A few days ago, the International Human Rights Law Clinic at UC Berkeley School of Law released its report on the Human Right to Water Bill in California. Directed at State agencies, the report discusses the obligations these agencies have to consider the human right to water, as required by California Assembly Bill 685. Specifically it outlines what the duty “to consider” entails, discusses the human right to water, and offers some guidelines for implementation of AB 685.

Not every state has California’s water problems, but all states need to recognize the human right to water and put it on the public agenda. “The human right to water,” in the words of the UN’s Committee on Economic, Social and Cultural Rights, “is indispensable for leading a life in human dignity” and (to continue with the language of General Comment No. 15) “a prerequisite for the realization of other human rights.”

And yet even where water is abundant, we find this basic right threatened and compromised when it should be respected and protected. As I’ve noted elsewhere, the UN High Commission on Human Rights expressed concern on a recent visit that in some regions of the United States, mining and extractive industries are compromising the human right to water; that concern now must extend even to the Great Lakes area, where one of the biggest mining operations in the world is about to be staged around Lake Superior, one of the largest freshwater lakes in the world.

A 2011 report issued by the Council of Canadians finds that “the human right to water is being violated in a number of communities around the Great Lakes,” especially but not exclusively in indigenous communities. The report, entitled Our Great Lakes Commons [pdf], lays out “a people’s plan” to remedy this situation and to save and protect Lake Superior and all the Great Lakes as our “common heritage.” I came to the report after reading an op-ed in the May 1 edition of the Milwaukee Journal-Sentinel by its author, Maude Barlow, National Chairperson of the Council of Canadians and Chair of the organization Food and Water Watch. In her thought-provoking piece for the Journal-Sentinel and in this passage from her 2011 report, Barlow roots the human right to water in what she terms a broad “narrative” of the Commons:

The notion of the Commons is a very old one. A Commons narrative asserts that no one owns water. Rather it is a common heritage that belongs to the Earth, other species and future generations as well as our own. Because it is a flow resource necessary for life and ecosystem health, and because there is no substitute for it, water must be regarded as a public Commons and a public good and preserved as such for all time in law and practice. Embracing the Commons helps us to restore to the centrestage a whole range of social and ecological phenomena that market economics regards as “externalities.” A language of the Commons would restore more democratic control over the Great Lakes and establish their care and stewardship the joint responsibility of citizens and their elected governments based on the notions of social equity, ecological survival and governance by the people most impacted.

The Commons approach is based on the belief that just by being members of the human family, we all have rights to certain common heritages, be they the atmosphere and oceans, freshwater and genetic diversity, or culture, language and wisdom. In most traditional societies, it was assumed that what belonged to one belonged to all. Many indigenous societies to this day cannot conceive of denying a person or a family basic access to food, air, land, water and livelihood. Many modern societies extended the same concept of universal access to the notion of a social Commons, creating education, health care and social security for all members of the community. There are many working examples of Commons in North America today that include systems of national, state and provincial parks, cooperative fishing compacts to protect local stocks from depletion, and public libraries.

A Great Lakes Basin Commons would reject the view that the primary function of the Great Lakes is to promote the interests of industry and the powerful and give them preferential access to the Lakes’ bounties. It would embrace the belief that the Great Lakes form an integrated ecosystem with resources that are to be equitably shared and carefully managed for the good of the whole community. In a Commons framework, water is a fundamental human right that must be accessible to all. Private control of water cannot address itself to the issues of conservation, justice or democracy, the underpinnings of a solution to the crisis of the Great Lakes. Only citizens and their governments acting on their behalf can operate on these principles. Under a Commons regime, all private sector activity would come under strict public oversight and government accountability, and all would have to operate within a mandate, whose goals are the restoration and preservation of the waters of the Basin and water justice for all those who live around it.

At the same time, it is not a return to the notion that the Great Lakes are indestructible due to their size, or what has come to be known as “the tragedy of the commons.” It is rooted rather in a sober and realistic assessment of the true damage that has already been unleashed on the Great Lakes as well as the knowledge that they must be managed and shared in a way that protects them now and for all time.