Right to water
The right to water to satisfy basic human needs for personal and domestic uses has been protected under international human rights law. When incorporated in national legal frameworks, this right is articulated to other water rights within the broader body of water law.
The human right to water has been recognized in international law through a wide range of international documents, including international human rights treaties, declarations and other standards. The main international treaties explicitly recognizing the human right to water include the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Art.14(2)), the 1989 Convention on the Rights of the Child (CRC, Art.24). Other treaties implicitly recognize the right, for instance the International Covenant on Economic Social and Cultural Rights. In terms of political declarations, the main resolutions were passed by the UN General Assembly and the UN Human Rights Council resolutions both in 2010.
The clearest definition of the Human right to water has been issued by the United Nations Committee on Economic, Social and Cultural Rights. This treaty body interpreting legal obligations of State parties to ICESCR issued in 2002 a non-binding interpretation affirming that access to water was a condition for the enjoyment of the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of health (see ICESCR Art.11 & 12) and therefore a human right:
"The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses", UN CESC - General Comment 15, para.2
The human right to water places the main responsibilities upon governments to ensure that people can enjoy "sufficient, safe, accessible and affordable water, without discrimination". Most especially, governments are expected to take reasonable steps to avoid a contaminated water supply and to ensure there are no water access distinctions amongst citizens. Today all States have at least ratified one human rights convention which explicitly or implicitly recognizes the right, and they all have signed at least one political declaration recognizing this right.
- 1 International context
- 2 Recognition under international law (1976–2010)
- 3 International jurisprudence
- 4 Right to water in domestic law
- 5 Remaining discussions
- 6 Organizations working on the right to water
- 7 See also
- 8 References
- 9 Further reading
- 10 External links
In 2013 the WHO/UNICEF Joint Monitoring Programme (JMP) for Water Supply and Sanitation reported that the number of people lacking access to improved sources of drinking water was 780 million and that more than 2.6 billion people lacked access to basic sanitation services.
Access to clean water is a major problem for many parts of the world. The United Nations states "11 percent of the global population remains without access to an improved source of drinking water". These sources include “household connections, public standpipes, boreholes, protected dug wells, protected springs and rainwater collections”. Although 11 percent of the global population lacks access to water there are “regions particularly delayed such as Sub-Saharan Africa where over 40 percent of all people without improved drinking water live.” It is concerning that approximately 900 million people worldwide do not have access to clean water. The UN further emphasizes this problem by citing studies which “indicate about 1.5 million children under the age of five die each year and 443 million school days are lost because of water- and sanitation-related diseases”.
In countries such as Burma, Kenya, and Haiti less than half of the population has access to safe drinking water due to natural factors, poor management, and political factors. An example of a political factor that contributes to a lack of access to water is the Sudanese government forcing 80,000 squatters to relocate to a camp that only has one well. The UN has described these conditions as a virtual "death sentence". Another political obstacle that contributes to a lack of access to safe drinking water is that the Israeli government does not connect many communities in Israel to water networks and as a result, these communities face poor health conditions. Poor government management of water resources contributes to lack of access to clean water. For example, the Libyan government used valuable water resources to build a "$25 billion artificial river" when the majority of Libyans do not have access water or sewer systems.
Recognition under international law (1976–2010)
"It is now time to consider access to safe drinking water and sanitation as a human right, defined as the right to equal and non-discriminatory access to a sufficient amount of safe drinking water for personal and domestic uses—drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene—to sustain life and health. States should prioritize these personal and domestic uses over other water uses and should take steps to ensure that this sufficient amount is of good quality, affordable for all and can be collected within a reasonable distance from a person's home.", UN Office of the High Commissioner for Human Rights (OHCHR) - September 2007 Report
Several international human rights conventions state provisions which could amount to an explicit recognition of the right to water. For example the 1989 Convention on the rights of the child (CRC) states: " Article 24. States 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 (…)"
The 1979 Convention on the Elimination of Discrimination against Women (CEDAW) also states: " Article 14 (2) States parties shall take all appropriate measures to eliminate discrimination against women in rural areas to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular shall ensure to women the right: … (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications."
