Our Methodology

This Platform is the product of over two years of work, spanning four continents, involving over 100 researchers, tens of thousands of pages reviewed, and countless hours. From the beginning our purpose was to create as comprehensive a platform as possible and our methodology was tuned to collect information from the national to the sub-local level. In addition to these broad collections of legal documents we also piloted a fieldwork component aimed at understanding not just what the law is, but how it works in practice. This fieldwork was compromised of interviews of stakeholders both inside and outside of government from the national to the sub-local level. Through these collections and subsequent cataloguings of legal data, we anticipated that we would get a clearer picture of what the law is, which would in turn allow us to fully grasp how water was being governed, how it was managed in the absence of clear governance, and whether or not the legal system was capable, at its core, of protecting water security.

The challenges of this investigation were great. Many countries where we researched were going through profound governance, political, and social upheavals, and revolutions. These included significant governance changes in Sudan, ongoing wholesale devolution of functions to local government in Kenya, and ongoing unrest in various other countries. In these situations, understanding how the law works and whether the law is being followed became new and pressing questions. Through additional fieldwork funded by the New Venture Fund we were able to investigate these questions more deeply.

Our methodology was designed to capture all areas of water security. As a result, the methodology was developed from The Water Security Challenge, a research paper published by The Center for Water Security and Cooperation in 2018. This paper laid out the fundamental links between water and almost every area of human existence. It also highlighted many relationships between these various areas.

As we expected, the law often dealt with these areas in silos with a law being written to address a specific area, like agriculture or energy or water resources. What we did not expect was how much these different regimes would overlap, conflict, and create significant difficulties in implementation and enforcement. To the extent that we have laid out the law on this Platform we have tried to do so in a way that addresses these conflicts. We recognize that even though this Platform represents a significant effort and significant success in cataloguing what the law is, and problems with its applications, there is still much work to be done.

To guide our researchers, the methodology focused first on water security and its meaning, before defining the broad substantive areas which make up water governance, which we have termed “nexuses”. By using this approach, detailed below, we have created one of the most comprehensive views of water security as it exists in law to date.

WATER SECURITY

Water is at the center of human existence. Humanity should be at the center of the laws that govern water. Water security puts both people and water at the center of how we protect and manage our water resources.

The concept of water security is captured through the lens of ten (10) nexuses. These ten nexuses include:
1. Agriculture,
2. Energy,
3. Infrastructure,
4. Natural Resources and Services,
5. Natural and Manmade Disasters,
6. Sanitation, Drinking Water, Health and Hygiene,
7. The Global Economy,
8. Peace and Conflict,
9. National Security, and
10. Governance.
These ten nexuses most effectively and comprehensively capture our complex relationship with and dependence on water in the twenty-first century.

After significant study, detailed in a forthcoming report, we determined that effective laws have six primary elements. The primary elements are:
1. Equity and non-discrimination,
2. Clear responsibility for achieving the purposes of the law,
3. Clear purpose dedicated to preventing pollution,
4. Clear purpose dedicated to ensuring proper water resource management and use,
5. Clear designation of enforcement power, and
6. Penalties and consequences for violations of the law, regulations or terms and conditions of any permit.
Together, these elements create the enabling environment necessary to advance and ultimately achieve water security.

Equity and non-discrimination.

Without equity, water security could be denied to portions of the population. Explicitly protecting equity and prohibiting discrimination means that norms, directly, indirectly or through their unintended consequences, cannot deny or limit access to water. Principles of equity and non-discrimination must be achieved for all, not just a few.

As a human-centered concept, equity and non-discrimination are critical to advancing water security. Equity and non-discrimination are exemplified by the inclusion of explicit rights to equal protection and non-discrimination on the basis of gender, race or color, social status, religion, and culture. We not only looked for the declaration of rights, but any specific measures that actively seek to generate that equity. For example, does the law require certain percentages of representative bodies to be made up of women? Or, does the State have to adopt affirmative action programs? We also consider rights to information and measures that increase access to information as a necessary and important part of generating greater equity.

Responsibility.

