Human Right to Water
Jul 14, 2017-The Kathmandu Valley needs to revitalise and expand upon the ancient water system in order to improve its liveability and resilience. Even in its current fragmented state, the ancient water system continues to provide much more than just evidence of a sustainable past.
The ancient system provides a water source that remains important for some of the city’s more vulnerable residents. For example, in Lalitpur, a 2014 ICIMOD survey found that around 20 percent of the households access water from stone spouts, and a majority of those households are from the lower income bracket. For low-income families that rent rooms, water from ancient wells and stone spouts are critical, especially when piped water and tankers are neither easily accessible nor affordable. Beyond Melamchi, the city needs to have additional water sources to make room for diverse users and uses of water.
Urban water security
Not only are ancient spouts, ponds, and wells beautiful and architecturally ingenious sites, some of the less noticeable aspects, like the open spaces surrounding spouts, underground engineering, and the way in which the system interconnects across a watershed provide critical environmental services. For example, open spaces around spouts and wells facilitate groundwater recharge, while ponds provide a buffer against drought. Sadly, many of these services have been reduced because government and private entities encroached upon the ancient water system for development purposes.
As the ancient water system was built into the social and physical environment of the Kathmandu Valley for at least 1,500 years until the early 1900s, it still remains central to the identity of the city. However, as stone spouts and public wells start to run dry throughout the year, many worry that they will become merely museum pieces.
In summary, revitalisation of the system can provide a means of addressing issues of water insecurity, vulnerability to disasters and climate change, and the loss and fragmentation of cultural heritage. Already, movements around local stone spouts, ponds, and well sites by communities, and non-governmental, inter-governmental and government groups demonstrate the potential benefits of revitalisation. Consider the promotion of rainwater recharge, preservation of green space, archaeological repairs, and distribution of water in neighbourhoods across Patan. For example, at Alkohiti, residents can rely on strong local management to provide water even when the stone spout dries, and at Washahiti, hundreds were able to access water after the 2015 earthquake when other sources were not available. These activities bring communities together in ways that blend the past and the present to meet the challenges of a rapidly changing cityscape.
Revitalisation will require an incredible amount of coordination between many managing bodies like community organisations, municipalities, the Kathmandu Valley Water Supply Management Board, and the Department of Archaeology. Thankfully, Nepal’s domestic and Supreme Court case law paired with international treaties provide avenues to support revitalisation.
There are different legal sources to draw upon to support advocacy for the right to water in Nepal. Article 35 Section 4 of the constitution states that “every citizen shall have the right of access to clean drinking water” and international treaties to which Nepal is a contracting party explicitly outline a human right to safe and clean water, namely Article 14 (2) (h) of the Convention on the Elimination of all Kinds of Discrimination Against Women, Article 24 of the Convention on the Rights of the Child, and UN General Assembly Resolution 64/292. Providing further support, the Water Resource Act 1992 protects both the water source and spouts as a “structure related to the utilisation of water resources.”
Additionally, the Supreme Court of Nepal affirms the right to drinking water in a number of cases, but most notably in Surya Prasad Sharma Dhungel v Godavari Marble Industries and others, where the right to access safe drinking water was specifically considered by the Court from the perspective of stone spout use by referencing the marble industry’s impact on the Nau Dhara’s water flow. The Supreme Court of Nepal in Advocate Prakash Mani Sharma for Pro Public v His Majesty Government Cabinet Secretariat and others, while addressing arsenic contamination in drinking water, also observed that “water is an essential commodity for maintaining and sustaining life…it is the duty of the state to supply safe and pure drinking water to citizens...safe and pure water is a matter concerned with the health and so linked to the right to life. Every citizen possesses the right to safe, pure and pollution free water.”
By combining Nepal’s obligations under the Unesco World Heritage Convention (WHC) and Supreme Court law, there is a clear case for greater protection of the ancient water system. Under the WHC, Nepal has pledged to conserve its national heritage in its entirety, not just stone spouts in World Heritage Sites. In Advocate Prakash Mani Sharma for Pro Public v His Majesty Government Cabinet Secretariat and others, the Supreme Court “emphasised the obligation of Government to give effect to the commitments under the Convention for the Protection of the World Cultural and Natural Heritage” and called for “national policy regarding religious, cultural and historical places of importance.”
The Supreme Court in Yogi Narahari Nath v Honorable Prime Minister Girija Prasad Koirala requested that the government specifically take responsibility for the protection and maintenance of an environmentally and archaeologically significant place because “if such archaeological or ancient heritage is not protected, we ourselves may forget our ancient civilisation and culture.” The treaty and Supreme Court case law provide a reasonable argument for prioritising the protection of the ancient water system because of the unique connection between stone spouts and the Valley’s environment.
With a strong legal base, local expertise, and physical system to build upon, Kathmandu has an incredible opportunity to do something meaningful. However, that opportunity is rapidly diminishing.
Molden is a PhD candidate in Geography at the University of Oregon; Griffin is a graduate from Wake Forest University School of Law and the Center for Energy, Environment, and Sustainability; Sharma is executive director of Pro Public, an NGO; opinions expressed here are personal