The human right to water and sanitation (HRWS) is a principle stating that clean
drinking water
Drinking water is water that is used in drink or food preparation; potable water is water that is safe to be used as drinking water. The amount of drinking water required to maintain good health varies, and depends on physical activity level, a ...
and
sanitation
Sanitation refers to public health conditions related to clean drinking water and treatment and disposal of human excreta and sewage. Preventing human contact with feces is part of sanitation, as is hand washing with soap. Sanitation systems ...
are a universal
human right
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
because of their high importance in sustaining every person's life.
It was recognized as a
human right
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
by the
United Nations General Assembly
The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...
on 28 July 2010.
The HRWS has been recognized in
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
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
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly (GA) on 16 December 1966 through GA. Resolution 2200A (XXI), and came in force from 3 January 197 ...
(ICESCR); among those commentators, those who accept the existence of international ''
ius cogens
A peremptory norm (also called or ' ; Latin for "compelling law") is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.
There is no universal ...
'' 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
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Con ...
(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.
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
The right to an adequate standard of living is a fundamental human right. It is part of the Universal Declaration of Human Rights that was accepted by the General Assembly of the United Nations on December 10, 1948.United Nations''Universal Decla ...
, 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."
The first resolutions about the HRWS were passed by the UN General Assembly and the
UN Human Rights Council
The United Nations Human Rights Council (UNHRC), CDH is a United Nations body whose mission is to promote and protect human rights around the world. The Council has 47 members elected for staggered three-year terms on a regional group basis. ...
in 2010. 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. 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. 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
The United Nations Development Programme (UNDP)french: Programme des Nations unies pour le développement, PNUD is a United Nations agency tasked with helping countries eliminate poverty and achieve sustainable economic growth and human dev ...
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. A revised UN resolution in 2015 highlighted that the two rights were separate but equal.
The HRWS obliges governments to ensure that people can enjoy quality, available, acceptable, accessible, and affordable water and sanitation.
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.
Generally, a rule of thumb for the affordability of water is that it should not surpass 3–5% of households' income. Accessibility of water considers the time taken, convenience in reaching the source and risks involved while getting to the source of water.
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. Availability of water considers whether the supply of water is available in adequate amounts, reliable and sustainable.
Quality of water considers whether water is safe for consumption, including for drinking or other activities.
For acceptability of water, it must not have any odor and should not consist of any color.
The ICESCR requires signatory countries to progressively achieve and respect all human rights, including those of water and sanitation.
They should work quickly and efficiently to increase access and improve service.
International context
The
WHO
Who or WHO may refer to:
* Who (pronoun), an interrogative or relative pronoun
* Who?, one of the Five Ws in journalism
* World Health Organization
Arts and entertainment Fictional characters
* Who, a creature in the Dr. Seuss book '' Horton He ...
/
UNICEF
UNICEF (), originally called the United Nations International Children's Emergency Fund in full, now officially United Nations Children's Fund, is an agency of the United Nations responsible for providing Humanitarianism, humanitarian and Devel ...
Joint Monitoring Programme for Water Supply and Sanitation
The Joint Monitoring Programme (JMP) for Water Supply and Sanitation by WHO and UNICEF is the official United Nations mechanism tasked with monitoring progress towards the Sustainable Development Goal Number 6 (SDG 6) since 2016.
Previously, u ...
reported that 663 million people did not have access to improved sources of
drinking water
Drinking water is water that is used in drink or food preparation; potable water is water that is safe to be used as drinking water. The amount of drinking water required to maintain good health varies, and depends on physical activity level, a ...
and more than 2.4 billion people lacked access to basic
sanitation
Sanitation refers to public health conditions related to clean drinking water and treatment and disposal of human excreta and sewage. Preventing human contact with feces is part of sanitation, as is hand washing with soap. Sanitation systems ...
services in 2015.
,2015 report of the WHO/UNICEF Joint Monitoring Programme (JMP) for Water Supply and Sanitation 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."
