Time of War. Geneva, 12 August 1949. Pakistan ratified these Conventions on 12.06.1951.78 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International ArmedConflicts (Protocol I), 8 June 1977. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection ofVictims of Non-International Armed Conflicts (Protocol II), 8 June 1977.79

PAKISTAN CONST. art. 9. Security of person.-No person shall be deprived of life or liberty save in accordance with law.80 PAKISTAN CONST. art. 14. Inviolability of dignity of man, etc.(1) The dignity of man and, subject to law, the privacy of home, shallbe inviolable.81 PAKISTAN CONST. art. 155. Complaints as to interference with water supplies.(1) If the interests of a Province, the Federal Capitalor the Federally Administered Tribal Areas, or any of the inhabitants thereof, in water from any natural source of supply [or reservoir]have been or are likely to be affected prejudicially by- (a) any executive act or legislation taken or passed or proposed to be taken orpassed, or (b) the failure of any authority to exercise any of its powers with respect to the use and distribution or control of water fromthat source .82 PAKISTAN CONST. art. 184. Original jurisdiction of Supreme Court.-(1) The Supreme Court shall, to the exclusion of every otherCourt, have original jurisdiction in any dispute between any two or more Governments(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance withreference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to makean order of the nature mentioned in the said Article.83 See, Pakistan Environmental Protection Act 1997, xix-xxiv.84 See Art. 14. Disposal of wastes and effluents. (1) Effective arrangements shall be made in every factory for the disposal of wastesand effluents due to the manufacturing process carried on therein. See also, art. 20. Drinking Water. (1) In every factory effective

under General Comment 15 as well as under treaty and

customary law, are fully applicable on Pakistan.

2.2 The Constitutional and Legislative Protection to

the Right of Water in Pakistan

There are numerous constitutional provisions that arerelevant to the protection of water. Many of them relate to

fundamental rights and are subject to immediate realiza-

tion. The most relevant is the security of person under

Article 9.79 Others include the inviolability of dignity of man

under Art. 14,80 the equality of citizens under Article 25,

complaints as to interference with water supplies under

Art. 15581 and Article 184 relating to the original jurisdiction

of Supreme Court.82

Under federal legislation, the relevant provisions relating

to the human right to water, including the prevention of

water pollution, include numerous provisions of the

Environmental Protection Act, 1997,83 Article 14 relating to

thedisposal of wastes and effluents and Art. 20 relating to

drinking water, of the amended Factories Act of 1934.84

Furthermore, there is criminal penalty under the Pakistan

2 Pakistan and the Human Right toWater

2.1 Pakistan and its International Law Commit-ments on Water

Pakistan has ratified or acceded to all major human rightstreaties including the CRC in 1990,73 and the CEDAW in1996.74 It ratified the ICESCR in 2008 and recently theInternational Covenant on Civil and Political Rights(ICCPR) and the Convention against Torture, Cruel,Inhuman and Degrading Treatment or Punishment(CAT) in 2010.75 All reservations and declarations madeby Pakistan do not impact upon its obligation to protectthe human right to water, under its international lawcommitments. The reservations primarily relate toPakistans commitments being subject to the injunctions ofIslam, the dictates of the Constitution or not recognizingthe jurisdiction of various adjudicative bodies like the ICJ.76Pakistan has also ratified all the Geneva Conventions,77 butnot its optional protocols.78

Hence the obligations concerning water emancipation


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arrangements shall be made to provide and maintain at suitable points conveniently situated for all workers employed therein asufficient supply of whole-some drinking water.(2) All such points shall be legibly marked "Drinking Water" in a language understoodby the majority of the workers and no such point shall be situated within twenty feet of any washing place, urinal or latrine, unless ashorter distance is approved in writing by the Chief Inspector.85 Pakistan Penal Code Chapter XIV: Of Offences Affecting The Public Health, Safety, Convenience, Decency And Morals 277. Fouling

water of public spring or reservoir: Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render itless fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which mayextend to three months, or with fine which may extend to [one thousand five hundred rupees], or with both.86 See Section 4 - Functions of the Pakistan Council of Research in Water Resources- Act 1 of 2007- Pakistan Council of Research inWater Resources Act, 2007 b) Design, develop and evaluate water conservation technologies for irrigation, drinking andindustrial water [a]dvise the government and submit the policies recommendations regarding water quality, development, manage-ment, conservation and utilisation of water resources publish scientific papers, reports and periodicals as well as to arrangeseminars, workshops and conferences on water related issues;....87 See National Drinking Water Policy 2009, Foreward.88 Id. at 2.89 Id.90 See General Comment 15, supra note 33, at pp 5-7.91 See supra note 88, 6.12, (i) Pakistan Safe Drinking Water Act will be enacted to ensure compliance with the National DrinkingWater Quality Standards .92 See supra note 87, 4(iii); 6(m).93 See generally supra note 87, 6 Policy Measures.

