The Human Right to Water and Sanitation (HRWS) was recognised as a human right by the United Nations General Assemblyon 28 July 2010.
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 emphasising both rights together. 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. All states have ratified either a human rights convention or a political declaration which recognizes the HRWS.
Over a billion people in the developing world lack safe drinking water. Research has shown that nearly three billion people live without access to adequate sanitation systems, which are necessary for reducing exposure to water-related diseases such as typhoid fever, cholera, diarrhoea etc. In 2012 over 700 million people lived in communities where they had no access to safe drinking water and sanitation facilities. Also, many more people lack household-level access to safe access water and sanitation facilities including the vulnerable people living in rich countries, example the USA.
The human right to water (RTW) has been a subject of controversy over the years. This is because several attempts have been made to decipher whether water being a natural resource, should be made a public good (giving everyone access to it) or it should be privatized (making it a commodity). Bearing in mind the several international water meetings seeking to address this issue coupled with attempts by nation-states to ascertain this concern, it can be stated that the mechanisms put in place have not been able to expressly recognize the human RTW.
Professor McCarffrey laid the foundation for exploring the possible RTW in 1993. He thought a human rights approach to water should be used considering the scarcity of water and its inequitable distribution. Gleick, in his work “The Human Right to Water” further developed this issue in 1999.Article 25 of the Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in 1948, states that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food…’
[…] Little attention has been given, however, to the question of whether there is a right to water, and if so, what the contours of such a right might be. 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.
According to him, ‘the right would have to be defined carefully, so as to take into account all too-prevalent instances of region-wide shortages’.
McCaffrey further expressed his dismay at the absence of the provision for RTW in neither the United Nations Covenants on Human Rights, nor in the 1948 Universal Declaration of Human Rights. He posits that an express mention of this right under the basic instruments of international human rights law, rather than being inferred, would have settled the controversy. He is of the view that in relation to the UDHR, Article 25 constitutes the most likely basis from which to infer human RTW. Many of the provisions contained in the Declaration have been considered to be binding on states, however, the legal status of these rights stated in Article 25 of the Declaration remains uncertain. To reiterate his position, McCaffrey observes, even if it is assumed that these rights of Article were binding, it would still have to be established that a RTW is implicit in the right to adequate standard of living to which the Article explicitly refers.
This therefore does not in anyway suggest the existence of a RTW. Article 6 of the International Covenant of Civil and Political Rights states that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’ While this provision could possibly form the basis for the existence of a RTW; the scope of the right to life is still subject to various interpretationswhich according to McCaffrey, the interpretation does not mean that the right to life includes other rights but that the safeguarding of this fundamental right is a pre-condition of the enjoyment of social, economic, cultural, political and civil rights. Thus, the provision of article 6 above does not suggest the existence of a RTW.
Also, article 11 (1) of the International Covenant on Economic, Social and Cultural Rights which has been thought to provide the basis for human RTW reads as follows: ‘the state parties to the present covenant recognises the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of the living conditions’. It is unclear as to whether the right to adequate standard of living also includes the RTW, which is adequate to meeting the basic needs of man.In addition, article 2 (1) of the International Covenant on Economic, Social and Cultural Rights require states to take steps to ensure its available resources, are maximised toward the progressive realisation of the rights recognised in the Covenant. This provision according to McCaffrey signifies that states are not under obligation to give an immediate effect to this right, as it is progressive in nature. However, the interpretation of the provisions of the International Covenant on Economic, Social and Cultural Rights has taken a significant turn since the adoption of the General Comment No. 15 in 2002 by the Committee of the Economic, Social and Cultural Rights. The committee believes that the RTW falls within the category of guarantees under article 11, which are essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions of survival.
It must be stated that the General comment No. 15 has been criticised as ‘revisionist’ in nature. According to Stephen Tully ‘the committee’s intention to render access to water an inherent right and not a mere tangential one is ill-served by a process of inference’. He asserts that since claims to scarce resources are properly questions of resource allocation, a more convincing textual interpretation to article 11(1) could support an implied right to access water which is necessary for food growth or satisfaction of housing needs. To him water is a collective right as much as it is an individual right. This argument will be further expatiated in the course of this work.
Apropos the above, this essay agrees with Gleick’s observation that international law, international agreements and state practice supports the human right to a basic water requirement. However, acknowledging the existence of this right will demand that states translate these rights into specific national and international obligations thereby demanding more responsibilities. Richard Jolly observes:
To emphasize the human right of access to drinking water does more than emphasize its importance. It grounds the priority on the bedrock of economic and social rights, it emphasizes the obligations of state parties to ensure access, and it identifies the obligation of state parties to provide support internationally as well as nationally.
