RIGHT TO WATER AS AN UNNEGOTIABLE HUMAN RIGHT LAW: AN EXPOSITION ON IMPLEMENTATION
FRANCESS G. AWUNOR,
MSC WATER POLICY, LL.B, B.L, ACIARB.UK
(In Celebration of the World Water Day 2019 themed: Leaving No One Behind)
Today, the 22nd of March 2019, marks the global celebration of the World Water Day with the theme for the year being ‘Leaving No one Behind’. The World Water Day campaign is principally carried out by the UN-Water, and coordinated mainly by the UNOHCHR, UNHCR, in conjunction with Aquafed, CBD, CEO Water, MandateFOA, ILO, UNCCD, UNDP, UNESCO, UN Habitat, UNICEF, UNU, UN Women, WaterLex and WSSCC.*** The goal of this campaign is to inspire actions to tackle global water crisis.
The theme for this year, Leaving No One Behind, drives for the achievement of the targets of Goal 6 of the SDGs. The rationale and objective of this theme is to advocate for action by states, to ensure “the human rights to water and sanitation are realized for all, on a non-discriminatory basis” (UN-WATER). This year, people currently left behind are put to the spotlight and their rights to water and sanitation are being addressed.
As highlighted by the UN-WATER in its document for the World Water Day 2019 (UN-WATER), the second objective and activity of this day is to “Help policy makers understand that the lack of water and sanitation contributes to leaving people behind and promote a change in policies and regulations to include a human right based framework”.
Human rights regulations on right to water, from the above objective/target of the UN-Water, plays a major role in putting States on course for the global attainment of Sustainable Development Goal 6.
IS THE RIGHT TO WATER OVERRATED?
Understanding that the human right to water was not amongst the earliest human right law that evolved in the international space, one may wonder and wish to know what makes it so special now for it to warrant so many advocacy, campaigns and actions.
Water is not just one of, but it is the most important resource linked directly to human life. As sung by one of Nigeria’s revolutionary Afrobeat musician and Human Right Activist, Fela Anikulapo Kuti, “Water e no get enemy!”(Meaning: ‘water has no enemy’).
Water is a finite resource that is very essential for human existence, agriculture and industry. A total justification on water as a basic need of humans needs no more than a practical thought of this by us all. Imagine a world without water? What would become of us, bearing in mind that water has a nexus with many other basic human needs such as Food and Agriculture, Energy(hydropower generation), Health amongst others.
Water is undeniably a fundamental need to humans, livestock, animals and the entire ecosystem. Unfortunately, the world’s water statistics are staggering. According to the UN Human Rights Council, every year, more than 5 million people die as a result of lack of access to safe drinking water ; 84% of which are children under the age of 14”.
The major illnesses in the world today are Water-related and Water-Based diseases, as people either fall sick from the intake of unclean water, or from diseases caused by vectors that breed in unsanitary water and unhygienic environments.
Another angle to why water advocacy and actions are not to be considered overrated is in relation to the threat of Climate Change. It is no longer news that the worlds’ oceans and seas are drying up. This calls for more attention to be paid to this sensitive resource, knowing that water scarcity will render the already less than 1% of fresh water to be in higher and competitive demand.
Water scarcity, accelerated by climate change, affects water availability and may threaten peace and security as highlighted by The International Review of the Red Cross (TIGNINO, 2010). A lot of sensitive global conflicts on water, especially for shared basins, are now present in today’s world and higher levels of diplomacy will be required to ensure that this fundamental human need now a right, is not totally affected by politics and economic ambitions.
According to M. Tignino (2010), “The uneven distribution of water resources, and the competition between the multiple uses of those resources combined with the growth of the world’s population has given rise to a debate on future ‘water wars’.
A big problem will emerge for the disadvantaged and marginalised populations of the world if water is treated as solely an Economic Good and not a social good. Of course, the humanitarian position is that water be treated as a social good and nothing more, but for a more balanced and efficient water supply and sanitation and sustainability, it is the view of the writer that water be treated as both a social and economic good. A full discussion on this will rather derail from the focus of this article.
In March 2008, the UN Human Rights Council adopted a resolution expressing deep concern about the fact that “over one billion people lack access to safe drinking water and that 2.6 billion lack access to basic sanitation.” The resolution called on the Independent Expert to carry out further conceptual work to clarify the right to water and sanitation.
Whilst access to water and sanitation is widely understood as a basic need, there is still some uncertainty amongst states as to whether it is a human right, and if it is, the scope and content of that right.