Penal Code for corrupting the water of any public spring orreservoir.85 Other relevant legislation includes the

Pakistan Council of Research in Water Resources Act,2007, which set up the Pakistan Council of Research inWater Resources. The functions of this Body are primarily

research oriented with an aim to improve the technologyfor the advancement as well as the conservation of existing

water resources. This Body is also required to providerecommendations to the government, regarding thequality of water that needs to be maintained and howexisting water sources may be utilized and conserved.86

Furthermore, various water and sanitation based policiesand guidelines have been approved by the national govern-ment. Under the National Drinking Water Policy

approved by the Federal Cabinet on 28 September, 2009,the government recognized that access to clean drinking

water is the basic human right of every citizen;87 thegovernment, through the formulation of this policy iscommitted to providing access to clean and safe, affordabledrinking water in adequate quantity to the entire popula-tion. The policy also identified the current disparity andinaccessibility of water in Pakistan and acknowledged howthis situation leads to various water and sanitation relateddiseases in the country. The policy defined drinking wateras water used for domestic purposes including drinking,cooking, hygiene and other domestic uses.88 Safe drinking

water is defined as water that complies with nationaldrinking water quality standards. With respect to access

and adequacy, the policy mandates that the water beaccessible to both urban and rural areas at a distance of nomore than 30 minutes and adequacy be between 45 and120 liter per capita per day.89 These parameters seem tohave been established in conformance with similar

standards outlined under General Comment 15.90

UnderSection 6.12, the policy sets out that various forms oflegislation are to be enacted to ensure implementation ofthese measures, including the Pakistan Safe DrinkingWater Act.91

Furthermore, under the National Sanitation Policy ofSeptember 2006, guidelines are provided to the federaland provincial governments, federally administeredterritories and local governments to develop their policies

regarding sanitation for improving the quality of life forcitizens. It recognizes the alarming lack of sanitationfacilities available to the citizens of Pakistan, save a fewurban cities and where sewerage arrangements are almostnon-existent. This of course has led to various healthproblems. The policy highlights that the needs of womenand children, vulnerable groups that had previously beenignored, be kept in mind when implementing the policyguidelines.92 The policy mandates the development of bylaws by provincial governments, which need to be imple-mented by the Tehsil Municipal Administration (TMA).Furthermore, all levels of the government are required tocreate awareness, promote research and enable capacitybuilding to address sanitation issues.93

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Finally the National Environment Policy, 2005 seeks toprovide a framework for addressing the various environ-mental issues facing Pakistan, particularly the pollution offresh-water bodies, air pollution, lack of waste manage-ment, etc. Amongst its objectives, it recognizes the need to

meet international obligations effectively, in line withnational objectives.94 In listing its sectoral and cross-sectoral guidelines, the policy recognizes both the need for

water supply and management and the concerns regardinghealth and environment. In addressing water supply andmanagement the policy lists a number of guidelines for thegovernment to ensure sustainable access to water supplythat is safe to use.95

Provincial legislation such as the Baluchistan Ground

Water Rights Administration Ordinance, 1978 - Ordin-ance IX Of 1978, established regulatory and supervisoryfunctions for the Provincial Water Board96 and a WaterCommittee to overlook the implementation of the policiesof the Water Board. It also set up and laid out the functionsfor the Baluchistan Water and Sanitation Agency (B-WASA),requiring it to plan, construct and maintain water suppliesin addition to providing sanitation to Municipal Corpora-tion and the Quetta Development Authority.97

However, these duties have devolved over the years tomunicipal authorities. For instance, under the Punjab

Local Government Ordinance (2001),98 a number ofprovincial functions including water management andsanitation have been entrusted to the Tehsil Municipal

