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Recognition and Definition of the Right to Water and the Right to Sanitation

The Right to Water - 2

Christophe GOLAY

11 / 2009

The right to water and the right to sanitation are fundamental human rights recognised implicitly and explicitly in a number of regional and international treaties (1) and in the national law of certain States (1). In 2003, the United Nations Committee on Economic, Social and Cultural Rights defined the right to water and the corresponding State obligations, now recognized in international law (2). In its most recent report, the independent Expert at the Human Rights Council (HRC), Caterina de Albuquerque, defined the right to sanitation and the corresponding State obligations (3).

a) Recognition of the right to water and the right to sanitation in regional and international treaties and in the national law of certain States

The right to water and the right to sanitation were recognized implicitly in the Universal Declaration of Human Rights of 1948 (article 25) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 (article 11), as an integral part of the right of all persons to an adequate standard of living and the right to health. (2) They were also recognized implicitly in article 6 of the International Covenant on Civil and Political Rights (ICCPR), which enshrines the right to life. (3)

The first explicit recognition of the right to water at an international level was made at the United Nations Water Conference, which was held at Mar del Plata in 1977. At this conference, States declared that “Whatever the development stage and the socio-economic situation, people have the right to have access to drinking water whose quantity and quality are equal to their basic needs.” (4)

The right to water and the right to sanitation were then recognized in the Convention on the Elimination of All Forms of Discrimination Against Women, in 1979, and in the Convention on the Rights of the Child in 1989. The first called on State parties to ensure that women living in rural areas had the right “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply” (article 14, paragraph 2). The second called on State parties to combat illness and malnutrition by “the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution” (article 24, paragraph 2).

At a regional level, the most explicit recognition of the right to water and the right to sanitation is in the African instruments of the Protection of the Rights of Women and Children. In the Protocol to the African Charter on Human and Peoples Rights regarding the Rights of Women, States made a commitment to ensure access to safe drinking water for women (article 15) and to regulate the management, the processing, the storage and disposal of domestic waste (article 18). In the African Charter of Rights and Wellbeing of the Child, they made a commitment to take all necessary measures to ensure the provision of safe drinking water to children (article 14, paragraph 2).

In the Protocol of San Salvador, which supports the American Convention on Human Rights, States recognized that “Everyone shall have the right to live in a healthy environment and to have access to basic public services” (article 11, paragraph 1).

At a national level, the right to water and the right to sanitation are recognized in a number of national Constitutions - for example in Bolivia and Uruguay. They are also recognized in a great number of national laws (5) and some significant legal rulings confirm that they can be protected through the right to life, the right to health or the right to an adequate standard of living. (6) One of the best examples of the protection of the right to water at a national level is the enshrinement of the right to water in the Constitution of South Africa (7), and its recognition in a national law (8) which, in a decision given in 2008, allowed the High Court to force the City of Johannesburg Metropolitan Municipality to provide 50 litres of water to each inhabitant every day. (9)

b) Definition of the right to water and the corresponding State obligations as set out by the Committee on Economic, Social and Cultural Rights

In 2002, on the eve of the International Year of Freshwater, the Committee on Economic Social and Cultural Rights (CECSR), which oversees the implementation of the ICESCR, adopted General Comment number 15, which defined the right to water and the corresponding State obligations.

In General Comment number 15, the Committee for Economic, Social and Cultural Rights started by recognizing that the right to water was a fundamental human right protected by the covenant. According to the Committee, “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights”. (10) The Committee also insisted that “Water should be treated as a social and cultural good, and not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations”. (11)

The Committee then defined the right to water as it is currently enshrined in international law. According to this definition, the right to water “entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses”. (12) According to the definition given by the CESCR, all people have the right to water that is safe and of an acceptable quality, available on a continuous basis, in sufficient quantities, accessible physically, at an affordable price and without discrimination. (13)

The Committee stated that “the water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene”. (14)

The Committee also underlined the importance of access to sanitation, indicating that “Ensuring that everyone has access to adequate sanitation is not only fundamental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources”. (15) However, the Committee did not, in this General Comment, state that the right to sanitation was an autonomous right.

