The question on instituting water common bring some meaningful re-development the setting of domestic and international norm. By norm, I would refer to the foundation water commons as delineation of rights, performance of in legal reasoning, into policy making, in the and on governance of domestic and international institutions. The model of normative setting varies, but, the problem of human dignity, above all, pose any relevant government and democratic institution as to problem of “if” and “how” water common is the correct and proper institution. This set international norm on water as the relevant and necessary foundation –the right to water and sanitation among other. At the same time, recent practice and relevant normative development in domestic (national) level effectively articulate a formulation of water common.

I would bring 2 process which I am involved in, namely, the process of the process of UN Declaration of Rights of Peasants and other people working in rural area (“the declaration”), and, the process of Indonesian constitutional court (“the Indonesian norm”)

Process of UN Declaration of Rights of Peasants and Other People Working in Rural Area

Each polity or society has their own way to institute a water common, including those of public trust, as human rights norm. As per UN process, the institution would develop a set of recognition. Recognition subscribes “making visible and formal” of a particular matter or party, and that the subject acquires a full formal operative aspect of such recognition. The process of “the declaration” started in the aftermath of food crisis of 2007-2008. It is not, however, a one off crisis. There has been various crises related to the fragility of today’s food system. The crisis exposed some key underlying factors, including situation of tenure, access to natural resources, migration, patterns of consumption, delineation of rights and policy, and international cooperation. On other extent, the crisis prompted different types of events, including riots in some parts in the world, notably in Northern Africa.

The food crisis pose serious question to the UN Human Rights Council. The maiden report of then UN Special Rapporteur, Dr. Olivier de Schutter pointed that the hunger and food crisis takes place while food was plenty.[1]  How this took place despite sophisticated policy prescriptions and availability of food.

The dynamics, and the key debate, relates on how far one particular world event justify the process of formalizing rights of peasants and other people working in rural area –hence rural population. This is clearly shown in the debate in several processes in the UN human rights council and in wider international and intergovernmental institutions and mechanism. There was a debate on the merit of instituting rights of peasants out of food crisis. Also, there was a debate on the need for meaningful change. This would see not only immediate context of world food situation, including on the status of food security, on (securitization of) commodities, on credit; also on the confirmation of role of state (and their government), of key stakeholder in world food and water system, of the need to reassert rural redevelopment.

The UN process reestablished the key discrimination in food system and wider rural development. The final report presented to UN Human Rights Council, titled “Final study of the Human Rights Council Advisory Committee on the advancement of the rights of peasants and other people working in rural areas” (A/HRC/19/75) describes:

“…despite the existing human rights framework, peasants and other people working in rural areas are victims of multiple human rights violations that lead to their extreme vulnerability to hunger and poverty….”

“1. Hunger, like poverty, is still predominantly a rural problem, and in the rural population, it is those who produce food who suffer disproportionately. In a world in which more than enough is produced to feed the entire world population, more than 700 million people living in rural areas continue to suffer from hunger. Describing this situation in its final study on discrimination in the context of the right to food (A/HRC/16/40), the Advisory Committee identified peasant farmers, small landholders, landless workers, fisher-folk, hunters and gatherers as among the most discriminated-against and vulnerable groups.

23. The main causes of discrimination and vulnerability of peasants and other people working in rural areas are closely linked to human rights violations: (a) expropriation of land, forced evictions and displacement; (b) gender discrimination; (c) the absence of agrarian reform and rural development policies; (d) the lack of minimum wages and social protection; and (e) the criminalization of movements defending the rights of people working in rural areas.”

In the fullness of the food system, water commons is recognized as part of the recognition of international norm. This would cover the normative exercise of rights (“peasants and other people working in rural areas”) upon land, seed, biodiversity, water, rural resources. The exercise put water common as proper expression and formulation of rights. It should be reasserted that the present established norm, i.e. right to water and sanitation, is pronounced into the setting of rural population and into the socio-cultural unit. Hence, this is the deeper pronouncement of the right to water and sanitation. Here, we are talking about water as safe and drinking water, water for small holding agriculture, water as part of conservation, water as part of socio-cultural life of rural population. On the latter part, the context of history, or of governance would be relevant to be looked upon –the exercise of the right may not be necessarily a legal one.

