F.A.Q

1- Why a right to water is necessary ?

 

Water is a limited natural resource and fundamental for life and health. In 2000, the World Health Organization estimate that of the world's 6 billion people, at least 1.1 billion lack access to safe drinking-water and 2.4 billion persons live without access to sanitation systems. An estimated 14 to 30 thousand people, mostly young and elderly, die everyday from avoidable water-related diseases (e.g. diarrhoeal diseases). The lives of these people who are among the poorest on our planet are often devastated by this deprivation, which impedes the enjoyment of health and other human rights.

Numerous fundamental human rights can not be fully realized without water:

  • Right to life: Without water, no life can be sustained.
  • Right to food: Water is essential for farming: almost 70% of all mobilised freshwater is used for agriculture1 and it is estimated that more than one third of global food production is based on irrigation.
  • Right to self-determination: this right also includes the right of all people to manage their own resources and is thus connected to a right to water
  • Right to adequate standard of living, can not be realized without a secure access to water
  • Right to housing: As the CESCR stated "the right to adequate housing should have sustainable access to natural and common resources, safe drinking water,...sanitation and washing facilities".
  • Right to education: The lack of proper supply of water forces children to walk long distances, often several times a day - thus missing school - to provide their families with water.
  • Right to take part in cultural life: The destruction, expropriation or pollution of water-related cultural sites represents a failure to take adequate steps to safeguard the cultural identity of various ethnic groups.


So, the right to water is indispensable for leading a life in human dignity, but often denied in developing as well as developed countries.

The right to water is a useful tool for meeting the Millennium Development Goals.

 

1 International year of freshwater 2003, visit website


2- What does the UN's Millennium Declaration say?

 

In the Millennium Declaration, 2000, delivered at the close of the Millennium Summit of the United Nations in New York, 150 heads of state and government pledged to "halve, by the year 2015... the proportion of people without sustainable access to safe drinking water". The Johannesburg Declaration adopted at the World Summit of Sustainable Development in September 2002 also set a new target of halving the proportion of people who do not have access to basic sanitation by 2015.

3- Is there a human right to water? What is the content?

 

To mark the UN International Year of Freshwater in 2003, the Committee on Economic, Social and Cultural Rights1 (More information on COHRE website), which monitors the implementation of the Covenant, adopted General Comment No. 15 (nov. 2002) in which water is recognized, not only as a limited natural resource and a public good but also as a human right. It's a decisive progress, at the international level, in term of legal protection of the right to water although it's not a legally binding document.


General Comment 15 was the first document that fleshed out in detail the right's content and clearly stated that the right to water emanated from and was indispensable for an adequate standard of living as it is one of the most fundamental conditions for survival. The Comment provides guidelines for States Parties on the interpretation of the right to water under two articles of the International Covenant on Economic, Social and Cultural Rights2 - Article 11 (the right to an adequate standard of living) and Article 12 (the right to health).

As for all human rights, State Parties have 3 types of obligation:


Respect. Governments must refrain from unfairly interfering with people's access to water. Eg, disconnecting their water supply.

Protect. Government must protect from people from interference with their access to water by others. Eg, stopping pollution or unaffordable price increases by corporations.

Fulfil. Take all steps with available resources to realise the right to water. Eg, pass legislation, devise and implement programmes and monitor their progress.


The CESCR calls for a progressive realization of these rights and acknowledges that - due to limits of available resources - immediate realization of this human right to water may be constraint. As a social and economic right, the right to water does not encompass a right to access to water, directly enforceable by each person against the state.

However, the right to water requires government activities to progressively increase the number of people with safe, affordable and convenient access to drinking water and to safe sanitation. This includes government policies and strategies that create economic, social and political conditions for such access. The right to water also includes the obligation to ensure non-discriminatory access to water, especially of the marginalized and vulnerable sections of society.

