WUNRN
OFFICE OF THE
HIGH COMMISSIONER FOR HUMAN RIGHTS
CONSULTATION ON HUMAN RIGHTS AND ACCESS TO WATER AND SANITATION
United
Nations Office
GUIDE
TO DISCUSSION FOR PARTICIPANTS
INTRODUCTION
The Office of the High Commissioner for Human Rights (OHCHR) offers this Guide to Discussion to participants to the consultation on Human Rights and Access to Water and Sanitation, which will take place on 11 May 2006. The guide builds on the themes set out in the consultation's agenda, as a means to encourage more focused discussions.
Each of the themes in the consultation's agenda relates to the issues being considered by OHCHR in the study on "the scope and content of human rights obligations related to access to safe-drinking water and sanitation". OHCHR will submit this report to the sixth session of the Human Rights Council in September 2007 in a response to a request from the Council in its Decision 2/104 on “Human Rights and Access to Water”. That request was as follows:
“…the Office
of the High Commissioner for Human Rights, taking into account the views of
States and other stakeholders, to conduct, within existing resources, a
detailed study 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, which includes relevant
conclusions and recommendations thereon, to be submitted prior to the sixth
session of the Council.”
The discussions at the consultation will assist OHCHR in fulfilling the mandate given by the Human Rights Council. The purpose of this guide is only to assist participants in the discussion. It does not seek to be exhaustive in its treatment of issues, nor does it seek to restrict discussion to the issues it raises. Participants should feel free to highlight other issues they believe deserve recognition or emphasis - indeed this is encouraged! Finally, it is important to underline that the guide does not necessarily reflect the contents of the report that OHCHR will submit to the Human Rights Council.
MANDATE GIVEN BY THE HUMAN RIGHTS COUNCIL
The Council requested OHCHR to review the scope and content of human
rights obligations related to equitable access to safe-drinking water and
sanitation under international human rights instruments, including
international and regional conventions. While not legally binding, soft law
instruments can also provide useful guidance to interpret States’ obligations
under human rights treaties. They may contain elements that already impose or
may come to impose obligations on States under customary international law and
entail a strong normative force as they highlight social expectations and
commitments expressed by States. Other areas of international law and policy,
such as environmental or humanitarian law will be referred to when they help to
clarify the scope and content of States’ obligations.
As the study’s focus is on drinking water and sanitation, it will not
address the question of access to water for other uses, such as economic
production, irrigation for farming or industrial use. Similarly, the study is
not reviewing human rights obligations related to access to water as a natural
resource, notably in relation to indigenous territories and small-scale
farming.
SCOPE AND CONTENT OF
HUMAN RIGHTS OBLIGATIONS
A. Human rights
instruments entailing explicit obligations to provide access to safe-drinking
water and sanitation
Human rights obligations related to access to safe-drinking water and
sanitation are entailed in a number of human rights treaties.[i][1] Explicit references to access to water and/or sanitation are included
in the Convention on the Rights of the Child (CRC), the Convention on
the Elimination of Discrimination against Women (CEDAW), the recently adopted
Convention on the Rights of Persons with Disabilities and ILO Convention No. 161 on Occupational
Health Services.[ii][2] At the regional level, the African Charter on the Rights and Welfare of
the Child and the Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in
A number of principles or guidelines adopted by the United Nations or
the International Labour Organisation also highlight the obligation to provide
drinking water and/or sanitation to particular groups of the population,
including prisoners, juvenile deprived of their liberty, internally displaced
persons, workers living in housing provided by their employers and old persons.[iv][4]
Annex I provides further details on these instruments and the
obligations they entail.
B. Human rights
instruments entailing implicit obligations to provide access to safe-drinking
water and sanitation
“Upholding the human right to
water is an end in itself and a means for giving substance to the wider rights
in the Universal Declaration of Human Rights and other legally binding
instruments—including the right to life, to education, to health and to
adequate housing.”[v][5]
The close connection between access to safe-drinking water and
sanitation and a range of other human rights is implicit under all core human
rights treaties, notably in relation to the right to have access to public or
social services, the right to life, the right to the highest attainable
standard of physical and mental health, the right to education, the right to
adequate housing and the right to food.