Administration.99 The functions of the Tehsil MunicipalAdministration and Union Administration concerning

water management are diverse and include the develop-ment of water resources, regulating sanitation services anddisposal,100 water supply and its maintenance,101 as well asthe preservation of public resources of drinking water,such as wells, ponds etc. Serving the Tehsil Municipal

Administration is the Union Nazim, who has beenentrusted with corresponding duties, including theprevention of health hazards and breach of watercoursesthat fall within his area of jurisdiction.102 Lastly, the VillageCouncil is required to adhere to the requirements of the

ordinance and prevent the contamination of water, anddevelop and improve water supply sources.103

The City District Government104 and the Tehsil MunicipalAdministration105 are also responsible for the enforcementof punishment for offences, as determined by the court,relating to the contamination or pollution of water, failureon the part of industries to dispose of hazardous waste, oroffences relating to the provision of contaminated waterfor human consumption.106 Other forms of offences suchas failure to stop leakage of drain pipes, the obstruction of

water pipes etc. have been made punishable by the

94 See National Environment Policy, 2.2(d).95 Id. at Section 3.1. Water Supply and Management .96 See Baluchistan Ground Water Rights Administration Ordinance, 1978 -ordinance Ix of 1978. 3 -Establishment and functions ofProvincial Water Board.97 See, Functions of WASA in Baluchistan as established under the Baluchistan Ground Water Rights Administration Ordinance, 1978 ordinance IX of 1978 Plan, design, construct, operate and maintain water supply, sewerage and sanitation system within theservice area of the Water and Sanitation Authority to be established under Section 3 of this Ordinance Monitor and control waterresources in the Area, both surface and underground and issue licenses for abstraction of water from such resources in the Area in

accordance with regulations made by the authority .98 Punjab Local Government Ordinance 2001.99 See Punjab Local Government Ordinance, . 52.100 Id. at 54 Functions and Powers of the Tehsil Municipal Administration Punjab Local Government Ordinance (2001) (h)provide, manage, operate, maintain and improve the municipal infrastructure and services, including- (i) water supply and control anddevelopment of water sources, other than systems maintained by the Union and Village Councils (iv) sanitation and solid wastecollection and sanitary disposal of solid, liquid, industrial and hospital wastes .101 Id. at Section 54-A-Functions and Powers of the Tehsil Municipal Administration.102 Id. at Section 80 - Functions of Union Nazim.103 Id. at Section 96 - Functions of Village Council and Neighbourhood Council (a) develop and improve water supply sources; (d) take measures to prevent contamination of water....104 See supra note, 99, Fourth Schedule - Part B, 8.Discharging any dangerous chemical, inflammable, hazardous or offensive articlein any drain, or sewer, public water course 10. Supplying or marketing drinking water for human consumption in any form, fromany source which is contaminated or suspected to be dangerous to public health .105 See supra note 99, at Fourth Schedule Part D.106 Id.


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107 Id. at, Eighth Schedule 9. Obstructing or tampering with any main pipe, meter or any apparatus or appliance for the supply of wateror sewerage system. Fine: Rs. 1,000/ . 28.Failure by the owner or occupier of any land or building to clean, repair, cover, fill up ordrain off any private well, tank or other source of water supply, which is declared under this Ordinance to be injurious to health oroffensive to the neighbourhood. Fine: Rs. 1,000/.108 See, supra note 99, art. 52. Entrustment of certain decentralised offices to Tehsil Municipal Administration.- Provided further thatWater and Sanitation Agencies coming under the control of District Government under sub-section (3) of section 182 functioning in atehsil shall further be decentralized to the concerned Tehsil Municipal Administration: Provided also that Water and Sanitation Agencyor similar agencies functioning in a City District and coming under the control of City District under sub-section (3) of section 182 mayfurther be decentralised to the City District Administration or, according to requirements of service delivery, may be decentralised totowns in a city district.109 The SBNP Local Government Ordinance 2001 S.2(xxii) municipal services include, but not limited to intra-city or intra or inter-townor tehsil network of water supply, sanitation, conservancy, removal and disposal of sullage, refuse, garbage, sewer or storm water, solidor liquid waste, drainage, public toilets....110 See supra note 99, art. 53. Structure of the Tehsil Municipal Administration.-... (3)(ii) Tehsil Officer (Infrastructure and Services)