In the present article of the UN Draft Declaration of Rights of Peasants and other People Working in Rural Areas, the right to water and sanitation is enumerated along the line of already recognized rights, as follows:

Article 24, Rights to Water and Sanitation

1. Peasants and other people working in rural areas have the human right to safe and clean drinking water and sanitation, that is essential for the full enjoyment of life and all human rights and the right to water for farming, fishing, livestock keeping and securing other water related livelihoods. They have the right to equitable access to water and water management systems, to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and to sanitation facilities that are available, of good quality, affordable and physically accessible, non-discriminatory and acceptable in cultural and gender terms.
2. In order to realize the human right to water and sanitation of peasants and other people working in rural areas, States shall guarantee at all times the following conditions:

• access to the essential amount of water that is sufficient and safe for personal, domestic and productive uses to be able to conduct a life in dignity;
• access to safe drinking water and improved sanitation on a non-discriminatory basis, especially for disadvantaged or marginalized groups such as, inter alia, nomadic pastoralists, workers in plantations, migrants regardless of their legal status, and people living in irregular/informal settlements;
• physical access to water facilities or services that provide sufficient, safe and regular water;
• personal security, particularly of girls and women, is not threatened when having to physically access to water and sanitation;
• equitable distribution of all available water, including groundwater, and sanitation facilities and services;
• economic accessibility/affordability of water for domestic and productive uses. States shall provide water supply, sanitation and decentralized, small-scale and community-based irrigation services that are affordable;
• protection of natural water resources from overuse and contamination by harmful substances particularly by industrial effluents and concentrated minerals and chemicals that result in slow and fast poisoning.

3. States shall respect, protect and fulfil access to water particularly in customary and community-based water management systems. States shall prevent third parties from interfering in any way with the enjoyment of the right to water of peasants and other people living in rural areas. States shall prioritize water use for human needs, small-scale food production, ecosystem needs and cultural use before other uses.
4. States shall protect and ensure the regeneration of watersheds, aquifers and surface water sources, including wetlands, ponds, lakes, rivers and streams.
5. States shall cooperate and engage with upstream and downstream neighboring states in order to jointly safeguard the right to water of peasants and other people working in rural areas.

Process of institution of water common from the ruling of Indonesian Constitutional Court

The Indonesian Constitutional Court (“the CCI”) has, more or less, comparable role in the common law-style highest court. The role is onto “judicial review”. The CCI, however, set, only, legislation to be reviewed against. The CCI serve as final appellate of lower court cases. In the fullness of this role, the CCI institute norm(s) as those measured against constitution, including one(s) as “check and balance” towards executive and legislative branch of government. The CCI, eventually, establish a continuous normative setting which set legal precedent, key reference, and establishment of the right holder.[2]

The CCI receive complaint and/or petition from segment of society on matter which pose constitutional question. On water common, the CCI pose the question if there is a legitimate process onto institution of water common as human rights and constitutional norm. CCI will assess a long standing context of “use and abuse” of water commons as the point of entry. The institutional of water common would look into the claim of the direct member of referred ecosystem. Simply said, where there is no claim, it is rather hard to delineate process into institution.  The claim relates to individuals, their family, their livelihood, benefit and challenge of their nature, ways and means of welfare making, and knowledge and culture in which they lives. The claim would shape a polity or society where their live.