Article 28(2)(a) of the Convention on the Rights of Persons with Disabilities (CRPD) provides: "States parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures to ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs."
However the first and till today most detailed definition of the content of the right to water came in 2002 from an expert body (CESCR) assessing the implementation of the ICESCR (International Covenant on Economic, Social and Cultural Rights), a treaty only recognizing "implicitly" the right to water. This definition is detailed in General Comment 15 (hereafter GC 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."
Following the publication of GC 15, several States agreed and formally acknowledged the right to water to be part of their treaty obligations under the ICESCR (cf. e.g. in Europe: Germany; United Kingdom; Netherlands)
A further step was taken in 2006 by the former United Nations Sub-commission on Human Rights which issued Guidelines.
These guidelines led the United Nations Human Rights Council to mandate in November 2008, Catarina de Albuquerque, as an independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation.
Eventually, on 28 July 2010, following an intense negotiation, 122 countries formally acknowledged the "right to water" in the General Assembly resolution (A/64/292, based on draft resolution A/64/L.63/Rev.1). "The Assembly recognized the right of every human being to have access to sufficient water for personal and domestic uses (between 50 and 100 liters of water per person per day), which must be safe, acceptable and affordable (water costs should not exceed 3 per cent of household income), and physically accessible (the water source has to be within 1,000 meters of the home and collection time should not exceed 30 minutes)." Safe and clean drinking water and sanitation is not merely a high priority goal, but is a human right. The General Assembly declared that clean drinking water is "essential to the full enjoyment of life and all other human rights". In September, 2010, the UN Human Rights Council adopted a resolution recognizing that the human right to water and sanitation are a part of the right to an adequate standard of living.
Following the official recognition by the UN General Assembly in 2010, the mandate of "Independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation" was extended and renamed to "Special Rapporteur on the human right to safe drinking water and sanitation". Through her reports to the Human Rights Council and to the UN General Assembly, Ms Catarina de Albuquerque continued clarifying the scope and content of the human right to water. Aside of numerous country reports, the Special Rapporteur addressed issues such as: Human Rights Obligations Related to Non-State Service Provision in Water and Sanitation (2010); Financing for the Realization of the Rights to Water and Sanitation (2011); Wastewater management in the realization of the rights to water and sanitation (2013); or Sustainability and non-retrogression in the realisation of the rights to water and sanitation (2013).
Inter-American Court of Human Rights
The right to water has been considered in the Inter-American Court of Human Rights case of the Sawhoyamaxa Indigenous Community v. Paraguay. The issues involved the states failure to acknowledge indigenous communities property rights over ancestral lands. In 1991, the state removed the indigenous Sawhoyamaxa community from the land resulting in their loss of access to basic essential services like water, food, schooling and health services. This fell within the scope of the American Convention on Human Rights; encroaching the right to life. Water, falls within as part of enjoyment of the land. the courts held the lands be returned, compensation provided and basic goods and services to be implemented while the community was in the process of having the lands returned.
International Centre for Settlement of Investment Disputes
The following International Centre for Settlement of Investment Disputes (ICSID) cases concern the contracts established between governments and corporation for the maintenance of waterways. Although the cases regard questions of an investment nature, commentators have noted that the indirect impact of the right to water upon the verdicts is significant. This is as investors were only entitled to compensation inside parameters set out by courts deemed reasonable in their consideration of the public interest, that would indicate recognition of the right to water. At the time of writing about 10% of the worlds water is privatized, It is important to note that the privatization of water is a controversial and heavily disputed issue.