[General Assembly Declares Access to Clean Water and Sanitation Is a Human Right." UN News Center. 28 July 2010. Accessed 20 March 2014.] Although 9 percent of the global population lacks access to water, there are "regions particularly delayed, such as Sub-Saharan Africa".
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."
[Global Issues at the United Nations." UN News Center. n.d. Accessed 20 March 2014.]
Legal foundations and recognition
The
ICESCR, 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
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, i ...
(UDHR) of 1948. Neither of these early documents explicitly recognized human rights to water and sanitation. Several later international
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
conventions, however, had provisions that explicitly recognized rights to water and sanitation.
* The 1979
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has Article 14.2 that states that "parties shall take all appropriate measures to eliminate discrimination against women in rural areas to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular shall ensure to women the right:… (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications."
* The 1989
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Con ...
(CRC) has Article 24 that provides that "parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health … 2. States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures... (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia… the provision of adequate nutritious foods and clean drinking water..."
* The 2006
Convention on the Rights of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the convention are required to promote, ...
(CRPD) has Article 28(2)(a) that requires that "parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures to ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs."
"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.
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
McCaffrey, S.C. "A Human Right to Water: Domestic and International Implications" (1992) V Georgetown International Environmental Law Review, Issue 1, pp.1-24. and Dr.
Peter Gleick
Peter H. Gleick (; born 1956) is an American scientist working on issues related to the environment. He works at the Pacific Institute in Oakland, California, which he co-founded in 1987. In 2003 he was awarded a MacArthur Fellowship for his work ...
in 1999.
Peter Gleick, Gleick, P.H. "The Human Right to Water" (1999) Water Policy, Vol. 1, Issue 5, pp. 487-503. McCaffrey stated that "Such a right could be envisaged as part and parcel of the right to food or sustenance, the
right to health
The right to health is the economic, social, and cultural right to a universal minimum standard of health to which all individuals are entitled. The concept of a right to health has been enumerated in international agreements which include the U ...
, or most fundamentally, the right to life.
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."
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.
It found that a right to water was implicitly part of the
right to an adequate standard of living
The right to an adequate standard of living is a fundamental human right. It is part of the Universal Declaration of Human Rights that was accepted by the General Assembly of the United Nations on December 10, 1948.United Nations''Universal Decla ...
and related to the right to the highest attainable standard of health and the rights to adequate housing and adequate food.
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." 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; Netherlands) 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. These guidelines led the UN
Human Rights Council
The United Nations Human Rights Council (UNHRC), CDH is a United Nations body whose mission is to promote and protect human rights around the world. The Council has 47 members elected for staggered three-year terms on a regional group basis. ...
to assign
Catarina de Albuquerque
Catarina de Albuquerque (born 1970) is a Portuguese lawyer and human rights activist who served as the first United Nations Special Rapporteur on the right to safe drinking water and sanitation (2008–2014). After becoming Executive Chair of Sa ...
as an independent expert on the issue of human rights obligations related to access to safe drinking water and
sanitation
Sanitation refers to public health conditions related to clean drinking water and treatment and disposal of human excreta and sewage. Preventing human contact with feces is part of sanitation, as is hand washing with soap. Sanitation systems ...
in 2008. 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.
Following intense negotiations, 122 countries formally acknowledged "the Human Right to Water and Sanitation" in General Assembly Resolution 64/292 on 28 July 2010. 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)."
The General Assembly declared that clean drinking water is "essential to the full enjoyment of life and all other human rights".
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
The right to an adequate standard of living is a fundamental human right. It is part of the Universal Declaration of Human Rights that was accepted by the General Assembly of the United Nations on December 10, 1948.United Nations''Universal Decla ...
.
The mandate of
Catarina de Albuquerque
Catarina de Albuquerque (born 1970) is a Portuguese lawyer and human rights activist who served as the first United Nations Special Rapporteur on the right to safe drinking water and sanitation (2008–2014). After becoming Executive Chair of Sa ...
