From Knowledge to Policies: A Governance Approach to Bridge the Gap to Enhance Access to Clean Water in Indonesia

This research is a collaboration between Institut Teknologi Bandung, Universitas Sebelas Maret, Groningen University, and Radboud University.

From Knowledge to Policies: A Governance Approach to Bridge the Gap to Enhance Access to Clean Water in Indonesia.

Background

The accessibility of fresh water is defined as one of the Sustainable Development Goals (SDGs) of
the United Nations. Scarcity of water, poor water quality and inadequate sanitation are
considered to have an impact on health, life and food security, the livelihood choices, and
educational opportunities for poor families across the world. The UN even adopted a Resolution
that defines the right to water and sanitation as a human right.1 In this Resolution the states are
called upon to scale up efforts to provide safe, clean, accessible and affordable drinking water and
sanitation for all. According to the UN the right to safe drinking water and sanitation is
‘inextricably related to the right to the highest attainable standard of physical and mental health,
as well as to the right to life and human dignity’.2 The UN Committee on Economic, Social and
Cultural Rights (CESCR) firmly recognized the right to water to be legally part of the right to
adequate standard of living and the right to health under Articles 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) in 2003. 3 Because water is deemed
to be one of essential elements to achieve the adequate standard of living, Article 11 legally
obliges States to ensure ‘sufficient, safe, acceptable, physically accessible and affordable water for
personal and domestic uses.’
Indonesia is a party to the ICESCR and is therefore bound by international obligations and
standards set by this treaty. In 2014 the monitoring body of this treaty, the CESCR, has pointed
out that one quarter of Indonesian population does not enjoy clean drinking water, particularly
in rural areas, despite the implementation of a National Policy for Community-Based Water
Supply and Environmental Sanitation.5 This assessment aligns with research by water engineers

that show that Indonesia experiences heavy water pollution and water scarcity, not only for
drinking water but also for clean water for daily needs.6 This research also identifies potential
factors that contribute to the scarcity of fresh water. Industry, agriculture and communities often
pollute water resources, affecting the life of everyone living near the river or using the river as
their main source of water.7
In a response to the SDGs and to improve its inhabitants’ standard of living, the Indonesian
government launched an ambitious programme called the ‘100-0-100 programme’ that aims at
100% availability of drinking water, 0% slums and 100% access to sanitation. This programme
was elaborated in the Medium-term National Development Plan 2015-2019.8 Despite these
intentions and various environmental standards and programmes put in place to address at least
some of these issues, water pollution is not tackled enough. The reality shows that in 2017 only
71% of all Indonesians had access to adequate water supply.
In this context, the question remains how the institutions that are in place to enforce the human
right to water function. It can be observed that the Indonesian Constitution as such does not
recognise explicitly the right to water.10 The Constitution however does recognise the right to a
healthy environment and the right to a place to live.11 These rights can be associated with the
right to clean water. Indonesian Legislation concerning Human Rights also stipulates the right to
an adequate and healthy environment and an adequate standard of living. A first question is
whether these articles could provide a normative tool for the judiciary to interpret the right to
water. As second question is whether or not these provisions form an adequate instrument to
enforce the right to water in line with international standards. If legal proceedings that interpret
these rights are not an adequate mechanism to enforce the right to water, what other
(governance) mechanisms could help realize safe and clean access to water?
These questions confront the normative (human rights) perspective with the technical and
governance perspectives. It can be put in one central research question:

How can the Indonesian government effectively realise the right to fresh water?
The identification of the causes and consequences of a lack of access to fresh water results in a
research agenda that combines empirical knowledge on the causes and consequences of the
shortage of clean water on the one hand and the normative framework of the human right to
water and sanitation, including as this might relate to (urban) waste management, and the
governance questions that are related to this human right on the other hand. This general
research question breaks down in two more specific sub-questions:

Does the Indonesian Constitution and implementing legislation sufficiently support the
realization and enforcement of the international right to water?
This first normative question explores the exact content of this right to water in the Indonesian
context. A first possible challenge for enforcing the international right to water is that the right
to water is not explicitly recognised in Indonesian law. At the same time Indonesia recognizes
other relevant constitutional rights that are related (e.g the right to health, the right to sanitation,
and the right to a clean environment) and adopted various water quality standards and policies
that are intended to protect access to safe water. Do these laws and policies address the right
causes, consequences and actors? Can they jointly protect the right to water in line with
international standards? Additionally, there also may be various legal proceedings available for
enforcing the right to water in Indonesia, whether constitutional, administrative, civil or criminal:
is there evidence for the benefits and limitations of using various procedures in efforts to enforce
the right to water?

Given the objectives of the right to water, how can technical data on causes, consequences
and responsible actors that affect this human right be transferred in empirically driven
policy and legal proceedings?
The second question provides an overview of the current knowledge of the societal problem of
access to clean water. There are many actors that might play a role. The question is whether or
not the current available legal tools are sufficient and effective remedies in enforcing the right to
water. What are courses of action to prioritize activities of the state? And how does state
intervention relate to private activities? What are impediments? To which extent does the current
governance, including the design of legal disputes on water quality in Indonesia provide sufficient
room for using technical data when effectively enforcing the right to clean water?

