The Human Right to water Rose Alabaster Programme Director, Water Governance r.osindealabaster@waterlex.org

Basis of the human right to water Water is essential to life. No human being, regardless of their condition, may be deprived of water. This is the basis of the human right to water. Water, unlike other natural resources, is characterized by its “irreplaceability“. “coal can be replaced by oil, oil by nuclear energy, one can substitute rice to wheat... But water for life cannot be replaced.“ - Riccardo Petrella

Since 1948

Right to water = secondary law INTERPRETATION OF ARTICLE 25 OF THE UDHR AND OF ARTICLES 11 AND 12 OF THE ICESCR UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) : “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care…”(Art.25) International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966): “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…“(Art.11.1)

The right to water overlaps with other rights

RIGHT TO WATER AND RIGHT TO FOOD “It is reasonable to believe that the right to food includes not only the right to solid food, but also the right to liquid nourishment and to drinking water.“ (E/CN.4/2001/53, §32, Feb. 2001, see also E/CN.4/2002/59). Jean Ziegler, SPECIAL RAPPORTEUR ON THE RIGHT TO FOOD

ECONOMIC GOOD OR SOCIAL-CUTURLA GOOD ?  “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.“  “Water should be treated as a social and cultural good, and not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations.“ (REF: GENERAL COMMENT NO.15 OF THE HRC)

§ 20-29 STATE OBLIGATIONS “The right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfil.“ HRWS: “The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.“

2008 CREATION of a mandate of independent expert and then of special rapporteur on the right to water and sanitation

General Assembly of the UN (resolution A/RES/64/292), July 2010 Recognition of the right by the general assembly of the un and the human rights council General Assembly of the UN (resolution A/RES/64/292), July 2010 “Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights; Calls upon States and international organizations to provide financial resources, capacity-building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.“  Human Rights Council (resolution A/HRC/15/L.14), September 2010

The human rights council (resolution A/HRC/15/L.14) 3. Affirms that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity; 6. Reaffirms that States have the primary responsibility to ensure the full realization of all human rights, and that the delegation of the delivery of safe drinking water and/or sanitation services to a third party does not exempt the State from its human rights obligations; 7. Recognizes that States, in accordance with their laws, regulations and public policies, may opt to involve non-State actors in the provision of safe drinking water and sanitation services and, regardless of the form of provision, should ensure transparency, non-discrimination and accountability;

The human right to water and its recognition in national legal instruments In Africa, the Addis-Ababa Charter (1990) imposes the obligation on States to take necessary measures to “ensure the provision of food and safe drinking water in sufficient quantity“. In America, the San Salvador Protocol (1988) states that everyone should have “access to basic public services“, which obviously includes water services. In Europe, the London protocol on water and health (1999) puts forward the principle of equitable access to water for all inhabitants. It states that access to water “should be provided for all residents, especially the disadvantaged or socially excluded.“ 

Emergence of the right to water National framework Status of recognition of the rights to water and sanitation in national legislation:

Emergence of the right to water National framework In Latin America, Colombia’s constitution (1991) already states that: “The basic purpose of the State is to ensure the needs in health, education, sanitation and drinking water.“ 

Emergence of the right to water National framework It was followed by Uruguay in 2004, article 47 of its constitution explicitly recognizing that “access to drinking water and sanitation is a basic human right.“ More recently, Bolivia’s constitution, approved by referendum on 25 January 2009, states in article 16 that: “Every person has the right to water and food.“

Emergence of the right to water National framework In Africa, the constitution of the Federal Democratic Republic of Ethiopia (1994) was the first to recognize the right to water for all, which, however, is explicitely related to the availability of resources. Article 90 states: “Social Objectives: 1) To the extent the country's resources permit, policies shall aim to provide all Ethiopians access to public health and education, clean water, housing, food and social security.“

Emergence of the right to water National framework South Africa (1996) article 27 : “1) Everyone has the right to have access to …(b) sufficient food and water“. Zambia article 112  : “The following directives shall be the principles of State policy for the purposes of this part : (d) The State shall endeavor to provide clean and safe water, adequate medical and health facilities and decent shelter for all persons, and take measures to constantly improve such facilities and amenities“.

Emergence of the right to water National framework North Africa : Morocco article 31 of the constitution (1 July 2011) : “The State, public institutions and local authorities are working to mobilize all means available to facilitate equal access of the citizens to the conditions allowing them to enjoy the rights:. - access to water and to a healthy environment; etc.“

Emergence of the right to water National framework In another context, some states in the USA recognize the right to a “ pure or clean water “ in their constitutions. For example, article 27 of the constitution of Pennsylvania declares “the people have a right to clean air, pure water, (...) Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people“.

Emergence of the right to water National framework Constitution of Massachusetts: “The people shall have the right to clean air and water (...) and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.“

Emergence of the right to water National framework It is not enough to simply announce the principle of respect of the right to water and sanitation in the legislation. The practical arrangements necessary for the implementation of this right should also be described. The purpose of laws is to define precise and applicable standards. For example, the French Constitutional Council has often sanctioned draft laws for lack of normativity, negative incompetence, silence or ambiguity. In practice, this means that domestic laws should include concrete measures to ensure access to drinking water and sanitation for all.

Emergence of the right to water National framework These concrete measures result from the duty of the State to respect, protect and fulfil (progressively) the human right to water and sanitation, as we have seen previously. First of all, the goal is to develop and implement policies and national action plans at the government level to ensure access to water and sanitation for all. This may take the form of sector-specific national strategies or strategies within the framework of State development plans.

Emergence of the right to water National framework Then, necessary funds will have to be allocated by the budget and finance laws of public institutions responsible for the sector, in order to make the necessary investments to improve people's access to water and sanitation services.

Emergence of the right to water National framework For example, in 2008, under the auspices of the Council of African Ministers of Water and Sanitation, African states pledged to allocate a public sector budget for sanitation and hygiene programs representing at least 0.5% of the GDP of each state (Thekwini Declaration).

Emergence of the right to water National framework The legislation (laws and regulations) shall specify: - Standards for the quality of drinking water and the methods of quality control, - Connection to drinking water and sewerage networks, respecting the principle of equality before the public service, - The pricing of these services, while providing for special measures for the most vulnerable, that is to say, a social pricing, a system of grants or free access to minimum services.

Emergence of the right to water National framework Mediterranean countries = Tunisia, Morocco, Greece, Spain etc. Adoption of a progressive pricing of water which generally allows all users to benefit from at least a first water consumption bracket at discounted price (i.e. less than the cost) or no price at all in some cases, through a system of cross-subsidies between small and large consumers, which makes clean water more accessible to the poorest people.

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