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); Financing for the Realization of the Rights to Water and Sanitation (2011); Wastewater management in the realization of the rights to water and sanitation (2013); and Sustainability and non-retrogression in the realization of the rights to water and sanitation (2013). 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.
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.
International jurisprudence
Inter-American Court of Human Rights
The right to water has been considered in the
Inter-American Court of Human Rights
The Inter-American Court of Human Rights (IACHR or IACtHR) is an international court based in San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it was formed by the American Convention on Human Rights, a huma ...
case of the ''Sawhoyamaxa Indigenous Community v. Paraguay''.
[''Sawhoyamaxa Indigenous Community v. Paraguay'']
(Inter-American Court of Human Rights, 29 March 2006). 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.
[ This fell within the scope of the ]American Convention on Human Rights
The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into forc ...
; encroaching the right to life. 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.
International Centre for Settlement of Investment Disputes
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. World Bank data shows that water privatization
Water privatization is short for private sector participations in the provision of water services and sanitation. Water privatization has a variable history in which its popularity and favorability has fluctuated in the market and politics. One o ...
spiked starting in the 1990s and significant growth in privatization continued into the 2000s.
''Azurix Corp v. Argentina''
The first notable case regarding the right to water in the ICSID is that of ''Azurix Corp v. Argentina''. The dispute was between the Argentine Republic
Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, th ...
and Azurix Corporation regarding discrepancies arising from a 30-year contract between the parties to operate the water supply of various provinces. A consideration in regard to the right to water is implicitly made during the arbitration for compensation, where it was held that Azurix was entitled to a fair return on the market value of the investment. This was rather than the requested US$438.6 million, citing that a reasonable business person could not expect such a return, given the limits of water price increases and improvements that would be required to ensure a well-functioning, clean water system.
''Biwater Gauff Ltd v. Tanzania''
Secondly, a similar case encountered by the ICSID is that of ''Biwater Gauff Ltd v. Tanzania''. This was again a case of a private water company in a contractual dispute with a government, this time the United Republic of Tanzania
Tanzania (; ), officially the United Republic of Tanzania ( sw, Jamhuri ya Muungano wa Tanzania), is a country in East Africa within the African Great Lakes region. It borders Uganda to the north; Kenya to the northeast; Comoro Islands and ...
. This contract was for the operation and management of the Dar es Salaam water system. In May 2005, the Tanzania government ended the contract with Biwater Gauff for its alleged failure to meet performance guarantees. In July 2008, the Tribunal issued its decision on the case, declaring that the Tanzania government had violated the agreement with Biwater Gauff. It did not however award monetary damages to Biwater, acknowledging that public interest concerns were paramount in the dispute.
Right to water in domestic law
Without the existence of an international body that can enforce it, the human right to water relies upon the activity of national courts. The basis for this has been established through the constitutionalisation of economic, social and cultural rights ( ESCR) through one of two means: as "directive principles" that are goals and are often non-justiciable; or as expressly protected and enforceable through the courts.
South Africa
In South Africa
South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...
, the right to water is enshrined in the constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
and implemented by ordinary statutes. This is evidence of a slight modification of the second technique of constitutionalisation referred to as the "subsidiary legislation model". This means that a large portion of the content and implementation of the right is done an ordinary domestic statute with some constitutional standing.
Natalie Baird and Diana Pickard "Economic, social and cultural rights: a proposal for a constitutional peg in the ground" 013NZLJ 289 at 298
''Residents of Bon Vista Mansions v. Southern Metropolitan Local Council''
The first notable case in which the courts did so was the ''Residents of Bon Vista Mansions v. Southern Metropolitan Local Council''. The case was brought by residents of a block of flats (Bon Vista Mansions), following the disconnection of the water supply by the local Council, resulting from the failure to pay water charges. The court held that in adherence to the South African Constitution
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Gover ...
, that constitutionally all persons ought to have access to water as a right.
