There is a narrow catalogue of goods and values which represent fundamental importance for human survival, dignity and protection of life; consequently, these should be guaranteed and respected within international and constitutional frameworks. One example is water, and its sources, which are shrinking worldwide in the lighting speed. Being essential for human existence, water is not only a commodity, but became a new human right since the Committee on Economic, Social and Cultural Rights adopted General Comment No. 15 in 2002 and proclaimed the right to water as an element of the right to an adequate standard of living, protected under Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The discussion on the future of this right has finally been addressed expressis verbis in EU agenda. The trigger for it was the publication of the first draft of the equivalent of the European Green Deal – the European Blue Deal – dedicated exclusively to water issues. The President of European Economic and Social Committee, Oliver Röpke called the EU ‘to consider water as a priority and to adopt an EU Blue Deal as a standalone strategic policy’. Thanks to the human rights-based approach to water presented in this document, the discussion in the EU should no longer question whether the EU needs the right to water, but rather how to make this right effective. One of the solutions would be to ’employ’ the constitutional framework and apply its mechanisms to protect the water entitlements. Here, I would like to discuss three of them.

1. Water poverty

The European Blue Deal was released by European Economic and Social Committee in October 2023. The draft document consists of 15 guiding principles and 21 actions, which, according to the authors, should be implemented immediately, after adopting the European Blue Deal. One of the proposals suggested that the EU must adopt a human rights-based approach to water and fight water poverty. Tackling water stress requires defining at the level of Member States the entities accountable for supplying the population with water, as well as adequately defining the groups to which the constitutions provide special protection. This should include, among other things, providing a minimum amount of water to these groups free of charge (or for a nominal fee). These obligations have already been confirmed by the South Africa’s Constitutional Court in the Mazibuko case and should be developed in the European context. Even in the absence of guaranteeing an autonomous ‘right to water’ at the constitutional level (only Slovenia is doing so after the amendment of the Constitution in 2016), consideration should be given to decoding the constitutional obligation of public authorities to address water poverty, or expanding the understanding of the concept of ‘poverty’ to include ‘water poverty’. Its occurrence, after all, prevents any realisation of other human needs such as access to food, hygiene, health care, or privacy.

2. Equality and non-discrimination

According to the European Blue Deal ‘Water, Sanitation and Hygiene (WASH) services must be sustainable, equitable, of high quality and affordable for all. In the event of a water crisis, citizens and their basic needs must have priority’. There should not be any doubt that access to water cannot have a discriminatory character. Access to this essential source should be safe and affordable, and thus, the constitutional principle of equality and non-discrimination should be applied as a priority in this context. It would mean physical attainability (e.g., easy access to public watering holes for the elderly or disabled), but also financial affordability. Moreover, the prohibition of discrimination against women in access to water should also be raised here. Water for satisfying basic human needs should be provided continuously and easily for everyone.

3. Sustainability

Although most European constitutions do not guarantee the right to water explicitly, it is acknowledged in the European constitutional law that the public authorities should manage natural resources in a sustainable way. The principle of sustainable development is one of the fundamental rules of the political system and should be respected especially with regard to water management. As it was stipulated in European Blue Deal ‘all water users should be encouraged to adopt solutions and practices supporting the sustainable use and consumption of water’. Consequently, there will be an increase in the amount of water available for circulation not only in the economic or agricultural sectors for food production, but also for domestic and personal use, and with respect for the rights of future generations. The European Blue Deal goes a step further and proposes that the use of water in a sustainable manner and water conditionality should be adopted as criteria for providing the EU funds.

4. Summary

Failure to ensure the right to water at the constitutional level does not mean closing the path to its protection, and the European Blue Deal could be a game changer in this regard. It places a strong emphasis on constitutional values such as equality, counteracting poverty, and sustainable development. By implementing the tenets of the new water strategy and protecting the aforementioned values, Member States will acknowledge the indivisibility of human rights and their universal nature. The climate evolution and the multidimensional response for it in the subsequent years will verify whether formal provision of the ‘right to water’ at the constitutional level will be necessary at all.