The Right to Water

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edit  ·  Toolkit Human Rights-Based Approach (HRBA) to Water Governance
UNDP Regional HRBA to Water Programme for Europe & CIS

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PHASE 2: Country Sector Assessments and Proposed Projects (Bosnia and Herzegovina | Tajikistan | Kosovo | Serbia) | Bibliography

Legal Framework: The Rights to Water and Sanitation in International Law | Regional Law | National Law
WaterWiki-resources:Rights to Water and Sanitation: A Handbook for Activists | UN Human Rights Council Resolution on Water and Sanitation | UN Recognises Access to Clean Water as a Basic Human Right | Human Rights-Based Approach | Applying a HRBA to Water:A Case Study | Water-related Legislation and Conventions | The Right to Water - WHO Publication | A UN Convention on the Right to Water - An Idea Whose Time Has Come | International Conference on the Right to Water and Sanitation in Theory and Practice | Q&A: The Right to Water | General Comment 15 (2002) | Q&A: Water Governance | Water and Health | Equitable Access to Water and Human Rights | European Union Water Framework Directive | Essay: What exactly is “The Right to Water”? | Protocol on Water and Health | Protocol on Water and Health/Q&A | Lessons Learned From Rights-Based Approaches in the Asia-Pacific Region | Human Rights-Based Approach Strategies adopted by UNICEF Laos | Utility Privatisation through the Lens of Human Rights | The Right to Water - From Concept to Implementation | The Human Right to Water:Translating Theory into Practice | Report of the Seminar on Human Rights and MDGs, May 2009
External resources: HRBA and Water Governance Fast Facts - UNDP | Applying a HRBA to Developing Cooperation and Programming (UNDP, 2006) | COHRE Manual on the Right to Water and Sanitation | Protocol on Water and Health - Full Document) | COHRE Monitoring Implementation of the Right to Water: A Framework for Developing Indicators | Sub-commission guidelines for the realisation of the right to drinking water and sanitation (2005) | UNFPA - A HRBA to Programming, Practical Implementation Manual and Training Materials (2010) | Operational Guidelines for Implementing a Rights-Based Approach in Water and Sanitation Programming (CoHRE,2008) | COHRE Monitoring Implementation of the Right to Water: A Framework for Developing Indicators | FAQs on a HRBA to Development Cooperation | The Human Rights-Based Approach to Development - The Right to Water | UN Independent Expert Report on the issue of human rights obligations related to water and sanitation 2009 | UN Independent Expert Report on MDGs and right to water and sanitation 2010
Websites: The Rights to Water and Sanitation Information Portal | UN Independent Expert on Right to Water and Sanitation Webpage

> Articles | Projects & Case studies | Publications & Web resources


In May 2006, Ministers from 116 developing countries (Non-Aligned Movement) officially acknowledged the right to water for all. In November 2006, the new Human Rights Council requested that the Office of the United Nations High Commissioner for Human Rights conduct a detailed study on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation. In response to the launch of the UN’s latest Human Development Report (Nov. 2006), the British Government officially recognized the human right to water. Since December 2006, the right to water is officially a part of French legislation.

Recognition of the human right to water is only the first step towards implementation. How can this right be translated into reality? This was one of the issues debated during the first meeting of the parties to the UNECE Protocol on Water and Health in January 2007. The right to water issue is, thus, more in the spotlight than ever before, but efforts must continue to make it a reality on the ground.

Contents

Introduction: Rationale, facts and thinking behind

What are water and Sanitation human rights?

Water as a Human Right?

From Law to Political Economy: The Right to Water and Sanitation (Malcolm Langford, International Conference on the Right to Water and Sanitation in Theory and Practice, Oslo 26 November 2008)

"Access to safe water is a fundamental human need and, therefore, a basic human right. Contaminated water jeopardizes both the physical and social health of all people. It is an affront to human dignity" Kofi Annan, former United Nations Secretary-General.
"Access to clean water should be enshrined in international law as a human right", Mikhail Gorbachev, former president of the Soviet Union (source: ft-com, 12 June 2007), calling on 40 governments to support his proposal for a new global convention "that would declare the right of access to good quality drinking water as a human right."