Further reasoning for the decision was based on General Comment 12 on the Right to Food, made by the UN Committee on Economic, Social and Cultural Rights imposing upon parties to the agreement the obligation to observe and respect already existing access to adequate food by not implementing any encroaching measures.
The court found that the discontinuation of the existing water source, which had not adhered to the "fair and reasonable" requirements of the South African Water Services Act, was illegal. It is important to note that the decision pre-dates the adoption of the UN General Comment No. 15.
''Mazibuko v. City of Johannesburg''
The quantity of water to be provided was further discussed in ''Mazibuko v. City of Johannesburg''. The case revolved around the distribution of water through pipes to Phiri, one of the oldest areas of Soweto. This case concerned two major issues: whether or not the city's policy regarding the supply of free basic water, 6 kilolitres per month to each account holder in the city was in conflict with Section 27 of the South African Constitution or Section 11 of the Water Services Act. The second issue being whether or not the installation of pre-paid water meters was lawful.
It was held in the High Court that the city's by-laws did not provide for the installation of meters and that their installation was unlawful. Further, as the meters halted supply of water to residence once the free basic water supply had ended, this was deemed an unlawful discontinuation of the water supply. The court held the residents of Phiri should be provided with a free basic water supply of 50 litres per person per day. The work of the Centre for Applied Legal Studies (CALS) of the University of the Witwatersrand
The University of the Witwatersrand, Johannesburg (), is a multi-campus South African Public university, public research university situated in the northern areas of central Johannesburg. It is more commonly known as Wits University or Wits ( o ...
in Johannesburg, South Africa and the Pacific Institute
The Pacific Institute for Studies in Development, Environment, and Security is an American non-profit research institute created in 1987 to provide independent research and policy analysis on issues of development, environment, and security, with a ...
in Oakland, California shared a 2008 Business Ethics Network BENNY Award for their work on this case. The Pacific Institute contributed legal testimony based on the work of Dr. Peter Gleick defining a human right to water and quantifying basic human needs for water.
The big respondents took the case to the Supreme Court of Appeal (SCA
SCA may refer to:
Biology and health
* Sickle cell disease, also known as sickle cell anaemia
* Spinocerebellar ataxia, a neurological condition
* Statistical coupling analysis, a method to identify covarying pairs of amino acids in protein mult ...
) which held that the city's water policy had been formulated based upon a material error of law in regards to the city's obligation to provide the minimum set in the South African National Standard, therefore it was set aside. The court also held the quantity for dignified human existence in compliance with section 27 of the constitution was in fact 42 litres per person per day rather than 50 litres per person per day. The SCA declared that the installation of water meters was illegal, but suspended the order for two years to give the city an opportunity to rectify the situation.
The issues went further to the Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
, which held that the duty created by the constitution required that the state take reasonable legislative and other measures progressively to realise the achievement of the right to access of water, within its available resource. the Constitutional Court also held that it is a matter for the legislature and executive institution of government to act within the allowance of their budgets and that the scrutiny of their programs is a matter of democratic accountability
Accountability, in terms of ethics and governance, is equated with answerability, blameworthiness, liability, and the expectation of account-giving. As in an aspect of governance, it has been central to discussions related to problems in the publ ...
. Therefore, the minimum content set out by the regulation 3(b) is constitutional, rendering the bodies to deviate upwards and further it is inappropriate for a court to determine the achievement of any social and economic right the government has taken steps to implement. The courts had instead focused their inquiry on whether the steps taken by Government are reasonable, and whether the Government subjects its policies to regular review. The judgment has been criticized for deploying an "unnecessarily limiting concept of judicial deference".
India
The two most prominent cases in India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
regarding the right to water illustrate that although this is not explicitly protected in the Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
, it has been interpreted by the courts that the right to life includes the right to safe and sufficient water.
