Sweden versus social and economic human rights? Part 2: The right to water

by Rhodri C. Williams

In 2006, when I was still relatively new to this part of the world, I started participating in a working group run by Swedish Water House on water as a human right. At the time, only four years had passed since the UN Committee on Social and Economic Rights had read a right to water into the right to an adequate standard of living in their groundbreaking General Comment 15. The UNDP had just released its 2006 human development report on the global water crisis, which pinned blame firmly on misguided policies, not absolute scarcity or technical issues. DFID had just officially notified the world that water was a human right. The wind was at our backs. But not the Swedish Foreign Ministry.

In effect, what I had assumed would be an exercise in enlightened Swedes lecturing the world on the importance of recognizing the right to water turned out to be an exercise in enlightened Swedes lecturing official Sweden on this point. Neither the Foreign Ministry nor the Swedish International Development Cooperation Agency (Sida) had recognized the right to water, nor did they evince much enthusiasm. After a year of prodding, a pleasant but slightly beleaguered Foreign Ministry official attended an October 2007  seminar and conceded that “the government recognizes the right to water as emanating from the right to an adequate standard of living in article 11, paragraph 1 of the ICESCR” (seminar report, 12).

However, the lawyers had clearly been at work, and the “emanating” formulation (as opposed to recognition as a “free-standing right”) became a means of maintaining opposition to normative developments then underway in Geneva:

When it comes to access to water as a self-standing right, the official Swedish position is that creating new human rights risks watering down existing human rights instruments and will thus not benefit the struggle for human rights in the long run. There is also some dispute regarding whether a Special Rapporteur on the right to water would further the cause of increased access to water, and whether a Special Rapporteur needs to be connected to a particular convention. The Swedish official point of departure currently is that a Special Rapporteur requires a related UN convention. And since creating new conventions is not a solution favoured by the Swedish government, it follows that they currently oppose a Special Rapporteur on the right to water. (13)

Convinced? Does the right adequate water undermine other rights? The UN Committee on Economic Social and Cultural Rights admittedly pulled it out of a hat in GC 15, but they did so for the explicit reason that it they considered it to be a “prerequisite for the realization of other human rights” (para. 1). Meanwhile, a cursory scan of the list of UN human rights procedures indicates that more rapporteurs have probably operated without  a treaty than with one. The working group on enforced disappearances seems to have gotten along perfectly fine for 26 years until the International Convention came along, for instance.

One also wonders about the principle involved. After all, special procedures are often set up to address thematic issues precisely because they are not clearly regulated in human rights treaties. In its fact-sheet on human rights procedures, for instance, the OHCHR lists ‘normative work’ as a standard method of work, noting with approval the efforts of various rapporteurs “to develop authoritative norms and standards for their work” (10). Indeed, if rapporteurs were solely authorized to act pursuant to existing human rights treaties, one wonders why we all bother with having nine and a half global treaty bodies with specific mandates typically emanating from the text of the human rights treaties they oversee (and many more at the regional level)?

Swedish opposition to water as a social/economic right did not seem entirely plausible. However, I quickly discovered that it was consistent with a broader apparent discomfort with social and economic rights as a category. Three months before the water seminar, for instance, the Swedish government had been an active particant in the fourth working group session drafting the recently adoped Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Although the ‘OP’ has not yet entered into force, it is expected to significantly strengthen the role of the UN Committee on ESC Rights by allowing it to hear communications (complaints) from individuals in states that ratify it. Yet according to a report commissioned by the Åland Islands Peace Institute, the Swedish delegation “expressed considerable hesitation regarding the drafting of an OP, stating that it was not yet convinced an OP would be the best way to implement economic and social rights.” Given the seeming inevitability of the Protocol, however, the Swedish delegation appears to have gone into vigorous damage control mode, taking the most cautious position possible on nearly every point of contention:

Regarding the communications procedure, Sweden also questioned whether such a procedure would be effective. If indeed such a procedure would be included, then Sweden favored the á la carte approach, claiming that it would be difficult to reach an agreement on the communications procedure without including an opt-out clause. Sweden also wanted to further limit the scope of the communications procedure by allowing it to be used only in special cases of gross or significant violations and by striking out the possibility of collective communications. … Regarding the issue of ‘standard of review’, Sweden expressed some uncertainty about the concept of ‘reasonableness’ and welcomed further consideration of the Polish proposal to make the Committee test whether steps taken have been unreasonable, while allowing the State parties a “broad margin of appreciation”. (11)

Despite seeming to isolate itself on both the right to water and the OP, the Swedish foreign ministry kept digging in. Most notably, the Government abstained from the August 2010 UN General Assembly resolution recognizing water and sanitation “as a human right that is essential for the full enjoyment of life and all human rights”.  Once again, the reasoning given for the decision was ambiguous. On one hand, Sweden’s environmental minister, Andreas Carlgren, was quoted as objecting to the principle of a human right to water, but in almost the most confusing way imaginable:

What we object to is the very principle, to formulate it as a human right. Then it should also have a full legal effect (juridisk medverkan). That’s why we do not think this is the right method to achieve a very important and worthwhile goal.

