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IWRA World Water Congress 2017 - Cancun Mexico
4. Water policy and governance
Author(s): Brett A. Miller
Brett A. Miller
Texas A

Keyword(s): human rights, water economics, international law, law and economics, economic efficiency, water infrastructure, hydrocommerce, General Comment No. 15
Article: Oral:


Enriched with notions of cultural, religious, and biological significance—the water paradigm inherently flows counter to theoretical currents of the law and economics analysis. The purpose of this research is to identify the confluence of these distinct channels of scholarship, using law and economics not as an empirical vessel to determine the “value” or “valueless” nature of water, but rather as means to reconcile conflicting externalities among interested parties and to identify management strategies that embrace sentiments of economic efficiency throughout the arena of global hydrocommerce. The various water perspectives elicit an intricate mosaic of tensions concerning the provision and protection of this fundamental natural resource.

The legal basis for the human right to water, in terms of availability, quality, and accessibility, was adopted in 2002 by the U.N. in General Comment No. 15. Despite this recognition, more than 1.1 billion people globally still lack sufficient access to clean water, while 2.6 billion have no provision for sanitation. Against this inexcusable backdrop, many public-sector utilities lack financial resources to provide water and continue to operate distribution schemes with undesirable inefficiency. From a pragmatic standpoint—and to guarantee that citizens have access to water—there exist circumstances, both in reality and in the text of the Comment, whereupon governments should be compelled, or at least encouraged, to solicit capital investment from the private-sector to ensure delivery of water.  

An individual’s lack of access to water arises from economic, physical, institutional, and political constraints. The primary challenge for many water distribution schemes are the lack of adequate financial resources. In developing countries, almost ninety-seven percent of water distribution is managed by public-sector suppliers. The inept realities concerning these distribution systems, exacerbated by the billion individuals that still lack water, suggests that governments retain some responsibility for the persistence of the global water crisis.

Reconciliation is the next step in the human right to water argument—from its theoretical origins to its pragmatic implementation—that may be realized through law and economics analyses in support of private-sector participation, both in delivering water and funding for adequate infrastructure. Much like distinct tributaries to a mighty river, these disciplines maintain differences in methodology and objectives; but as these disciplines converge, their tributaries reconcile to form the river’s main stem, with potential to influence entire watersheds of jurisprudence. This research does not cabin itself into free-market advocacy, nor does it exclusively promote a human rights perspective. In unique contrast, objectivity is maintained by exploring issues from a scientific perspective; thereby embracing an ecological approach that seeks interdisciplinary solutions by recognizing these symbiotic contradictions.

As the legal right to water continues to evolve as an international establishment, this research represents one of the first to analyze the human right to water from within the purview of law and economics analyses, including Coase Thereom and transaction costs. On a case-by-case basis, this research identifies risks, incentives, and externalities, both in circumstances with private-sector involvement and without, examining various alternatives that result in economically efficient allocations of resources. 

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