''Delhi Water Supply v. State of Haryana''
Here a water usage dispute arose due to the fact that the state of Haryana was using the Jamuna River for irrigation, while the residents of Delhi needed it for the purpose of drinking. It was reasoned that domestic use overrode the commercial use of water and the court ruled that Haryana must allow enough water to get to Delhi for consumption and domestic use.[''Delhi Water Supply & Sewage v. State Of Haryana & Ors''](_blank)
1999 SCC(2) 572, JT 1996 (6) 107
''Subhash Kumar v. State of Bihar''
Also notable is the case of ''Subhash Kumar v. State of Bihar'', where a discharge of sludge from the washeries into the Bokaro River was petitioned against by way of public interest litigation. The courts found that the right to life, as protected by Article 21 of the Constitution of India, included the right to enjoy pollution-free water. The case failed upon the facts and it was held that the petition had been filed not in any public interest but for the petitioner's personal interest and therefore a continuation of litigation would amount to an abuse of process.
World Rights to Water Day
Water is essential for existence of living beings including humans. Therefore, having access to pure and adequate quantity of water is an inalienable human right. Hence, the Eco Needs Foundation (ENF) deems it necessary to recognise the right to water (with ensured per capita minimum quantity of water) through the appropriate expressed legal provision. The United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
with its several covenants has made it obligatory for all the nations to ensure equitable distribution of water amongst all the citizens. Accordingly, the ENF began to observe and promote the celebration of World Rights to Water Day on 20 March, the date on which Dr. Babasaheb Ambedkar ("the father of modern India") led the world's first satyagraha
Satyagraha ( sa, सत्याग्रह; ''satya'': "truth", ''āgraha'': "insistence" or "holding firmly to"), or "holding firmly to truth",' or "truth force", is a particular form of nonviolent resistance or civil resistance. Someone w ...
for water in 1927. The World Right to Water Day calls for the adoption of special legislation establishing the universal right to water. Under the guidance of founder Dr Priyanand Agale, the ENF arranges a variety of several programmes to ensure the right to water for Indian citizens.
New Zealand
ESCR are not explicitly protected in New Zealand at the current time, either by the Human Rights or Bill of Rights Acts, therefore the right to water is not defended by law there. The New Zealand Law Society has recently indicated that this country would give further consideration to the legal status of economic, social and cultural rights.
United States
In ''Pilchen v. City of Auburn, New York'', a single mother named Diane Pilchen was living as a rental tenant in a foreclosed house, in which the owner (landlord) of the house had failed to pay the water bill for some time. The City of Auburn billed Pilchen for the landlord's arrears, and repeatedly shut her water service off without notice when she could not pay these debts, making the house uninhabitable. The city condemned the home and forced Pilchen and her child to move out. Pilchen was represented by the Public Utility Law Project of New York (PULP) in the lawsuit. The City of Auburn attempted unsuccessfully to argue that water is not a constitutional right because bottled water could be used instead, an argument that was contested by PULP as absurd. In 2010, Pilchen won summary judgment in which it was determined that shutting off the water violated her constitutional rights, and that Pilchen could not be billed and stopped from having water due to an unrelated party's delays in paying water bills.
''Standing Rock Sioux Tribe v. United States Army Corps of Engineers''
In 2016, there was a prominent case known as ''Standing Rock Sioux Tribe v. United States Army Corps of Engineers,'' where the Sioux Tribe challenged the building of the Dakota Access Pipeline
The Dakota Access Pipeline (DAPL) or Bakken pipeline is a underground pipeline in the United States that has the ability to transport up to 750,000 barrels of light sweet crude oil per day. It begins in the shale oil fields of the Bakken Forma ...
(DAPL). This crude oil pipeline spans over four states, which includes the beginning in North Dakota
North Dakota () is a U.S. state in the Upper Midwest, named after the Native Americans in the United States, indigenous Dakota people, Dakota Sioux. North Dakota is bordered by the Canadian provinces of Saskatchewan and Manitoba to the north a ...
