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Access to safe, clean water and safe and hygienic sanitation is a basic human right.
The HRWS has been recognized in international law through human rights treaties, declarations and other standards. Some commentators have derived the human right to water beyond the General Assembly resolution from Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, making it binding under international law. Other treaties that explicitly recognize the HRWS include the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). The first resolutions about the HRWS were passed by the UN General Assembly and the UN Human Rights Council in 2010. They acknowledged that there was a human right to sanitation connected to the human right to water, since the lack of sanitation reduces the quality of water downstream, so subsequent discussions have continued emphasizing both rights together. In July 2010, United Nations (UN) General Assembly Resolution 64/292 acknowledged the rights to human water - rights to receive safe, affordable, and clean accessible water and sanitation services. During that General Assembly, it accepted that for the comprehension of enjoyment in life and all human rights, safe and clean drinking water as well as sanitation are acknowledged as human right. The acceptance that access to safe and clean drinking water and sanitation as a free human right in the General Assembly’s Resolution (64/292) brings an important world-wide governmental control of it. The fulfillment of a productive and healthy life will transpire by recognizing broadly the significance of accessing dependable and clean water and sanitation services.
A revised UN resolution in 2015 highlighted that the two rights were separate but equal.
The clearest definition of the human right to water was issued by the United Nations Committee on Economic, Social and Cultural Rights in General Comment 15 drafted in 2002. It was a non-binding interpretation that access to water was a condition for the enjoyment of the right to an adequate standard of living, inextricably related to the right to the highest attainable standard of health, and therefore a human right. It stated: "The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses."
The HRWS obliges governments to ensure that people can enjoy clean, available, acceptable, accessible, and affordable water and sanitation. The ICESCR requires signatory countries to progressively achieve and respect all human rights, including those of water and sanitation. They should work quickly and efficiently to increase access and improve service.
International context
The WHO/UNICEF Joint Monitoring Programme for Water Supply and Sanitation reported that 663 million people did not have access to improved sources of drinking water and more than 2.4 billion people lacked access to basic sanitation services in 2015.
Access to clean water is a major problem for many parts of the world.
Acceptable sources include “household connections, public standpipes,
boreholes, protected dug wells, protected springs and rainwater
collections”.
Although 9 percent of the global population lacks access to water,
there are “regions particularly delayed, such as Sub-Saharan Africa.”
The UN further emphasizes that “about 1.5 million children under the
age of five die each year and 443 million school days are lost because
of water- and sanitation-related diseases”.
Legal foundations and recognition
The International Covenant on Ecology Social and Cultural Rights (ICESCR) of 1966 codified the economic, social, and cultural rights found within the Universal Declaration on Human Rights
(UDHR) of 1948. Neither of these early documents explicitly recognized
human rights to water and sanitation. Several later international human rights conventions, however, had provisions that explicitly recognized rights to water and sanitation.
- The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has Article 14.2 that states that "parties shall take all appropriate measures to eliminate discrimination against women in rural areas to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular shall ensure to women the right:… (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications."
- The 1989 Convention on the Rights of the Child (CRC) has Article 24 that provides that "parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health … 2. States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures... (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia… the provision of adequate nutritious foods and clean drinking water... ".
- The 2006 Convention on the Rights of Persons with Disabilities (CRPD) has Article 28(2)(a) that requires that "parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures to ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs."
“The International Bill of Human Rights”- which comprises the 1966:
International Covenant on Civil and Political Rights (ICCPR); 1966:
Articles 11 and 12 of the 1966 International Covenant of Economic,
Social, and Cultural Right (ICERS); and 1948: Article 25 of the
Universal Declaration of Human Rights (UDHR) documented the evolution of
human right to water and sanitation and other water-associated rights
to be recognised in worldwide decree.
Scholars also called attention to the importance of possible UN
recognition of human rights to water and sanitation at the end of the
twentieth century. Two early efforts to define the human right to water
came from law professor Stephen McCaffrey of the University of the Pacific in 1992 and Dr. Peter Gleick in 1999.
McCaffrey stated that "Such a right could be envisaged as part and
parcel of the right to food or sustenance, the right to health, or most
fundamentally, the right to life.
Gleick added: "that access to a basic water requirement is a
fundamental human right implicitly and explicitly supported by
international law, declarations, and State practice."
The UN Committee for Economic, Social and Cultural Rights (CESCR) overseeing ICESCR compliance came to similar conclusions as these scholars with General Comment 15 in 2002. It found that a right to water was implicitly part of the right to an adequate standard of living and related to the right to the highest attainable standard of health and the rights to adequate housing and adequate food.
It defines that "The human right to water entitles everyone to
sufficient, safe, acceptable, physically accessible and affordable water
for personal and domestic uses. An adequate amount of safe water is
necessary to prevent death from dehydration, to reduce the risk of
water-related disease and to provide for consumption, cooking, personal
and domestic hygienic requirements."