Access to a regular supply of safe water is a basic human right; nevertheless, of the world's total population of 6 billion people, at least 1.1 billion do not have available sources of clean drinking-water.

What exactly does the Right to Water mean?

The right to water is defined in the General Comment No. 15 of the International Covenant on Economic, social and Cultural Rights and entitles every human being, (regardless of their age, sex, race, ethnicity or gender) to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use.

Ensuring access to sufficient safe water as a human right means that:

  • fresh water is a legal entitlement, rather than (solely) an economic commodity, or a service provided on a charitable basis;
  • achieving basic and improved levels of access should be accelerated;
  • the "least served" are better targeted and therefore inequalities decreased;
  • vulnerable and marginalised groups are prioritised and empowered to take part in decision-making processes;
  • All people have the right to participate in decision-making processes that may affect their rights;
  • the means and mechanisms available in the United Nations human rights system will be used to monitor the progress of States Parties in realizing the right to water and to hold governments accountable.

International human rights standards indicate that available resources need to be utilised effectively in order to realise the right progressively within the shortest possible timeframe and that certain steps require immediate implementation, such as the obligation to take steps to realise the right and to avoid discrimination.

Vulnerable and marginalised groups may include women; children; inhabitants of rural and urban deprived areas; indigenous peoples; nomadic and traveller communities; refugees, asylum seekers, internally displaced persons and returnees; older persons, people with disabilities and people with serious or chronic illnesses; victims of natural disasters and persons living in disaster-prone areas; people living in water scarce-regions (arid and semi-arid areas and some small islands) and persons under custody.

Who is responsible for ensuring the right to water is a reality for all?

Governments Governments (at national, regional and local level) hold the primary responsibility for ensuring the realization of human rights. They must take the steps necessary to ensure that everyone can enjoy sufficient, safe, acceptable, accessible and affordable water, without discrimination. While some discretion is allowed in the choice and mix of the measures to be taken, e.g. law, policies, and programmes, they must be targeted and directed towards full implementation of the right. Governments play the key roles of water and sanitation service provider, policy maker, resources allocator and as regulator of service provision. However, in many countries there is no institutional separation between governments as regulator and service provider.

Governments have various duties in achieving the right to water for all:

  • Duty to respect: maintaining existing access

This duty requires a government to ensure that the activities of its institutions, agencies and representatives do not interfere with a person's access to water.

  • Duty to protect: regulating third parties

Prevent others from interfering with the right to water. This requires comprehensive regulatory measures, independent monitoring, public participation and imposition of penalties for non-compliance with standards.

  • Duty to fulfil: facilitate, promote and provide

This means taking steps that accord sufficient recognition of the right to water within the national political end legal systems, preferably by way of: - legislative implementation; - adopting a national water strategy and plan of action to realize this right; - ensuring that water is affordable for everyone; - facilitating improved and sustainable access to water, particularly in rural and deprived urban areas.

Local governments are often at the front line in providing water and sanitation services: they can be given the responsibility to ensure access to these services as well as the power to determine who receives the services, and under what conditions. General Comment 15 on the right to water states that national governments must ensure that local authorities "have at their disposal sufficient resources to maintain and extend the necessary water services and facilities". In addition, States Parties "must further ensure that such authorities do not deny access to services on a discriminatory basis".

Other key actors

Common to all individuals and all other stakeholders is the obligation to comply with governments' plans, policies and laws which concern the right to water.

Individuals and Communities: Ensure the realization of their rights to water by making financial or other contributions. This may include:

  • Identifying the needs and priorities of all members of the community, monitoring service provision, proposing appropriate water and sanitation policies to government bodies and participating in consideration of such policies.
  • Obtaining information about their rights under national and international law, disseminating it to their communities and advocating for implementation of their rights in partnership with other communities.
  • Contributing to the operational and financial sustainability of water and sanitation facilities and services through financial payment (with government assistance for the poorest to pay bills), or provision of labour where feasible (for example, in some rural areas and informal settlements). Households also have responsibility for constructing household toilets.
  • Avoiding contamination of water resources, using water and sanitation facilities responsibly and spreading knowledge within the community of good hygiene practices.
  • Assisting vulnerable and marginalised individuals and households within the community to secure access to water and sanitation.