Outline of Research

The research question is explorative and aims at connecting on the one side scientific research
on the causes and consequences of the lack of access to fresh water and the various technical
solutions for addressing it and on the other side the research on the relevance of human rights
and human rights-based governance.
A general observation is that the law becomes more and more important in realising human
rights, and that in recent years NGO’s, civil society and local governments in various countries
have called upon the judge to enforce environmental rights specifically. In particular, such legal
proceedings seek to force the state to set adequate environmental standards and to take effective
measures to protect and to realise human rights by implementing them. As an example one could
think of the case in India, where a local community challenged the decision to renew a license for
the local Coca Cola enterprise. The village council claimed that this company used the water
supply to excessively, causing scarcity and other environmental problems.13 The court then ruled
that the water extraction by the Company was illegal and infringed the right to life enshrined in
the Indian Constitution. The court then restricted the water use.14
There are similar examples in other countries. In the USA, the NGO ‘Michigan Citizens for Water
Conservation’ (MCWC) summoned the Perrier group (Nestles Waters of America) to appear in
court with the claim that this company overused the water supply with a negative impact on the
Great Lakes.15 And in the Netherlands recently an NGO (Urgenda) successfully requested the
court to give a ruling with the instruction to the legislator to impose higher greenhouse gas

emission targets by 2020 with a reference to the human right to life and the right to family life.16
In Indonesia, similar cases can be observed in which NGO’s demand improved standards or
demand the state to adopt integrated systems to clean water management and further protect
the water of the Balikpapan Gulf against oil spills.17
Human rights, especially economic, social, and cultural rights, provide a norm for governmental
action. International human rights treaties provide guidance on the contents of a certain right.
The implementation and enforcement of these norms rely on ‘authoritative interpretations’ by
supervisory committees. For example the CESCR provides authoritative interpretation on the
contents of rights enshrined in the ICESCR. With regard to the right to water, which is derived
from articles 11 and 12 ICESCR, the CESCR developed the content of the right to water in some
detail and also set minimum obligations that should be fulfilled by the states parties.
In the end it is the national state that has to develop the instruments to realize these rights.
Human rights might play a role in administrative, civil and criminal law proceedings. Under
Indonesian law, the government can use civil court procedures against private parties (industry)
to secure adequate environmental protection. An alternative would be to use special criminal
procedures against the responsible party. The government could also revoke permits or conduct
coercive measures to end pollution. Finally, the state might be the subject of a legal procedure
itself, when an NGO or a community tries to enforce the state to intervene and take measures.
In all these cases the judiciary might feel the need to deter from the political deliberation of the
exact content of the human right. After all: where the legal content of human rights is not
unambiguous there is room for political debate on the standards that have to be applied. One
might expect that the room for political deliberation is less relevant once there is more scientific
knowledge about the exact causes and consequences of the assumed violation of that social right,
and what has to or can be done to remedy the situation. After all: once the causes are clear, the
actions of the State have to be directed to regulate or to solve these causes. It is less clear though
whether or not the judiciary would be able to recognise these causes and direct the government
to take particular political action, and whether or not his interference through a final verdict
would have an impact.
Against this background we see two potential flaws that form the threshold for an effective
realisation of social human rights, more precisely the right to clean water. On the one hand the
discourse that interprets the human rights in legal proceedings that might not have the
immediate effect that the societal problem at hand is or will be solved. And on the other hand, the
inputs of the scientific knowledge on the causes and consequences of that societal problem that
does not finds its way in policy or standards. What remains is an isolated debate of, on the one
side the legal scholars reflecting on the relevance of human right of water and on the other hand
the sciences discussing the causes and consequences of the lack of access to water.

Governance approach as a solution?
In our research we aim to resolve this isolated debate. We will connect the two discourses and
search for an approach that is both effective from a legal and a practical perspective. This will
result in a (set of) governance tools that can serve as an effective tools to implement the right to
water making use of the existing scientific knowledge. There are various non-legal methods that
might be used considered as tools that are able to bridge the gap between the two discourses
These are mainly procedures such as planning procedures that provide access to citizens and
NGO’s to influence policy decisions. The challenge is to develop such an approach that is adaptive
to technical expertise. This is actual the key question of this research proposal: to which extent would it be possible to develop a procedure with the same safeguards as the legal procedures,
but that is even more adaptive to technical information and that (therefore) provides a more
sustainable, effective solution?
The development of the governance approach will be tested on the in depth knowledge of one or
two cases: examples that show how the access to water is hampered. The choice for these cases
will be made in the course of the research. The cases will be found in Java, near the cities of
Surakarta, Yogyakarta and Bandung. These cities have similar characteristics, have a river that
serves as the main water source and have a developed industry that might cause water pollution.
We will make use of the existing networks of the project partners to identify the actual cases.