Azurix Corp v. Argentina
The first notable case regarding right to water in the ICSID is that of Azurix Corp v. Argentina. The dispute was between the Argentine Republic and Azurix Corporation regarding discrepancies arising from a 30 year contract between the parities to run the water supply of provincial authorities. A consideration in regard to right to water is implicitly made during the arbitration for compensation, where it was held that Azurix was entitled to a fair return of the market value of the investment. This was rather than the requested US$438.6 million, citing that a reasonable business person could not expect such a return given the limits of water price increases and improvements that would be required to ensure a well-functioning and clean water system.
Biwater Gauff Ltd v. Tanzania
Secondly, a similar case encountered by the ICSID is that of Biwater Gauff Ltd v. Tanzania. This was again a case of a private water company (Biwater Gauff) encountering a contractual dispute with a government, this time the United Republic of Tanzania. The disputed contract at hand was for the operation and management of the Dar es Salaam water system. In May 2005, the Tanzania government ended the contract with Biwater Gauff for its alleged failure to meet performance guarantees. in July 2008 the Tribunal issued its decision on the case ; declaring that the Tanzania government had violated the agreement with Biwater Gauff. It did not however award monetary damages to Biwater; acknowledging that public interest concerns were paramount in the dispute.
Right to water in domestic law
Without the existence of an international body that can enforce; the human right to water relies upon the activity and implementation of national courts. The basis for this has been established through the constitutionalisation of economic, social and cultural Rights (ESCR) through one of two means. The first being as a "directive principle", which essentially render the rights as goals and are often non-justiciable. The second being where the ESCR are expressly protected and enforceable through the courts.
In South Africa the right to water is enshrined in the constitution and implemented by the work of ordinary statutes. this is evidence of a slight modification of the second technique of constitutionalisation referred to as the "subsidiary legislation model". This means that a large portion of the content and implementation of the right is done an ordinary domestic statute with some constitutional standing.
Residents of Bon Vista Mansions v. Southern Metropolitan Local Council
The first notable case in which the courts did so was the Residents of Bon Vista Mansions v. Southern Metropolitan Local Council. The case was brought by residents of a block of flats (Bon Vista Mansions), following the disconnection of the water supply by the local Council resulting from the failure to pay water charges. The court held that in adherence to the South African Constitution, that constitutionally all persons ought to have access to water as a right.
Further reasoning for the decision was based on the General Comment 12 on the Right to Food, made by the UN Committee on Economic, Social and Cultural Rights imposing upon parties to the agreement the obligation to observe and respect already existing access to adequate food by not implementing any encroaching measures.
The court found that the discontinuation of the existing water source, which had not adhered to the "fair and reasonable" requirements of the South African Water Services Act was illegal. It is important to note that the decision pre-dates the adoption of the UN General Comment No. 15.
Mazibuko v. City of Johannesburg
The issue regarding the quantity of water to be provided was further discussed in Mazibuko v. City of Johannesburg. The case revolved around the distribution of water through pipes to Phiri, one of the oldest areas of Soweto. this case concerned two major issues; the first being whether or not the city's policy regarding the supply of free basic water, 6 kilolitres per month to each account holder in the city was in conflict with Section 27 of the South African Constitution or Section 11 of the Water Services Act. The second issue being whether or not the installation of pre-paid water meters was lawful. It was held in the High Court that the city's by-laws did not provide for the installation of meters and that their installation was unlawful. Further, as the meters halted supply of water to residence once the free basic water supply had ended, this was deemed an unlawful discontinuation of the water supply. The court held the residents of Phiri should be provided with a free basic water supply of 50 litres per person per day.
The respondents took the case to the Supreme Court of Appeal (SCA) which held that the city's water policy had been formulated based upon a material error of law in regards to the city's obligation to provide the minimum set in the South African National Standard, therefore it was set aside. The court also held the quantity for dignified human existence in compliance with section 27 of the constitution was in fact 42 litres per person per day rather than 50 litres per person per day. the SCA declared that the installation of water meters was illegal, but suspended the order for two years to give the city an opportunity to rectify the situation.