THE EVOLUTION OF HUMAN RIGHT TO WATER
Sadly, the Universal Declaration of Human Rights of 1948 adopted by the United Nations General Assembly as the first human right document, did not explicitly include Human Right to Water and Sanitation.
This may have been owing to the fact that this was the colonialism era, and countries that faced water challenges were not directly represented at the negotiating table at the time, and also the possible assumption at the time that water was also freely available to all, just like air.
The economic, social and cultural rights provisions of the above Declaration of 1948 was subsequently adopted by the International Covenant on Economic, social and Cultural Rights (ICESCR) of 1966, which as well did not explicitly provide for Right to water.
As the wake of the twentieth century began to unravel several water crisis and conflicts, the human rights and sustainable development sector became increasingly aware of the growing importance of water and sanitation.
The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) had a provision in its Article 14.2, specifically in subparagraph (h) which touched on Right to Water.
The article provides that all the parties to the convention should take measures for eliminating discrimination against women, especially in rural areas and to ensure the right of women “(h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”
In 1989, the Convention on Rights of the Child was adopted with the inclusion of a provision on Right to Water which is still widely referred to till date as one of the pronounced foundation to Right on Water for the current laws on clean water and sanitation for all.
Article 24 of this convention 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…”.
This foundation also seems to portray how that water is linked with food security and health in all sense of it.
In the late 90s, two renowned Legal Scholars; Professor Stephen McCaffrey 1992 and Dr Peter Gleick 1999, gave early efforts to define and campaign on Human right to water. McCaffrey stated that “such a right could be envisaged as part and parcel of the right to food or sustenance, the right to health, or most fundamentally, the right to life.”
Following the conclusions of these Legal Scholars, the UN Committee for Economic, Social and Cultural rights (CESCR) adopted a General Comment 15 in year 2002 under the already existing ICESCR of 1966, thus giving the most detailed definition of the right to water. This treaty expressly recognised the Human Right to water.
This definition is detailed in General Comment 15, in which the Committee asserts:
“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.”
The above provision was agreed to by several countries and this led to the formal acknowledgment to right to water by many state parties, as part of the Treaty Obligations of ICESCR 1966.
Going forward, the UN Sub-Commission on the Promotion and Protection of Human Rights 2005, issued a set of guidelines to assist governments to achieve the human right to water and sanitation. This led to the engagement of independent experts like Ms Catarina de Albuquerque to work these issues of human right to water and sanitation for all under the ICESCR. On July 28, 2010, the General Assembly of the United Nations in a landmark decision adopted a resolution calling on States and international organizations to provide financial resources, build capacity and transfer technology, particularly to developing countries, in scaling up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all. That resolution was supported by a vote of 122 in favour to none against, with 41 abstentions. Nigeria was one of the 122 countries that voted in favour of this resolution.
INTERNATIONAL DECISIONS AND DOMESTICATED NATIONAL RIGHT TO WATER AND CASE LAWS
Following the legal development of rights to water in the international space, there has arisen a couple of decisions on the right to water as a fundamental human right. Similarly, several state parties to international treaties have effectively domesticated the human right to water and sanitation and thereby setting standards for availability of water and sanitation measures for basic human needs to protect the human right to life.
International and Regional tribunals have made decisions and judgments on cases of right to water, and some notable few are discussed here. Additionally, a closer look will be given to the African continent to see the extent to which right to water has been domesticated and the cases that have been reached on such matters in within the African continent.
The United Nations Human Rights Committee in the case of Liliana Assenova Naidenova et al. v. Bulgaria, Human Rights Committee, Communication No. 2073/2011, 14 November 2012, considered the right to water under the right to life and prohibition against discrimination. In this case, it denounced the Republic of Bulgaria for allowing the Municipality of Sofia to cut off a Roma community’s access to water.
Additional, the same Human Rights Committee in the case, Ángela Poma Poma v. Peru, Human Rights Committee, Communication No. 1457/2006, 27 March 2009, disapproved of diversion of water away from people. The court held that the diversion of water away from the Aymara people effectively ruined their ecosystem and infringed upon their rights to cultural enjoyment under article 27 of the ICCPR.
Moving away from the United Nations tribunal, we have had highly recognised decisions on right to water been reached by the Inter-American Court of Human Rights. To name a few, the profound case of the Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-American Court of Human Rights (ser. C), No. 214, (Aug. 24, 2010), where the court actually defined the minimum necessary amount of water needed for true fulfilment of the right to a decent existence: while the state was providing the community 2.17 litres of water per person per day, the court determined that most people require 7.5 litres per person a day. The court also ruled that the state had failed in its obligation to provide the community access to potable water.