, then passes through both South Dakota
South Dakota (; Sioux language, Sioux: , ) is a U.S. state in the West North Central states, North Central region of the United States. It is also part of the Great Plains. South Dakota is named after the Lakota people, Lakota and Dakota peo ...
and Iowa
Iowa () is a state in the Midwestern region of the United States, bordered by the Mississippi River to the east and the Missouri River and Big Sioux River to the west. It is bordered by six states: Wisconsin to the northeast, Illinois to the ...
, and ends in Illinois
Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
. The Standing Rock Reservation is located near the border of North and South Dakota and the pipeline is built within a half a mile of it. Since the pipeline was built near the reservation, the tribe feared that historical and cultural significance of Lake Oahe
Lake Oahe () is a large reservoir behind Oahe Dam on the Missouri River; it begins in central South Dakota and continues north into North Dakota in the United States. The lake has an area of and a maximum depth of . By volume, it is the List of l ...
would be tampered with, even though the pipeline doesn't run directly through the lake. Lake Oahe provides basic water necessities for the Sioux Tribe such as drinking water and for sanitation. The construction of the oil pipeline means that there is a higher risk of an oil spill into Lake Oahe, which made the tribe concerned. The Sioux Tribe sued the DAPL company as they believed that the creation of the pipeline was violating the National Environmental Policy Act
The National Environmental Policy Act (NEPA) is a United States environmental law that promotes the enhancement of the environment and established the President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970.Un ...
and the National Historic Preservation Act
The National Historic Preservation Act (NHPA; Public Law 89-665; 54 U.S.C. 300101 ''et seq.'') is legislation intended to preserve historic and archaeological sites in the United States of America. The act created the National Register of Historic ...
. After the 2016 briefing, the court was unable to come to a conclusion, so the court decided to do additional briefings. After 5 briefings in 2017 and 1 briefing in 2018, the court has allowed the construction of the pipeline, but the Standing Rock tribe continues to fight to ensure that pipeline is removed.
Australia
The attention in Australia is focused on the rights of Indigenous Australians
Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
to water and sanitation. History of settler-colonialism overshadows today's state governance that regulates water use to indigenous Australians. There are many governmental agreements, but most of them are incomplete to fully influence power to the indigenous right to water and sanitation. In ''Mabo v Queensland'', 1992, Native rights were legally recognized at the first time. Indigenous Australians often claim cultural bonds to the land. Although "culture" was recognized in the court as much as land resources, cultural and spiritual value of Aborigines to water body are fuzzy. It is challenging but needed to transcend their cultural and spiritual values into legal sphere. For now, there is virtually no progress.
Australian water law basically prescribes surface water for citizens who can use surface water but cannot own. In the constitution, however, there is no description about inland and riparian water. Therefore, the sphere of inland/riparian water rights are the primary mandates of the state. The Commonwealth Government
The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federal parliamentary constitutional monarchy. Like other Westminster-style systems of government, the Australian Government ...
obtains authority over water by borrowing the help of external relationship, including the Grants Power, Trade and Commerce Power.
In 2000, the Federal Court concluded the agreement that allowed indigenous landowners to take water for traditional purposes. However, the use is limited to traditional purpose, which did not include irrigation as a traditional practice.
In June 2004, CoAC concluded an intergovernmental accord on a National Water Initiative
The National Water Commission (NWC) was an independent statutory authority in Australia established by the ''National Water Commission Act 2004'' to implement the National Water Initiative and reform the broader national water agenda. The agency ...
(NWI), promoting recognition of indigenous right to water. However, NWI is not concerned broadly about complex history of settler-colonialism, which has systematically created an unequal pattern of water distribution. Indigenous people in Australia are constantly seeking the right to water.
Remaining discussions
Transboundary effects
Given the fact that access to water is a cross-border source of concern and potential conflict in the Middle East
The Middle East ( ar, الشرق الأوسط, ISO 233: ) is a geopolitical region commonly encompassing Arabian Peninsula, Arabia (including the Arabian Peninsula and Bahrain), Anatolia, Asia Minor (Asian part of Turkey except Hatay Pro ...