Accessibility - water being within safe physical reach, being affordable, being accessible in law and in fact, and information on water issues being provided
Adequate quality - water for personal or domestic use being safe
Quantity - water supply being sufficient and continuous for personal/domestic uses

 

1 The Committee on Economic, Social and Cultural Rights (CESCR) is the body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights (1966) by its States parties (151 ratification). The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the United Nations Economic and Social Council (ECOSOC) in Part IV of the Covenant.
All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Covenant and thereafter every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”.
The Committee cannot consider individual complaints, although a draft Optional Protocol to the Covenant is under consideration which could give the Committee competence in this regard. The Commission on Human Rights has established a working group to this end. However, it may be possible for another committee with competence to consider individual communications to consider issues related to economic, social and cultural rights in the context of its treaty. The Committee meets in Geneva and normally holds two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group. The Committee also publishes its interpretation of the provisions of the Covenant, known as general comments

 

2 A Covenant is an international legal instrument. Thus, when Member and non-Member States of the United Nations ratify a Covenant and become a "State party" to it, they are wilfully accepting a series of legal obligations to uphold the rights and provisions established under the text in question.
When a State ratifies one of the Covenants, it accepts a solemn responsibility to apply each of the obligations embodied therein and to ensure the compatibility of their national laws with their international duties, in a spirit of good faith. Through the ratification of human rights treaties, therefore, States become accountable to the international community, to other States which have ratified the same texts, and to their own citizens and others resident in their territories.


4- Was  there a human right to water prior to the adoption of  GC15?

 

At the time when the original Universal Declaration of Human Rights was drawn up, it was assumed that all people would have access to safe water, as it is essential to all life. Water like air is so fundamental to preserving a right to life that explicit recognition was thought to be unnecessary, and thus little attention has been given to the question of whether there is a right to water. Consequently water was never named as a human right before now.

A human right to water only gained explicit expression in two UN human rights treaties:
- the Convention on the Elimination of all Forms of Discrimination against Women (1980),
- the Convention on the Rights of the Child (1989),
as well in one regional treaty:  the African Charter on the Rights and Welfare of the Child (1990). The Geneva Conventions (1949, 1977) guarantee the protection of this right during armed conflict.

In addition, the right to water is an implicit part of the right to an adequate standard of living and the right to the highest attainable standard of physical and mental health, both of which are protected by the International Covenant on Economic, Social and Cultural Rights (1966).

However, some states continue to deny the legitimacy of this right. In light of this fact and because of the widespread non-compliance of States with their obligations regarding the right to water, the UN Committee on Economic, Social and Cultural Rights confirmed and further defined the right to water in its General Comment No. 15.

Adopted on 26 November 2002, this document provides guidelines for States Parties on the interpretation of this right under two articles of the International Covenant on Economic, Social and Cultural Rights - Article 11 (the right to an adequate standard of living) and Article 12 (the right to health).

 

5- What is a General Comment?

 

Each of the six UN human rights treaty-monitoring bodies, including the Committee on Economic, Social and Cultural Rights, periodically publishes documents known as General Comments or General Recommendations, which provide guidelines for States Parties on the interpretation of specific aspects of the human rights treaty of concern to the particular committee.

 

General Comments clarify the content of Covenant rights in more detail, may outline potential violations of those rights and offer advice to states parties on how best to comply with their obligations under the treaties.

 

A General Comment is only an interpretive tool and does not, in itself, constitute legally binding 'hard law'.


6- Summary of General comment n°15

 

In its introduction General Comment 15 affirms that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water, for personal and domestic uses". And it must be enjoyed without discrimination and equally by women and men.


It notes that the right to water has been recognised in a wide range of international documents and reaffirms the fundamental importance of the right stating that "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" (e.g. adequate food, clothing, housing and health). The Committee notes the importance of ensuring sustainable access to water resources for agriculture to realize the right to adequate food.


Part II of General Comment 15 outlines the normative content of the human right to water stressing that elements of the right must be adequate for human dignity, life and health in accordance with Article 11, paragraph 1, and Article 12.


It states that the right to water contains both:

  • Freedoms, such as the right to be free from interference through, for example, arbitrary disconnections or the contamination of water supplies, and
  • Entitlements, including the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water

The Comment also stresses that water should be treated as a social and cultural good, and not primarily as an economic good, and that the manner of the realization of the right to water must be sustainable.


According to General Comment 15, while the adequacy of water may vary according to different conditions, three factors apply in all circumstances:

  • Availability
    Each person has the right to a water supply that is sufficient and continuous for personal and domestic uses, such as drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. The quantity of water available for each person should correspond to World Health Organization (WHO) guidelines1, which take into account health, climate, and work conditions.
  • Quality
    The water required for each personal or domestic use must be safe and therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person's health. It must also be acceptable in terms of colour and odour so that individuals will choose this water rather than polluted alternatives that may look more attractive.
  • Accessibility
    The Comment provides that water and water facilities and services must be accessible to everyone, without discrimination, within the jurisdiction of the State party. Four overlapping dimensions of accessibility are defined:
    • Physical accessibility
      Water and adequate water facilities and services must be within safe physical reach of all sections of the population, which is defined as 'within the immediate vicinity, of each household, educational institution and workplace'. They must be of sufficient quality, culturally appropriate and sensitive to gender, life-cycle and privacy requirements.
    • Economic accessibility
      Water, water facilities and services, the direct and indirect costs and charges associated with securing water must be affordable for all.
    • Non-discrimination
      The General Comment confirms that the prohibition of discrimination includes discrimination on the grounds of age, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to water.
    • Information accessibility
      Accessibility is defined as including the right to seek, receive and impart information concerning water issues.