In the context of the International Covenant on Civil and Political Rights
(ICCPR), the UN Human Rights Committee (HRC) has also addressed, under its
reporting procedure, the pollution and poisoning of water resources and water
supply under article 1 (right to self-determination), article 6 (right to an
effective remedy), article 7 (non-discrimination), article 23 (right to private
life) and article 35 (members of minorities).[vi][6]Lack of access to water and sanitation has also been addressed by the HRC
in relation to prisoner’s conditions, under ICCPR’s articles 11.1 (prohibition
of torture and cruel, inhuman and degrading treatment) and 11.2 (conditions of
detention).[vii][7]
Annex II provides
further details on the connection between access to safe-drinking water and sanitation
and other human rights.
C. Humanitarian and
environmental treaties entailing specific obligations to provide access to
safe-drinking water and sanitation
A certain number of humanitarian and
environmental law treaties entail specific provisions related to access to
safe-drinking water and sanitation. The Geneva Conventions and their Additional
Protocols outline the fundamental importance of access to safe-drinking water
and sanitation for health and survival, even in extreme situations of international
and non-international armed conflicts.[viii][8] They specifically prohibit the attack, destruction or removal of
objects indispensable to the survival of the civilian population, including
drinking water installations and supplies.[ix][9] Humanitarian law also clearly requires occupying powers to ensure the
provision of clothing, bedding, means of shelter and other supplies essential
to the survival of the civilian population, in times of international and
non-international armed conflicts, to the fullest extent of the means available
and without distinction.[x][10]
The United Nations Convention on the Law of the Non-Navigational Uses of
International Watercourses mentions that in the event of a conflict between
uses of an international watercourse, specific regard should be give to the
requirements of vital human needs, defined as water to sustain human life,
including drinking water and water required for production of food in order to
prevent starvation.[xi][11] Under the Protocol on Water and Health to the 1992 Convention on the
Protection of Transboundary Water sources and International Lakes (hereafter
the Protocol on Water and Health), State Parties have the obligation to take
appropriate measures to provide access to drinking water and sanitation and to protect
water resources used as sources of drinking water from pollution. [xii][12]
D. The right to water
The right to water has been recognised in a number of declarations,
resolutions and international plans of action.[xiii][13] This being said, water as a human right was not explicitly included in
the final statements of a number of international meetings on water.[xiv][14]
Among the UN human rights treaty
bodies, it is the Committee on Economic, Social and Cultural Rights (the
Committee) which has given the most elaborate definition of the right to water.[xv][15] While General Comments adopted
by the UN Committee on Economic, Social and Cultural Rights are not legally
binding upon States, they provide authoritative statements of States’
obligations under the Covenant. The draft guidelines for the realisation of the
right to drinking water supply and sanitation adopted by the Sub-Commission for
the Promotion and Protection of Human Rights (hereafter the draft guidelines)
and submitted to the Human Rights Council in 2006 also recognise the right to
drinking water.[xvi][16] The draft guidelines are consistent with General Comment No. 15 and
provide concrete guidance on the implementation of the right to water.
