The human rights to water and sanitation

All countries agree that water and sanitation are human rights. But where do these rights come from? And how are they defined?

Where do the human rights to water and sanitation come from?

The human rights to water and sanitation are guaranteed in binding international human rights law. They are part of the human rights to an adequate standard of living, which is guaranteed in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). 170 United Nations Member States are party to this treaty, and another four countries have signed it. The human right to an adequate standard of living is also guaranteed in Article 27 of the Convention on the Rights of the Child (CRC) and in Article 28 of the Convention on the Rights of Persons with Disabilities.

The human rights to water and sanitation are also closely linked to other human rights, including the right to health, the right to life, and to fundamental principles such as human dignity. They are therefore also relevant in countries that may not be party to a treaty that explicitly guarantees the human right to an adequate standard of living, but are party to treaties guaranteeing human rights whose content require water and sanitation.

The recognition of the human rights to water and sanitation at the United Nations

Human rights treaties that guarantee the right to an adequate standard of living and other human rights relevant to the human rights to water and sanitation have been in force for many years. However, it took until 2010 for countries to recognise that the human rights to water and sanitation are indeed part of (or derived from) the human right to an adequate standard of living.

Following expert discussions since 2002 and the appointment of a UN Independent Expert in 2008, later Special Rapporteur, a turning point was the adoption in July 2010 by the United Nations General Assembly of resolution 64/292. While declarations on water and sanitation as human rights existed prior to the adoption of this resolution, this was the first time a high-level United Nations political body recognised the human rights to water and sanitation. This was followed by the first Human Rights Council resolution to affirm these rights to water and sanitation as legally binding in September 2010. Since then, many more resolutions have further consolidated the consensus on the human rights to water and sanitation among UN Member States and the rights are now universally recognised.

WATER & SANITATION AS SEPARATE HUMAN RIGHTS

Up to 2015, United Nations resolutions refer to a single human right to water and sanitation. Following years of advocacy from the United Nations Special Rapporteur and civil society organisations, water and sanitation were recognised as separate human rights by the United Nations General Assembly in resolution 70/169 of December 2015.

How are the human rights to water and sanitation defined?

Human rights principles underpin not just the human rights to water and sanitation, but all human rights. They serve to identify and address systemic challenges in the realisation of human rights for all.

The human rights principles are:

Discrimination is either de jure (direct), meaning that it is enshrined in discriminatory laws, or de facto (indirect), resulting from policies or actions that are purportedly neutral, but have a discriminatory impact. Both of these forms of discrimination are prohibited, although the second can be harder to identify and address.
States are also required to ensure that individuals and groups enjoy substantive equality, which means that States must take active and affirmative measures to ensure that all people enjoy their full human rights and their right to equality, in terms both of opportunity and of results, whatever their position in society.

To fully realise human rights, States must be transparent and open. This is an integral part of ensuring access to water and sanitation services for all. Individuals must both be aware of their rights and also know how to claim them. States must therefore ensure that information relating to standards, as well as progress towards meeting those standards, is available and accessible, and that the mechanisms (including service delivery options) used to ensure that these standards are indeed met are available and accessible to all.
Transparency establishes openness of access to information without the need for direct requests; for example, through the dissemination of information via the radio, internet and official journals.

The human rights to water and sanitation can only be realised effectively through full, free and meaningful participation in decision-making processes by people affected by the decisions. Participation ensures better implementation and enhances the effectiveness and sustainability of interventions, offering the possibility of social transformation.

Accountability is the process by which people living under a State’s jurisdiction can ensure that States are meeting their obligations with respect to the human rights to water and sanitation.
Accountability covers two important areas: first, it establishes monitoring and other mechanisms for controlling the different actors responsible for ensuring access to water and sanitation services. This includes the monitoring of service levels and of compliance with standards and targets, as well as monitoring which individuals and groups have access to adequate water
and sanitation services and which do not.
Second, accountability demands that individuals or groups who consider that their human rights have been violated should have access to courts or other independent review mechanisms, in order that their complaints may be heard and resolved. Access to justice can take many forms, from administrative complaints procedures to judicial processes at local, national, regional and
international levels.