, South Asia
South Asia is the southern subregion of Asia, which is defined in both geographical and ethno-cultural terms. The region consists of the countries of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka.;;;;;;;; ...
, the Eastern Mediterranean
The Mediterranean Sea is a sea connected to the Atlantic Ocean, surrounded by the Mediterranean Basin and almost completely enclosed by land: on the north by Western and Southern Europe and Anatolia, on the south by North Africa, and on the e ...
and parts of North America
North America is a continent in the Northern Hemisphere and almost entirely within the Western Hemisphere. It is bordered to the north by the Arctic Ocean, to the east by the Atlantic Ocean, to the southeast by South America and the Car ...
amongst other places, some non-governmental organizations (NGO
A non-governmental organization (NGO) or non-governmental organisation (see spelling differences) is an organization that generally is formed independent from government. They are typically nonprofit entities, and many of them are active in h ...
s) and scholars argue that the right to water also has a trans-national or extraterritorial aspect. They argue that given the fact that water supplies naturally overlap and cross borders, states also have a legal obligation not to act in a way that might have a negative effect on the enjoyment of human rights in other states. The formal acknowledgement of this legal obligation could prevent the negative effects of the global "water crunch" (as a future threat and one negative result of human over-population
Water shortages and increasing consumption of freshwater make this right incredibly complicated. As the world population rapidly increases, freshwater shortages will cause many problems. A shortage in the quantity of water brings up the question of whether or not water should be transferred from one country to another.[McCaffrey, Stephen C. "Human Right to Water: Domestic and International Implications, A." ''Geo. Int'l Envtl. L. Rev.'' 5 (1992): 1.]
Water Dispute Between India and Pakistan
The water dispute between India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
and Pakistan
Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
is influenced by the scarcity of water in the South Asia
South Asia is the southern subregion of Asia, which is defined in both geographical and ethno-cultural terms. The region consists of the countries of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka.;;;;;;;; ...
n region. The two countries have a pre-existing agreement known as the Indus Waters Treaty
The Indus Water Treaty (IWT) is a water-distribution treaty between India and Pakistan, arranged and negotiated by the World Bank, to use the water available in the Indus River and its tributaries. It was signed in Karachi on 19 September 1960 ...
. The treaty was formed to limit the conflict between India and Pakistan regarding the use of the Indus basin and allocate water supply for both countries after the countries gained independence. However, disagreements regarding it have surfaced. According to the treaty, India is allowed to use the western river basin for irrigation and non-consumptive purposes, while Pakistan has the majority of control over the basin. However, Pakistan has voiced concerns that India's construction on the rivers may lead to severe water scarcity in Pakistan. Moreover, Pakistan voiced that the dams constructed by India for non-consumptive purposes may be used to divert water flow and disrupt Pakistan's water supply. In addition, the treaty involves rivers that originate from Jammu and Kashmir, which have been excluded from control over their own water bodies.
Water commercialization versus state provision
Contention exists regarding whose, if anyone's, responsibility it is to ensure the human right to water and sanitation. Often, two schools of thought emerge from such discourse: it is the state's responsibility to provide access to clean water to people versus the privatization of distribution and sanitation.
The commercialization of water is offered as a response to the increased scarcity of water that has resulted due to the world population tripling while the demand for water has increased six-fold. Market environmentalism uses the markets as a solution to environmental problems such as environmental degradation
Environmental degradation is the deterioration of the environment (biophysical), environment through depletion of resources such as quality of air, water and soil; the destruction of ecosystems; habitat destruction; the extinction of wildlife; an ...
and an inefficient use of resources. Supporters of market environmentalism
Environmentalism or environmental rights is a broad philosophy, ideology, and social movement regarding concerns for environmental protection and improvement of the health of the environment, particularly as the measure for this health seek ...
believe that the managing of water as an economic good by private companies will be more efficient than governments providing water resources to their citizens''.'' Such proponents claim that the government costs of developing infrastructure for water resource allocation is not worth the marginal benefits of water provision, thus deeming the state as an ineffective provider of water. Moreover, it is argued that water commodification leads to more sustainable water management due to the economic incentives for consumers to use water more efficiently.