Several countries agreed and formally acknowledged the right to water
to be part of their treaty obligations under the ICESCR (e.g., Germany; United Kingdom; Netherlands) after publication of General Comment 15.
A further step was taken in 2005 by the former UN Sub-Commission on the Promotion and Protection of Human Rights which issued guidelines to assist governments to achieve and respect the human right to water and sanitation. These guidelines led the UN Human Rights Council to assign Catarina de Albuquerque as an independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation in 2008.
She wrote a detailed report in 2009 that outlined human rights
obligations to sanitation, and the CESCR responded by stating that
sanitation should be recognized by all states.
Following intense negotiations, 122 countries formally
acknowledged "the Human Right to Water and Sanitation" in General
Assembly Resolution 64/292 on 28 July 2010.
It recognized the right of every human being to have access to
sufficient water for personal and domestic uses (between 50 and 100
liters of water per person per day), which must be safe, acceptable and
affordable (water costs should not exceed 3% of household income), and
physically accessible (the water source has to be within 1,000 meters of
the home and collection time should not exceed 30 minutes)."
The General Assembly declared that clean drinking water is "essential
to the full enjoyment of life and all other human rights".
In September 2010, the UN Human Rights Council adopted a resolution
recognizing that the human right to water and sanitation forms part of
the right to an adequate standard of living.
The mandate of Catarina de Albuquerque
as "Independent expert on the issue of human rights obligations related
to access to safe drinking water and sanitation" was extended and
renamed as "Special Rapporteur on the human right to safe drinking water
and sanitation" after the resolutions in 2010. Through her reports to
the Human Rights Council and the UN General Assembly, she continued
clarifying the scope and content of the human right to water and
sanitation. As Special Rapporteur, she addressed issues such as: Human
Rights Obligations Related to Non-State Service Provision in Water and
Sanitation (2010); Financing for the Realization of the Rights to Water and Sanitation (2011); Wastewater management in the realization of the rights to water and sanitation (2013); and Sustainability and non-retrogression in the realization of the rights to water and sanitation (2013).
Léo Heller was appointed in 2014 to be the second Special Rapporteur on
the human rights to safe drinking water and sanitation.
Subsequent resolutions extended the mandate of the Special
Rapporteur and defined each state's role in the respect of these rights.
The most recent General Assembly Resolution 7/169 of 2015 has been
called a declaration of "The Human Rights to Safe Drinking Water and
Sanitation.
It recognized the distinction between the right to water and the right
to sanitation. This decision was made due to concern about the right to
sanitation being overlooked when compared to the right to water.
International jurisprudence
Inter-American Court of Human Rights
The right to water has been considered in the Inter-American Court of Human Rights case of the Sawhoyamaxa Indigenous Community v. Paraguay.
The issues involved the states failure to acknowledge indigenous
communities' property rights over ancestral lands. In 1991, the state
removed the indigenous Sawhoyamaxa community from the land resulting in
their loss of access to basic essential services, like water, food,
schooling and health services. This fell within the scope of the American Convention on Human Rights; encroaching the right to life.
Water is included in this right, as part of access to land. The courts
required the lands to be returned, compensation provided, and basic
goods and services to be implemented, while the community was in the
process of having their lands returned.
International Centre for Settlement of Investment Disputes
The following cases from the International Centre for Settlement of Investment Disputes (ICSID)
concern the contracts established between governments and corporations
for the maintenance of waterways. Although the cases regard questions of
investment, commentators have noted that the indirect impact of the
right to water upon the verdicts is significant. World Bank data shows that water privatization spiked starting in the 1990s and significant growth in privatization continued into the 2000s.
Azurix Corp v. Argentina
The first notable case regarding the right to water in the ICSID is that of Azurix Corp v. Argentina.[39] The dispute was between the Argentine Republic and Azurix Corporation
regarding discrepancies arising from a 30-year contract between the
parties to operate the water supply of various provinces. A
consideration in regard to the right to water is implicitly made during
the arbitration for compensation, where it was held that Azurix was
entitled to a fair return on the market value of the investment. This
was rather than the requested US$438.6 million, citing that a reasonable
business person could not expect such a return, given the limits of
water price increases and improvements that would be required to ensure a
well-functioning, clean water system.
Biwater Gauff Ltd v. Tanzania
Secondly, a similar case encountered by the ICSID is that of Biwater Gauff Ltd v. Tanzania. This was again a case of a private water company in a contractual dispute with a government, this time the United Republic of Tanzania.
This contract was for the operation and management of the Dar es Salaam
water system. In May 2005, the Tanzania government ended the contract
with Biwater Gauff for its alleged failure to meet performance
guarantees. in July 2008, the Tribunal issued its decision on the case,
declaring that the Tanzania government had violated the agreement with
Biwater Gauff.