General Comment 15 stresses the obligation of States Parties to guarantee that all Covenant rights are enjoyed both without discrimination and equally between men and women. State Parties should also give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees.

 

The right to water pose on States obligations of progressive realization as well as immediate obligations. The principle obligation of States with respect to the right to water is to take steps to achieve progressively the full realization of the right. States must move as expeditiously and effectively as possible within the limits of the maximum of their available resources towards this goal. While full realization might take time, steps must be taken immediately. In the case of water, immediate obligation include ensuring people's access to enough water to prevent dehydration and disease. Other immediate and inexpensive obligations include non-discrimination and the respect and protection of the existing enjoyment of rights.

 

Part III also outlines the international obligations concerning the right to water.
On the one hand, State Parties have positive obligations, such as ensuring that the right is given due attention in international agreements, respecting and facilitating the enjoyment of the right in other countries. The Comment stresses the special responsibility of the economically developed States Parties to assist the poorer developing states.
On the other hand, negative obligations include refraining at all times from imposing embargoes or similar measures that prevent the supply of water, as well as goods and services essential for securing the right to water. International cooperation also requires State parties to refrain from actions that interfere, directly or indirectly, with the enjoyment or the realization of the right to water in other countries.

 

Part IV of the General Comment deals with potential violations of the right to water. To demonstrate compliance with their general and specific obligations State parties must establish that they have taken the necessary and feasible steps towards the realization of the right to water. In accordance with international law, a failure to act in good faith to take such steps amounts to a violation of the right. While distinguishing the inability from the unwillingness of a State party to comply with its obligations, the Comment identified two main types of violation:

  • Acts of commission: the direct actions of States parties or other entities insufficiently regulated by States
  • Acts of omission, including the failure to take appropriate steps towards the full realisation of everyone's right to water and the failure to have a national policy on water.

The Comment then provides typical examples of violations of the right to water under each of the three main types of obligation (respect, protect, fulfil) such as arbitrary disconnection, discriminatory increases in the price of water, failure to enact or enforce laws to prevent the contamination of water, or failure to ensure that the minimum essential level of the right is enjoyed by everyone.

 

Part V provides guidelines on the implementation of the right to water at the national level. General Comment 15 stresses that states are obliged to utilize all appropriate means, including particularly the adoption of legislative measures in the implementation of their Covenant obligation, while having a margin of discretion which allows a state to choose the manner in which it fulfils its obligations under international human rights law.
Three main fields are tackled:

  • The formulation, implementation and monitoring of national water strategies, legislation and policies;
  • The identification of appropriate right to water indicators and related benchmarks to help monitor the implementation of the right to water;
  • The provision of access to effective judicial or other appropriate remedies at both national and international levels for any persons or groups who have been denied their right to water

The last part of General Comment 15 underlines the necessity that non-state actors (UN agencies, WTO, WHO, IMF, World Bank, NGOs...) efficiently cooperate in terms of protection, realisation and promotion of the right to water, especially by incorporating human rights law and principles into both policy and action, and giving priority to the most vulnerable or marginalized groups of the population in the provision of aid, distribution and management of water and water facilities.


The General Comment has gained wide acceptance amongst many States, intergovernmental organisations, including the World Bank, and civil society.


The means and mechanisms available in the United Nations human rights system will be used to monitor the progress of States Parties in realizing the right to water and to hold governments accountable.

 

1 This will normally constitute 50-100 litres daily per person, and an absolute minimum of 20 litres

 

7- Is sanitation included in the right to water?

 

Yes, the right to water includes the access to basic sanitation. CESCR's General Comment 15 states that "Ensuring that everyone has access to adequate sanitation is not only fundamental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources. In accordance with the rights to health and adequate housing (see General Comments No. 4 (1991) and 14 (2000)) States parties have an obligation to progressively extend safe sanitation services, particularly to rural and deprived urban areas, taking into account the needs of women and children".


