The Rights to Water and Sanitation in National Law

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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

The International Covenant on Economic, Social and Cultural Rights (1966) requires State Parties to formally recognise these rights within their national legislation, by creating laws and regulations in order to fulfil these essential human rights. Recognising the right to water and sanitation domestically is intrinsic to fulfilling the right, it entitles individuals to demand it politically, administratively and judicially. As a result of constitutional recognition, development and interpretation of legislation and policies must be in accordance to the right. Since the publication of General Comment 15, the number of States recognising the human right to water has doubled.

Contents

National Legislation recognising the Right to Water and Sanitation

Some governments have adopted a participatory process to review its legislation and policies, and improve its legal and policy framework. In other countries grassroots movements have managed to use existing law to legally claim their rights.

The following countries have enshrined the right to water within their national constitutions, or have framed the right explicitly or implicitly within national legislation:

Africa

  • Algeria - Article 3, Water Law No. 05-12, 2005, recognises the right to access to water and sanitation to satisfy the basic needs of the population, respecting equity.
  • Morocco - Water Law, Law No. 10-95, 1995, states that the development of water resources must allow for the availability of water in sufficient quantity and quality for the benefit of all users. Article 86 states that in the event of water shortage due to overexploitation or to exceptional events such as droughts, the administration shall… enact temporary local regulations aiming to ensure as a matter of priority the provision of water to the population and to animals.
  • Eritrea - Article 8 of the Constitution of Eritrea, 1997, gives responsibility to the State to manage water and for ensuring that the management is balanced and sustainable.
  • Ethiopia - The Constitution of the Federal Republic of Ethiopia, 1994, provides in Article 90 that policies shall, to the extent the country’s resources permit, aim to provide all Ethiopians access to heath and education, clean water, housing, food and social security. Article 92, states that the government shall endeavour to ensure all Ethiopians live in a clean and healthy environment and that people have the right to full consultation and to the expression of their views in the planning and implementations of environmental policies and projects that affect them directly.
  • Egypt - The Draft Water Law, recently sent to the Cabinet, contains language recognizing drinking water and sanitation as human rights. Read the full summary of the UN Independent Expert's mission to Egypt in June 2009.
  • Kenya - In 2002 water sector reforms in Kenya culminated in the passing of the Water Act. Although the right to water and sanitation is not explicitly provided in the Water Act, the right to water and sanitation was formally recognised in a number of key policies developed as part of the water sector reforms. In 2005 a new draft Constitution was proposed to include both the right to water and the right to sanitation. Article 65, ‘Every person has the right to water in adequate quantities and of reasonable quality’ and Article 66, ‘Every person has the right to a reasonable standard of sanitation’.
  • Tanzania - Article 10 of the Water Utilization Act, 1974, as revised 1993, pronounces the right to water for domestic purposes.
  • Uganda - The Constitution of Uganda, 1995, Article XIV (Preamble) – General Social and Economic Objectives: The State shall endeavor to fulfill the fundamental rights of all Ugandans to social justice and economic development and shall, in particular, ensure that… (ii) all Ugandans enjoy rights and opportunities and access to education, health services, clean and safe water, decent shelter, adequate clothing, food, security and pension and retirements benefits.
  • Mozambique - Article 26, Water Act, states priority of water allocation for human consumption and sanitation.
  • South Africa - South Africa’s constitution, adopted in 1996, has been praised as the model social rights constitution. Section 27.1(b) confirms that everyone has the right to access to sufficient food and water. South Africa’s Water Services Act, Act 108 of 1997, contains Section 3 on Right of access to basic water supply and basic sanitation. It states that, 1) Everyone has a right of access to basic water supply and basic sanitation. 2) Every water services institution must take reasonable measures to realise these rights. (3) Every water services authority must, in its water services development plan, provide for measures to realise these rights. The National Water Act, Act 36, 1998, discusses permissible water use. Section 1 states that a person may (a) take water for reasonable domestic use in that person’s household, directly from any water resource to which that person has lawful access;(b) take water for use on land owned or occupied by that person, for (i) reasonable domestic use; (ii) small gardening not for commercial purposes; and (iii) the watering of animals (excluding feedlots) which graze on that land within the grazing capacity of that land, from any water resource which is situated on or forms a boundary of that land, if the use is not excessive in relation to the capacity of the water resource and the needs of other users; (c) store and use run‑off water from a roof; (d) in emergency situations, take water from any water resource for human consumption or firefighting.
  • Zambia - The Constitution of Zambia, 1996, in Article 112 stipulates that the State shall endeavour to provide clean and safe water.
  • Angola - Article 10 of the Water Act, 2002, obligates the government to provide the population in a continuous and sufficient manner with potable water in order to satisfy their needs for domestic uses and for hygeine.
  • Madagascar - Water Code, Law No. 98- 029, Article 37, confirms that the public service is responsible for the universal provision of potable water, which is based on the obligation to provide a minimum quantity and a minimum service of potable water.
  • Congo - Article 48 of the Constitution of the Democratic Republic of the Congo, 2006, asserts that the State shall guarantee the right to a decent dwelling, access to potable water.
  • Gambia - The Constitution of Gambia, 1996, does not explicitly refer to water and sanitation as human rights but Article 216(4) obligates the State to endeavour to facilitate equal access to clean and safe water, adequate heath and medical services, habitable shelter, sufficient food and security to all persons.
  • Mauritania - Article 57 of the Mauritania Constitution, 1991, confirms that water is a fundamental right, ensuring government responsibility. Water Code, Law No. 2005- 030, Article 2, recognises water as a right, subject to the laws and rules in force. The State policy aims to guarantee access to potable water to the populations. Article 37 states that urban areas must have a collective sanitation system allowing for the rapid and complete evacuation of domestic and industrial wastewaters as well as their treatment, subject to the public health and environmental protection norms and conditions

