The Right to Water - 3
11 / 2009
Discussions at the United Nations about the right to water and the right to sanitation really started with the adoption of the General Comment on the right to water by the Committee on Economic, Social and Cultural Rights. A year before, J.Ziegler, the Special Rapporteur on the right to food, was asked to extend his mandate to include the right to water in relation to the right to food, (1) and in the following two years, El Hadji Guissé, Rapporteur to the Sub-Commission on the Promotion and Protection of Human Rights, presented his final report on the promotion and realization of the right to safe drinking water and to sanitation (2) and his guidelines for the realization of the right to clean drinking water and to sanitation which were adopted by the Sub-Commission. (3)
Between 2001 and 2006, States, international and civil society organizations considered their position in relation to these experts’ findings, and in particular in relation to General Comment number 15 (1). With the creation of the Human Rights Council in June 2006, the views of the various players on the right to water and the right to sanitation came together in the mandate given to the High Commissioner on Human Rights in 2006 (2) then on the creation of the post of independent expert on the question in 2008 (3).
a) The position of States and international and civil society organizations regarding the right to water and the right to sanitation
Outside the United Nations, States, the private sector, international organizations and certain civil society organizations, came together under the aegis of the World Water Council to discuss the promotion of access to water and to sanitation. The World Water Council had been created in 1996; its principal mandate was to organize the publications of the World Water Forum, which took place in Marrakesh in 1997, The Hague in 2000, Tokyo in 2003, Mexico in 2006 and Istanbul in 2009, where more than 30,000 people assembled. (4)
Despite the fact that the World Water Council published a document on the right to water in 2006, (5) the most important document to come out of the World Water Forum - the Declaration of Heads of State - did not recognize access to water and to sanitation as a human right. (6) As a way of expressing their disagreement with this, Cuba, Venezuela, Uruguay and Bolivia put out their own declaration in which they reaffirmed the human right to water and to sanitation. (7)
Other States only went so far as to state that the promotion of the right to water was a priority in their development policies. The United Kingdom, for example, declared that it intended to reorient its development aid towards the realization of the right to water, and proposed the creation of a plan of action worldwide to achieve this. (8) Curiously, the United Kingdom opposed the adoption of any resolution at the Human Rights Council that made explicit mention of the right to water as an autonomous human right. The same was true of Canada.
The international organizations, for their part, reacted extremely positively to the adoption of General Comment number 15 of the Committee of Economic, Social and Cultural rights. The World Health Organization and the United Nations High Commissioner for Human Rights published a brochure on the right to water in 2003, (9) as did the World Bank in 2004. (10) But undoubtedly the strongest support for the promotion of the right to water was the United Nations Development Programme, Human Development Report 2006 Beyond scarcity: Power, poverty and the world water crisis. In this report, UNDP identified four central principles which should form the basis of the reforms needed to realize the Millennium Development Goal regarding access to water. The first principle was the need for States to recognize the right to water in their Constitution and in their national legislation. (11)
Civil society organizations, many of which were already working on the promotion of the right to water and the right to sanitation before 2003, were equally positive in their welcome to general Comment number 15. The Centre on Housing Rights and Evictions (COHRE), for example, had continued to promote the right to water and the right to sanitation through numerous publications and training programmes. (12) The organization ‘Bread for the World’ which initiated a campaign for the right to water in 2003, created an inclusive advocacy network for water. (13) A number of social organizations have campaigned for years at both national and international levels (in particular through the World Social Forum). Amongst these, we should mention in particular the network ACME, (Association for a World Water Contract), which was set up in Italy by Riccardo Petrella, Professor of Economics, and then spread to Canada, Belgium, Switzerland and Morocco. ACME has organized several alternative forums all over the world (FAME) (Alternative World Water Forum) with the principle objective of promoting the right to water and sanitation. (14)
b) Study by the High Commissioner for Human Rights – 2006-2007
In 2006, following an initiative from Germany and Spain, the Human Rights Council asked the United Nations High Commissioner on Human Rights to provide it with “a detailed study on the scope and content of the human rights obligations related to the equitable access to safe drinking water and sanitation under human rights’ instruments”. (15)
This initiative aimed to provide a counterbalance to the position of the UN experts on human rights regarding the right to water. However, the study prepared by the High Commissioner, certain aspects of which could be criticized, contains some interesting elements. (16) In his study, the High Commissioner identified the international instruments that directly and indirectly protect the right to safe drinking water and the right to sanitation (17) and put forward a definition of these rights and the corresponding State obligations. (18) It also identified seven questions that needed to be investigated in more detail, including whether the right to water and the right to sanitation should be considered as autonomous human rights, and the question of a hierarchy of water usage. (19)
Whilst underlining the need to develop certain aspects of the obligations that concern the right to water and to sanitation, in particular the normative content of the obligations corresponding to the right to sanitation, (20) the High Commissioner concluded that “it is now time to consider access to safe drinking water and sanitation as a human right, defined as the right to equal and non-discriminatory access to a sufficient amount of safe drinking water for personal and domestic uses - drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene - to sustain life and health. States should prioritize these personal and domestic uses over other water uses and should take steps to ensure that this sufficient amount is of good quality, affordable for all and can be collected within a reasonable distance from a person’s home”. (21)
The High Commissioner also underlined the lack of existing mechanisms to monitor the respecting of obligations regarding the right to water and to sanitation (22), and this paved the way for the creation of a special procedure on this question at the Human Rights Council.
c) The mandate and work of the independent expert – 2008-2009
The Human Rights Council decided unanimously, in its resolution 7/22 of 28th March 2008, to “appoint, for a period of three years, an independent expert on the issue of human rights obligations relating to access to safe drinking water and sanitation”.
One of the tasks entrusted to the independent expert by the Human Rights Council, was the clarification of “the content of human rights obligations, including non-discrimination obligations, in relation to access to safe drinking water and sanitation”. It should be noted that resolution 7/22 does not make explicit reference to the right to water and to sanitation but to “access to water”. It should also be pointed out that the question of the sharing of water resources between States is explicitly excluded from the mandate of the independent expert, while it affirms “the need to focus on local and national perspectives in considering the issue leaving aside questions of international watercourse law and all transboundary water issues”.
If the independent expert does not take up a position regarding both this right and the issue of transboundary waters, she could overlook entirely the real issues involved in the realization of the right to water and to sanitation. In Egypt, where she went on a fact-finding mission, and in Bangladesh which she will be visiting soon, these questions are crucial. (23) The same thing applies all along the 250 international watercourses that supply the water needs of 40% of the world’s population.
The right to water and the right to sanitation were enshrined in several regional and international treaties and in the national law of certain States. They have also been recognized as fundamental rights by CESCR and by several United Nations experts. However, there is still a significant amount of resistance on the part of some States, to giving explicit recognition, at the Human Rights Council, to the right to water and the right to sanitation. On the other hand there is a real willingness on the part of some other States to recognize the right to water and the right to sanitation, and a firm commitment to the defence of human rights by the United Nations, by international and civil society organizations.
In the future, it would be desirable if CESCR were to produce a general comment on the right to sanitation, to reinforce its General Comment on the right to water and the work of the independent expert at the Human Rights Council. It would also be desirable if the Human Rights Council allowed the independent expert to make recommendations on the uses of transboundary watercourses in order to satisfy the basic needs of the 40% of the world’s populations who depend on them. If these two elements were taken into account, it would represent a significant step forward in the realization of the right to water and the right to sanitation.