Local private sector: Includes those involved in construction of sanitation facilities and service providers. Also includes those industries whose actions may adversely affect water resources, e.g. manufacture, mining, logging, framing, etc. Legislation contributing to the realization of the right to water should make them accountable to local communities and individuals; ensure they do not contaminate ground and surface water resources; involve local communities and residents in decisions affecting them.

Local nongovernmental organizations (NGOs): These can contribute to the realization of the right to water through: raising awareness on aspects of the right to water and on how this right can be claimed; building capacities; promoting human rights with the government; monitoring the implementation of policies on the right to water; supporting local service provision, maintenance and proper use.

International NGOs: In contributing to the respect, protection and fulfilment of the right to water, their actions should generally include: promotion of the development of international standards on the right to water; development of the capacity of local civil society partners to claim their right; promotion of the accountability of local government partners, and cooperating with these; ensuring that projects do not arbitrarily distort customary or traditional means of accessing water; engaging in human rights education on the right to water; documenting and highlighting violations of this right; advocating in international and regional fora on behalf of those who have their right to water threatened or violated; encouraging human rights-based approaches to resolving transboundary resource conflicts; and monitoring the policies and practices of international, multilateral, and bilateral institutions in respect to the right to water.

UN specialized agencies and programmes: These work to ensure that their own policies and programmes promote and protect human rights, including the right to water, so that they can effectively support governments to act in ways which are compatible with their human rights obligations.

International financial institutions: These play an important role in promoting the fulfilment of the right to water through their financing and influence on the domestic resources by national authorities. Their influence may also extend over activities of others (such as national and local governments and contractors) and contribute to respecting and protecting the right to water.

National and multinational private service providers: These include companies ranging from local providers of services to multinational corporations. Depending on the nature of the company it may: cause an increase in the number of people served; establish sustainable policies towards water conservation (for its own activities); use adapted financial schemes to contribute to increasing coverage; ensure equity in the reliability of services; give priority to supplies for the most marginalized communities; ensure public participation in decision-making processes; and provide clear and accurate information to all users.

The public and private research community: It contributes significantly towards the identification and development of new research areas, varying from new technologies to assisting in expanding service provision, through developing understanding of equity issues in water distribution/pricing/cost recovery, to implementing a rights-based approach in research itself.

Independent Public Monitoring Bodies: Such as an ombudsperson institution, human rights commission or judiciary who monitor the performance of public institutions. Each of these types of bodies has distinct roles. Human rights commissions and ombudsperson institutions can carry out detailed and long-term reviews of government policy and can respond to complaints quickly, flexibly and cheaply. The judiciary operates in a slower fashion, and can generally only examine a particular factual scenario rather than a long-term series of actions. However, the judiciary can require public institutions to revise their programmes and actions and can impose criminal and civil penalties on public officials and private persons.

Independent public monitoring can support implementation of the right by i) reviewing legislation, policies and programmes to ensure consistent with the right to water, ii) investigating complaints by users and ensuring adequate redress for genuine complaints, iii) Monitoring compliance with national legislation on water and sanitation by government bodies and private parties.

Miconceptions regarding the Right to Water and Sanitation

What is the added-value of achieving the right to water, whether by adopting a HRBA or other means?

  • Improved Accountability: Establishing water and sanitation as a legal entitlement, provides a basis for individuals/groups to hold governments and other actors to account, if they fail to fulfil their water service delivery obligations. It also provides a basis for actors within government to hold each other accountable to the objective of realising their right.
  • Vulnerable and marginalised groups prioritised: So those who are typically excluded, often because targeting these groups is often more challenging and resource-intensive, but where the needs are greatest, are targeted.
  • Increased participation in decision-making:Provides for genuine participation of communities in decision-mkaing on water and sanitation.
  • Individual and community empowerment: Strengthens individual and community struggles for access to basic services.

What are the limitations of the right to water?