While both this case and the one above ultimately derive their power from the special obligation of the state to ensure non-discriminatory treatment of indigenous peoples, both still invoke the right of these peoples to clean water, and the duty of the state to provide it, whether through access or direct provision.
In the European court of Human Right, we have an example case of Riad and Idiab v Belgium, 29810/03 Eur. Ct. H.R. (2008). This case considers whether detaining asylum seekers without adequate water for consumption and hygiene is in violation of the European Convention on Human Rights on inhumane treatment. In Tadevosyan v Armenia, 41698/04 Eur. Ct. H.R. (2008), ruling was that failure to provide a detainee adequate access to water and sanitation violates article 3 of the European Convention on Human Rights on inhumane treatment and punishment.
Moving to the African Commission on Human and People’s Rights, we have the case of Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v Sudan, 279/03 & 296/05, African Commission on Human and Peoples’ Rights (May 27, 2009). This case, which was among a series of allegations arising from the conflict in the Darfur region, the court held that the poisoning of wells and denial of access to water was a violation of the right to health as given by the African Charter on Human and People’s Rights as well as CESCR General Comment 14.
In realization of the right to water, there need for national domestication and effective implementation of this right. A couple of nations have explicitly included the right to water in their constitutions, and we have the following examples;
1. Constitution of the Republic of Ecuador 2008, Sept. 28, 2008, art. 3(1), Ch.2§1, 2, 7. 193.
2. The Constitution of the Republic of South Africa, May 8, 1996, Ch. 2 § 27. 194
3. Constitution of the Republic of Uganda, 1995 Oct. 8, 1995, Objective XIV, XXI.1
4. The Uruguayan Constitution, Feb. 15, 1967 (with 1989, 1994, 1996, and 2004 amendments), art. 47. 196
5. Constitution of the Democratic Republic of the Congo, Feb. 18, 2006, art. 48
6. Also the Slovenia government added Water to its Constitution as Fundamental Right for All in 2016.
Beyond constitutional inclusion, there are also policies and legislations. Some nations yet to include it as a constitutional right, have made out policies that either explicitly or implicitly imply the right to water in them, however the question of its enforcement remains a big question. To name a few we have;
1. The 1997 Brazil Law on water resources policy [National Water Resources Policy and the National Water Resources Management System,” 9.433, de Jan. 8, 1997, Diário Official [D.O.U.}, § 1: 470, 8.1.1997 (Braz.)]
2. The Ghana Water Resources Commission Act 1996 [Act No. 552/1996]
3. U.S. Safe Drinking Water Act and its 1996 Amendments
4. The Nigeria National Water Policy 2004, as well as the National Water Supply and Sanitation Policy 2000 and 2004
The creation of policies are expected to create massive effects and attract implementation commitments for the achievement of nations developmental goals, however, for the most part, the countries that seem to have side-lined matters relating to water as just a ‘policy’, have been seen to have a very long way to go in terms of implementation.
It is quite saddening that these countries are mostly from the African Continent. To take the example of Nigeria, long debates are still on about the implications of making the right to water and sanitation a human right, if it is both justifiable and enforceable. Nigeria which was one of the 122 nations that voted in favour of the resolution reached by the General Assembly of the United Nations in July 28 2010, ironically has not exactly given focus in terms of explicit legalisation and enforcement.
A few campaigns for the constitutional provision of this right have taken place within the country, an example being the campaign by Society for Water and Sanitation, Lagos chapter, where an advocacy was launched toward the implementation of the right to water campaign in Nigeria targeted towards the MDG 7 target 10, at the time.
National Case Laws
In a Colombian case between Jorge Hernán Gómez Ángel v. Alcalde Municipal de Versalles – Valle del Cauca y el Gerente de la Empresa de Servicios Públicos de Versalles (2003) C.C. T-410/03 (Colom.), a community complained that the municipality was not providing water fit for human consumption. The court upheld this claim, and proclaimed that the constitution implied a right to safe and sufficient water under its recognition of the rights to life, human dignity, health and a healthy environment.
In an Indian court case between Perumatty Grama Panchayat v State of Kerala  High Court (2004) (1) KLT 731(India), The excessive use of groundwater resources by a Coca-Cola subsidiary in India violated the constitutional right to life when it caused a region-wide water shortage.
