The Evolution of the Right to Water and Sanitation: Differentiating the Implications

Review of European, Comparative and International Environmental Law

Volumn 24, Issue 1, 2015, Pages 27-39

  Obani, Pedi ^a   Gupta, Joyeeta ^b,c  

^a UNIVERSITY OF BENIN   (Nigeria)

^b UNIVERSITY OF AMSTERDAM   (Netherlands)

^c UNESCO IHE INSTITUTE FOR WATER EDUCATION   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; IMPLEMENTATION PROCESS; PUBLIC ACCESS; SANITATION; WATER SUPPLY;

EID: 84957893115     PISSN: 20500386     EISSN: 20500394     Source Type: Journal    
DOI: 10.1111/reel.12095     Document Type: Review

References (136)

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5. UN, The Millennium Development Goals Report 2014 (UN, 2014). This is indicative of the extent of the sanitation challenge because the assesment does not cover other aspects of sanitation such as solid waste management, drainage, storm water management and access to hygiene.
6. The UN Charter was signed in order to promote and encourage respect for human rights, among other objectives. See Charter of the United Nations (San Francisco, 26 June 1945; in force 24 October 1945), Articles 1, 55 and 56. Human rights were also expressed in the Covenant of the League of Nations which the UN was designed to replace.
7. R.B. Henig, The League of Nations (Barnes & Noble, 1973).
8. International Covenant on Civil and Political Rights (New York, 16 December 1966; in force 23 March 1976);
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19. This distinction is evident in constitutional rights provisions at the national level. Within the 1999 Constitution of the Federal Republic of Nigeria (CAP. C23 Laws of the Federation of Nigeria 2004), any person who alleges that any fundamental human right provision in Chapter 4 of the Constitution has been, is being or is likely to be violated in any State in relation to him may apply to a High Court in that State for redress. However, economic, social and cultural objectives enshrined in Chapter 2 of the Constitution are non-justiciable by virtue of Section 6.6(c) of the Constitution. By contrast, the Constitution of the Republic of South Africa (Act No. 108 of 1996) guarantees economic, social and cultural rights in the Bill of Rights enshrined in Chapter 2 of the Constitution.
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28. In addition, the Conference recognized that water and wastewater disposal are essential for life and human development, and called for international cooperation for equitable distribution of access to water within countries. See Report of the United Nations Water Conference (Mar del Plata, 14-25 March 1977) (UN Doc. E/CONF.70/29, 1977) ('Mar del Plata Declaration').
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33. E.K. Bluemel, n. 17 above; B.U. Calaguas, The Right to Water, Sanitation and Hygiene and the Human Rights Based Approach to Development (WaterAid, 1999).
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39. World Bank, World Development Report, 1994 (Oxford University Press, 1994), at 4-5;
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41. Since the end of the Second World War, human rights have become increasingly used to protect human life and promote human dignity; the atrocities of the war further exposed the dangers of entrusting the realization of human development objectives to States alone. See, generally, World Bank, World Development Report, 1992: Development and the Environment (Oxford University Press, 1992);
42. L. Levin, Human Rights: Questions and Answers (UNESCO Press, 1981).
43. A. Cahill-Ripley, 'The Human Right to Water: A Right of Unique Status - The Legal Status and Normative Content of the Right to Water', 9:3 International Journal of Human Rights (2005), 389;
44. P. Thielbörger, The Right(s) to Water: The Multi-level Governance of a Unique Human Right (Springer, 2014).
45. Statute of the International Court of Justice (San Francisco, 26 June 1945; in force 24 October 1945), Article 38(b)-(c);
46. H.W.A. Thirlway, The Sources of International Law (Oxford University Press, 2014).
47. United Kingdom of Northern Ireland and Great Britain, National Explanation of Position on Human Rights Council Resolution 15/14 of 30 September 2010, found at: .
48. Universal Declaration of Human Rights (UNGA Resolution 217 A (III), 10 December 1948), Articles 3, 7 and 25. Although the Universal Declaration of Human Rights in itself is not legally binding, its provisions are widely accepted as fundamental norms of human rights; the declaration also forms part of the International Bill of Human Rights, found at: .
49. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (Rome, 4 November 1950;
50. European Social Charter (Strasbourg, 3May 1996; in force 1 July 1999), Articles 11, and 13.
51. American Convention on Human Rights (San Jose, 22 November 1969; in force 18 July 1978), Article 26. The American Convention on Human Rights is binding on all its signatories, while the American Declaration of the Rights and Duties of Man, 1948, is still applied to the States that have not yet joined the American Convention. See .
52. Stockholm Declaration on the Human Environment, found in: Report of the UN Conference on the Human Environment (UN Doc. A/CONF.48/14/Rev.1, 16 June 1972), Principles 1 and 2.
53. African Charter on Human and Peoples' Rights (Banjul, 27 June 1981; in force 21 October 1986), Articles 16, 18 and 24.