REGULATORY FRAMEWORKS ON HUMAN RIGHT TO WATER
- Article 24 (2c) of the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) stipulates that state parties shall ensure to women the right to ‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply’. It is pertinent to note that this right applies to rural women. Notwithstanding its restricted scope, it signifies a noteworthy development with regard to the advancement of the human right to water.
- Article 24, Paragraph 2, of the 1989 Convention on the Rights of the Child (CRC) stipulates that state parties take appropriate steps to combat disease and malnutrition ‘through the provision of adequate foods and clean drinking-water’.
- Article 10 of the United Nations Convention on the LAW of the Non-Navigational Uses of International Watercourses (1997) also addresses basic human needs. It stipulates that in the event of a conflict between uses of water in an international watercourse, special regard shall be given ‘to the requirements of vital human needs’.
- The Statement of Understanding which is ancillary to the United Nations Convention on the Law of Non-Navigational Uses of Watercourses (1997) stipulates that in determining vital human needs in the event of conflicts over the use of watercourses, ‘special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation’.
- The 1949 Geneva Convention relative to the treatment of Prisoners of War makes explicit reference to access to clean water by stating that state parties shall provide prisoners of war with sufficient access to water and sanitary facilities.
- Article 28 (2a) of the Convention on the Rights of Persons with Disabilities (CRPD) which came into force in 2008 stipulates that state parties shall take appropriate steps “to ensure equal access by persons with disabilities to clean water services….”
- The committee on Economic, Social and Cultural Rights ancillary to articles 11 and 12 of the International Covenant for Economic, Social and Cultural Rights 1996 (which formalizes the right to food) believes that the right to water falls within the category of rights under article 11 that are ‘essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’
Looking at some of the instruments mentioned above, it can be seen that no particular agreement gives a generalised guarantee of the human right RTW but rather they apply to a certain class and category of people such as the CRPD, CEDAW etc. McCaffrey has stated that none of these agreements casts the corresponding entitlement in human right terms but rather they place a duty on governments to ensure that water as well as other things necessary to life and good health, is provided to members of groups that have been identified as requiring a special provision. He also believes that the premise upon which governments have this obligation is supported by case laws pertaining to certain regional treaties, which shall be stated below.
However, Razzaque believes that apart from the human right treaties, the 1997 United Nations Convention on Non-Navigational uses of watercourses contain the explicit RTW. She observes the statement of understanding attached to the Convention which states that “special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation. To further her view, Razzaque posits that by virtue of the ECOSOC Comment on ‘the RTW’, the right to safe drinking water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is the most fundamental condition for survival’. The General Comment 15 imposes three levels of obligation on state parties, which are obligations to respect, to protect and to fulfil the right to safe drinking water. I believe that the General Comment 15 gives a broader guarantee of the existence of the right to water. I shall set out below the regional agreements on the RTW.
In Africa, two human rights instruments explicitly refer to water and its access. Similar to the CRC, Article 14(2c) of the African Charter on the Rights and Welfare of the Child (1990) stipulates that state parties shall ‘take measures to ensure the provision of safe drinking water in order to implement the right to health’. Also, Article 15 (a) of the protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) requires state parties to “provide women with access to clean drinking water”. It is pertinent to note also that while the Maputo Convention, provides that state parties shall “endeavour to guarantee for their populations a sufficient and continuous supply of suitable water’ the Senegal’s River Charter authoritatively refers to the right to water as a fundamental human right.
In America, Article 11 of the Additional Protocol to the American convention on Human Rights in the Area of Economic, Social and Cultural Rights (1998) provides that ‘everyone shall have the right to live in a healthy environment and to have access to basic public services’. It can be stated that access to basic public services also includes access to water and sanitation. This view is supported by a report from the Inter-American Commission on Human Rights, delivered in Brazil wherein it criticised the existence of inequality in the access to public access to public services, as about 2 per cent of the population had no access to potable water and about 26 per cent of the population lacked access to sanitary services.
In Europe, there are a couple of regional agreements that address the link between water and human rights. Regional documents such as the United Nations Economic Commission for Europe (UNECE) Convention on Environmental Impact Assessment in a Trans-boundary Context (1991), UNECE Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes and its 1999 protocol on Water and Health, and the UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (1998), talk about water in relation to groundwater abstraction, impact assessment of water-related projects and access to information.
Other documents which are noteworthy includes; The First International Conference on Water and the Environment (1992) in Dublin, the Ministerial Declaration of the Second World Water Conference (2002), the International Conference on Fresh Water (2001) and the Implementation Plan of the World Summit on Sustainable Development (2002). Still we see that none of these documents or forum mentions explicitly the human right to water.
