A Global Water Apartheid: From Revelation to Resolution

In 1992 Stephen McCaffrey authored a seminal article proposing a human right to water. In the intervening years a stream of scholarship affirming the right has followed McCaffrey’s lead. Today, the existence of a human right to water is seldom challenged and it now appears to be well rooted in international human rights law. Nevertheless, to date there has been little to no scholarship about what the practical contours of the right should be. If legal tools are to benefit the world’s poor and disenfranchised they cannot be void due to the impossibility of implementation. This is the problem with the purported human right to water. It is quixotic. International lawyers then must ferret out the means to provide those who have little or no access to potable water and proper sanitation with a suite of meaningful and workable legal options. This article proposes a legal and pragmatic solution to the problem of potable water for the world’s poor, and unpacks the contours of the human right to water. The solution offered herein is based on a model of privatized access to water, which is grounded in a micro-financing paradigm, based on a loan program that was part of the New Deal’s Rural Electrification Act of 1936 (“REA”). This model therefore sidesteps the rights–based scheme, resting upon a more concrete foundation, one based on measurable results, i.e., how many people will obtain access to water versus how many will not.The tools proposed here, which include the use of micro-credit loans, as well as the implementation of a mechanism such as the REA’s loan program will aid the 2.2 billion people in the world that lack potable water and proper sanitation. Both of these approaches have been tested across the span of decades and they have been proven to routinely solve the problems of the poor and disenfranchised.