54. Indigenous and Tribal Populations Convention, C107 (Geneva, 26 June 1957; in force 2 June 1959), Article 2.
55. United Nations Principles for Older Persons (UNGA Resolution A/RES/46/91, 16 December 1991), Principle 1.
56. Rio Declaration on Environment and Development, found in: Report of the UN Conference on Environment and Development (UN Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex, Principles 1 and 10.
57. Need to Ensure a Healthy Environment for the Well-being of Individuals (UNGA Resolution A/RES/ 45/94, 14 December 1990), at 1.
58. Convention on the Law of the Non-navigational Uses of International Watercourses (New York, 21 May 1997; in force 17 August 2014) ('UN Watercourses Convention'), Articles 5-7 and 10.
59. Protocol on Water and Health to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (London, 17 June 1999;
60. Johannesburg Plan of Implementation, in: Report of the World Summit on Sustainable Development (UN Doc. A/CONF.199/20, 4 September 2002), at paragraphs 24-29.
61. Convention (III) Relative to the Treatment of Prisoners of War (Geneva, 12 August 1949; in force 21 October 1950) ('Geneva Convention III'), Articles 20, 26, and 46;
62. Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949; in force 21 October 1950) ('Geneva Convention IV'), Articles 89, 127.
63. African Charter on the Rights and Welfare of the Child (Addis Ababa, 11 July 1990; in force 29 November 1999), Articles 14.1 and 14.2(c).
64. Report of the International Conference on Population and Development (Cairo, 5-13 September 1994) (UN Doc. A/CONF.171/13, 18 October 1994), Principle 2.
65. Council of Europe, Recommendation (2001) 14 of the Committee of Ministers to Member States on the European Charter on Water Resources (17 October 2001), at paragraphs 5 and 19.
66. Draft Guidelines for the Realization of the Right to Drinking Water and Sanitation, in: Economic and Social Council, Realization of the Right to Drinking Water and Sanitation Report of the Special Rapporteur, El Hadji Guissé (UN Doc. E/CN.4/Sub.2/2005/25, 11 July 2005), at paragraphs 1.1-1.3.
67. Abuja Declaration, First Africa-South America Summit (26-30 November 2006 Abuja, Nigeria), at paragraph 18.
68. Message from Beppu, First Africa-Pacific Water Summit (Beppu, Japan 3-4 December 2007), found at: , at 1.
69. The Delhi Declaration, The Third South Asian Conference on Sanitation (SACOSAN) 'Sanitation for Dignity and Health' (16-21 November 2008, Vigyan Bhawan, New Delhi, India), found at: , at paragraph 1.
70. S.M.A. Salman and S. McInerney-Lankford, The Human Right to Water Legal and Policy Dimensions (World Bank, 2004). Declarations and recommendations generally reflect intent, but do not create a legally binding duty on States. Resolutions are not legally binding, with the exception of resolutions adopted by the UN Security Council, but they may affirm customary international legal principles or reflect emerging principles of international law. Resolutions could also indicate the commitment of States to the realization of the contents.
71. Centre for Housing Rights and Evictions (COHRE), Source No. 8: Legal Resources for the Right to Water - International and National Standards (COHRE, 2003).
72. E. Chapple and F. Leitch, 'The Right to Water: Does It Exist and is It Justiciable Content?'. Paper Presented at the ANU College of Law, Environmental Law Student Society Symposium 'Toward Rio+20: Contemporary Issues in International Environmental Law', 28 May 2011, found at:
73. J. Gupta, R. Ahlers and L. Ahmed, 'The Human Right to Water: Moving towards Consensus in a Fragmented World', 19:3 Review of European Community and International Environmental Law (2010), 294, at 297-299.
74. Permanent Court of Arbitration, Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 December 2013, found at: .
75. Trail Smelter (United States v. Canada) Arbitration, [1938/ 1941] 13 RIAA 1905;
76. ICJ 25 September 1997, Gabčíkovo- Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep 7;
77. ICJ 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep. 14.
78. R. Baum, J. Luh and J. Bartram, 'Sanitation: A Global Estimate of Sewerage Connections without Treatment and the Resulting Impact on MDG Progress', 47:4 Environmental Science and Technology (2013), 1994;
79. UN Sub-Commission on the Promotion and Protection of Human Rights, Resolution 2006/10, Promotion of the Realization of the Right to Drinking Water and Sanitation (UN Doc. A/HRC/Sub.1/58/L.11, 2006).
80. Socio-economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria and Universal Basic Education Commission, ECW/CCJ/APP/0808 (ECOWAS, 27 October 2009). Victims may also refer their cases to the International Criminal Court if such may violations constitute crimes against humanity, genocide or war crimes, and if the national courts are either unwilling or unable to investigate and prosecute the cases.
81. The Rome Statute of the International Criminal Court (Rome, 17 July 1998; in force 1 July 2002) defines crimes against humanity to include extermination; and it defines extermination to include 'the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population'.
82. The practice of monitoring and evaluation is useful for the increased transparency and improved performance of programmes as it can help identify trends, evaluate changes and capture knowledge. See .
83. United Kingdom, 'The Human Right to Sanitation' (United Kingdom, undated), found at: ;
84. United Kingdom, 'UK Position on the Human Right to Water' (United Kingdom, undated), found at: .
85. