The Malaysian Water Crisis: Time for International Standards
Earlier this month, residents in and around Kuala Lumpur were affected by major unscheduled water cuts. The Selangor state government-owned Syarikat Bekalan Air Selangor utility company was forced twice to stop supply after the detection of chemical pollution, first at Sungai Liam, and later Sungai Selangor. Both incidents affected almost five million people.
These service disruptions are the latest in a series of similar water pollution incidents, which form part of what may be fairly characterised as a water crisis.
A nationwide crisis
In June, a plant treating water from Sungai Semenyih was temporarily shut following pollution from an oil palm processing factory. It was also recently reported that Alor Setar’s waterways are unfit for use in water supply, again due to pollution.
Additionally, pollution affecting Sungai Kim Kim is now the subject of an RM 30 million lawsuit. The claimants concerned are seeking compensation for medical expenses and lost fishing profits from the federal government, Johor state government and the company implicated.
Recent comments from Water, Land and Natural Resources Minister Dr Xavier Jayakumar further underscore the gravity of the situation. He has estimated that Malaysia will lose up to 25% of its water supply by 2030, due to drought, mismanagement and increasing water use. He also issued the striking warning that the country’s water industry is in “dire straits”.
It is therefore clear that water pollution forms just one element of a wider, systemic threat to Malaysian water security. The severity of the issue means that Malaysia’s consent to evaluation against international standards must be part of any sustainable solution.
Turning to international law: the International Covenant on Economic Social and Cultural Rights
The clearest way for Malaysia to do so is to ratify (i.e. legally commit to) the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR is one of the core UN human rights treaties which Pakatan Harapan pledged to ratify in their election manifesto.
The ICESCR is distinctive in scope. It does not focus on overtly “political” rights, such as the right to freedom of expression, for instance. Instead, countries which ratify the ICESCR are legally bound to uphold rights such as those to fair wages, education and cultural participation.
The relevant ICESCR provisions are Articles 11(1) and 12(1).
Article 11(1) sets out that countries party to the ICESCR:
“…recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”
As the above shows, the text of Article 11(1) does not expressly mention a human right to water. Notwithstanding, one must look to the work of the Committee on Economic, Social and Cultural Rights (CESCR) to appreciate the full scope of the treaty.
The CESCR is the body of UN experts responsible for monitoring parties’ compliance with the ICESCR. It issues General Comments, which serve as guidance as to how the ICESCR should be interpreted. While non-binding in themselves, General Comments “carry significant legal weight”, and are widely accepted by parties as authoritative.
General Comment 15 (2002) is of particular importance. Referring to its previous recommendations, the CESCR reaffirmed that the Article 11(1) right to an adequate standard of living encompasses a right to water. Furthermore, it recognised that the right to water is “inextricably related” to the Article 12(1) right to the highest attainable standard of health.
What Malaysia’s obligations under the ICESCR would look like in practice
Ratifying the ICESCR would place Malaysia under international legal obligations to (1) respect, (2) protect, and (3) fulfil the human right to water. Compliance with these obligations would be undertaken in light of the treaty’s overarching principle of “progressive realisation”.
What this means is that the ICESCR recognises that the nature of the human rights within its scope are such that not all countries will be able to uphold them to the same extent within the same timeframe. It would be unfair to hold the water supply regime in a developing country such as Malaysia to the same standard as a developed country.
Malaysia would instead be obliged to take appropriate steps as far as its resources allow to progressively realise the right to water in full.
(1) Obligation to respect
As put by the CESCR, the obligation to respect entails “refrain[ing] from interfering directly or indirectly with the enjoyment of the right to water”. Malaysia would be obliged to ensure government bodies and State-owned enterprises do not unlawfully pollute waterways.
The obligation to respect would also apply to government-run detention centres for asylum-seekers and refugees. The UN Special Rapporteur on the human rights to safe drinking water and sanitation has already highlighted his concern over reports of poor access to water in such facilities. ICESCR ratification would thus serve as a safeguard against potential abuses of State power.
(2) Obligation to protect
The obligation to protect encompasses the prevention of third-party interference with the enjoyment of the right to water. The recent spate of water disruption has revealed two different types of situation where an ICESCR obligation of this kind would usefully focus government and local authority attention.
These are situations of third-party sabotage of State-owned facilities, as appears to have caused the recent Sungai Selangor incident, and pollution flowing directly from private enterprises.
With respect to the latter, National Water Service Commission Chair Charles Santiago has pointed to the need for state governments to terminate concessions awarded to sand mining contractors found to be polluting waterways.
ICESCR ratification would encourage greater rigour in local authorities’ monitoring of the activities of private enterprises, as well as improved coordination between federal, state and local administrations.
It would also lend support to those in civil society who continue to advocate for stricter penalties for convicted unlawful polluters than currently in force under the Environmental Quality Act 1974. This is because the federal government would need to consider whether current legislation deals with polluters in a manner sufficient to satisfy Malaysia’s obligation to protect.
(3) Obligation to fulfil
Discharging the obligation to fulfil would involve all levels of Malaysian government taking positive steps to secure individuals’ enjoyment of the right to water.
In this regard, ICESCR ratification would provide additional impetus to the federal government to ensure the National Water Policy it is currently drafting is comprehensive and addresses the needs of the most vulnerable in society.
Furthermore, ICESCR ratification would bring further attention to persistent inequalities in access to water experienced by both the Orang Asli, and rural communities in East Malaysia.
ICESCR ratification is necessary to address the water crisis
ICESCR ratification is not a silver-bullet solution to Malaysia’s water crisis. Measures at the local and national levels will no doubt perform the lion’s share of the work in addressing the issue.
But the crucial point is that committing to the ICESCR would represent an acknowledgement of the seriousness of the situation, and a recognition of the need for national mobilisation.
Authorities at all levels in Malaysia would be provided a set of legally binding standards to guide action, and compliance would be scrutinised by CESCR experts, to whom Malaysia would be required to submit regular reports.
Adequate access to safe water is an indispensable necessity and a fundamental human right. ICESCR ratification would be one step towards ensuring that such access is afforded to every member of Malaysian society.