who shall be responsible for water, sewerage, drainage, sanitation.... art. 76. Functions of the Union Administration. (j) to provideand maintain public sources of drinking water, including wells, water pumps, tanks, ponds and other works for the supply of water....art. 94. Water supply. (1) The concerned local government shall provide or cause to be provided to its local area a supply ofwholesome water sufficient for public and private purposes. art 95. Private source of water supply. (1) All private sources of watersupply within the local area of a concerned local government shall be subject to control, regulation and inspection by the local govern-ment.111 See Shehla Zia infra note 115 at para. 14 (Saleem Akhtar J, acknowledging the impact of U.S. jurisprudence concerning the right tolife on south asian case law and citing the seminal U.S case, Munn v. Illinois, (94 U.S. 113 (1877), ("By the term "life,"...something moreis meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life isenjoyed. ... [t]he deprivation not only of life, but of whatever God has given to everyone with life for its growth and enjoyment, isprohibited ....)."; see also Griswold v. Connecticut 381 U.S. 479, 485 (1965) (specific guarantees in the Bill of Rights have penumbras,formed by emanations from those guarantees that help give them life and substance).112 PAKISTAN CONST. supra note 79.113 PAKISTAN CONST. supra note 80.114 PAKISTAN CONST. supra note 82.115 See Shehla Zia and Others v. WAPDA (PLD 1994 SC 693).

issuance of tickets rather than through court and are theresponsibility of the Tehsil/Town Officer.107

It is therefore clear that with the devolution of power fromthe provinces to the municipal and district governments,108

municipal services109

including water supply, access andsanitation have now become the responsibility of the localgovernment, specially the Tehsil Officer (Infrastructureand Services) and the Union Administration.110

2.3 Seminal Judgments on Water Emancipation inPakistanThe judicial treatment accorded to the right to water inPakistan, emulates the position of the Indian Judiciary onthe matter. The incorporation and significance of the most

fundamental non-economic right, the right to life, in thewritten Constitution of both Pakistan and India is a resultof following U.S. jurisprudence.111 In three seminalsuperior court judgements, denial of the water right hasbeen viewed as a violation of the constitutional right tolife.112 Other constitutional provisions expressly invokedinclude, the inviolability of dignity of man113 and Art. 184

(3), which deals with the original jurisdiction of theSupreme Court.114

In Shehla Zia and others v. WAPDA,115 a petition was filedover the possible health concerns as a result of the

building of a grid station in a residential area. It was arguedthat the electromagnetic field generated by the presenceof high voltage transmission lines, posed a serious healthhazard to residents. The respondent raised the objectionthat the facts of the case do not justify intervention under

Article 184 of the Constitution. The respondent arguedthat the grid station and the transmission line were beingconstructed after a proper study had been conducted,taking into consideration the related risks, economicconsiderations and the requirements of a particular area.

The Court in interpreting Article 9 of the Constitutionstated that the right to life included all such amenities andfacilities, which a person born in a free country is entitledto enjoy with dignity, both legally and constitutionally; anda person is entitled to the protection of law from beingexposed to the hazards of electromagnetic fields, or anyother such hazards which may be the result of the installa-

12


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116 See Shehla Zia supra note 115, at para 15. (Any action taken which may create hazards of life will be encroaching upon the personalrights of a citizen to enjoy the life according to law In our view the word life constitutionally is so wide that the danger and encroach-ment complaint of would impinge fundamental right of a citizen.117 See Benazir Bhutto v. President of Pakistan (PLD 1998 Supreme Court 388).118 Id. .119 Id.120 Mrs. Anjum Irfan v. Lahore Development Authority through Director-General and Others (PLD 2002 Lahore 555).121 Pakistan Penal Code (Act XLV of 1860) . 11. The word "person" includes any Company or Association, or body of persons, whetherincorporated or not.122 See supra note 115.123 PAKISTAN CONST. supra note 80.124 General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Develop-ment, Punjab, Lahore (1994 SCMR 2061).

tion and construction of any grid station, factory, powerstation or such like installations. The court then directedthe respondents to re-evaluate their scheme.116

