24 International law and policy Right to Water

Jhuma Sen

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Overview

Every individual possess a basic need to use water and it’s necessary to survive and hence every individual has a right to water. Water is the essence of life. Safe drinking water and sanitation are indispensable to sustain life and health, and fundamental to the dignity of all. Yet, 884 million people do not have access to improved sources of drinking water. This module shall provide a brief overview of the right to water under International Law and the legal instruments that recognize sanitation as a basic human right. This module on Right to water in International law will mainly focus on the status of right to water on a international platform. This chapter provides a brief about all the important International conventions, treaties and Resolutions which have contributed in the recognition of the right to water at the international level. This chapter will also put light on the key events and resolution which played a significant role in determining right water as a basic Human Right.

Introduction

The right to water and sanitation is now a recognized right at the international level as well. The United Nations General Assembly perceived in the 1977 Mar Del Plata Action Plan that – irrespective to the level of monetary improvement or economic upliftment – all people “have the right to have access to drinking water in quantities and of a quality equal to their basic needs. There are several Conventions, Treaties, policies, Resolutions that determine the right to water and sanitation. ‘Resolutions’ are generally adopted by bodies comprised of governments, with the exception of the UN Sub-Commission on the Promotion and Protection of Human Rights (formerly known as the Sub-Commission on the Prevention of Discrimination and Protection of Minorities) and some other bodies that are composed of independent experts acting in their personal capacity. Despite the recognition of water as a human right,

the figures of individuals deprived of basic right to water is very high in the developing and underdeveloped countries. There is a lack of intent and infrastructure on the part of the nation states and is a big concern on a international level. The recognition of the right to water and sanitation at the international level, gave a boost to the formation of an international law and policy framework. The existence of the right to water and sanitation in international treaties was affirmed. Resolutions were passed for the right to water and sanitation to be an explicit right in the international law arena.

Objectives:

  • The main objective of this chapter is to understand the legal instruments that recognize the right to water as a basic human right.
  • This chapter intends to deliver a brief overview about the various important regulations with regard to the right to water on the international framework
  • This chapter shall cover all the important legislations and events that have made a significant effect on the right to water.

International Conventions / Treaties

i. General Comment No. ’15’

General Comment No. 15 was adopted by the UN Committee on Economic, Social and Cultural Rights at its Twenty-ninth session in November 2002 on the right to water.The Comment provides guidelines for states on the interpretation of the right to water under two articles of the International Covenant on Economic, Social and Cultural Rights – Article 11 (the right to an adequate standard of living) and Article 12 (the right to health).

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.

While the International Covenant on Economic, Social and Cultural Rights does not explicitly refer to the right to water, the Committee underlined that the right to water was part of the right to an adequate standard of living, as were the rights to adequate food, housing and clothing.

ii. Article 11 of the International Covenant on Economic, Social and Cultural Rights

The States Parties to the present Covenant recognize 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 living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent

Article 11 of the ICESCR created a lot of controversy because it states the term ‘including’ , it was critiqued that the term including refers to merely a part and it was not exhaustive in nature. Since water is the most basic need and is vital for an individual to survive, The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. The judicial systems in the countries also are now influenced by the General Comment 15 to safeguard the human right

iii. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

One of the important instrument that explicitly talks about water and sanitation is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979. Article 14(2) of the CEDAW recognizes the right to water and sanitation. The article stipulates that States parties shall ensure to women the right to “enjoy adequate living conditions, particularly in relation to water supply”. Article 14 of CEDAW states that:

States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order 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 such women the right:

(h)To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

Article 14(2) h is one of the few instances where the conventions explicitly affirms the right to water and sanitation . According to this article the State parties has to ensure and provide the women with adequate living conditions, especially in relation to housing, sanitation, electricity and water supply, transport and communication.

iv. The Convention on the Rights of the Child, 1989

This convention on the Rights of the Child, 1989 also explicitly mentions about the right to water and its article 24 provide with the right to water and it states that :

States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;

This convention is the second explicit reference to the right to water; Article 24, gives the child the right to health, placing the obligation upon the State to implement this right, especially through appropriate measures to combat disease and malnutrition, through the provision of adequate nutritious food and clean drinking water. The United Nation Committee on the Rights of the Child underlined that under article 24 States have responsibility to ensure access to clean drinking water and that such access is particularly essential for young children’s health.

v. Convention on the Rights of Persons with Disabilities, 2006

The convention of the Rights of Persons with Disabilities is a legally enforceable treaty, the states have an obligation to provide rights to people with disabilities. It is an important convention explicitly stating the human right to water in its Article 28 which states that :-

28) States 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

Article 28, defines the right of persons with disabilities to an adequate standard of living, including social protection, obligating States to ensure equal access by persons with disabilities to clean water services. The Committee on the Rights of Persons with Disabilities is responsible for monitoring the implementation of the Convention on the Rights of Persons with Disabilities. Article 28 gives the people with disabilities the right to an adequate standard of living including food, water, clothing and housing, and to effective social protection including poverty reduction and public housing programmes.

United Nations Resolutions

HRC Decision 2/104

United Nations Human rights Council in 2006, pased a decision 2/104 Human rights and access to water. The United Nations High Commissioner for Human Rights in his 2007 report affirmed 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 to sustain life and health.”

