I recently saw a Reddit post in r/worldnews discussing how Pope Francis had declared access to clean water a human right, and how that precludes the treatment of water as a commodity to be bought/sold.  This isn’t the first time Pope Francis has discussed this.  In a 2016 papal encyclical, Pope Francis said:

30.  Even as the quality of available water is constantly diminishing, in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market. Yet access to safe drinkable water is a basic and universal human right, since it is essential to human survival and, as such, is a condition for the exercise of other human rights. Our world has a grave social debt towards the poor who lack access to drinking water, because they are denied the right to a life consistent with their inalienable dignity.

Other people talk about education being a human right, or healthcare, etc…  This naturally raises the questions “what is a human right”, “are all rights universal”, and “by what mechanism do humans gain rights”.  Given philosophers have been debating these questions for thousands of years, a full answer is outside the scope of this post.  I will, however, attempt to provide an overview leading to a perspective on these questions that I find persuasive.

Note: For the sake of brevity, the language I use over the course of this discussion will assume we’re talking about rights as they relate to humans even though it’s possible to include non-human entities as having the same rights as humans.

Negative Rights vs. Positive Rights

As we begin our discussion, let us first consider the difference between negative rights and positive rights.

A negative right is an obligation for one human not to perform some action on or interference in the life of another human.  If Human A has a negative right not to be killed, Human B is obliged not to kill them.  The obligation here is to inaction rather than action.  Some negative rights commonly assumed to exist in the Western philosophical tradition include:

• Freedom of speech: others are obligated not to prevent or hinder your speech
• Life: others are obligated not to take action depriving you of life
• Private property: others are obligated not to take your possessions from you
• Freedom of religion: others are obligated not to force religious belief upon you

In contrast, a positive right is an obligation to perform specific action(s) on behalf of another person.  If Human A has a positive right to receive electricity (established by a legal contract, perhaps), Human B is obligated to provide that electricity to them.  A couple common examples of positive rights in modern society include:

• Food: if you have paid McDonald’s for a hamburger, they are obligated to provide it
• Public Education: if you live in the United States, the government is obligated to provide education to you with certain constraints

Notice that when describing negative rights there was no prerequisite condition required before the other person has an obligation, while with positive rights I did add a condition (“if you have paid McDonald’s …”).  We’ll discuss this in more detail later, but keep in mind for now that not everyone agrees that only negative rights are universal and positive rights are conditional.

Natural Rights vs. Legal Rights

Next, let’s consider the difference between natural rights and legal rights.

A natural right is something that is granted independent of laws, culture, or custom and held to be universal and inalienable.  An example of  a commonly-assumed natural right is the right to life.  Murder is illegal in the United States regardless of whether the victim is a US citizen, a member of a particular religion, a good or bad person, young or old, etc…  The United States Declaration of Independence outlines this concept in one of the most famous sentences in the English language:

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.

A legal right is something that is granted by laws, rules, or culture created by humans and is subject to change and redefinition by them. A good example of a legal right is the right to vote.  A legal resident of Texas has the right to vote in a Texas Senatorial election, while a legal resident of Ohio does not, despite both of them being US citizens qualified to vote in Presidential elections.  Furthermore, that Texas resident might lose that right to vote due to a criminal conviction, only to have that right restored later, and a Maine resident might not lose the right to vote regardless of criminal conviction.  The right to vote is not an inherent quality bestowed to all humans.

What are “Human Rights”?

Human rights are exactly what they sound like – rights bestowed upon humans by nature of their humanity, and independent of all other contexts and conditions.  They are considered inalienable – not separable from the human that has them.  In the framework we have been discussing they are natural rights rather than legal rights.

Natural, Positive Rights Are Problematic

We can now properly assess what Pope Francis is asserting when he claims that access to clean water is a human right – that humans have a natural, positive right to clean water.  Unfortunately, the combination of the modifiers “natural” and “positive” presents a problem.  Positive rights require the action of others, and natural rights are held by all humans, so a natural, positive right necessarily implies that all humans have an obligation to perform some action.  In this case, it effectively means that every human on the planet has moral obligation to provide clean water to all other humans on the planet, and not doing so is a immoral act.

Given this is not how humans act, does that mean we are living in a world of moral horror that taints every one of us, regardless of our other deeds?  What are the boundaries of this obligation?  Must one bankrupt oneself providing water to as many people as possible to satisfy this obligation?  If not, what level of personal expenditure would satisfy it, and why is that the appropriate level?  If the level is something “manageable” (e.g. relatively insignificant) to each person, doesn’t that mean access to clean water is not *really* an important right?  If the level is determined by the conscience of each individual, what if some individuals’ conscience does not direct them to contribute?

It seems clear that every positive, natural right we grant necessarily imposes a burden on all other humans, and that even if we arbitrarily say that the burden of each right on each human is small, the more such rights we grant the heavier that burden is.  With a sufficient number of such rights, everyone would be working each day to satsify the rights of others due to moral obligation rather than because of a self-interested desire to improve one’s own condition, which is a profound reshaping of Western society.

My Take On The Matter

The approach I find most persuasive is to say that there are no natural, positive rights (such as a right to clean water), and that natural rights can only be negative.  Therefore, access to clean water cannot be a human right.  This has some properties that make it superior in my view, but it also has implications that some may find troubling.

First, it prevents “moral fatigue” and preserves the weight of claiming someone has committed a “human rights violation”.  If every member of the human species commits a human rights violation every day for failing to assure every other member of the species has clean water, it deprives the phrase of impact.

Second, it doesn’t prevent humans from establishing a legal right to access to clean water.  For example, the citizens of a nation could vote to nationalize access to clean water and have it distributed by the government to ensure everyone has access.  They might do so because of a sense of compassion for the suffering of others, or because they wish to establish a reciprocal communal norm that might benefit them in the future.  But if a particular citizen in that nation then denies the access of another citizen to clean water, he would be violating a legal right instead of a natural right.  Furthermore, it wouldn’t cover interactions between citizens of other nations, who might not vote to establish that right.

The downside to saying that natural rights can only be negative in nature is that it means there is no moral obligation to help another person who is suffering or dying.  Therefore, in the Parable of the Good Samaritan, the traveler passing by a man dying on the side of the road has no moral obligation for positive action helping the dying man.  The dying man’s negative rights might prevent the traveler from further injuring him, however.  Once again, the traveler could choose to help the dying man despite the lack of moral obligation.

One might ask, “if we’re going to establish a positive right to water anyways, what does it matter whether that right is bestowed by natural or legal mechanisms?”  The answer here is flexibility.  If one asserts a natural, positive right to water, it is not open to debate or discussion – it is an axiomatic moral imperative.  This prevents a useful dialog about how best to structure the obligations in society.  Furthermore, people in other societies that have not made the same decision regarding access to water are definitionally immoral, despite whatever other properties they might have, and no reasons for refusing to assist the water-troubled citizens of one’s own society are acceptable.