It did not however award monetary damages to Biwater, acknowledging
that public interest concerns were paramount in the dispute.
Right to water in domestic law
Without
the existence of an international body that can enforce it, the human
right to water relies upon the activity of national courts. The basis for this has been established through the constitutionalisation of economic, social and cultural Rights (ESCR)
through one of two means: as "directive principles" that are goals and
are often non-justiciable; or as expressly protected and enforceable
through the courts.
South Africa
In South Africa, the right to water is enshrined in the constitution
and implemented by ordinary statutes. This is evidence of a slight
modification of the second technique of constitutionalisation referred
to as the "subsidiary legislation model". This means that a large
portion of the content and implementation of the right is done an
ordinary domestic statute with some constitutional standing.
Residents of Bon Vista Mansions v. Southern Metropolitan Local Council
The first notable case in which the courts did so was the Residents of Bon Vista Mansions v. Southern Metropolitan Local Council.
The case was brought by residents of a block of flats (Bon Vista
Mansions), following the disconnection of the water supply by the local
Council, resulting from the failure to pay water charges. The court held
that in adherence to the South African Constitution, that constitutionally all persons ought to have access to water as a right.
Further reasoning for the decision was based on General Comment
12 on the Right to Food, made by the UN Committee on Economic, Social
and Cultural Rights imposing upon parties to the agreement the
obligation to observe and respect already existing access to adequate
food by not implementing any encroaching measures.
The court found that the discontinuation of the existing water
source, which had not adhered to the "fair and reasonable" requirements
of the South African Water Services Act, was illegal. It is important to note that the decision pre-dates the adoption of the UN General Comment No. 15.
Mazibuko v. City of Johannesburg
The quantity of water to be provided was further discussed in Mazibuko v. City of Johannesburg.
The case revolved around the distribution of water through pipes to
Phiri, one of the oldest areas of Soweto. This case concerned two major
issues: whether or not the city's policy regarding the supply of free
basic water, 6 kilolitres per month to each account holder in the city
was in conflict with Section 27 of the South African Constitution or
Section 11 of the Water Services Act. The second issue being whether or not the installation of pre-paid water meters was lawful.
It was held in the High Court
that the city's by-laws did not provide for the installation of meters
and that their installation was unlawful. Further, as the meters halted
supply of water to residence once the free basic water supply had ended,
this was deemed an unlawful discontinuation of the water supply. The
court held the residents of Phiri should be provided with a free basic
water supply of 50 litres per person per day. The work of the Centre for Applied Legal Studies (CALS) of the University of the Witwatersrand in Johannesburg, South Africa and the Pacific Institute in Oakland, California shared a 2008 Business Ethics Network BENNY Award for their work on this case.
The Pacific Institute contributed legal testimony based on the work of
Dr. Peter Gleick defining a human right to water and quantifying basic
human needs for water.
The respondents took the case to the Supreme Court of Appeal (SCA)
which held that the city's water policy had been formulated based upon a
material error of law in regards to the city's obligation to provide
the minimum set in the South African National Standard, therefore it was
set aside.
The court also held the quantity for dignified human existence in
compliance with section 27 of the constitution was in fact 42 litres per
person per day rather than 50 litres per person per day. The SCA
declared that the installation of water meters was illegal, but
suspended the order for two years to give the city an opportunity to
rectify the situation.
The issues went further to the Constitutional Court,
which held that the duty created by the constitution required that the
state take reasonable legislative and other measures progressively to
realise the achievement of the right to access of water, within its
available resource. the Constitutional Court also held that it is a
matter for the legislature and executive institution of government to
act within the allowance of their budgets and that the scrutiny of their
programs is a matter of democratic accountability.
Therefore, the minimum content set out by the regulation 3(b) is
constitutional, rendering the bodies to deviate upwards and further it
is inappropriate for a court to determine the achievement of any social
and economic right the government has taken steps to implement.
The courts had instead focused their inquiry on whether the steps taken
by Government are reasonable, and whether the Government subjects its
policies to regular review. The judgment has been criticized for deploying an "unnecessarily limiting concept of judicial deference".
India
The two most prominent cases in India regarding the right to water illustrate that although this is not explicitly protected in the Constitution of India; it has been interpreted by the courts that the right to life includes the right to safe and sufficient water.
Delhi Water Supply v. State of Haryana
Here
a water usage dispute arose due to the fact that the state of Haryana
was using the Jamuna River for irrigation, while the residents of Delhi
needed it for the purpose of drinking. It was reasoned that domestic use
overrode the commercial use of water and the court ruled that Haryana
must allow enough water to get to Delhi for consumption and domestic
use.