8- Legislation on the right to water

 

Explicit reference to the right to water has been made in two core international human rights treaties which are legally binding upon all states that have signed them:

  • the Convention on the Elimination of Discrimination Against Women (1979)
    Art.14 (2) State parties shall take all appropriate measures to eliminatediscrimination against women in rural areas in order to ensure, on abasis of equality of men and women, that they participate in andbenefit from rural development and, in particular, shall ensure towomen the right: (h) To enjoy adequate living conditions, particularlyin relation to housing, sanitation, electricity and water supply, transport and communication.
  • the Convention on the Rights of the Child (1989);
    Article24 (1) States Parties recognize the right of the child to the enjoymentof the highest attainable standard of health and to facilities for thetreatment of illness and rehabilitation of health...(2) State Partiesshall pursue full implementation of this right and, in particular,shall take appropriate measures: (c) to combat disease andmalnutrition, including within the framework of primary health care,through, inter alia, the application of readily available technologyand through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution [...].

and also in regional instruments:

  • the African Charter on the Rights and Welfare of the Child1 (1990)
    Article14 (1) Every child shall have the right to enjoy the best attainablestate of physical, mental and spiritual health. (2) State Parties tothe present Charter shall undertake to pursue the full implementationof this right and in particular shall take measures: (c) to ensure theprovision of adequate nutrition and safe drinking water.
  • The Protocol on Water and Health2 to the 1992Convention on the Use of Transboundary Watercourses and Internationallakes, European Commission of the United Nations for Europe (1999)
    Article4(2): Parties shall, in particular, take all appropriate measures forthe purpose of ensuring: (a) adequate supplies of wholesome drinkingwater...;(b) adequate sanitation...
    Article5: Parties shall be guided in particular by the following principlesand approaches: (1)...equitable access to water, adequate in terms ofboth quantity and of quality, should be provided for all members of thepopulation, especially those who suffer a disadvantage or socialexclusion.
    Article6(1): The Parties shall pursue the aims of: (a) access to drinkingwater for everyone; (b) provision of sanitation for everyone.
  • Charte des Eaux du Fleuve Sénégal (2002)3
    Art.4: les principes directeurs de toute répartition des eaux du Fleuvevisent à assurer aux populations des Etats riverains, la pleinejouissance de la ressource, dans le respect de la sécurité despersonnes et des ouvrages, ainsi que du droit fondamental de l'homme àune eau salubre, dans la perspective d'un développement durable.

The right to water has been enshrined in other regional instruments which haven't yet entered in force. Several resolutions and declarations have also explicitly recognised the right to water (a list is available on this document pdf).

In addition, the United Nations human rights agencies, regional human rights bodies and a wealth of jurisprudence from national and local courts have all interpreted the right to water as being implicit under other human rights, such as the right to life, the right to an adequate standard of living and the right to health. The rights to life and health have been enshrined in both UN and regional human rights instruments (see document).

In addition to recognising the rights to life or health, the national legislation of several countries has explicitly recognised a right to water and/or the obligation of the state to provide everyone with access to clean water.
The following states have included the right to water in their Constitution:

 

 

AFRICA

Congo

Const. (2005) Art.48 :Le droit à un logement décent, le droit d'accès à l'eau potable et à l'énergie électrique sont garantis.

Ethiopia

Const. (1998) Art.90(1): Every Ethiopian is entitled, within the limits of the country's resources, to ... clean water.

Gambia

Const. (1996) Art.216(4): The State shall endeavour to facilitate equal access to clean and safe water.

Kenya

Draft Const (2005) Art.65:every person has the right to water in adequate quantities and of satisfactory quality. Art. 66: every person has the right to a reasonable standard of sanitation.

South Africa

South African Bill of Rights (1996), Section 27: (1) Everyone has the right to have access to (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance
(2)The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights

Uganda

Const. (1995) Art.14: The State shall endeavour to fulfil the fundamental rights of all Ugandans to social justice and economic development and shall, in particular, ensure that... 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.

Zambia

Const. (1996) Art.112: The State shall endeavour to provide clean and safe water.

 

 

AMERICA

Ecuador

Const. (1998) Art. 23: Sin perjuicio de los derechos establecidos en esta Constitución y en los instrumentos internacionales vigentes, el Estado reconocerá y garantizará a las personas los siguientes:... 20. El derecho a una calidad de vida que asegure la salud, alimentación y nutrición, agua potable, saneamiento ambiental; educación, trabajo, empleo, recreación, vivienda, vestido y otros servicios sociales necesarios.

