Is access to safe, clean water a human right?

It’s not in the U.S. Constitution. The word water appears only once in the Constitution, in a provision that permits Congress to auction off enemy warships. The Bill of Rights guarantees all sorts of things, like the right to refuse overnight accommodations to U.S. soldiers, but it doesn’t say anything about a glass of water. Then again, the founding fathers rarely drank the stuff (they preferred hard cider). And it was hard to foresee the Flint water scandal — or even indoor plumbing — in 1791.

The U.S. Code contains thousands of mentions of water, but nowhere does it state that water is a human right. In fact, the only such statement I could find in the whole of U.S. law is in the California Water Code, which boldly declares that “every human being has the right to safe, clean, affordable, and accessible water.” Two sentences later, however, the code undercuts its guarantee with a teeny detail: The government doesn’t have to actually provide the water. It’s the legislative equivalent of “Just sayin’.”

On the international front, the United Nations General Assembly voted in 2010 to recognize “the right to safe and clean drinking water as a human right.” But here, again, there are caveats. First, the U.N. permits the “progressive realization” of human rights. Countries must only do their best with the resources available to provide water. Therefore, the 1.1 billion people worldwide who lack a water tap are not suffering a human rights violation, as long as their governments are making an effort. The other major caveat is that the U.N. declaration does not apply to Americans. The United States and 40 other countries abstained from the U.N. vote to recognize access to water as a human right.

This is only the beginning of the inquiry, though.

Human rights come in many forms; they aren’t all prohibitions hammered into the stone tablet of the Bill of Rights. Americans tend to talk about only this kind of right, though. For this, I blame Thomas Jefferson.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Jefferson’s passage is so beautifully clear that it has come to define the word right in the American mind. But he is describing just one kind of right: the preexisting negative right. Preexisting because it doesn’t need a government to create it, and negative because it describes something the government cannot do: It cannot take the right away. Leave us alone to pursue happiness, Jefferson says, and we’ll be fine. Most of the rights in the Bill of Rights are corollaries to Jefferson’s description, but the Bill doesn’t ever claim to be a complete and exclusive list of human rights.

Positive rights are not foreign to the U.S. Constitution, by the way. The guarantee of a jury trial, for example, is arguably positive. The government must take an action to provide it.

Now, answer these questions: Do you have a right to participate in the Social Security system? Do you have a right to be free from discrimination in the workplace? Of course you do. You will not find these rights in the Constitution, though.

Harvard law professor Cass Sunstein argues that President Franklin D. Roosevelt’s New Deal–era programs represented a second Bill of Rights—positive human rights based on the idea that the government must provide a basic standard of living to all citizens through statute and regulation. Since FDR’s death, many of these promises, like the guarantee of a basic income in old age, have become quasi-constitutional and nearly as sacred as the Bill of Rights itself.

Which brings us back to water. Clean, safe drinking water belongs in this category, according to a forthcoming paper by Suffolk University law professor Sharmila Murthy. A web of state laws and federal statutes—from the Clean Water Act to the Resource Conservation and Recovery Act to the Safe Drinking Water Act—stands for the proposition that providing safe, clean water is an absolute government obligation. Public outrage at the recent wave of drinking water crises also supports the idea that the American public views access to clean water as a basic human right. It hardly matters that the founding fathers failed to mention it in the Bill of Rights.

Viewed from this perspective, the question is not whether a human right to water exists, but whether our state and federal governments are fulfilling it. The answer, for the residents of Flint, Michigan, Hoosick Falls, New York, and Jackson, Mississippi, is clearly no.

The United States has a shameful history of denying basic rights to people of color, and the concentration of water violations in African-American communities echoes those injustices. The United Nations Special Rapporteur on the human right to safe drinking water and sanitation suggested in 2014 that the city of Detroit, by shutting off water to poor African-American families, had failed in its obligation to fulfill water rights in a nondiscriminatory fashion. The NAACP and ACLU have made similar claims.

Water administrators have a saying: “Water is God’s gift … but He forgot to lay the pipes.” It’s time for the state and federal governments to accept the idea that responsibility for some human rights falls to them.

onEarth thanks Sharmila Murthy of Suffolk University Law School and James Salzman of UCLA School of Law, author of Drinking Water: A History.