How a landmark decision from the Inter American Court on Argentina can help shape a response to COVID-19 and the right to water – New momentum for the ius commune

On February 6, 2020, the Inter-American Court of Human Rights (I-A Court) passed a judgement in the case Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina and found the State of Argentina responsible for infringing on the right to communal property, cultural identity, a healthy environment, and adequate food. In addition, it found Argentina responsible for violating the right to water, being this the first time that the I-A Court recognizes access to water as an autonomous right protected under the American Convention.

This landmark ruling on the right to water is important for several reasons. First, it can provide guiding principles for addressing the differentiated and aggravated impact that the current health emergency has on some people because of pre-existent discrimination.

Second, the Court’s decision could transcend the individual case and help address longer-term structural problems in Latin America related to access to water. While some, like Samuel Moyn in his book Not Enough: Human Rights in an Unequal World, may question the transformative role of human rights, there are different approaches that help understand the relevance of human rights, such as the notions of transformative constitutionalism in Latin America, or ius constitutionale commune.

In light of these approaches and the experience of social change in Latin America, there can be affirmative responses to the question of whether rights can combat economic inequality. My argument in this context is that, in order to address the discriminatory effects of the impact of the COVID-19 pandemic, it is essential to map out the decisions that have attempted to tackle economic inequality. The courts are not the only actors of transformative constitutionalism but are crucial to that task. Without them, transformative impact cannot be achieved. This is the lesson that can be learnt from the Lhaka Honhat decision in connection with the standards on the right to water. More importantly, local courts can also interpret their national constitutions to promote economic equality. This has been the case with the decision on the right to water in the slums of Buenos Aires and São Paulo in the face of the COVID-19 pandemic.

The vital essence of water for human life in light of COVID-19
Although countries are easing restrictions caused by the novel coronavirus, politicians continue to warn that there is no such thing as a return to normal life. The world is entering a new era: the post-COVID-19 era. Almost 300.000 people died because of the pandemic and numerous countries declared a state of emergency. At times, up to a third of the world’s population lived under lockdown, including in most countries in Latin-American.

The health crisis drew new attention to issues such as the huge informal sector and the vulnerability faced by specific groups, among them indigenous communities. The UN Special Rapporteur on the rights of indigenous peoples, José Francisco Cali Tzay, stated that “states of emergency are exacerbating the marginalisation of indigenous communities”. The International Indian Treaty Council and the Center for Justice and International Law (CEJIL) demanded to adopt measures adequate to the necessities of indigenous communities.

It is vulnerable groups such as indigenous communities, marginalized and poor neighbourhoods and communities both in urban and rural areas, and others that are hit especially hard by the virus, particularly as they grapple with limited water.

The fact that there can be no human life without water expresses its transcendental significance for all spheres of life and the exercise of fundamental rights such as the right to life, personal integrity and health. In 2010 the General Assembly of the United Nations adopted a resolution on the human right to water and sanitation, which acknowledged "the importance of equitable access to safe and clean drinking water and sanitation as an integral component of the realization of all human rights (...)". The COVID-19 pandemic makes this much more evident, due to water’s salient role as a disinfectant against the virus. According to UN experts “the global struggle against the pandemic has little chance to succeed if personal hygiene, the main measure to prevent contagion, is unavailable to the 2.2 billion persons (…).” Furthermore, they affirm that the coronavirus pandemic will not be stopped without providing safe water to people living in situations of vulnerability, which poses another challenge to the Latin-American region.

The right to water as a part of the ius commune
Water is a human right. Its guarantee is linked to the fulfilment of other rights, including the right to health, the right to a healthy environment, the right to participate in cultural life and the right to food. The right to water is protected by several frameworks, being article 26 of the American Convention, after the Lhaka Honhat decision from the I-A Court, the latest one.The right to water is also protected under the right to “an adequate standard of living”, enshrined under article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and under article 25 of the Universal Declaration of Human Rights. According to the UN Committee on Economic, Social and Cultural Rights (CESCR) and other UN documents the right to water protects the access to the minimum amount of potable water needed to attend basic needs, including drinking, personal and domestic hygiene and food preparation. In some cases, the right to water protects also access to quantities needed for securing livelihood and subsistence farming. The Committee particularly stresses that "[w]ater must be treated as a social and cultural good, and not primarily as an economic good" and that it´s availability, quality and accessibility must be guaranteed at all times without discrimination.