While the ICESCR makes no reference to the right to water, the Committee
determined that water was an independent right implicit in the Covenant and
derived it from article 11 which provides for everyone’s right to an adequate
standard of living, including food, clothing and housing. In doing so, the
Committee stressed that water constitutes a fundamental element to secure an
adequate standard of living and that the word “including” indicated that the
catalogue of rights provided under article 11 was not intended to be
exhaustive.[xvii][17]
Beyond the recognition of the right water, General Comment No. 15
elaborates on its scope and content. The right to water is defined as the right
of everyone to sufficient, safe, acceptable, physically accessible and
affordable water for personal and domestic use. Accordingly, an adequate amount
of safe water is necessary to prevent death from dehydration, reduce the risk
of water-related diseases and provide for consumption, cooking, personal and
domestic hygiene requirements.[xviii][18]
Water for personal and domestic use must be safe, therefore free from
substances constituting a threat to a person’s health.[xix][19] It must be of an acceptable colour, odour and taste.[xx][20] Pollution or contamination of water resources affecting human health
are prohibited.[xxi][21] General Comment No. 15 also specifies that access to adequate
sanitation constitutes one of the principal mechanisms for protecting the
quality of drinking water and that States should progressively extend safe
sanitation services to rural and deprived urban areas.[xxii][22]
In terms of physical access, General Comment No. 15 underlines that
water and water facilities have to be in the immediate vicinity of each house,
educational institution and workplace.[xxiii][23] Physical security should not be threatened during access to water and
sanitation facilities and services.[xxiv][24] In particular, States should ensure that no population group is
excluded and that services are delivered in an equal and non-discriminatory
manner, consistent with human rights standards.[xxv][25] Special attention should be given to those who have traditionally faced
difficulties in exercising the right to water, ensuring that safe drinking
water is affordable to everyone and that a person’s capacity to pay must be
taken into account before access to water is reduced or curtailed due to
non-payment. [xxvi][26]
The corresponding obligations of governments to realise the right to
water can be divided into the obligations to respect, protect and fulfil. The
obligation to respect requires States to refrain from arbitrarily interfering
with a person’s access to water.[xxvii][27] The obligation to protect requires States to prevent third parties from
interfering in any way with the enjoyment of the right to water, unless such
interference is permitted by law and includes appropriate procedural
protection.[xxviii][28] Third parties include individuals, groups, corporations and other
entities as well as agents acting under their authority.[xxix][29] While General Comment No. 15 does not dictate a particular form of
service delivery or pricing policy, States must ensure that private water
providers do not compromise access to affordable, physical accessible, safe and
acceptable water.[xxx][30] The obligation to fulfil requires that governments adopt the necessary
measures directed towards the full realization of the right to water to the
maximum available resources.[xxxi][31] General Comment No. 15 recognises the importance of international
cooperation for the fulfilment of the right to water, as provided for under
article 2.1 of the ICESCR.
States also have an immediate obligation to guarantee that the right to
water is exercised without discrimination of any kind, as well as to take steps
and move as expeditiously and effectively as possible towards the full
realisation of this right. Such steps must be deliberate, concrete and
targeted.[xxxii][32]
When individuals or groups have been
denied their right to water, they should have access to effective judicial or
other appropriate remedies, including adequate reparation (restitution,
compensation, satisfaction or guarantees of non-repetition).[xxxiii][33] Individuals and groups should also have full and equal access to
information concerning water, water services and environment held by public
authorities and third parties.[xxxiv][34]
The 2006 Human Development Report (hereafter the Report) entails several references to human rights obligations related to access to safe-drinking water and sanitation. Among others, the Report underlines the importance of adopting a rights-based approach to the provision of safe-drinking water and sanitation and stresses that access to water for life is a basic human need and a fundamental human right.[xxxv][35] Accordingly, the human right to water corresponds to a secure, accessible and affordable supply of water.[xxxvi][36] The Report also underlines that governments are responsible for securing the progressive realization of the right to water through a legislative and regulatory framework that applies to all service providers, public and private.[xxxvii][37] At least 20 litres of water per person and per day constitutes a minimal goal for compliance with the right to water.[xxxviii][38] The Report also stresses that all governments should go beyond vague constitutional principles to enshrine the human right to water in enabling legislation, resources and capacity to maintain and extend the necessary water services and facilities.[xxxix][39]
E. The right to sanitation
Access to sanitation has also been referred to as a human right in a
number of political declarations, resolutions and international plans of action[xl][40] General Comment No. 15 presents access to sanitation as an essential
element of the right to water and asserts that States are required to ensure
that everyone has access to adequate sanitation which is fundamental for human
dignity and privacy, but also for protecting water quality.[xli][41]