Perhaps the Minister is referencing the tired debate on the ‘justiciability’ (or not) of economic/social rights. However, it appears more likely that, in his view, Sweden does not recognize access to water as a right because it does not have the legal force of a right, which of course it would have if Sweden recognized it as as a right. Meanwhile, an official of the Swedish Foreign Ministry offered a less circular explanation that nevertheless appeared to camouflage a distinct conceptual unease with social/economic rights beneath curiously bland procedural objections:

This kind of question must be treated in a proper way. There has been for some time now a process in Geneva on the right to water and sanitation to investigate and clarify the obligations of States. And yesterday’s resolution preempted this constructive process.

While the Foreign Ministry statement is certainly more straightforward than the Environment Minister’s explanation, it also flatly contradicts the Ministry’s earlier position.  Specifically, the ‘process’ underway in Geneva to clarify the obligations of states regarding the right to water was (and remains) guided by precisely the Special Rapporteur (on the human right to safe drinking water and sanitation) that Sweden objected to on the grounds that no corresponding convention existed in October 2007.

Indeed, Sweden’s position becomes even harder to comprehend in light of the fact that the General Assembly resolution in question expressly supports the Geneva ‘process’ and builds on the reports of the Special Rapporteur, the Human Rights Council and the High Commissioner for Human Rights. Given that all of these bodies had already voiced support for water as a human right, it is difficult to imagine what ‘clarification’ was left to be ‘preempted’. Moreover, the fact that the General Assembly resolution has been cited in all subsequent Geneva resolutions on the right to water indicates that the only hard feelings resulting from the Assembly’s ‘preemptive’ move may have been on Sweden’s part.

In any case, the Swedish Government stance began to provoke a Swedish reaction at this point, perhaps most notably from former Foreign Minister and UN Darfur Envoy Jan Eliasson, who pulled few punches:

My God, it is absurd that Sweden did not vote for the resolution! I have seen children die before me, in Darfur. Four thousand children die every day because they have bad water or none at all. More people die from bad water than from TB, malaria and AIDS combined. This is serious if Sweden’s profile both in human rights and solidarity issues begins to fray. This cannot correspond to how I think the Swedish people want Sweden to appear on the international scene….

So where do things stand now? Last February, Swedish Water House effectively re-ran its October 2007 conference, inviting a bevy of advocates of the right to water (including Mr. Eliasson) to speak before putting another Foreign Ministry representative on the hot seat. According to the conference proceedings, the latter dutifully spent the bulk of his time further clarifying Sweden’s procedural concerns about the ostensible ‘collision’ between the General Assembly resolution and the ‘Geneva process’ – but then gave a refreshingly unconditional endorsement of social and economic rights:

Regarding the division between civil and political rights on one hand and economic and social rights on the other hand, we are very clear from the Swedish side that we support the principle of indivisibility and we do not make a hierarchy of norms in the human rights complex. All rights are equal. We know that some countries do not have this view, but it is a corner stone of the Swedish human rights policy.  (5)

However, pressed on why Sweden had yet to clarify its position on the right to water publicly, the Foreign Ministry representative cited concerns that appeared solely related to the domestic legal order: “For Sweden to take a clear standpoint … there has to be a norm established on how to implement these rights, and to incorporate it in the constitution” (6).

While this response may be the most logical explanation for Sweden’s prior hesitation on the right to water, it still raises as many questions as it answers. Is it really the case, for instance, that the Government cannot commit itself to respecting an emerging human right unless it has already embedded it in Swedish law through constitutional amendment? Does it make a difference that it is almost inconceivable that Sweden could be found in domestic violation of this right, given its near-obsessive fixation on water quality? (By way of example, Stockholm’s water utility has no less a lofty motto than ‘water in the world-class’)

If it is the case that concerns about domestic ramifications have been the cause of Sweden’s hesitance to endorse the right to water on the international stage, this would represent, at best, a missed opportunity, and at worst, fodder for unhelpful misunderstandings. In challenging the Swedish government to recognize the right to water, Mr. Eliasson raised similar concerns to those I tried to articulate in my previous response to Krister Thelin’s human rights benchmarking proposal. Namely, where countries from the Global North, like Sweden, fail to acknowledge social and economic rights, they risk undermining respect for human rights more broadly (and handing an excuse to those countries inclined to ignore them):

…now, when many countries have recognized the right to water and sanitation as a human right belonging to the economic and social rights, Sweden needs to acknowledge all rights as equal. We risk a north – south divide on human rights if nothing is done. Sweden should send a message, emphasising the universality on human rights, otherwise we risk undermining the universal agreements.  (4)

Has the air now gone out of the water debate? Is the declining share of Swedish development cooperation programming devoted to water and sanitation a more important factor at the end of the day? Is there something about Sweden’s political culture that will always mistrust social and economic rights? Or does Sweden’s fitful shift on the right to water represent a broader trend toward taking these rights more seriously in other skeptical countries? All issues I will attempt to follow in the coming months – and would welcome feedback on, particularly from TN readers of the Nordic persuasion.

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3 responses to “Sweden versus social and economic human rights? Part 2: The right to water

  1. Pingback: Funderingar om svenska inställningar till SEK-rättigheter. Gästinlägg av Rhodri C. Williams « Juridikbloggen

  2. Pingback: Week in links – week 42/2011: land disputes in Bolivia, India, Kyrgyzstan and the UK | TerraNullius

  3. Pingback: Sweden versus social and economic human rights … what gives? | TerraNullius

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