Following its General Comment n°15, CESCR defined the corresponding State obligations. According to the Committee, States have an obligation to respect the right to water, to protect this right and to give it effect, as it should with all other human rights. (16)

The obligation to respect the right to water means that States must not interfere in the exercise of the right to water. States, for example, are prohibited from interrupting the water supply, from supplying dirty water, or from raising the price of publicly managed water disproportionately, or in a discriminatory fashion. (17) The obligation to protect the right to water means that States must prevent more powerful third parties, such as transnational companies, from interfering in the exercise of the right to water. States must, for example, monitor water quality, and protect the most vulnerable from industrial water pollution, or from price rises demanded by private water companies. (18)

The obligation to apply the right of water in practice means that States must take measures to facilitate the right to water for the population and to distribute water in the case of disasters. The programme “1 million water tanks” which consists of gathering rainwater in tanks in the semi arid area of North Eastern Brazil, is an example of putting this obligation into practice. (19)

The obligation to guarantee that the right to water is exercised without discrimination and in an equal manner between men and women means that States have to combat discrimination de jure and de facto in access to water. States must, for example, put policies into place that guarantee equal access to water for discriminated-against groups such as: women and children; people living in remote rural areas or in shantytowns, even if they are illegal; indigenous people; nomads; refugees and asylum seekers, who are too often discriminated against in their access to safe drinking water. (20)

Finally, the right to water, like all other human rights, also involves States in obligations towards other countries beyond its boundaries. According to the Committee on Economic, Social and Cultural Rights, States must respect the exercise of the right to water in other countries; they must take measures to prevent their own citizens, or companies that come under their jurisdiction, from violating the right to water of individuals and communities in other countries; and depending on their own resources, they must facilitate the exercise of the right to water in other countries and offer help wherever necessary. (21) As the first United Nations Special Rapporteur on the right to food underlined in his reports on missions to Ethiopia, India and Bangladesh, these extraterritorial obligations mean that when States exploit transboundary watercourses, they must give priority to the satisfaction of basic human needs of the populations that depend on these water courses, in particular safe drinking water, and the water needed for basic subsistence agriculture. (22)

c) Definition of the right to sanitation and the corresponding State obligations as set out by the independent expert of the Human Rights Council

In her report presented in September 2009 to the Human Rights Council, Catarina de Albuquerque, the independent expert charged with examining the question of obligations concerning human rights as regards access to safe drinking water and to sanitation, pointed out that a quarter of the deaths of children under the age of 5 in the world are attributable to inadequate sanitation, and that the United Nations Millennium Development Goal concerning sanitation was unlikely to be reached by 2015 in the case of more than 700 million people. (23) This explains why she decided, in her report, to put the emphasis on the recognition of the right to sanitation as an autonomous human right.

According to the independent expert, the right to sanitation is protected in international law through the recognition of several other rights, in particular the right to an adequate standard of living, the right to adequate housing, the right to health and the right to water. (24) But for her, this does not go far enough; it must go further and recognize the right to sanitation as an autonomous human right, because this is what is needed for the protection of human dignity. (25)

In her report, Catarina de Albuquerque gives the following definition of the right to sanitation and the corresponding State obligations: “The Independent Expert is of the view that sanitation can be defined as a system of collection, transport, treatment and disposal or reuse of human excreta, and associated hygiene. States must ensure without discrimination that everyone has physical and economic access to sanitation, in all spheres of life, which is safe, hygienic, secure, socially and culturally acceptable, provides privacy and ensures dignity”. (26)

As the independent expert explains herself, there are a number of definitions of sanitation and some are broader than others. (27) Her definition of sanitation is more restricted, because she limits herself to “personal sanitation” (disposal of human excreta). (28) In the future, it would be better if the Committee on Economic, Social and Cultural Rights investigated this question in order to develop a broader definition which would include the cleaning up of all types of water pollution. The independent expert also describes in her report the States’ obligations to respect, to protect and to apply in practice the right to sanitation (29) and their obligation to “pay special attention to groups, particularly vulnerable to exclusion and discrimination in relation to sanitation, including people living in poverty, (…) women, children, elderly persons, people with disabilities, people affected by health conditions, refugees and IDPs, minority groups among others”. (30)

It should also be noted that in General Comment number 15, the Committee for Economic, Social and Cultural Rights had already indicated that “State Parties have an obligation to progressively extend sanitation services, particularly to rural and deprived urban areas, taking into account the needs of women and children”. (31)