The utilization of the right to life principle for promoting

human right in Pakistan through judicial activism has beenestablished; however, the Shehla Zia case has been theprinciple vehicle through which the Courts have exercisedtheir powers in relation to this matter. An importantexample of this approach can be seen in the BenazirBhutto judgment,117 which followed the Shehla case andexamined the right to life by stating that it is a sacred right,

which cannot be violated, discriminated or abused by anyauthority. The word 'life' is very significant as it covers allfacets of human existence Life includes all such ameni-

ties and facilities which a person born in a free countryis entitled to enjoy with dignity, legally andconstitutionally.118 Furthermore, the court derivedsupport for its position from U.S. jurisprudence by statingthat constitutional law in America provides an extensiveand wide meaning to the word 'life' which includes all suchrights which are necessary and essential for leading a free,proper, comfortable and clean life. The court finally heldthat, any action taken which may create hazards of life willbe encroaching upon the personal rights of a citizen toenjoy the life according to law.119

In Mrs. Anjum Irfan v. Lahore Development Authoritythrough Director General and others,120 the petitioner hadsubmitted that an alarming amount of untreated water wasbeing drained out into the River Ravi. As a consequence,pollution in the waters had reached hazardous levels and

was resulting in the spread of diseases including Jaundiceand Typhoid. The Court considering S.11 of the Pakistan

Penal Code (P.P.C)121

determined that the provisions

relating to the prohibition of pollution of water, do notrequire any particular mens rea; and that corruption orfouling of water of any public spring or reservoir, so as torender it unfit for the purpose for which it is ordinarilyused, is punishable under S.277, P.P.C. Considering the

problem of pollution, the court also referred to the ShehlaZia case,122 and following this judgment took an expansive

view as to the meaning to the fundamental right to life,read in conjunction with Article 14 of the Constitution.123The Court directed the respondents to implement therelevant provisions of the Pakistan Environment Protection

Act, 1997 both in letter and spirit, and frame all the neces-sary rules and regulations.

In General Secretary, West Pakistan Salt Miners Labour

Union (CBA) Khewra, Jhelum v. The Director, Industriesand Mineral Development, Punjab, Lahore124

The petitioners filed a claim for access to clean and unpol-luted drinking water. As a result of leasing and excessivemining in the area, the water catchment area was reducedand the mining operations posed a serious danger to thealready scarce source of water in the mountainous area.The Court invoked both Art. 9 and Art. 14 of the Constitu-tion, to hold that in hilly areas, where access to water isscarce, difficult or limited, the right to have water free frompollution and contamination is a right to life. This,however, does not mean that persons residing in otherparts of the country where water is available in abundancedo not possess such a right. The Court added that the rightto have unpolluted water is the right of every person,

wherever he lives. The court in its judgment directed theminers to shift within four months to a different location,so as to avoid pollution of the waters.


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125 Ch, Riaz Ahmad Yazdani v. The Federation of Pakistan and 8 others (1990 CLC 1406).126 Abdul Latif and 2 others v. Additional Sessions Judge, Sahiwal (2001 CLC 1139).127 See Justice (R) Fazal Karim. 2006. Interpretation of Fundamental Rights, Judicial Review of Public Actions. Pakistan Law House:Karachi.128 See generally, The Summit on the Millennium Development Goals 20-22 September 2010. Available online at : http://www.un.org/millenniumgoals/ (concluded with the adoption of a global action plan to achieve the eight anti-poverty goals by their 2015 target dateand the announcement of major new commitments for women's and children's health and other initiatives against poverty, hungerand disease.)129 Out of the Rs. 4 billion received by the Punjab government, Rs. 1.8 billions was given to contractors. However, the remaining Rs. 2.8billion was never paid further to the contractors in disregard of their contractual rights.

There are a number of other cases that indirectly deal withthe right of water, including those that relate to thecontamination of coastal areas with nuclear waste125 and

where waste from leather factories is contaminating waterand is amounting to nuisance.126 However, an in-depth

discussion of such case law would be outside the ambit ofthis paper.

It is apparent from a review of relevant judgements inPakistan concerning water rights, that the approachutilized by the countrys judiciary is similar to its Indiancounterpart. Even leading academic jurists in Pakistan haveopenly advocated positive measures for the progressiveimplement of the right to life.127 The efficacy of thisapproach in dealing with water emancipation is, however,

highly questionable since the implementation of suchprogressive interpretation of the right to life, has not led toany tangible measures in providing access of healthy waterand addressing public health concerns with regards to thegeneral population.