The issues went further to the Constitutional Court, which held that the duty created by constitution required that the state take reasonable legislative and other measures progressively to realise the achievement of the right to access of water, within its available resource. the Constitutional Court also held that it is a matter for the legislature and executive institution of government to act within the allowance of their budgets and that the scrutiny of their programs is a matter of democratic accountability. Therefore the minimum content set out by the regulation 3(b) is constitutional, rendering the bodies to deviate upwards and further it is inappropriate for a court to determine the achievement of any social and economic right the government has taken steps to implement.  The courts had instead focused their inquiry on whether the steps taken by Government are reasonable, and whether the Government subjects its policies to regular review. The judgment has been criticized for deploying an "unnecessarily limiting concept of judicial deference".
the two most prominent cases in India regarding right to water illustrate that although the right to water is not explicitly mentioned in the Constitution of India as constitutionally protected right ; it has been interpreted by the Courts that the right to life includes the right to safe and sufficient water.
Delhi Water Supply v. State of Haryana
Here a water usage dispute arose due to the fact that the state of Haryana was using the Jamuna river for irrigation, while the residents of Delhi needed it for the purpose of drinking. It was reasoned that domestic use overrode the commercial use of water, the court ruled that the State of Haryana make available the water for consumption and domestic use in Delhi.
Subhash Kumar v. State of Bihar
Also notable is the case Subhash Kumar v. State of Bihar, where a discharge of sludge from the washeries into the Bokaro River was petitioned against by way of public interest litigation. the courts found that the right to life, as protected by Article 21 of the Constitution of India included the right to enjoy pollution free water. The case failed upon the facts and it was held that the filing of the petition had been filed not in any public interest but for the petitioners personal interest and therefore a continuation of litigation would amount to an abuse of process.
The status of ESCR in New Zealand at the current time are not explicitly protect by either the Human Rights or Bill of Rights Acts, therefore the right to water is not protected by law. The New Zealand Law Society has recently indicated that New Zealand would give further consideration to the status of economic, social and cultural rights in the laws of New Zealand.
Transboundary effects of the human right to water
Given the fact that water access is a cross-border source of concern and potential conflict in the Middle East, the Eastern Mediterranean and parts of North America amongst other places, some non-governmental organizations (NGOs) and scholars argue that the right to water also has a trans-national or extraterritorial aspect. They argue that given the fact that water supplies naturally overlap borders, States also have a legal obligation not to act in a way that might have a negative effect on the enjoyment of human rights in other states. The formal acknowledgement of this further legal obligation could prevent the negative effects of the global "water crunch" (as a future threat and one negative result of humans over-population). Water shortages and increasing consumption of freshwater make this right incredibly complicated. As the world population rapidly increases, freshwater shortages present many problems. A shortage in the quantity of water brings up the question of whether or not water should be transferred from one country to another.
Water as a commodity and water rights trading
The commercialization of water is offered as a response to the increased scarcity of water that has resulted due to the world population tripling while the demand for water has increased six-fold. Market environmentalism uses the markets as a solution to environmental problems such as environmental degradation and an inefficient use of resources. Supporters of market environmental believe that the managing of water as an economic good by private companies will be more effective than political accountability by citizens through their representatives. The opponents believe that the consequence of water being a human right excludes private sector involvement and requires that water should be given to all people because it is essential to life. Access to water as a human right is used by some NGOs as a means to combat privatization efforts. A human right to water "generally rests on two justifications: the non-substitutability of drinking water ("essential for life"), and the fact that many other human rights which are explicitly recognized in the UN Conventions are predicated upon an (assumed) availability of water (eg the right to food)."