The opponents believe that the consequence of water being a human right excludes private sector involvement and requires that water should be given to all people because it is essential to life. Access to water as a human right is used by some NGOs as a means to combat privatization efforts. A human right to water "generally rests on two justifications: the non-substitutability of drinking water ("essential for life"), and the fact that many other human rights which are explicitly recognized in the UN Conventions are predicated upon an (assumed) availability of water (e.g. the right to food
The right to food, and its variations, is a human right protecting the right of people to feed themselves in dignity, implying that sufficient food is available, that people have the means to access it, and that it adequately meets the individual ...
)."[Bakker, Karen. "The “Commons” Versus the “Commodity”: Alter‐globalization, Anti‐privatization and the Human Right to Water in the Global South". ''Antipode'' 39.3 (2007): 430-455.]
Organizations
Organizations working on the rights to water and sanitation are listed below.
United Nations organizations
*OHCHR
The Office of the United Nations High Commissioner for Human Rights, commonly known as the Office of the High Commissioner for Human Rights (OHCHR) or the United Nations Human Rights Office, is a department of the Secretariat of the United Nat ...
(UN Office of the High Commissioner on Human Rights)
* UNDP
The United Nations Development Programme (UNDP)french: Programme des Nations unies pour le développement, PNUD is a United Nations agency tasked with helping countries eliminate poverty and achieve sustainable economic growth and human dev ...
* UNICEF
UNICEF (), originally called the United Nations International Children's Emergency Fund in full, now officially United Nations Children's Fund, is an agency of the United Nations responsible for providing Humanitarianism, humanitarian and Devel ...
Sanitation and Water for All
Governmental cooperation agencies
*DFID
, type = Department
, logo = DfID.svg
, logo_width = 180px
, logo_caption =
, picture = File:Admiralty Screen (411824276).jpg
, picture_width = 180px
, picture_caption = Department for International Development (London office) (far right ...
(United Kingdom's Cooperation Agency)
* GIZ (German Corporation for International Cooperation)
* SDC (Swiss Agency for Development and Cooperation)
*EPA
The Environmental Protection Agency (EPA) is an independent executive agency of the United States federal government tasked with environmental protection matters. President Richard Nixon proposed the establishment of EPA on July 9, 1970; it be ...
(United States Environmental Protection Agency)
International non-governmental organizations and networks
* Action against Hunger (ACF)
* Blood:Water
*Center for Water Security and Cooperation
* Freshwater Action Network (FAN)
*Pure Water for the World
* The DigDeep Right to Water Project
* The Pacific Institute
The Pacific Institute for Studies in Development, Environment, and Security is an American non-profit research institute created in 1987 to provide independent research and policy analysis on issues of development, environment, and security, with a ...
*The Water Project
*Transnational Institute
The Transnational Institute (TNI), is an international non-profit research and advocacy think tank that was founded in 1974, Amsterdam, Netherlands. According to their website, the organization promotes a "... just, democratic and sustainable wor ...
with the Water Justice project
* UUSC
* WaterAid
* WaterLex (defunct as of 2020)
*PeaceJam
PeaceJam is a US-based global youth organization led by Nobel Peace laureates. It was founded by musical artist Ivan Suvanjieff and his wife, the economist Dawn Engle in 1993.
PeaceJam was nominated for the Nobel Peace Prize eight times.
Hist ...
See also
References
External links
Special Rapporteur on the human right to safe drinking water and sanitation
by the UN High Commissioner for Human Rights
WaterLex Archive
The Human Right to Water and Sanitation Translating Theory into Practice (2009)
by GIZ
Right to Water: Understanding children's right to water
on Humanium
{{DEFAULTSORT:Right To Water
Human rights by issue
Water
Sanitation
Right to health