2.4 An Assessment of the Status of Water Rights inPakistanThere are two recent expositions of the current status andfunctioning of water rights in Pakistan. The first is the

commencement of the CDWA project. In light of the UNMillennium Development Goals (MDG),128 Pakistaniauthorities as well as international stakeholders such as the

World Health Organization (WHO) and the UnitedNations Childrens Fund (UNICEF) have made develop-ment efforts in Pakistan. The federal government in pursu-ance of the MDG in 2004 initiated a projected known as theClean Drinking Water for All (CDWA), which targeted toinstall about 7000 water purification plants all overPakistan. About Rs. 22 billion was allocated for the entire

project, out of which Rs. 13 billion was allocated to theProvince of Punjab. It is important to note that of the 7000plants, which were to be installed, so far only a total of 2000

plants have been installed all over Pakistan. And of a totalof 3,494 plants planned for Punjab, only 300 have beeninstalled.

However, despite the number of stakeholders and expec-

tations about this project, it now stands abandoned. Thereare a number of problems that have contributed to thisfailure. Firstly, there were problems regarding the politicalownership of the project. For instance, in Punjab, theproject contractors were prequalified and financed by thePakistan Peoples Party (PPP) led establishment/federalgovernment, whereas the government of Punjab was onlyentrusted to take care of the execution phase. Althoughthe Punjab government signed the project contract, theyalways had an issue with the structure sketched by thefederal government for its implementation. Secondly,there were multifaceted problems with the financialarrangements between the federal government and thePunjab government for the implementation of the project.The total cost of the project was Rs. 22 billion and Punjab

was allocated Rs. 13 billion. However the federal govern-ment only transferred Rs. 4 billion and the remainingamount was not forthcoming, the argument being thattransfers were to be made on the basis of progress. ThePunjab government voiced its concern for not being giventhe whole amount and was dissatisfied with the arrange-ment.

Bad governance is another reason for the governmentsinability to deliver. The local government and communitydevelopment department of the Punjab governmentformed a Provincial Project Management Unit (PPMU),

which was manned by technical experts (environmentalengineers, chemical engineer and material engineers).This initiative resulted in failure when a bureaucrat was putin charge of the project, where a technocrat and or an

individual having technical expertise in project manage-ment would have been a better candidate. Furthermore,funding problems lead to contractual failures.129


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130 Data obtained through the Environment Protection Department.131 These notices were sent to the Managing Director (MD) of WASA, the Lahore Waste Management Company, the District Coordina-tion Officer (DCO) of Lahore, District Officer of the EPD (DO-Environment), the Director General of the Lahore Development

Authority (LDA) and the Secretary of the Irrigation Department. The TMOs of Allama Iqbal Town, Wagha Town and Aziz Bhatti Townwere also informed.132 The EPD is a regulatory authority and according to section 16 of Pakistan Environment Protection Act 1997, the EPD issues anEnvironment Protection Order (EPO) to the concerned authority allowing 30 days for preventive measure. In case of no compliance,the EPD forms a tribunal, which examines reports and samples before taking a decision which the concerned authority has to complywith.133 Food and Agriculture Organization. 2002. The State of Food Insecurity in the World 2001. Rome P 10.134 Food and Agriculture Organization. 2003. The State of Food Insecurity in the World 2003. Rome P 12.135 Paper 667. MEETING FUTURE FOOD DEMANDS OF PAKISTAN UNDER SCARCE WATER SITUATIONS. Pakistan EngineeringCongress, 70th Annual Session Proceedings 2007, 238, 239136 Alam, M., and Bhutta, M. N., (1996). Availability of water in Pakistan during 21st century. Proceedings of the International Confer-ence on Evapotranspiration and Irrigation Scheduling, November 3-6, 1996, San Antonio, Texas, USA.137 FAO, supra note 134, at 9.138 PAKISTAN CONST. art.38 Promotion of social and economic well-being of the people.The State shall ...(d) provide basicnecessities of life, such as food, ...for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarilyunable to earn their livelihood on account of infirmity, sickness or unemployment; ....