NATIONAL LEGISLATIONS/JUDICIAL DECISIONS
Several national legal systems have developed legislations that recognize the right to water. The Kenyan Constitution (2010) and South African Constitution explicitly provides for the right to water. In South America, both the new Bolivian and the Uruguayan Constitutions stipulate that access to water is a human right.
Several judicial decisions have been taken which deals with the right to life and impliedly addressed the right to water. An example is the Gabcikovo-Nagymaros’ case where Judge Weeramantry of the ICJ stated that “the protection of the environment is a vital part of contemporary human rights doctrine such as the right to life itself…damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments”. Also the High Court of Kerala in the case of Perumatty Grama Panchayat v. State of Kerala held that the “government had a duty to protect against excessive groundwater exploitation and the inaction of the state in this regards was tantamount to infringement of the right to life of the people guaranteed under Article 21 of the constitution of India”.Also worthy of note is the case of Lindiwe Mazibuko & Others V. City of Johannesburg and Others where the court rightfully upheld the right to water as enshrined in section 27 of the Constitution.
HUMAN RIGHT TO WATER AS CUSTOMARY INTERNATIONAL LAW
Article 38 (1)(b) of the ICJ statute defines Customary International Law as ‘evidence of a general practice accepted by law’. Apart from the treaties (international and regional) discussed above, the question to be examined is whether the human right to water can be considered customary international law according to article 38 (1b) stated above. This question is deemed to be of special interest because states that have not ratified the respective human rights treaties can still be bound by a customary human right to water.The growing support of the Right to Water can be seen from the issuance of international legal documents, treaties and declarations as well as incorporation into national laws. The RTW remains ill defined and this poses a problem of clarity regarding the obligations related to it and its utilization as well as implementation.Even if the RTW were deemed to be customary international law, the existence of state practice would still be in question.
With regard to RTW, state practice would need to show itself in a uniform manner to establish the general application of the rule of law Another problem would be the consistency in applying the legal framework because of reasons such as unavailability of resources and lack of political will. Its enforceability would be a major concern because while some developed states have the structure to enforce these laws, other states which are underdeveloped are still facing rudimentary issues such as social welfare. The UDHR for instance has been argued by some authors to be customary international law, while other writers are of the view that because of its non-binding nature, it cannot gain a legally binding status. Inga argues that the incorporation of the right to water into national laws does not make it customary international law because the numbers of the states that have enshrined the right to water in their constitutions are lesser than the total number of states.The recognition of the right to water in treaties according to Inga, does not give rise to Customary International Law because they become binding on both state and non-state parties. In contrast to Inga’s view, Rebecca Bates believes that the explicit statements on the right to water and the evidence of state practice in the form of national and constitutional instruments contributes to the existence of a customary right to water. Although the recognition of the RTW by the General Assembly and Human Rights Council implies the evolution of Customary International Law, because states failing to meet their human rights obligations would be violating these human rights. For the right to water to be considered a general principle, a convincing evidence of general acceptance and recognition is required. In essence, the human right to water though recognised in International, regional forums and documents cannot be considered as Customary International Law because it lacks a generalised recognition as a human right and not a derivative right.
States have specific, core and general obligations to respect the RTW both internationally and nationally. They have a general obligation to realize the RTW progressively.
If the RTW were considered Customary International Law, states would be obliged to fulfil the three principles set out in the General comment 15 which are “Respect, Protect and Fulfil”. Also, states would be obliged to incorporate the Right to water into their national legislations as exemplified in Kenya and South Africa above, review their national and subnational legal policies. Another classification of obligation on states is stated in article 2(1) of the ICESCR where states are obliged to ensure all rights in the covenant are exercised without discrimination of any kind. States are also obliged to ensure progressive realizations of the RTW, this is however dependent on the availability of resources.
The RTW is acknowledged clearly under International Human Rights Law.Notwithstanding how water is important to humanity, the international community has shown little political concern to enshrining it as a human right. This paper has reviewed the various attempts by international law, regional agreements and state practice to establish expressly the RTW as well as the obligations this recognition would impose on states. It is pertinent to note that the lack of a unified recognition of the right of water has raised a myriad of issues, which has been addressed above. It therefore leads to the question of whether the right to water can be deemed to be a customary international law. Whilst I agree that the recognition of the RWT as a Customary International Law would be a welcomed development, which would help improve conditions worldwide, there is still a need for convincing evidence of general acceptability and recognition of the RTW. Therefore, as far as customary international law is concerned, the right to water has not become a part of it. It is recommended that governments, water providers and international organisations put mechanisms in place to work out the necessary institutional, economic and management strategies for meeting these basic human water needs. Also there is the need for the international community to re-examine its fundamental development goals.
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