Human right to water and sanitation
The human right to water and sanitation (HRWS) is a principle stating that clean drinking water and sanitation are a universal human right because of their high importance in sustaining every person's life.[1] It was recognized as a human right by the United Nations General Assembly on 28 July 2010.[2] The HRWS has been recognized in international law through human rights treaties, declarations and other standards. Some commentators have based an argument for the existence of a universal human right to water on grounds independent of the 2010 General Assembly resolution, such as Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); among those commentators, those who accept the existence of international ius cogens and consider it to include the Covenant's provisions hold that such a right is a universally binding principle of 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 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.[3] 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."[4]
The first resolutions about the HRWS were passed by the UN General Assembly and the UN Human Rights Council in 2010.[5] They stated 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 reasserted the human right to receive safe, affordable, and clean accessible water and sanitation services.[6] During that General Assembly, it stated that for the comprehension of enjoyment in life and all human rights, safe and clean drinking water as well as sanitation is acknowledged as a human right.[7] General Assembly Resolution 64/292's assertion of a free human right of access to safe and clean drinking water and sanitation raises issues regarding governmental rights to control and responsibilities for securing that water and sanitation. The United Nations Development Programme has stated that broad recognition of the significance of accessing dependable and clean water and sanitation services will promote wide expansion of the achievement of a healthy and fulfilling life.[8][9][10] A revised UN resolution in 2015 highlighted that the two rights were separate but equal.[4]
The HRWS obliges governments to ensure that people can enjoy quality, available, acceptable, accessible, and affordable water and sanitation.[11] Affordability of water considers the extent to which the cost of water becomes inhibitive such that it requires one to sacrifice access to other essential goods and services.[12] Generally, a rule of thumb for the affordability of water is that it should not surpass 3–5% of households' income.[13] Accessibility of water considers the time taken, convenience in reaching the source and risks involved while getting to the source of water.[12] Water must be accessible to every citizen, meaning that water should not be further than 1,000 meters or 3,280 feet and must be within 30 minutes.[14] Availability of water considers whether the supply of water is available in adequate amounts, reliable and sustainable.[12] Quality of water considers whether water is safe for consumption, including for drinking or other activities.[12] For acceptability of water, it must not have any odor and should not consist of any color.[1]
The ICESCR requires signatory countries to progressively achieve and respect all human rights, including those of water and sanitation.[11] They should work quickly and efficiently to increase access and improve service.[11]
International context[edit]
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.[15] 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."[16] Although 9 percent of the global population lacks access to water, there are "regions particularly delayed, such as Sub-Saharan Africa".[16] 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."[17] In 2022, over 2 billion people, 25% of the world's population, lacked consistent access to clean drinking water.[18][19] 4.2 billion lacked access to safe sanitation services. [20][21][22]
The International Covenant on Economic, 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 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.[25][26]
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[27] and Dr. Peter Gleick in 1999.[28] 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.[27] 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."[28]
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.[3] It was found that, the right to water was an 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.[3] 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."[29] 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;[30] Netherlands[31]) 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.[32] 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.[33] 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.[11]
Following intense negotiations, 122 countries formally acknowledged "the Human Right to Water and Sanitation" in General Assembly Resolution 64/292 on 28 July 2010.[34] 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)."[17] The General Assembly declared that clean drinking water is "essential to the full enjoyment of life and all other human rights".[17] 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.[35]
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);[36] Financing for the Realization of the Rights to Water and Sanitation (2011);[37] Wastewater management in the realization of the rights to water and sanitation (2013);[38] and Sustainability and non-retrogression in the realization of the rights to water and sanitation (2013).[39] 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.[4] 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.[40]
International jurisprudence[edit]
Inter-American Court of Human Rights[edit]
The right to water has been considered in the Inter-American Court of Human Rights case of the Sawhoyamaxa Indigenous Community v. Paraguay.[41] 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.[41] This fell within the scope of the American Convention on Human Rights; encroaching the right to life.[42] 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.[43]
International Centre for Settlement of Investment Disputes[edit]
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.[44] World Bank data shows that water privatization spiked starting in the 1990s and significant growth in privatization continued into the 2000s.[45]