Ensuring that water security is achieved for all requires clear designation of roles, responsibilities, and authorities. Governmental institutions must be required to take the actions necessary for creating water security as well as be given the power to act. If one of those is missing, governmental bodies either will not be able to act or will not be compelled to act to fulfill the purpose of the law.

Contamination prevention.

Complimenting responsibility is a clear purpose. One necessary purpose is to prevent contamination. When water is polluted, public health and the environment are endangered, water is unusable, access is diminished if not eliminated, and the cost of water increases. Contaminated water is one of the largest threats to water security.

In examining the laws we look for whether pollution or contamination of the environment and/or water resources is prohibited, whether the law establishes a way to determine when there has been contamination (e.g. through a metric for knowing that there is too much of a pollutant in the water), whether the law makes it possible to determine the source of the pollution or contamination (e.g. through a permitting or licensing regime and through monitoring and reporting requirements), and whether the law increases the likelihood that pollution will be reduced (e.g. through unique financing mechanisms or the encouragement of technological innovation and adoption). Pollution prevention and resource management is at the heart of water security law because contaminated water makes water unavailable.

Resource management and use.

Proper water resource management and use is the second purpose. Where water is mismanaged, there may be too little or too much water, resulting in limited or no access to water and increased threats from water. Therefore, managing water resources responsibly, in light of intra- and inter-generational needs and the impacts of a changing climactic is an essential component of the law.

With respect to resource management and use, in examining the laws we look for whether water resources are managed (e.g. through water resources assessments to determine the physical and chemical availability of water and resource planning), whether water use is overseen (e.g. through a permitting or licensing regime and through monitoring and reporting requirements), whether water waste is prohibited and efficiency is required, and whether water uses are prioritized, with top priority given to drinking water and domestic uses.

Enforcement.

Governmental institutions then need to be able to ensure compliance with the norms and rules established. The rules created by law lose their meaning and ability to create water security if observance of the law is not required. This means that governmental bodies must have the authority to demand compliance with the law. Without enforcement, the rules will go unmet.

Given the stakes, while persons should feel compelled to comply with the rules created, enforcement of the laws is essential. Therefore, we identify whether a governmental body or governmental bodies have been assigned enforcement authority to ensure that the requirements of the law are satisfied. For example, does the governmental body have the capacity to initiate an investigation on its own? Can they compel actions to be taken as a result of their findings? We also examine the role that citizens can play in enforcement. For example, can citizens hold fellow citizens and governmental institutions accountable if they do not fulfill their obligations or follow the rules?

Penalties.

Penalties for failure to comply with the requirements and rules set out in the law must also be established. Penalties incentivize persons to comply by creating consequences for failing to comply with the rules established. Consequences reduce the likelihood that persons will violate the law intentionally.

Linked with enforcement, if persons fail to observe the requirements set forth in the law – if persons fail to fulfill their responsibilities and obligations regarding contamination prevention and resource management and use – there must be penalties or consequences. Therefore, we looked for the penalties and consequences set forth in the law. For example, if a license is required and a licensee fails to comply with the terms and conditions of the license, a governmental agency may be able to suspend or revoke the license. Or, if certain standards or regulations are not met, the person or licensee can be fined and/or imprisoned for that failure.

Together, these six elements of reflect what must be included in a “water security law” and act to ensure that an availability of water sufficient to sustain lives and livelihoods and protect against threats to and from water is safeguarded. Without these elements, and therefore without a strong law, water security is unachievable.

SANITATION

One area of specific focus is sanitation. Lack of access to safely managed sanitation is a significant threat to public health and water security and until recently failed to attract the same attention as other SDGs. For this reason, we included a focus on sanitation on this Platform to address how sanitation is governed through law. This research is connected deeply to the Water Security nexus of Sanitation, Drinking Water, Health and Hygiene.

To assess the enabling environment for increasing coverage of safely managed sanitation, we analyze select laws and policies governing the provision of sanitation services. These laws and policies include: the Constitution; environmental law; water resources law; drinking water, sanitation and hygiene (WASH) laws; relevant governance laws (e.g. local government or devolution laws); the public health law; and relevant environment, water resource, WASH, and public health policies. Based on research, these laws and policies are primarily responsible for speaking to the provision of sanitation.