Projects like CDWA strive to achieve a temporary solutionto provide limited access to clean drinking water which isalso not portable i.e. supply of clean drinkable water intaps. Clean water is only accessible to those people whocan directly access the water from the plant area. To make

matters worse, water purification plants have a durability ofonly ten years. Such projects do not envisage a permanentsolution to the core problems concerning clean wateravailability and accessibility for the general population. Apermanent solution for portable access is not possible untiland unless the faulty underground water distributionnetwork is not rebuilt and properly maintained by therelevant authorities.

An example of water and sewerage distribution misman-

agement can be viewed in the case of the Sozo Water Parkin Lahore, where the allowance of inlets of sewage of thePark, which include three housing societies, eight squattersettlements and slums, into the Lahore Canal have givenrise to serious public health concerns.130 The polluted

water is certain to give birth to water-borne diseases andinfection. Therefore, the Secretary of the EnvironmentalProtection Department (EPD) issued notices to theconcerned authorities131 for a meeting to discuss stepsnecessary to shift these 12 inlets away from the canal.132

Following the meeting held on May 5, 2011, solutionsoutlined included the blocking of the sewerage inlets andeffectively policing for enforcement, to lay down sewagepipelines in the area that empty into the Ravi river and toinstall dustbins along the canal in order to facilitate peopleto dispose of solid waste. The Director of the Laboratories

at the EPD expressed the view that the district governmentshould plan and devise a long-term solution instead ofbuilding a sewer trunk that would end up discharging

wastes into River Ravi, which is already affecting the qualityof irrigational waters and ultimately the crops in southern

Punjab.

2.5 Food Security and the Human Right to WaterFood security [is] a situation that exists when all people,at all times, have physical, social and economic access tosufficient, safe and nutritious food that meets their dietaryneeds and food preferences for an active and healthylife.133 Food security is heavily reliant on water resources,and agriculture is the largest consumer of fresh water. 134Statistics show that irrigation for agriculture consumes

almost 98 percent of the fresh water resources inPakistan.135 With increasing demand for water amidstclimate change and increasing population, food securityhas become a progressively serious global threat. Fooddemand in Pakistan is estimated to increase by 40 percentbased on the projected increase in the countrys popula-tion by 2025.136 The risk associated with food insecurity isapparent with undernourishment exponentially on the risein Pakistan as indicated by a recent Food and AgricultureOrganization (FAO) report.137

In Pakistan, the right to food is constitutionally protected.Under Art. 38 relating to the promotion of social andeconomic well-being of the people, the state is responsiblefor the provision of basic necessities of life, such as food.138Furthermore, Pakistan is required to improve and develop


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139 ICESCR, supra note 33, Art. 11 (2) - The States Parties ... shall take, individually and through international co-operation, themeasures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution offood by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and bydeveloping or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of naturalresources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribu-

tion of world food supplies in relation to need.140 See Pure Food Ordinance 1960 Section 2.141 See The Cantonment Pure Food Act 1966- Explanation I.142 Cabinet meeting approves Food Authority Act - The Express Tribune, Available Online at:(http://tribune.com.pk/story/132658/cabinet-meeting-approves-food-authority-act/ ) -[Accessed on 13/05/2011].143 See Punjab Food Safety And Standards Act, 2011 Section 2(f) Food means any article used as food or drink for human consump-tion other than drugs, and includes...Water in any form, including ice, intended for human consumption or for use in the composi-tion or preparation of food: Provided that the Government may declare, by notification in the Official Gazette, any other article as foodfor the purposes of this Act.144 Pakistan to face 25 MAF water shortage: IRSA Pak Observer Available online at:(http://pakobserver.net/201103/10/detailnews.asp?id=80250) -[Accessed on 13/05/2011].145Water Management Practices in Pakistan Issues & Options for Productivity Enhancement-Round table Discussion on Agriculture andWater in Pakistan, 8-9th March; 2011 Available online at:(http://siteresources.worldbank.org/PAKISTANEXTN/Resources/

WMPracticesinPakistan.pdf )-[Accessed on 13/05/2011].146 Shortage of water at tail-end may hit cotton crop: SCA- Dawn News, Available Online at: (http://www.dawn.com/2011/04/16/shortage-of-water-at-tail-end-may-hit-cotton-crop-sca.html )-[Accessed on 14/05/2011].

its agricultural industry including modes of food produc-tion under the ICESCR.139

Previously, Pakistan lacked a legislative framework whichfocally addressed food security concerns. There, however,

was legislation, which though poorly enforced, could havebeen utilized for achieving minimum levels of food safety.Examples of such legislation include the Pure FoodOrdinance 1960140 and the Cantonment Pure Food Act1966,141 which regulate standards for the provision of pureand unadulterated food materials for consumption, but donot address food security.