Subhash Kumar v. State of Bihar
Also notable is the case of Subhash Kumar v. State of Bihar,
where a discharge of sludge from the washeries into the Bokaro River
was petitioned against by way of public interest litigation. The courts
found that the right to life, as protected by Article 21 of the Constitution of India, included the right to enjoy pollution-free water.
The case failed upon the facts and it was held that the petition had
been filed not in any public interest but for the petitioner's personal
interest and therefore a continuation of litigation would amount to an
abuse of process.
World Rights to Water Day
Water
is essential for existence of living beings including humans. Therefore
the having access to pure and adequate quantity of water is the
inalienable human right. Hence, the Eco Needs Foundation
(ENF) deems it necessary to recognise the right to water (with ensured
per capita minimum quantity of water) through the appropriate expressed
legal provision. The United Nations
with its several covenants has made it obligatory for all the nations
to ensure equitable distribution of water amongst all the citizens.
Accordingly, the ENF began to observe and promote the celebration of World Rights to Water Day on 20 March, the date on which Dr. Babasaheb Ambedkar ("the father of modern India") led the world's first satyagraha
for water in 1927. The World Right to Water Day calls for the adoption
of special legislation establishing the universal right to water. Under
the guidance of founder Dr Priyanand Agale, the ENF arranges a variety of several programmes to ensure the right to water for Indian citizens.
New Zealand
ESCR
are not explicitly protected in New Zealand at the current time, either
by the Human Rights or Bill of Rights Acts, therefore the right to
water is not defended by law there.
The New Zealand Law Society has recently indicated that this country
would give further consideration to the legal status of economic, social
and cultural rights.
United States
In Pilchen v. City of Auburn, New York,
a single mother named Diane Pilchen was living as a rental tenant in a
foreclosed house, in which the owner (landlord) of the house had failed
to pay the water bill for some time. The City of Auburn billed Pilchen
for the landlord's arrears, and repeatedly shut her water service off
without notice when she couldn't pay these debts, making the house
uninhabitable. The city condemned the home and forced Pilchen and her
child to move out. Pilchen was represented by the Public Utility Law
Project of New York (PULP) in the lawsuit. The City of Auburn attempted
unsuccessfully to argue that water is not a constitutional right
because bottled water could be used instead, an argument that was
contested by PULP as absurd. In 2010, Pilchen won summary judgment in
which it was determined that shutting off the water violated her
constitutional rights, and that Pilchen could not be billed and stopped
from having water due to an unrelated party's delays in paying water
bills.
Remaining discussions
Transboundary effects
Given the fact that access to water is a cross-border source of concern and potential conflict in the Middle East, the Eastern Mediterranean and parts of North America amongst other places, some non-governmental organizations (NGOs)
and scholars argue that the right to water also has a trans-national or
extraterritorial aspect. They argue that given the fact that water
supplies naturally overlap and cross borders, states also have a legal
obligation not to act in a way that might have a negative effect on the
enjoyment of human rights in other states.
The formal acknowledgement of this legal obligation could prevent the
negative effects of the global "water crunch" (as a future threat and
one negative result of human over-population).
Water shortages and increasing consumption of freshwater make this right
incredibly complicated. As the world population rapidly increases,
freshwater shortages will cause many problems. A shortage in the
quantity of water brings up the question of whether or not water should
be transferred from one country to another.
Water rights trading
The
commercialization of water is offered as a response to the increased
scarcity of water that has resulted due to the world population tripling
while the demand for water has increased six-fold. Market
environmentalism uses the markets as a solution to environmental
problems such as environmental degradation and an inefficient use of resources. Supporters of market environmentalism
believe that the managing of water as an economic good by private
companies will be more effective than political accountability by
citizens through their representatives. The opponents believe that the
consequence of water being a human right excludes private sector
involvement and requires that water should be given to all people
because it is essential to life. Access to water as a human right is
used by some NGOs as a means to combat privatization efforts. A human
right to water "generally rests on two justifications: the
non-substitutability of drinking water ("essential for life"), and the
fact that many other human rights which are explicitly recognized in the
UN Conventions are predicated upon an (assumed) availability of water
(e.g. the right to food)."
Critiques and alternatives
Organizations working on the rights to water and sanitation
- International organisations:
- OHCHR (UN Office of the High Commissioner on Human Rights)
- UNDP
- UNICEF
- Sanitation and Water for All
- Governmental cooperation agencies:
- International non-governmental organizations:
- Action against Hunger (ACF)
- Freshwater Action Network (FAN)
- The DigDeep Right to Water Project
- Madre Acqua, NGO
- The Pacific Institute
- Transnational Institute with the Water Justice project
- UUSC
- WaterAid
- WaterLex
- PeaceJam
- International networks:
- Freshwater Action Network (FAN)
- Ecumenical Water Network (EWN)