For the country profiles we identify whether a human right to sanitation has been explicitly created in the Constitution or in any of the laws passed by the legislature. We then look at the laws and policies to understand the scope of the right and parameters of the human right to sanitation, including obligations and responsibilities created by the right. While the creation of a human right to sanitation is not necessary to achieve widespread access to safely managed sanitation, a justiciable (human) right to sanitation may provide a lever for inspiring more rapid advancement in increasing access to sanitation.

We determined that effective laws for sanitation have five primary elements. The primary elements are:
1. Equity and non-discrimination,
2. Clear responsibility for the elements of the Sanitation Value Chain Plus (+),
3. Clear purpose dedicated to preventing contamination by fecal waste,
4. Clear designation of enforcement power, and
5. Penalties and consequences for violations of the law, regulations or terms and conditions of any permit.

Equity and non-discrimination.

Equity and non-discrimination are exemplified by the inclusion of explicit rights to equal protection and non-discrimination on the basis of gender, race or color, social status, religion, and culture. We not only looked for the declaration of rights, but any specific measures that actively seek to generate that equity. For example, does the law require certain percentages of representative bodies to be made up of women? Or, does the State have to demonstrate how sanitation projects meet and reflect the needs of women and other vulnerable communities? We also consider rights to information and measures that increase access to information as a necessary and important part of generating greater equity.

Responsibility.

In order for rights to be realized and obligations and responsibilities to be fulfilled, someone must be designated as responsible for fulfilling those obligations and responsibilities. Therefore, we identify the different governmental institutions at the national and local levels who are responsible, broadly for preventing contamination, and specifically for the segments of the Sanitation Value Chain+, including capture, containment, emptying, transport, treatment, safe reuse and disposal (which make up the traditional Sanitation Value Chain), as well as lawmaking, regulation, standards, policymaking and planning, monitoring and reporting, and financing (which completes the Sanitation Value Chain +). The traditional Sanitation Value Chain, capture through disposal, focuses on the provision of sanitation services. The other half, lawmaking through financing, focuses on creating the circumstances that ensure the provision of sanitation services is safe, reliable, equitable, and widely available.

Contamination prevention.

The primary purpose of sanitation law is to prevent contamination of the environment that humans inhabit. In examining the laws, we look for whether pollution or contamination of the environment and/or water resources is prohibited, whether the law establishes a way to determine when there has been contamination (e.g. through a metric such as technology-based effluent limitations and/or water quality standards a), whether the law makes it possible to determine the source of the pollution or contamination (e.g. through a permitting or licensing regime and through monitoring and reporting requirements), and whether the law increases the likelihood that pollution from fecal matter is reduced (e.g. through the creation of a human right to sanitation, the consideration of affordability and ability to pay, the adoption of financial mechanisms that give low-income households access to capital). Pollution prevention is at the heart of sanitation law because exposure to fecal matter creates public health and environmental issues.

Enforcement.

Given the stakes, while persons should feel compelled to comply with the rules created, enforcement of the laws is essential. Therefore, we identify whether a governmental body or governmental bodies have been assigned enforcement authority to ensure that the requirements of the law are satisfied. For example, who oversees sewerage plants’ compliance with effluent limitations? Or, who ensures that waste vacuumed from pit latrines is properly disposed at fecal sludge treatment plants? Enforcement is critical to reducing exposure to untreated fecal waste.

Penalties.

Linked with enforcement, if persons neglect to observe the requirements set forth in the law – if persons fail to fulfill their responsibilities and obligations along the SVC+ – there must be penalties or consequences. For example, if a license is required and a licensee fails to comply with the terms and conditions of the license, a governmental agency may be able to suspend or revoke the license. Or, if certain standards or regulations are not met, the person can be fined and/or imprisoned for that failure. Appropriate consequences for failures to comply with the law incentivize compliance with the law and increases the likelihood that fewer people will be exposed to untreated fecal waste.

Together, these five elements of a sanitation law act to ensure that access to safely managed sanitation will be achieved.

This Platform is not a substitute for professional legal advice. This Platform does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.