water governance and human rights · interlinkages between hrws and other human rights affirms that...

Human Rights to Water and Sanitation for

small businesses

AGUASAN, 13th May 2019, Spietz

Who is WaterLex?

Our Vision

A world where there is sustainable use and access to safe water and sanitation for all

Our Mission

To secure the human rights to water and sanitation through law and policy reform

Global Risks

• World facing hydric stress

• Water crises

• Scarcity – demand 40% beyond supply by 2030

• Nexus of food/water/energy/climate change

• Security of each inextricably linked to others

The reality is that…

And…

Basic Drinking Water ServicesBy 2015, 181 countries had achieved over 75% coverage with at least basic services3

Estimates of safely managed drinking water services are available for four out of eight SDG regions

Access to SanitationBy 2015, 154 countries had achieved over 75% coverage with basic sanitation services

Estimates of safely managed drinking sanitaton services are available for five out of eight SDG regions

DEVELOPMENT

POVERTY

HEALTH

Effects of Inadequate water and sanitation

Effects of inadequate water andsanitation on human health

At any one time, close to half of all people indeveloping countries are suffering from health problems

caused by poor water and sanitation

2.2 M die mostly <5yr

10% people malnutrition

6 M blind500M at risk

200 M infected20 M severe

1.2 M diemostly <5yr

DiarrhoeaIntestinal

WormsTrachoma Schistosomiasis Malaria

Equitable Use

Social

Equal Democratic Opportunity

Political

Water Governance

Efficient U

se

Econ

om

ics

Sust

ain

able

Use

Sust

ain

abili

ty

Reasons for inadequate access

SocialExclusion from decision-making

EconomicInsufficient resources

SustainabilityChanging social/environmental contexts

PoliticalChanges in managementor ownership of water supply

Legal history

Universal Declaration of Human Rights

International Covenant on

Civil and Political Rights

(1966)

International Covenant on

Economic, Social and

Cultural Rights (1966)

International ESCR Framework: Covenants

Most relevant in the context of HRWS:

• 1966 ICESCR – Economic, Social and Cultural Rights

• 1979 Elimination of all forms of discrimination against women

• 1989 Rights of the Child

• 2006 Rights of Persons with Disabilities

ICESCR

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”

ICESCR, Article 11

“The States Parties to the present Covenant recognizethe right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

ICESCR, Article 12

Progressive Realisation

• Cannot be interpreted as Laissez-passer to defer efforts

• Immediate and long-term obligations

• Constant and continuing obligation to make progress

• Obligation to make progress to maximum of available resources

African Convention on the Conservation of Nature and Natural Resources (1968)

African Charter on the Rights and Welfare

of the Child (1990)

The Protocol to the AfricanCharter on Human and People’s Rights on the

Rights of Women inAfrica (2003)

Inter-American Convention Against All

Forms of Discrimination and Intolerance (2017)

Inter-American Convention Against Racism, Racial

Discrimination and Related Forms of Intolerance (2015)

Plus many soft law instruments

UNECE Protocol on Water and Health (2005)

Inter-American Convention on Protecting

the Human Rights of Older Persons (2015)

Regional Legal Frameworks

Ref: WaterLex Handbook: Human Rights to Water and Sanitation:Annotated Selection of international and regional law and mechanisms

General Comment No.15The Right to Water

Adopted 20th January 2003, at 29th session of UN Committee on Economic, Social and Cultural Rights (CESCR)

• Links the right to water and adequate standard of living

• Clarifies the scope and content of the right to water

• Explains what is meant by sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses

HRWS in International Human Rights Law

“Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”.

The use of the word “including” indicates that thiscatalogue of rights was not intended to be exhaustive.

The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. […]

The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para.1) and the rights to adequate housing and adequate food.”

GC No. 15, Para 3

Extracts from GC No. 15

“Water should be treated as a social and cultural good, and not primarily as an economic good.” GC No. 15, Para 11

“Water is a limited natural resource and a public good fundamental for life and health.

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.” GC No. 15, Para 1

“State parties have a constant and continuing duty under the Covenant to move as expeditiously and effectively as possible towards the full realization of the right to water.” GC No. 15, Para 18

Human Right to Water

• 2010 Recognition at UN General Assembly, Human Rights Council

• Entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use

Water and Sanitation – 2 independent Rights

GC No. 15 is not on the right to sanitation

HRWS Resolution General Assembly […]the rights to safe drinking water and sanitation are closely related, but have distinct features which warrant their separate treatment in order to address specific challenges in their implementation […]

Recognizes that the human right to safe drinking water entitles everyone, without discrimination, to have sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use, and that the human right to sanitation entitles everyone, without discrimination to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity […] December 2015 GA resolution 70/169

Normative Content of HRWS

2. Procedural Guarantees

I. Non-discrimination

II. Access to information

III. Public participation

IV. Accountability

V. Sustainability

1. Normative Content

I. Accessibility

II. Affordability

III. Availability

IV. Quality

V. Acceptability

1.I Accessibility

Accessibility concerns the level of access and identifies whohas access

Physical accessibility: …“Sufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace……Physical security should not be threatened during access to water facilities and services.”