HRC Resolution 7/22

In order to address to Human Rights issue, Resolution 7/22 was passed by the United Nations Human Rights Council (UNHCR). It was found that there is a need of an expert is present and the primary job of this expert was “to identify, promote and exchange views on best practices related to access to safe drinking water and sanitation.”

General Assembly Resolution 64/292

The General Assembly officially recognized the right to water and sanitation on 28 July, 2010 by supporting a Resolution.The Resolution 64/ 292 acknowledges that clean drinking water and sanitation are integral to the realization of all human rights. The Resolution also calls upon States and international organizations to provide financial resources, help build capacity and transfer technology to help other countries to provide safe, clean, accessible and affordable drinking water and sanitation for all.

HRC Resolution 15/9

The United Nation General Assembly passed the Decision 15/9, consequently affirming the that the human right to water and sanitation is consistent with the existing international human rights law as a derivative right of “the right to an adequate standard of living and the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity.”

HRC Resolution 21/2

It was in this Resolution for the First time all the nation states accepted the reaffirmation that right to water and sanitation are brought down from the right to an adequate standard of living.

HRC Resolution 24/18

The resolution of 24/18 confirmed the recognition of the right to water and sanitation. The resolution listed down all the normative content categories of the right to water and sanitation. Catarina De Albuquerque was appointed as Independent expert in 2008.

HRC Resolution 16/2

This resolution essentially extended the tenure of the independent expert by 3 years and urge her to promote the full realization of the right to water and sanitation.

General Assembly Resolution 68/157

The Resolution of 68/157 is the latest resolution adopted by the General Assembly and the Human Rights Council. This resolution reaffirmed that the human right to water and sanitation is derived from the right to adequate standard of living.

Article 2(1), Article 6(1) and Article 26 of the International Covenant on Civil and Political Rights, 1966, Article 1(2), Article 2, Article 11 and Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966, and Article 2 and Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 are few examples of the conventions which implicitly recognize this human right to water and sanitation.

Conclusion:

To sum up the discussion on Right to Water being a part of international law and policy, this discussion provided a brief overview of the various international legal instruments which recognize access to water as a basic human right. The discussion went through instruments like Convention on the Rights of the Child 1989, ICCPR 1966, Convention on the Rights of Persons with Disabilities 2006 and some key UN Resolutions (by Human Rights Council and the UN General Assembly). These various instruments and resolutions also throw light on the different aspects of right to water which are relevant to people with different kinds of vulnerabilities.

  1. See United Nations Children’s Fund and World Health Organization, Progress on Drinking Water and Sanitation: Special Focus on Sanitation (2008). Improved drinking water sources include those that are protected from outside contamination, particularly faecal matter. However, “improved” does not necessarily mean that the water is actually safe. Improved sanitation facilities are facilities that ensure hygienic separation of excreta from human contact.
  2. The Right to water and Sanitation, Information portal on the Human Rights to water and Sanitation, available at http://www.righttowater.info/progress-so-far/general-comments-2/
  3. The Right to Water, Fact Sheet No.3 5 available at http://www.ohchr.org/Documents/Publications/FactSheet35en.pdf
  4. International Covenant on Economic, Social and Cultural Rights available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/cescr.aspx
  5. Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (Twenty-ninth session, 2003 available at http://www1.umn.edu/humanrts/gencomm/escgencom15.htm
  6. para3 of the Committee’s General Comment No. 6 (1995) on the economic, social and cultural rights of older persons, available at http://social.un.org/ageing-working-group/documents.shtml
  7. Article 14, para. 2 (h), Convention on the Elimination of All Forms of Discrimination Against Women; available at http://www.un.org/womenwatch/daw/cedaw/
  8. Rights to water and sanitation available at http://www.righttowater.info/progress-so-far/international-timeline/
  9. Committee on the Rights of the Child, General Comment no 7(2006) , para 27
  10. Convention on the Rights of Persons with Disabilities available at http://www.un.org/disabilities/convention/conventionfull.shtml
  11. 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, ¶ 66, U.N. Doc. A/HRC/6/3 (Aug. 16 2007) available at http://www2.ohchr.org/english/issues/water/
  12. Human Rights Council Resolution 15/9, Human Rights and Access to Safe Drinking Water and Sanitation, 15th Sess., Oct. 6, 2010, A/HRC/RES/15/9 (Sept. 30, 2010), available at http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/15/9.
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Reference

  1. See United Nations Children’s Fund and World Health Organization, Progress on Drinking Water and Sanitation: Special Focus on Sanitation (2008). Improved drinking water sources include those that are protected from outside contamination, particularly faecal matter. However, “improved” does not necessarily mean that the water is actually safe. Improved sanitation facilities are facilities that ensure hygienic separation of excreta from human contact.
  2. The Right to water and Sanitation, Information portal on the Human Rights to water and Sanitation, available at http://www.righttowater.info/progress-so-far/general-comments-2/
  3. The Right to Water, Fact Sheet No.3 5 available at http://www.ohchr.org/Documents/Publications/FactSheet35en.pdf
  4. International Covenant on Economic, Social and Cultural Rights available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/cescr.aspx
  5. Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (Twenty-ninth session, 2003 available at http://www1.umn.edu/humanrts/gencomm/escgencom15.htm