In Punjab, however, the provision of food security maynow be possible in light of the recently approvedPunjab

Food Safety And Standards Act, 2011.142 This Act not onlydefines standards on food quality but also seeks toestablish the Punjab Food Authority, which is beingcreated with the responsibility to ensure the availability offood safe for human consumption. Most importantly,

water is included within the definition of food under thislegislation.143

In relation to irrigation, the relevant regulatory authority isthe Indus River System Authority (IRSA) which was setup in 1992 in order to implement the Water Appointment

Accord as agreed to between the provinces. Althoughrelatively effective in distributing water to the provinces inthe past, the authority has recently indicated that it expects

acute water shortages for irrigation. In this regard, theChairman of IRSA has recently highlighted the urgent needto institute various measures for the purpose of achievingadequate water storage and management in order tomitigate against this developing crisis.144 The chief execu-

tive of the South Asian Conservation Agriculture Networkhas also raised various concerns about the depleting waterresources and the water and economic losses facedbecause of the current irrigation network. He hassuggested ways for reforming the water managementsystem for better collection and storage of waterresources.145 It is therefore imperative that access to waterfor irrigation be improved. Ninety percent of the agricul-tural production of Pakistan comes from irrigated landsand the country is increasingly becoming water deficient.

Another problem that threatens food security is the lack ofplanning and coordination between the different regula-tory bodies responsible for the development of food and

water policy. As food production is wholly dependent onthe provision of water, deprivation of water rights tolandowners combined with governmental policy thatsubsidizes or promotes water intensive crops is bound tolead to crop failures and will subsequently result in foodshortages. Furthermore, the inequitable distribution of

water between landowners on unwarranted groundsnegatively impacts agrarian production. For activities suchas diverting water channels to influential landholders hasresulted in water shortages and hindrances in cultivatingcrops.146


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147 For instance under the CDWA project, Pakistan sought to import rather than develop the technology itself. This decision is strongevidence of Pakistans lack of expertise in developing and maintaining a sustainable water supply.

3 Conclusion

Legally speaking, Pakistan has numerous international anddomestic law obligations to its people for the provision ofadequate supply of clean uncontaminated water for a

diverse number of purposes some of these uses consti-tute as fundamental human rights. In supporting theseobligations, the superior judiciary of Pakistan hasexamined the right to water and has held its deprivation tobe a violation of the fundamental right to life, guaranteedunder the Constitution of Pakistan. Yet, water emancipa-tion is on the decline in Pakistan. In practice, theoverwhelming majority of the population is deprived ofthis essential human right or resource.

The reasons why the state continues to fail miserably tomeet its water based obligations are multi-faceted. Themain reasons include corrupt and incompetent govern-mental functionaries, lack of accountability and transpar-ency of water based regulatory authorities, systematicorganizational deficiencies within the regulatory frame-

work and no substantive coordination between therelevant departments. Then there are insufficientresources, both monetary and non monetary, including

human capital and technical expertise.147

Other reasonsinclude distrust and discord between the federal andprovincial governments, unwarranted intrusion frominternational donor agencies including the InternationalMonetary Fund (IMF) and the World Bank, lack of publicdiscourse and debate, the presence of centralized waterpolicy formation without engaging with and incorporatinginput from vested stakeholders, including gross rootorganizations, civic society groups and national andinternational non-governmental organizations and lastly

the desire from the government at all levels to achieveshort term solutions rather than instituting measures thatstrive to achieve a long term resolution of the problem.Unfortunately all these deficiencies point to the fact that it

will be extremely hard, if not impossible, for Pakistan tomeet the targets set out by the Millennium Goals relative tothe human right to water.


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LE

Lahore University of Management Sciences

Development Policy Research Center (DPRC)

School of Humanities, Social Sciences and Law,

Lahore University of Management Sciences.

Opposite Sector U, Defence Housing Authority, Lahore, Pakistan

UAN: +92 42 111 11 Lums (5867) Extension: 2208

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