Besides the availability of water is encompassed in the 6th sustainable development goal (SDG) and is a child’s right. The Special Rapporteur on the right to water has established that States should take measures to guarantee without discrimination access to a minimum of 100 litres per day of clean water. Moreover, water is among “rights that are particularly vulnerable to environmental impact” that can involve the adoption of non-discriminatory measures.

But despite these legal foundations, millions of people in Latin-America have no access to clean, running water. This means this right is not being guaranteed.

In this regard, court decisions, such as the I-A Court’s, could help define the scope of this right and the minimum measures States need to take. Looking at the reparations ordered by courts can lead to the construction of the ius commune around the right to water. The recent decision by the I-A Court is extremely relevant to this end. For example, the Court ordered Argentina to guarantee the provision of public services as a restitution measure, in order to ensure the guarantee of the rights to a healthy environment, food, water and cultural identity. Additionally, the Court ordered the State to develop an emergency plan regarding water and food shortages as well as an action plan with a timetable for the immediate implementation of adequate actions. The Court also ordered the State to conduct a study on the measures needed to protect the water sources and control the deforestation, with the purpose of ensuring access to adequate sources of food. Both studies need to be conducted with support from specialists considering the indigenous point of view and should be approved by the Court.

The role of the courts in the right to water
The COVID-19 pandemic has raised statements form the United Nations regarding the obligatory provision of water to vulnerable groups and has forced national courts to acknowledge the special importance of access to water for vulnerable groups. In Argentina, for example, a district judge ordered the City Government of Buenos Aires to prepare a contingency plan establishing a detailed timetable for the provision of drinking water in communities without access to tap water. The decision also commanded the State to secure the provision of water in water tanks. The judge´s argumentation was based upon local and national regulation on urban law. Similarly, in Brazil, a judgement issued by a first instance judge obliged the state to provide drinking water to all favelas of the city of São Paulo for precautionary reasons. The judge based his decision upon the constitutional rights to health, dignified life, and housing. Already in 2011, the Colombian Constitutional Court declared the right to water as a human right to be able to guarantee other rights such as life, health or a balanced diet.

The discussion also reached the European Court on Human Rights (ECtHR) which on March 2020 issued a decision on the case of Hudorovic et al. v. Slovenia that, although dismissing the claim for lack of sufficient evidence, stated for the first time that the “persistent and long-standing lack of access” to drinkable water could violate the right to family life and home, guaranteed in Article 8 of the Convention.

Despite recent jurisprudence regarding the right to water, there is no lack of irony with the Lhaka Honhat judgement. Initially filed in 1991, it finally consolidates the direct enforceability of the right to water within the Inter-American Human Rights System. Even if the judgement took decades, it could still have transformative impact on helping other affected communities. Other actors can play a crucial role in advancing this agenda. In fact, the judgement has already opened other opportunities for further expansion of the scope of the right to water and the measures States need to take in the context of the pandemic. An example of this is the recent request for precautionary measures presented by CEJIL to protect the right to life, integrity, health and water of rural communities in Petorca, Chile. This will be the first time the Inter-American Commission can use the I-A Court decision in Lhaka Honhat as a tool in its work during the pandemic.

On that note, it is key to focus on a dialogical approach that looks at the development of law as part of a historical and social process, where the actions of victims and the human rights movement are made visible. This allows us to live with the encouragement that, despite the more ominous episodes of history that we may currently navigate through, we can recognize the power of organized civil society to influence in a decisive way the development and decisions of the inter-American system as well as the maximization of its impact.