The draft guidelines offer further guidance on the right to sanitation
by recognising a self-standing right to sanitation, defined as the right of
everyone to have access to adequate and safe sanitation that is conducive to
the protection of public health and the environment.[xlii][42] The draft guidelines are a
non-binding instrument intended to assist governments, policymakers, international
agencies and members of civil society to implement the right to drinking water. [xliii][43] As such, they do not intend to provide an exhaustive legal definition
of the right to sanitation.[xliv][44]
According to the draft guidelines, States have specific obligations to
ensure universal and non-discriminatory access to sanitation and sanitation
facilities that are physically accessible, affordable, of a sufficient and
culturally acceptable quality and in location where physical security can be
guaranteed.[xlv][45] In particular, States should ensure that no population group is
excluded and that services are delivered in an equal and non-discriminatory
manner consistent with human rights standards.[xlvi][46] States should give priority to those without basic access, the most
vulnerable groups and ensure that sanitation is affordable to everyone and that
no one should be deprived of the minimum access to basic sanitation services.[xlvii][47] The draft guidelines do not dictate a particular form of service
delivery or pricing policy, but focus on the actual impact that any given water
management scheme can have on the enjoyment of human rights. Similar procedural
protection as the ones outlined in General Comment No. 15 should be provided in
relation to the right to sanitation, including access remedies, access to
information and participation in decision-making.[xlviii][48]
DUTY-BEARERS
While States remain the primary duty-bearers of human rights obligations
related to equitable access to safe-drinking water and sanitation, General Comment
No. 15 and the draft guidelines underline that United Nations agencies and
other international organisations concerned with water, sanitation, trade and
humanitarian intervention should cooperate effectively with States to implement
the right to water and sanitation at the national level.[xlix][49] International financial institutions should also take into account the
right to water in their lending policies, credit agreements, structural
adjustments and other development policies.[l][50]
Where water services are operated and controlled by third parties,
States should prevent them from compromising equal, affordable and physical
access to sufficient, safe and acceptable water.[li][51] States must effectively regulate and control water providers and put in
place an effective regulatory system which includes independent monitoring,
genuine public participation and imposition of penalties for non-compliance.[lii][52] When water services and facilities are operated by local authorities,
States should ensure that these have at their disposal sufficient resources and
capacity to maintain and extend the necessary water services and facilities.[liii][53]
The Rome Statute of the
International Criminal Court (hereafter the Rome Statute) defines war crimes as
the intentional use of “starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including wilfully
impeding relief supplies as provided for under the Geneva Conventions”.[liv][54] The inclusion of water and sanitation as an object indispensable to the
survival of the civilian population under the two Additional Protocols to the
Geneva Conventions allows contemplating the deprivation of access to water for
survival and the definition as a war crime under the Rome Statute, bearing
specific implications in term of individual’s responsibility.
Humanitarian law also clearly
requires occupying powers to ensure the provision of clothing, bedding, means
of shelter and other supplies essential to the survival of the civilian
population, in times of international and non-international armed conflicts, to
the fullest extend of the means available and without distinction.[lv][55]
QUESTIONS FOR THE DISCUSSION
Ø Most core international human rights treaties entail explicit or
implicit obligations to provide access to safe-drinking water and/or
sanitation. Are these offering sufficient clarity on the scope and content of
human rights obligations related to access to safe-drinking water and
sanitation?
Ø What kind of access should be guaranteed under existing human rights
obligations and what does the obligation to provide access specifically entail?
Ø How much water and of what quality should individuals have a right to?
Ø Do existing human rights obligations imply a right to free water and
sanitation?
Ø How should human rights obligations related to access to safe-drinking
water and sanitation promoted, safeguarded and monitored? Is this monitoring effective?
Ø What do human rights obligations related to access to safe-drinking
water and sanitation say in relation to privatisation of water services?
Ø Do human rights obligations related to access to safe-drinking water
oblige a country to give water to a riparian State to meet the basic needs of
that State’s population (assuming that such water is available)?
Ø What kind of relevance do human rights obligations related to access to
safe-drinking water carry in relation to other water uses?
Ø Are there any gaps in relation to existing human rights obligations
related to access to safe-drinking water and sanitation?
Ø Is there a need for further clarification in relation to existing human
rights obligations related to access to safe-drinking water and sanitation?
Ø The adoption of General Comment No. 15 by the Committee on Economic,
Social and Cultural Rights has generated some debate as to the existence of a
self-standing right to water under the International Covenant on Economic,
Social and Cultural Rights. Is there such a right to water under international
human rights law? What can be said about the right to sanitation?