Asia & Pacific

  • India - The Supreme Court has ruled that both water and sanitation are part of the constitutional right to life (Article 21). The Court has stated that ‘the right to access to clean drinking water is fundamental to life and there is a duty on the state under Article 21 to provide clean drinking water to its citizens’ A.P. Pollution Control Board II v Prof. M.V. Naidu and Others (Civil Appeal Nos. 368-373 of 1999).
  • Indonesia - Article 5 of the Water Resources Law, confirms that the State must guarantee individual access and availability of water for everyone residing within the territory of the Republic of Indonesia.
  • Bangladesh - The Constitution of Bangladesh provides provisions to protect people’s rights to basic services and needs. The National Water Policy, 1999, gives the State the right to allocate water to ensure equitable distribution, efficient development and use, and to address poverty, giving priority to domestic uses. The National Policy for Safe Water and Sanitation, 1998, aims to facilitate access of all citizens to basic level of services in water supply and sanitation. Read the full summary of the UN Independent Expert's mission to Bangladesh in December 2009.
  • Sri Lanka - The Rural Water Supply and Sanitation Policy, 2001, states that the provision of water supply sanitation, and hygiene education should be considered integral components in all sector projects. It also gives the government the primary role to ensure all citizens have access to potable water and sanitation facilities. In 2007, The National Policy on Drinking Water, confirms access to water as an inalienable right of its people. Of the same year The National Policy on Sanitation explicitly recognises sanitation as a human right.
  • Philippines - Article 8 of the Constitution of Philippines states that water belongs to the State, and their disposition, exploitation, development, or utilisation shall be limited to the citizens of the Philippines.

Middle East

  • Iran - The 1979 Constitution of the Islamic Republic of Iran, Article 43, states its economic is based upon the provision of basic necessities for all citizens: housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family.
  • Kazakhstan - The Water Code, Law No. 482-2, March 2003, states in Article 9, that first priority is the provision of the population with drinking water in the necessary quantity and the guaranteed quality, fair equal access of the population to water. Article 90, stipulates that the surface and underground water resources are allocated drinking and household- economic water supply.