  • The right alone will not solve the water and sanitation crisis: achieving the right to water needs to be implemented in conjunction with other development strategies.
  • Limited Justiciability: Not all judiciaries are willing to decide cases involving social rights. However, recourse to the courts is only one of several means of achieving the right.
  • Misunderstandings of the right: The right to water is commonly misinterpreted, and as such, it requires significant levels of training and education.

Acknowledgement of the Right to Water

On 28th July 2010 the UN General Assembly passed resolution 64/292 formally recognising access to water and sanitation as a human right. For more information see UN Recognises Access to Clean Water as a Basic Human Right

Legal basis

International human rights treaties, negotiated by State officials representing all cultures and civilisations, provide an authoritative definition of human rights and a tool to implement them.

The right to water and sanitation is implicit in the right to an adequate standard of living included in the International Covenant on Economic, Social and Cultural Rights, a treaty ratified by 157 States (as of October 2007). In 1994, at the International Cairo Conference on Population on Development, States stated that the right to an adequate standard of living included adequate water and sanitation. Entitlements to water and sanitation are also found in widely ratified treaties such as the Convention on the Rights of the Child (CRC)and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). A number of international political declarations by the Non-Aligned Movement, the Council of Europe and the UN General Assembly recognise the right to water.

Regional human rights treaties in Africa, the Americas and Europe explicitly or implicitly provide for the right to water and sanitation. National recognition of the right to water and sanitation is growing. At least twenty-four countries now recognise the right to water in their constitutions and laws (in four cases, these are in draft legislation). Six of these recognise the right to water and sanitation. Many countries recognise other human rights, such as the right to health, non-discrimination, life and to a healthy environment, which require provision of access to safe water and sanitation.

The Protocol on Water and Health

The protocol is the first legally binding agreement linking sustainable water management and reduction of water-related disease in the Europe & CIS region. By ensuring that the public is both informed and involved, by inviting participation in the pursuit of the Protocol’s objectives and by operating according to principles of transparency and partnership, the Protocol on Water and Health is at the forefront of a HRBA to sustainable development, and of efforts to achieve the right to water and sanitation for all.

Policies for Implementation

Water availability, allocation and sustainability

Ensuring availability of water in order to meet the right to water and sanitation requires greater prioritisation of essential domestic uses over other uses, significant improvements in water resource management, equitable allocation of water resources and assistance to vulnerable and marginalised communities.

Governments can act to ensure availability of water by:

  • Setting a standard for a minimum quantity of water sufficient for human dignity, life and health.
  • Prioritising the allocation of water resources for essential domestic uses over agricultural and industrial uses, and exempting water use for essential domestic and survival needs from licensing requirements.
  • Improving the sustainability of water resources, including by: regulating water abstraction, price incentives to reduce non-essential use, education of users on conservation of water, disseminating conservation techniques, re-use of water and restrictions on non-essential uses in times of scarcity.
  • Protecting water catchment areas by ensuring sustainable agricultural practices.
  • Ensuring sufficient and equal access to traditional sources of water, including by: protecting traditional sources of water against appropriation by any one group or individual, mediating conflict, ensuring that land ownership laws and practices do not interfere with access to water and respecting customary systems of water access, while ensuring that they do not impede equal access.
  • Assisting communities establish water capture and storage facilities, especially in water-scarce areas.
  • Ensuring that water rationing is carried out in an equitable manner, is widely publicised in advance and that essential needs for all are met.
  • Improving the efficiency of piped water delivery, including by improving information on existing systems, improving management processes, improving billing processes, fixing leakages (where feasible) and formalising illegal connections.

Water quality and hygiene

Governments can act to ensure good water quality and hygiene practices by:

  • Formulating water quality standards designed to address the needs of all groups, as identified through participatory processes.
  • Formulating short- and medium-term targets to eliminate the pollutants with the most significant health effects, including on vulnerable groups.
  • Establishing regulations and mechanisms to control pollution of water resources, including provision of information, incentives for responsible practices and penalties for pollution.
  • Establishing regulations on water quality for service providers.
  • Putting in place mechanisms to monitor quality of water supply and ensure safety.
  • Raising hygiene awareness, among households and small-scale providers, including promoting the safe handling of water for domestic uses and promoting sanitation.
  • Providing information on, and facilitating monitoring of water quality, including considering the impact of pollution and how to alleviate this.