Human rights law requires States to take immediate steps towards progressively achieving the full realisation of the human rights to water and sanitation for everyone: once services and facilities have been improved, the positive change must be maintained and slippages and retrogression must be avoided.
Water and sanitation must be provided in a way that respects the environment and ensures a balance of the different dimensions of economic, social and environmental sustainability. Services must be available sustainably for present and for future generations, and the provision of services today should not compromise the ability of future generations to realise their human rights to water and sanitation. Importantly, sufficient expenditure in operation and maintenance of existing services must be ensured.

Standards serve to assess whether services meet human rights requirements. These standards are very similar to those found in technical guidance on WASH services. Ultimately, the human rights standards describe what a ‘good’ service looks like.

The standards are:

Water and sanitation facilities must meet people’s needs now and in the future:
Water supply must be sufficient and continuous for personal and domestic uses (including drinking, personal sanitation, washing of clothes, food preparation, and personal and household hygiene).
There must be a sufficient number of sanitation facilities to ensure that all of the needs of each person are met. Where facilities are shared, long waiting times should be avoided. In addition, the collection, transport, treatment and disposal (or reuse) of human excreta, and associated hygiene must be ensured.
Facilities to meet hygiene requirements must be available wherever there are toilets and latrines, where water is stored and where food is being prepared and served, particularly for hand-washing, menstrual hygiene management and the management of children’s faeces.
Water, sanitation and hygiene facilities and services must not only be available at home, but in all places where people spend significant amounts of time.

Water and sanitation infrastructure must be located and built in such a way that it is genuinely accessible for everyone, with consideration given to people who face specific barriers, such as children, older persons, persons with disabilities and chronically ill people.
The following aspects are particularly important to consider: Design of facilities, time and distance to collect water or reach sanitaiton facilities, physical security of users.

The quality and safety of water and sanitation services must be ensured to protect the health of users and the general public.
Water must be safe to use for human consumption (drinking and food preparation) and for personal and household hygiene. It must be free from microorganisms, chemical substances and radiological hazards that constitute a threat to human health.
Sanitation facilities must be safe to use and must effectively prevent human, animal and insect contact with human excreta, to ensure safety and to protect the health of users and the community. Toilets must be regularly cleaned, and provide hygiene facilities for washing hands with soap and water. Women and girls require faciltiies to enable menstrual hygiene management. Ensuring safe sanitation furthe requires hygiene promotion and education, to ensure that people use toilets in a hygienic manner.

People must be able to afford to pay for their water and sanitation services and associated hygiene. This means that the price paid to meet all these needs must not limit people’s capacity to buy other basic goods and services, such as food, housing, health and education, guaranteed by other human rights. While human rights law does not require services to be provided free of charge, States are obliged to provide free services or put adequate subsidy mechanisms in place to ensure that services are affordable for the poor.

The acceptability of water and sanitation services is crucial: People will not use faciltiies if these do not meet the social or cultural standards of the people they are meant to serve. Acceptability is also important to ensure privacy and dignity, which are themselves human rights principles that apply to all human rights. The following aspects are important:
Water must be of an acceptable odour, taste and colour to meet all personal and domestic uses. The water facilitiy itself must be acceptable for the intended use, especially for personal hygiene.
Sanitation facilities will only be acceptable to users if the design, positioning and conditions of use are sensitive to people’s cultures and priorities. Sanitation facilities that are used by more than one household should always be separated by gender and constructed in such a way that they ensure privacy. Toilets for women and girls must have facilities for menstrual hygiene management and for the disposal of menstrual materials.
Particularly with respect to sanitation and associated hygiene, a number of practices exist that are unacceptable from a human rights perspective. These include manual scavenging and the taboos attached to women and girls during menstruation. States must ensure that these practices are eliminated, which will often require a range of measures, including changes to the physical infrastructure, concerted political leadership, awareness raising and legal and policy change.