Uruguay

Const. (2004) Art. 47:El agua es un recurso natural esencial para la vida. El acceso al agua potable y el acceso al saneamiento, constituyen derechos humanos fundamentales.

United States of America

Massachusetts and Pennsylvania Constitutions recognise the right of people to pure water.

 

In Europe, Belgium will be the first state to include the right to water in his Constitution: on 19 April 2005, the Belgian federal government has adopted a "water resolution" in which it recognises access to safe water as a human right that should be included in the Belgian constitution.

Many other countries have used other rights enshrined in national legislation, such as the right to a healthy environment, to enforce the right to water.

 

1 Adopted on 11 July 1990 and entered in force on November 1999

2 Ratified by 16 countries and entered in force in August 2005

3 Signée par la république du Mali, la République Islamique de Mauritanie et la République du Sénégal

 

9- Which obligations for State Parties ?

 

The right to water, like any human right implies governmental obligations which can broadly be categorized in obligations to respect, protect, and fulfil.

Respect. The obligation to respect requires that States Parties (that is, governments ratifying the treaty) refrain from interfering directly or indirectly with the enjoyment of the right to water. They must refrain from engaging in any practice or activity that denies or limits access to water or interferes arbitrarily with existing arrangements, e.g. by unlawful excessive abstraction of water by the state

Protect. The obligation to protect requires states to take measures to ensure that third parties such as individuals, groups, corporations or other entities do not interfere in any way with the enjoyment of the rights. This obligation includes adopting the necessary, effective and enforced legislative and other measures to restrain such third parties from denying equal access to adequate water through (e.g. the over-pricing) and polluting (e.g. pollution control measures). The Comment also notes here that during armed conflicts, emergency situations and natural disasters, the right to water embraces those obligations by which States Parties are bound under international humanitarian law.

Fulfil. The obligation to fulfil means that States must take positive measures to facilitate individuals' enjoyment of their rights through the development of strategies, policies and legislative measures, to promote the rights by appropriate education concerning for example the protection of water resources and methods to minimize its waste and, finally, to provide for the fulfilment of the rght to water when individuals or groups are unable, for reasons beyond their control, to realize that right themselves.

 

To ensure that water is affordable, States Parties must adopt the necessary measures that may include, for example, the use of a range of appropriate low-cost techniques and technologies, appropriate pricing policies such as free or low-cost water, and income supplements. States Parties should adopt comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations.

Immediate requirements of GC15


GC15 creates nine core obligations that have immediate effect and are "non derogable" - that is they must be met in full and on time and so cannot be delayed or diluted in their effect. These obligations can be arranged into three groups depending upon the level at which the States responsibilities are to have an effect.

 

At the National Level
  • Adopt and implement a national water strategy and plan of action addressing the whole population; the strategy and plan of action should be devised, and periodically reviewed, on the basis of a participatory and transparent process; it should include methods, such as right to water indicators and benchmarks, by which progress can be closely monitored;
  • Monitor the extent of the realization, or the non-realization, of the right to water
  • Adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups

At the Community Level
  • Ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups
  • Ensure physical access to water facilities or services that provide sufficient, safe and regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household
  • Ensure equitable distribution of all available water facilities and services

At the Individual Level
  • Ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease
  • Ensure personal security is not threatened when having to physically access to water
  • Take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation

(Source: M. Woodhouse "Realizing the Right to Water, 2004)

 

10- Does the human right to water mean that water should  be free?

 

The right to water does not mean that water has to be delivered for free, but it must be affordable, as well as safe, accessible and sufficient.  However, through the acceptance of a right to water, there is explicit recognition that water is a social and cultural good, as well as an economic good. This point was confirmed in CESCR's General Comment 15. Any payment for water services must be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable to all, including socially disadvantaged groups.


The quantity of water that should be available is not specified in the General Comment on the Right to Water. Instead, it states that water must be sufficient and continuous for personal and domestic uses, and refers to the guidelines of the World Health Organization on water requirements. Although the WHO have referred to the minimum drinking water amounts as 2 litres per day in temperate climates and 4.5 litres per day in hot climates for people carrying out manual work, it is difficult to obtain a consensus on the amount of water required to meet basic needs due to variation in requirements resulting from factors such as health, climate and work conditions.