(1) The list of these instruments is to be found in the annexes of the Report of the High Commissioner for Human Rights on the obligations related to access to water and sanitation. Cf Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, A/HRC/6/3, 16 August 2007, Annexes I and II.
(2) CESCR, General Comment n°15 on the right to water, E/C.12/2002/11, §3, adopted 20 January 2003 and General Comment n°14 on The right to the highest attainable standard of health, E/C.12/2000/4, §11, adopted 11 August 2000 ; HRC, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, A/HRC/12/24, 1 July 2009.
(3) In General Comment n°6 on the right to life, the Human Rights Council noted that the right to life should not be interpreted in a restrictive manner. Rather, the protection of this right requires that States adopt positive measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics. Human Rights Council, General Comment n°6 on the right to life, § 5.
(4) Report of the United Nations Water Conference, Mar del Plata, 14-25 March 1977, Part I, Chapter I, Resolution II. This recognition of the right to water was later reaffirmed in Chapter 18 of Agenda 21, adopted at the United Nations Conference on Environment and Development in Rio de Janeiro, 1992.
(5) Catarina de Albuquerque notes that they are enshrined in law in Algeria, Paraguay and South Africa. Cf Human Rights Council, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, A/HRC/12/24, §37, 1 July 2009. See also H. Smets, Le droit à l’eau dans les législations nationales, Académie de l’eau, Nanterre, 2005 and COHRE, Legal Resources for The Right to Water: International and National Standards, 2004.
(6) For example the Belgian Court of Arbitration recognized “the right of each individual to a minimum provision of safe drinking water”. Arrêt No 36/98 of 1 April 1998. The Supreme Court of India, on the basis of Article 21 of the Constitution which guarantees the right to life, stated that “the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.” Supreme Court of India, 2000 SOL Case No 673. Regarding the right to sanitation Argentinian jurisprudence is particularly interesting. Cf. Human Rights Council, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, A/HRC/12/24, §37, 1 July 2009.
(7) Article 27 of the South African Constitution states that “Everyone has the right to have access to (…) sufficient food and water”.
(8) South Africa’s National Water Act was adopted in August 1998 to implement Article 27 of the Constitution.
(9) High Court of South Africa (Witwatersrand Local Division), Lindiwe Mazibuko and Others v. The City of Johannesburg and Others, Case No. 06/13885, judgement of 30 April 2008.
(10) CESCR, General Comment n°15 on the right to water, E/C.12/2002/11, §1, adopted 20 January 2003.
(11) Ibid, § 11.
(12) Ibid, § 3.
(13) Ibid, § 12.
(14) Ibid, § 12.
(15) Ibid, § 29.
(16) Ibid, §§ 20-29.
(17) See the violations of obligations in relation to the right to water described in the report of his mission to Niger by J Ziegler, E/CN.4/2002/58/Add.1, § 50-51, 23 January 2002.
(18) See the violations of the obligation to protect the right to water described in the report of his mission to India by J Ziegler, E/CN.4/2006/44/Add.2, § 45, 20 March 2006.
(19) Commission on Human Rights, Report of the Special Rapporteur on the Right to Food. Mission to Brazil, J. Ziegler, E/CN.4/2006/44/Add.2, § 39, 20 March 2006.
(20) CESCR, General Comment n°15 on the Right to Water, op.cit., § 16.
(21) Cf. Ibid, § 30-36.
(22) Cf. Reports of J. Ziegler on his missions to Ethiopia, India and Bangladesh: www.righttofood.org.
(23) See Human Rights Council, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, A/HRC/12/24, 1 July 2009, §§ 4-5.
(24) Ibid, § 14-54.
(25) Ibid, §§ 55-59. The independent expert cites Article 22 of the Universal Declaration of Human Rights, which states that “everyone … is entitled to the realization of the economic, social and cultural rights indispensable for his dignity…”, to justify the need to recognize the right to sanitation as an autonomous right.
(26) Ibid, §63.
(27) Ibid, §8-12.
(28) CESCR, General Comment n°15 on the right to water, op.cit., § 12.a).
(29) Cf. Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, A/HRC/12/24, 1 July 2009, § 64.
(30) Ibid, § 65.
(31) CESCR, General Comment No 15 on the Right to Water, op.cit., § 29.

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