Physical accessibility

Governments can act to ensure physical accessibility of water and sanitation services by:

  • Establishing national or regional targets to reduce distance to water points and toilets, including short and medium term targets and establishing standards on adequacy of water and sanitation facilities.
  • Establishing specific access targets per locality in line with national or regional targets and ensuring their implementation through monitoring, regulation and support to utilities and/or provision of funding and training for the establishment of small-scale facilities.
  • Facilitating small-scale provision by communities and entrepreneurs where adequate public services are not provided.
  • Addressing security concerns when selecting locations for water supply and sanitation facilities, illuminating such facilities at night and prioritising assistance for construction of household toilets in neighbourhoods with high levels of crime.
  • Ensuring that that no individual or group currently accessing water and sanitation is subsequently deprived of access, for example, through forced evictions, demands for bribes or denial of access for partisan or discriminatory reasons.
  • Providing services to informal settlements and ensuring security of tenure.
  • Ensuring that users are given relevant information and can participate in decision making on the design and maintenance of public water and sanitation services and on land use relevant to these services.
  • Dedicating an adequate proportion of public resources and capacity to the maintenance and improvement water and sanitation facilities.
  • Requiring landlords to ensure that tenants have access to adequate water and sanitation services and requiring employers and operators of health and educational institutions to ensure accessible water and sanitation facilities at their institutions.
  • Ensuring that response systems are in place for the provision of basic water and sanitation services in emergencies.

Affordability and financing of water and sanitation

Affordability of water and sanitation services is crucial to accessibility, but is all too often ignored, both in project implementation and in data collection on access to water and sanitation. Unless water and sanitation services are affordable to all, access to an adequate quantity of safe water and to safe toilets is threatened. In addition, human rights standards stipulate that the direct and indirect costs of securing water and sanitation should not reduce any person’s capacity to acquire other essential goods and services, including food, housing, health services and education. This implies that ‘ability to pay’ will need to be considered in addition to ‘willingness to pay’ in designing water and sanitation tariffs.

Governments can act to ensure affordability of water and sanitation services by:

  • Setting standards for water and sanitation pricing according to ability to pay in order to ensure that payment for water, including indirect costs, does not reduce a person’s ability to buy other essential goods and services.
  • Designing, monitoring and controlling charges by water and sanitation utilities and small-scale service providers to households, schools, health institutions and workplaces.
  • Prioritising available public investment towards the construction and maintenance of water and sanitation infrastructure and facilities and subsiding these costs for low-income users.
  • Reducing costs of securing access by ensuring that a broad range of levels of services and facilities are available and ensuring the potential for progressive upgrading.
  • Establishing flexible payment terms, such as phased connection charges, removal of requirements for deposits, grace periods and contributions in kind, based on participation of users, in particular low-income users and vulnerable and marginalised groups.
  • Providing subsidies for water and sanitation services that target the lowest income, vulnerable and marginalised persons.
  • Increasing public financing for subsidy programmes for the poor through measures such as: cross-subsidies between higher and lower income groups, reducing high-cost interventions, eliminating subsidies that primarily benefit upper and middle income groups, ring-fencing of water and sanitation revenues, improving efficiency, increasing national budgetary allocations and better targeted and increased international assistance.
  • Reviewing laws, regulations and taxes that may raise costs beyond affordable levels, for example taxation of equipment required for service provision, in particular small-scale provision.
  • Integrating ability to pay considerations into disconnection policies and ensuring that where disconnections are carried out, they do not lead to denial of the minimum essential amount of water.

References

See also

HRBA

COHRE Manual on the Right to Water and Sanitation

Lessons Learned From Rights-Based Approaches in the Asia-Pacific Region

The Human Rights-Based Approach to Development - The Right to Water

Equitable Access to Water and Human Rights

The Right to Water - From Concept to Implementation (WWC publication)

The Right to Water - WHO Publication

External resources

Attachments

 Right-To-Water Leaflet WaterAcademy EC 4WWF Mexico .pdf

 IUCN EPLP51EN Water as a Human Right.pdf

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