Organizations working on the right to water
- International organisations:
- Governmental cooperation agencies:
- International Non-governmental organizations:
- International Networks:
- Drinking water
- Environmental Law
- Human rights
- Human rights law
- Improved water source
- Three generations of human rights
- Water law
- Water right
-  ,2013 report of the WHO/UNICEF Joint Monitoring Programme (JMP) for Water Supply and Sanitation
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- Office of the UN High Commissioner for Human Rights on The Right to Water, September 2007
- A detailed list is available at: http://www2.ohchr.org/english/issues/water/iexpert/standards.htm.
- The full text of the Convention on the rights of the child is available at: http://www2.ohchr.org/english/law/crc.htm.
- The full text of the Convention is available at: http://www.un.org/womenwatch/daw/cedaw/cedaw.htm.
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- CESCR, GC 15, 2002, para 2. The full text is available at: http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument.
- For more information: http://www.auswaertiges-amt.de/diplo/en/Aussenpolitik/Themen/Menschenrechte/MRVN-Wasser.html.
- For more information: http://www.righttowater.info/code/UKGovnews.asp
- For more information: http://www.irc.nl/page/39765.
- UN Sub-Commission on the Promotion and Protection of Human Rights, Sub-commission guidelines on the realization of the right to drinking water and sanitation, Report of the Special Rapporteur El Hadji Guissé, UN document E/CN.4/Sub.2/2005/25, 2006, available at: http://www2.ohchr.org/english/issues/water/docs/SUb_Com_Guisse_guidelines.pdf.
- For more information: http://www2.ohchr.org/english/issues/water/iexpert/overview.htm.
- See http://www.un.org/News/Press/docs/2010/ga10967.doc.htm ; The full text of the UN GA resolution is available at: http://doc.un.org/DocBox/docbox.nsf/GetFile?OpenAgent&DS=A/64/L.63/REV.1&Lang=F&Type=PDF
- Right to water and sanitation derive from the right to an adequate standard of living. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10403&LangID=E
- Sawhoyamaxa Indigenous Community v. Paraguay (Inter-American Court of Human Rights, 29 March 2006).
- , American Convention on Human Rights, article 4.
- , International Network for Economic, Social & Cultural RIghts, Case of Sawhoyamaxa Indigenous Community v. Paraguay.
- , Global Public Interest in International Investment Law, Andreas Kulick, 2012 at 303.
- , Elliot Curry "Water Scarcity and the Recognition of the Human Right to Safe Freshwater" (2010) 9 Northwestern Journal of International Human Rights 103 at 113.
- Azurix Corp v. Argentina, ICSID Case No ARB/01/12.
- , Azurix Corp v Argentina ICSID Case No ARB/01/12 at 149.
- Biwater Gauff (Tanzania) Ltd v. Tanzania, ICSID Case No ARB/05/22.
- , Business & Human RIghts Resource Centre, Biwater-Tanzania arbitration.
- , McGraw, George S. "Defining and Defending the Right to Water and its Minimum Core: Legal Construction and the Role of National Jurisprudence" Loyola University Chicago International Law Review Vol. 8, No. 2, 127-204 (2011) at 137.
- , Natalie Baird and Diana Pickard "Economic, social and cultural rights: a proposal for a constitutional peg in the ground"  NZLJ 289 at 297
- , Natalie Baird and Diana Pickard "Economic, social and cultural rights: a proposal for a constitutional peg in the ground"  NZLJ 289 at 298
- Residents of Bon Vista Mansions v. Southern Metropolitan Local Council, High Court of South Africa, Case No. 01/12312.
- , South African Constitution, Section 27(1)(a).
- , Committee on Economic, Social and Cultural Rights, General Comment 12, Right to adequate food (Twentieth session, 1999), U.N. Doc. E/C.12/1999/5 (1999), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 62 (2003).