What do states have to do to realise the human rights to water and sanitation?

The human rights to water and sanitation are guaranteed in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This treaty and international human rights law more generally contains some specific obligations which States that have ratified the treaty need to follow.

In order to realise the human rights to water and sanitation, States have to do the following:

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MOVE FORWARD:

Progressive realisation and maximum available resources Article 2 (1) of the ICESCR obliges States to progressively realise the human rights guaranteed in ICESCR and that they must use the maxiumum of the resources available to them to do so.

Progressive realisation means that states must move as quickly and effectively as possible towards good water and sanitation services for all. The concept of progressive realisation accepts that services for all is a step-by-step process that takes time, and faces many technical, economic and political constraints. However, progressive realisation it not an excuse for not taking action! It requires increases in the number of people with access, with a view to getting to universal access as fast as possible.

Any slip back – or retrogression in human rights terms – is generally against the object and purposes of the ICESCR treaty. In cases where resources are very limited, such as in times of financial or economic crises, States must prioritise ensuring access to a mimnum level of service to comply with human rights. This will often necessitate specific measures to assist marginalised and disadvantaged individuals and groups.

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EXTRATERRITORIAL OBLIGATIONS

Extraterritorial obligations require States parties to the relevant agreements to respect the human rights of people in other countries. Water must never be used as an instrument of political or economic pressure, and States must not impose embargoes or similar measures that prevent the enjoyment of the human rights to water and sanitation.

With regard to the obligation to protect, States must prevent third parties, for example, a company based in one State and functioning in another, from violating the human rights to water and sanitation in other countries.

Furthermore, States in a position to do so must assist in the full realisation of the human rights to water and sanitation in other countries. In disaster relief and emergency assistance, economic, social and cultural rights, including the human rights to water and sanitation, should be given due priority in a manner that is consistent with other human rights standards, and that is sustainable and culturally appropriate.

The latest development in this area are the [Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights”. These spell out States’ obligations in detail and were adopted by a group of experts in internaitonal law and human rights in 2011.
Last but not least, agreements concerning trade and investment must not limit or hinder a country’s capacity to ensure the full realisation of the human rights to water and sanitation.

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RESPECT, PROTECT AND FULFIL

While progressive realisation is a step-by-step process, the obligation to respect, protect and fulfil human rights applies immediately and fully to all human rights, including those guaranteed in ICESCR.

The obligation to respect means that States may not prevent people from enjoying their human rights to water and sanitation so that their access to services becomes worse; for example, by selling land with a water source on it that is used by the local population without providing an adequate alternative, thus preventing users from continuing to access the source.

The obligation to protect means that States must prevent others – so called third parties or non-state actors – from interfering with people’s enjoyment of the human rights to water and sanitation. This can be done by introducing and enforcing rules, for example, to prohibit cutting off water supply for users who are unable to pay.

The obligations to respect and to protect the human rights to water and sanitation support the principle of non-retrogression.

The obligation to fulfil requires States to ensure that the conditions are in place for everyone to enjoy the human rights to water and sanitation. This does not mean that the State has to provide services directly. For example, a mechanism to fulfil the human right to sanitation may be to require that all buildings must have sanitation facilities that meet certain standards. Direct assistance by the State may be required for individuals or groups who cannot access their human rights through other mechanisms.

REFERENCE: The content of this sub-page has been adapted from Catarina de Albuquerque, [Handbook on the Human Rights to Water and Sanitation….]

STOCKHOLM WWW SESSION

"Mobilising national and
local government for the human rights to WASH"

Sunday, 25 August | 16.00-17.30pm | Room M6 

You will hear experiences with MRR implementation from Ethiopia, Bangladesh and Bhutan.

We look forward to seeing you there!