GC No.15 Para 12(c)

1.I Physical Accessibility

There is no international legal standard for physical accessibility of water:

• WHO guidelines relevant

Basic access:

On average, women in Africa and Asia walk 6 km to collect water.

1.II Affordability

Water services must be affordable to all

States parties obliged to consider:

• low-cost technologies

• appropriate pricing policies such as free or low-cost water

• income supplements

1.II Benchmark for Affordability

UNDP suggests 3% of household income:

1.II Tariff Structure Options

Tariff Application Affordability for low volume users

Sustainability

Flat Rate / Fixed Price /person or household

Low No

Uniform Price / unit Low Reduces demand

Block Options:a. Low price for low volume, then increases

Price changes / volume

Good Reduces average and peak demand

b. High price for low volume, then decreases

Price changes / volume

Low No

1.III Availability

• General Comment Nr. 15 does not specify quantity,but refers to the need for WHO conformity

• There must be a sufficient number of sanitation facilities to ensure that all of the needs of each person are met

Water supply for each person must be sufficient and continuous for personal and domestic uses, …drinking, personal sanitation, washing of clothes, food preparation, and personal and household hygiene.

GC No.15 para 12(a)

1.III WHO Guidelines

Quantity waterLitres /person / day

Needs

50-100 • Most basic needs met• Few health problems

20-25 • Insufficient for basic hygiene& consumption

• Health concerns

1.III Case Study South Africa

• Free Basic Water

• Right to water and sanitation in Constitution (1996) and in Water Services Act (1997)

• Everyone has a right of access to basic water supplyand basic sanitation These terms are defined in the law

• 2001 Free Basic Water policy• 6000 L/month per household for poor• > 6000 L, price increases in blocks• Challenges:

• flush toilets, urban v rural, affordability >6000 L, cut-offs, limited funds

• 2017 Policy Re-assessed due to drought, for indigents only

1.IV Quality

• Safe to use and must effectively prevent human, animal and insect contact with human excreta

• Ensure safety and to protect the health of users and the community

Water for personal and domestic uses must be

safe and acceptable

“…safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health [ …]

…an acceptable colour, odour and taste

GC No.15 Para 12 (b)

Sanitation facilities must be Water must be

1.IV Assessing Quality

• Highly Complex – micro-organisms, physical and chemical parameters

• WHO & UNICEF leaders – defined core parameters

• WHO guidelines for drinking water quality

1.V Acceptability

Consumer based

• Characteristics e.g. odour, taste, colour

• Procedural considerations e.g. behaviour of suppliers

• Suitability for us

Culturally based

• Subjective perceptions based on:

• Culture of individuals

• Minority groups

• Communities

Loo with a view

South Africa

1.V Common Misconceptions about the Rights

• Free water

• Unlimited use

• Household connection

• Water resources from other countries

• Customary international law

• Shared equitably

• Priority to human needs

2. Principles

1. Normative Content

I. Accessibility

II. Affordability

III. Availability

IV. Quality

V. Acceptability

2. Procedural Guarantees

I. Non-discrimination

II. Access to information

III. Public participation

IV. Accountability

V. Sustainability

2.I Non-Discrimination

Water and sanitation facilities must be available to all on a non-discriminatory basis

Priority must be given to the most marginalized and vulnerable to exclusion and discrimination.

2.I Case Study Hungary

• Ombudsman for Future Generations investigated discrimination

• Public wells turned off

• Affected mainly the Roma population

• Violation of rights to:

• healthy drinking water

• human dignity, and

• right to equal treatment

2.II Access to Information

The right to seek, receive & impart information concerning water issues

• Individuals must be aware of their rights and also know how to claim them.

• States must ensure that information relating to standards, and progress towards meeting those standards, is available and accessible.

2.III Public Participation

• The right to participate in the decision-making process that can affectthe enjoyment HRWS

• Full, free and meaningful participation • in decision-making processes

• by people affected by the decisions

• Better implementation

• Enhances effectiveness and sustainability

• Possibility of social transformation.

2.IV Accountability

States should be held accountable for meeting their obligations and ensuring that non-State actors respect their respective obligations.

Persons or groups who have been denied their right to water should have access to effective judicial or other appropriate remedies at both national and international levels […]

National ombudsmen, human rights commissions, and similar institutions should be permitted to address violations of the right.”

GC No. 15 para 55

2.V Sustainability

Services must also be sustainable, ensuring that the right can be realized for present and future generations

GC No. 15 para 11

• Future generations shall also have the right to water and sanitation• 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

Interlinkages between HRWS and other Human Rights

Affirms that the human rights to safe drinking water and sanitation as components of the right to an adequate standard of living are essential for the full enjoyment of the right to life and all human rights

GA res 70/169

Right to Dignity

Right to HealthArt.12

Right to Housing and

FoodArt.11

Right to Life

Right to Water

Right to Healthy Environment