The overlay of the claim is towards the ecosystem where water (catchment, basins, fountains, streams) is where the claimant live. This ecosystem will be regarded as not only resources, or stakeholder relations, but the relation between rights inside those commons and between the member and non-member (or non-commons). In reality, water has been accessed by commons and non-commons alike. Increasingly, urban life has different type of consumption on water which may or may not exceeds the sustainable level. Then, the urban society, then, should define their claim towards water regardless the location and situation of ecosystem. This will be another consideration on what kind of claim would be legitimate in a polity or society.

The historical and natural roots of ecosystem in question should be framed to develop recognition towards water common. Most of the time, the ecosystem has rural setting. The member of the commons develop the recognition inside their own polity or society. They develop the use of water for their own sustainable livelihood, including on farming (irrigation) and on clean water. In the longer run, the recognition would give a good information on how the ecosystem would be able to provide livelihood –an ideal description towards water commons.

The water common further seek to articulate position of urban population. Urban population should able to enjoy the right to water through their own means, and by public service, regardless the location of ecosystem. The term “clean water and sanitation” exert a minimum services that urban population should enjoy, and how to progressively exercise those rights. This right is increasingly important since there is a strong competition on the use of water by actors of economic and commercial sector. Moreover, this right should also constitute a sustainable relation with rural population where the water commons begins.

Both claims of rural population and urban population develop a process of institutions of recognition (could be a long standing one). Their claim, further, should be directed to the state. This may take a long debate on what kind of state should constitute. In February, the CCI ruled water as constitutional norm, as rights on the part of citizens and community, and into legal condition as to how to progressively realize it. This, among other, establish legal control by citizens and community towards realization of water commons. Also, the ruling formulate the obligation of the state as fundamental protector of the right.

The CCI put the claim as the point of entry into the rights: “the right of the people (of Indonesia) to water as foundation”. Then, it was followed by the duty of the state to develop the realization of this rights based on key conditions.

The norm on water is set by the CCI as to protect and govern:

1. Welfare of people
2. Human rights as universal foundation
3. Environment
4. Control and oversight by the state
5. The agency which exercise the function of public service
6. Right to health
7. The principle of intergenerational solidarity (that today’s water should be safely and healthily passed to the next generation)

The ruling characterized citizens and community as, both, living individually and in group, living in cities as in rural areas, intersecting with ethnic unit, and other relevant primordial unit. And a certain extent, the water commons is recognized through the normative context of communities in Indonesia. In this context, the foundation of water commons is recognized. With the intersection with previous CCI rulings, mainly in “Coastal and Small Islands” case, the concept of open and non-discriminatory participation in a given ecosystem, the context and history of community is recognized, CCI stated that that various distinctive ecosystem (sea, coastal area, watershed, stream, etc.) cannot be owned or cannot be controlled exclusively. This ecosystem has their own members who exercise their right collectively, including indigenous peoples, rural polity, fisherfolks.

Small note

The court of law may not the only target of the claim towards recognition, and, hence, toward institution of water common. The dynamics of power relation would frame a socio-cultural recognition of water commons. The kind of claim which posed by member of ecosystem (of water common) usually take the subject of environment, ancestral domain, sustainable livelihood. Those claims are increasingly recognized by contemporary polity. The claim would also exert of governance which allows the water commons bring benefit to wider society.

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Henry Thomas Simarmata

Advisor to KRuHA (People’s Coalition for the Rights to Water)/ to IHCS (Indonesian Human Rights Committee for Social Justice)/ to Human Rights Center-Atma Jaya Yogyakarta University;

Senior Advisor to the UN Working Group on the UN Draft Declaration on The Right of Peasants and Other People Working in Rural Area (La Via Campesina, and to the UN core group of the process)

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[1] Report of A/HRC/9/23, 8 September 2008, “Building Resilience: a human rights framework for world food and nutrition security”.

[2] Indonesian Constitutional Court and Protection of Social and Economic rights, a work which I develop onto the jurisprudence of the court which establish and pronounce the right of economic, social and cultural rights in Indonesia legal formation –research which also relate to the NCHR (National Centre for Human Rights)-Oslo University (2014 visiting scholar programme)