Latin America and Caribbean

  • Nicaragua - The constitution of the Republic of Nicaragua, adopted in 1987 and last amended in 2005, confirms in Article 105 that it is the obligation of the State to promote, facilitate and regulate the provision of the basic public services of energy, communication, water… and the population has an inalienable right to have access to these services.
  • Panama - Article 106 of the National Constitution of Panama confirms that the State has the primary responsibility to develop the accessibility of drinking water and sanitation for the prevention of communicable diseases.
  • Uruguay - The Constitution of the Republic of Uruguay, 1967, last amended in 2004, confirms in Article 47 that access to drinking water and access to sanitation constitute fundamental human rights. 1)c) It states that National Water and Sanitation policies will give priority to the provision of drinking water for the population, d) social grounds must prevail over economic grounds. This amendment to the Constitution was made due to a public referendum, where over 64% of the population voted in favour of the inclusion of water as a human right.
  • Costa Rica - Costa Rica currently recognises the right in draft legislation. Read the report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation mission to Costa Rica.
  • Honduras - In 2005 a draft legislation recognising the individual right to sanitation was developed in Honduras.
  • Paraguay - In a new National Water Law, 2007, the Paraguayan government declares all water in its territory the property of the State, and access to water a fundamental human right.
  • Peru - In 2009 Peru updated their Water Law, defining water as a human right. Under the law water cannot be bought and used as private property.
  • Venezuela - The National Constitution of Venezuela, 1971, states in Article 127, that it is the fundamental obligation of the State to ensure that the population develops in a pollution free environment, where water is given special protection by law.
  • Bolivia - Article 107 of the Constitution of Bolivia, 1967, last amended 2005, confirms that the State controls, regulates and supervises the exploitation of national goods and the provision of public services. The Bolivian government is in the process of drafting a new Constitution which will include the right to water and sanitation.
  • Columbia - The constitution of Columbia, 1991, does not explicitly confirm the individual right to water and sanitation but Article 49 verifies that the State is responsible for public health and environmental sanitation, and that all individuals are guaranteed access to services that promote, protect, and rehabilitate public health. Article 334, provides that the State shall intervene to ensure that all individuals, and particularly those with low income, have effective access to basic goods and services. Article 366 confirms that general welfare and the improvement of the quality of life of the population are social purposes of the State. The unmet needs regarding environmental sanitation and potable water are fundamental objectives of the State. And finally Article 368 stipulates that subsidiaries will be granted to so that people with low incomes can afford to pay the rents for the public household services covering their basic needs
  • Ecuador - The Constitution of the Republic of Ecuador, 1998, Article 23, recognises the right to a quality of life that ensures health, feeding and nutrition, potable water, a clean environment, social education, work, recreation, housing, clothing and other necessary services. Article 42, confirms that the State shall guarantee the right to health, its promotion and protection through… the provision of potable water and basic sanitation… in accordance with the principles of equity, universality, solidarity, quality and efficiency. Article 249 gives responsibility of the State to provide public drinking water and irrigation services, the State shall guarantee that public services conform to the principles of efficiency, responsibility, universality, accessibility, continuity and quality, and shall safeguard that their rates or tariffs are equitable.
  • Dominican Republic - The Constitution of the Dominican Republic, 2002, Article 8 obliges the State to watch over the improvement of alimentation, sanitation services, and hygienic conditions.
  • Guatemala - Although the Constitution of Guatemala, 1985, does not explicitly confirm the universal right to water and sanitation, in Article 96 it obligates the State to control the quality of alimentary, pharmaceutical, chemical and all other products that can affect the health and well being of its inhabitants. It affirms that the State shall watch over the establishment and planning of primary health care and the improvement of the conditions of basic environmental sanitation of the less protected communities
  • Chile - In January 2010 the President proposed a constitutional reform of water rights, to confirm the resource as a public good. In 1993, Indigenous Law, 19.253, was passed, Article 64 stipulates that new water rights in respect of lakes pools, watersheds, rivers and other aquifers that affect the water resources that are property of the various indigenous communities shall not be issued without previously guaranteeing the normal provision of water to the affected communities.
  • Brazil - Brazil’s Law on Basic Sanitation, 11445, January 2007, sets technical standards for the regulation of sanitation services. Article 43 states that service delivery shall comply with minimum quality standards, including regularity and continuity.

Europe and CIS

  • United Kingdom - In response to the launch of the UN’s Human Development Report, ‘Beyond Scarcity: Power, Poverty and the Global Water Crises’ in 2006, the UK Government formally announced that it recognises the Human Right to Water.
  • Netherlands - In 2008 the Netherlands formally recognised the right to the Human Rights Council.
  • Belgium - The Belgium Constitution, 1994, at Article 23 states that all citizens should be able to live in a dignified manner and have therefore the right to the protection of a safe environment and health.
  • France - France has published a new law on water and the aquatic environment whose first article stipulates that each individual, for his food and his hygiene, has the right to reach drinking water under conditions economically acceptable by all.
  • Slovenia - The human right to water is protected in the national constitution. Read the summary statement of the UN Independent Expert's mission to Slovenia in May 2010

References


See also

HRBA

A Human Rights-Based Approach (HRBA) to Improve Water Governance in Europe & CIS

The Rights to Water and Sanitation in International Law

The Rights to Water and Sanitation in Regional Law

External Resources

Attachments

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