Brett A. Miller


The purpose of this research is to identify the confluence of the law and economics disciplines, using these distinct channels of scholarship not as an empirical vessel to determine the “value” or “valueless” nature of water, but rather as a means to reconcile externalities among interested parties and to identify management strategies that embrace sentiments of economic efficiency throughout the arena of global hydrocommerce. The various perspectives on water, particularly with regards to an increasing global population and demand for freshwater, elicits an intricate mosaic of tensions concerning the availability, accessibility, provision, and protection of this fundamental natural resource.

Billions of individuals around the world lack access to basic water and sanitation services. Despite the prevalence of these atrocities, access to water is both an individual human right and necessary for human survival. The legal basis for the human right to water, in terms of availability, quality, and accessibility, was adopted by the U.N. in its General Comment No. 15. Despite recognition by the U.N., more than 1.1 billion people do not have sufficient access to clean water, while 2.6 billion people have no provision for sanitation. Against this tragic and inexcusable backdrop, the public sector either lacks the financial resources to provide water or continues to operate water distribution schemes with undesirable inefficiency. From a pragmatic standpoint—and to ensure that citizens have access to clean water—there exist circumstances, both in reality and in the text of the General Comment, whereupon governments should be compelled, or at least be encouraged, to solicit capital investment from the private sector in order to construct adequate water infrastructure and manage water distribution services.

Researchers estimate that over the next twenty years almost $22 trillion (USD) will be necessary to fully modernize global water delivery and wastewater systems. Water scarcity, an individual’s lack of access to clean water, arises due to economic and physical constraints, while being influenced by managerial, institutional, and political factors. At its core, the primary challenge for nations concerning their respective water distribution schemes is a lack of adequate financial resources. In developing countries, an estimated ninety-seven percent of all water distribution is managed by public-sector suppliers. The inept realities concerning these water distribution systems in developing countries, and the fact that over a billion people still lack access to this essential resource, suggests that governments retain at least some responsibility in 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—and may be realized through a law and economics analysis in support of private-sector participation in the delivery of water and funding for the provision of adequate infrastructure. Much like distinct tributaries to a mighty river, the legal and economic disciplines maintain differences in methodology, scientific approach, and objectives; but as these disciplines converge, their tributaries form the river’s main stem, with potential to influence an entire watershed of jurisprudence.

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