- , South African Water Services Act [No. 108 of 1997] Section 4 (3)
- , UN General Comment No. 15
- Mazibuko v. City of Johannesburg, (06/13865)  ZAGPHC 491; All SA 471 (W) (30 April 2008)
- , South African Water Services Act. [No. 108 of 1997] Section 11
- Mazibuko v. City of Johannesburg, (06/13865)  ZAGPHC 491; All SA 471 (W) (30 April 2008) at 181
- South African National Standard 3(b)
- , Mazibuko and Another v National Director of Public Prosecutions (113/08)  ZASCA 52; 2009 (6) SA 479 (SCA) ;  3 All SA 548 (SCA) (26 May 2009)
- Mazibuko and Other v. City of Johannesburg and Others (CCt 39/09)  ZACC 28; 2010 (3) BCLR 239 (CC) ; 2010 (4) SA 1 (CC) (8 October 2009)
- Alston & Goodman, International Human Rights, Oxford University Press (2013), Lucy A. Williams, "The Role of Courts In The Quantitative-Implemntation of Social and Economic Rights: A Comparative Study", 3 Constitutional Court Review 2010 [South Africa] (2011) 141
- , Amy Hardberger "Life, Liberty and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates" (2005) 4 Northwestern Journal of International Human Rights 331 at 352
- Delhi Water Supply & Sewage v. State Of Haryana & Ors, 1999 SCC(2) 572, JT 1996 (6) 107
- , The Constitution of India
- Natalie Baird and Diana Pickard, "Economic, social and cultural rights: a proposal for a constitutional peg in the ground",  NZLJ 289 at 299
- , New Zealand Law Society Human Rights & Privacy Committee, Submission to the 18th Session of The Human Rights Council, Shadow Report to New Zealnd's 2nd Universal Periodic Review
- Hausmann, Ute, Globalising economic and social human rights by strengthening extraterritorial state obligations (Brot für die Welt, FIAN and CEED, October 2006), available at: http://fian.org/resources/documents/others/germanys-extraterritorial-human-rights-obligations-in-multilateral-development-banks/pdf
- McCaffrey, Stephen C. "Human Right to Water: Domestic and International Implications, A." Geo. Int'l Envtl. L. Rev. 5 (1992): 1.
- For more information see: http://www.deza.admin.ch/en/Home/Themes/Water/Access_to_water_An_inalienable_human_right.
- For more information see the official website: http://www.freshwateraction.net
- Official website: http://digdeepwater.org
-  Water Justice project on TNI website
- Official website:http://www.uusc.org/environmentaljustice
- Official website: http://www.waterlex.org
- For more information see the official website: http://water.oikoumene.org/en
- Gleick, Peter, 1999. The Human Right to Water. Water Policy, Volume 5, pp. 487–503. (1999). 
- Langford, Malcolm. "The United Nations Concept of Water as a Human Right: A New Paradigm for Old Problems?" Water Resources Development Vol. 21, No.2, 273-282, June 2005
- United Nations. General Comment 15. 2003. "The Right to Water". The Economic and Social Council, E/C.12/2002/11. 
- George, Susan; Nhlapo, Mthandeki; Waldorff, Peter (April 2011). "The politics of achieving the Right to Water". Transnational Institute.
- Terminski, Bogumil. "Selected bibliography on the human right to water", Geneva, 2013.
- McGraw, George S. "Defining and Defending the Right to Water and its Minimum Core: Legal Construction and the Role of National Jurisprudence" Loyola University Chicago International Law Review Vol. 8, No. 2, 127-204 (2011). 
- Special Rapporteur on the human right to safe drinking water and sanitation by the UN High Commissioner for Human Rights
- Legal Database on the Right to Water Sources by WaterLex
- The Right to Water by WaterAid, WASH United, Freshwater Action Network, Rights and Humanity, and End Water Poverty
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- Bibliography on Water Resources and International Law Peace Palace Library
- Right to Water: Understanding children’s right to water on the Children's Rights Portal
- Right to Water, October 2009, publication of the Europe-Third World Centre CETIM.
- Outcome of an international experts’ meeting on the Right to Water (UNESCO), Paris, 7–8 July 2009