In Pilchen v. City of Auburn, N.Y., 728 F. Supp. 2d 192, 197 (N.D.N.Y. 2010), A tenant brought an action arising from the termination of her water services. Among other judgments, the court held that requiring a tenant to assume her delinquent landlord’s obligations was an undue burden, according to the State Constitution. While the court refused to address whether there was a constitutionally protected right to water supply, it did state that the right to water service could be subsumed under rights to property interests under state law.
Gladly, a couple of African countries have a handful of litigation Case Laws to show for it that the right to water is fundamental and a national concern for them.
The Botswana case of Matsipane Mosetlhanyane and Ors v The Attorney General,  Civil Appeal No. CACLB-074-10 (Bots.). The Botswana court ruled the government’s sealing of a water source violated the CKGR community’s right to access water for domestic purposes. The court relied on three sources: (1) the Water Act (specifically section 9); (2) the UN Declaration of the Rights of Indigenous Peoples, and the recognition, by the UN General Assembly and Economic and Social Council, that the right to safe drinking water is vital for securing the enjoyment of the right to life and all human rights (as well as the right to development); and (3) the Botswana Constitution, from which it inferred the right to water from the provision protecting individuals from inhumane and degrading treatment.
Further the court provided that this judgment applied to all members of the affected community, not just those who brought the original suit. While only a national case, the use of international law and direct implication of the right to water make this case an important step in the development of precedent regarding the right’s enforcement.
Moving to the pride of Africa when it comes to the implementation of several international developmental goals, South Africa keeps setting a good implementation pace for other African countries to follow.
A couple of case laws on right to water in this country is as follows; In City of Cape Town v Strümpher (2012) ZASCA 54 (S. Afr.), this South African case arose from a dispute regarding the city of Cape Town shutting off a resident’s water when he failed to make payments. The court held that there was a constitutional right to water, as well as a duty to comply with the Water Act.
Any limitation or termination of water services must meet the minimum threshold of “fair and equitable” action on the part of the city government. In the case of Mazibuko and Others v City of Johannesburg and Others, (2009) ZACC 28 (S. Afr.), The South African Constitutional Court held that the system of pre-paid meters and supplying of a minimum amount of water to customers was constitutional.
They deferred to the legislature, claiming that despite the constitutional provision of a right to water, it is not the court’s job to question a policy that legitimately came into place through the democratic process. It emphasized the limited resources available to realize this right.
This case was a blow to advocates of a right to water, especially those using discrimination as a basis for a claim against government. It is an example of the challenges of litigating “progressive rights.”
Water as a human right is no longer a question of its priority or justifiability, rather of the commitments of member parties to international treaties to see to its realization by domestication and consistent implementation. As we seek to achieve the global sustainability goals, a wakeup call is hereby made to global citizens, to constantly lend a voice in advocating for water as a constitutional human right at various state levels, as well as to practically live with the consciousness that human activities and water wastage can affect the eventual availability of clean and safe water for all.
Kindly leave your questions and contributions in the comment section below.
• Tignino M., (2010); Water, international peace and security. International Review of the Red Cross. Vol. 92 (879)
•http://www.un.org/womenwatch/daw/cedaw/cedaw.htm. Accessed on the 16th March 2019
• McCaffrey, S.C. “A Human Right to Water: Domestic and International Implications” (1992) V Georgetown International Environmental Law Review, Issue 1, pp.1-24.
• Babalobi B., (2011). Implementing the Right to Water in Nigeria, WASH Journalists West Africa https://washjournalists.wordpress.com/2011/06/14/implementing-the-right-to-water-in-nigeria/ accessed 15th March 2019.
• “Resolution 64/292: The human right to water and sanitation”. United Nations. August 2010. Retrieved 13 October 2018.
• General Assembly resolution 64/292, The Human Right to Water and Sanitation, (3 August 2010), available from https://s3.amazonaws.com/berkley-center/100308UNARES64292.pdf
• UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), 20 January 2003, E/C.12/2002/11, available at: http://www.refworld.org/docid/4538838d11.html
• UN-WATER, http://www.waterlex.org accessed 15th March 2019
• Jootaek L., and Maraya B., (2107). The Human Right to Water: A research guide and annotated bibliography.https://www.northeastern.edu/law/pdfs/academics/phrge/right-to-water.pdf North-eastern University School of Law
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Associate at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation. Joseph is also a Chartered Mediator.