28 July 2020 marks the 10th anniversary of the recognition of the human rights to water and sanitation. 10 years and 12 resolutions later, this blog answers common questions on the legal status of water and sanitation as human rights in international and national law.
On 28 July 2010, the UN General Assembly passed resolution A/RES/64/292, which “Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”. 122 UN member states voted for the text and none against; 41 abstained.
Later in the same year, the UN Human Rights Council – the main UN intergovernmental human rights body – adopted resolution A/HRC/15/9 by consensus. It “Affirms that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity”.
Since General Assembly resolution A/RES/70/169 in 2015, water and sanitation are recognised as two separate human rights.
What has my government signed up to in terms of its obligation to realise the human rights to water and sanitation?
A government’s obligation under international human rights law depends on the human rights treaties that it has ratified. As resolution A/HRC/15/9 makes clear, the human rights to water and sanitation are “derived from” or form part of the human right to an adequate standard of living. This right is guaranteed in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). 171 countries have ratified this treaty.
The human right to an adequate standard of living is also contained in Article 27 of the Convention on the Rights of the Child (CRC), ratified by 196 countries, and in Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD), ratified by 182 countries.
You can find out which international human rights treaties your country has ratified on this website.Tweet
Ratification means that a country has agreed to be bound by a treaty. Accession, acceptance and approval are synonyms for ratification. Following ratification, a country is a State Party to that treaty and is obliged to progressively realise the human rights to water and sanitation, meaning that it must be able to show that it is working on making services available to everyone. A country may also become a ‘signatory’ to a treaty. Signatories promised to look into ratification and should therefore not act against the treaty, but are not yet bound by it.
If your country is one of the very few that has not ratified the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child or the Convention on the Rights of Persons with Disabilities, the human rights to water and sanitation can still be relevant. As resolutions on the human rights to water and sanitation state, these rights are “inextricably related to (…) the right to life and human dignity”. It is therefore possible to advocate for the human rights to water and sanitation based on treaties that recognise rights which require access to water and/or sanitation, such as the right to life.
How should my country integrate the human rights to water and sanitation into national law, and should the rights be included in the constitution?
On the basis of international human rights law, countries must implement the human rights that are included in a treaty that they have ratified. Legislation is one means to do so and is explicitly mentioned in ICESCR, but countries are generally free to decide how they realise human rights.
In treaty language, this is expressed as follows:
“Each State Party to the present Covenant undertakes to take steps (…) to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (Art. 2.1 ICESCR).
The value of international obligations for national advocacy lies in the fact that they place the existence of a human right above discussion: If your country has ratified ICESCR, the state has the responsibility to progressively realise services for all, using all the means it has!
There is no obligation in international human rights law to include internationally guaranteed human rights in the national constitution. Such an obligation would also be impractical, since constitutional changes generally take a long time to develop and require larger majorities in parliament than changes to a law.
Instead or alongside a constitutional guarantee, applying human rights principles to existing rules, roles and responsibilities in government can be a faster and more effective route to achieving progress in the realisation of the human rights to water and sanitation. The human rights principles of equality and non-discrimination, participation, transparency and access to information, accountability and sustainability can be applied to interpret any government rule or process and this will improve how services are planned for, implemented and maintained. For example, if monitoring of access to water and sanitation is disaggregated by inequalities that are common in a given country, government planning processes can plan to address these inequalities and monitor whether they are reducing.
Ideally, a national legal system is structured in such a way that it is geared towards achieving services for all, as fast as possible. Each hierarchical layer of a national legal system can contribute to this, as the chapter on Frameworks in the Handbook on the realisation of the human rights to water and sanitation sets out. In summary:
- The constitution serves as the highest level ‘law’. This means that no other legal instruments (laws, regulations, etc.) should contravene the constitution.
However, a constitutional guarantee alone of the human right to water does not lead to improvements in services. According to a study on a global sample of 123 states over a 15-year period (1) “constitutionalisation of the right to water (…) in national constitutions alone is not associated with material benefits related to the human right to water, but (2) the constitutionalisation of those rights can have positive material benefits for water access when the rights are foregrounded in democratic governance”.
In other words – constitutions only contribute to change if there is a discourse between people and institutions about the realisation of services for all.
- Laws and regulations provide more detail on how services are to be provided. Human rights need to be applied to laws and regulations in order to embed the principle of universal access, prioritising the marginalised and vulnerable populations.
- Policies, plans and strategies provide detail on “how things are done in everyday work practice”. This is the easiest layer to adapt to human rights, as it is easier to engage officials on challenges of access and influence practice to be more in line with human rights.
Working with human rights in WASH sector practice
10 years after the recognition of the human rights to water and sanitation at the United Nations, many in the WASH sector are using these rights in their everyday work to shape the discourse with duty bearers.
For example, local government officials who are responsible for realising services are willing to take action on the basis of human rights once they understand how this can improve their work, as experiences with the Making Rights Real approach show. This approach supports civil society organisations to engage local government officials on systemic challenges to WASH services, using human rights principles to advocate for improvements in how local institutions fulfil their role in service realisation.
In Burkina Faso, advocates successfully lobbied for the inclusion of the human rights to water and sanitation during the 2015 constitutional reform process. Following its adoption, the WASH sector now relies on the guarantee in Article 18 of the Constitution to raise people’s awareness of their rights and to demand realisation form duty bearers. In a global campaign, End Water Poverty members are seeking accountability for violations of the human rights to water and sanitation by urging people to claim their human rights to water and sanitation.
10 years after the recognition of the human rights to water and sanitation at the UN General Assembly, it is time to put the focus squarely on the application of these human rights and the principles behind them into the everyday practice of government institutions. Guarantees or commitments in constitutions, legislation, policies and other documents are an important indicator of political will – but ultimately, realisation happens when the daily practice of institutions integrates human rights. As advocates, this is where we can push for change that will bring meaningful progress on SDG 6!
Working with human rights at local level and by all kinds of actors in the WASH sector currently receives too little recognition and support. The #MakeRightsReal campaign seeks to draw attention to the valuable work done at this level. The more stories are shared on local level human rights work, the more attention, and ultimately support, will be directed to the levels where it is most needed.
This is a guest blog by Hannah Neumeyer, Head of Human Rights at WASH United. Thanks go to Louisa Gosling, Vincent Casey, Landry Wendsomdé Ouangre, Virginia Roaf, Laura van de Lande and Naomi Carrard for asking me questions and sharing their insights.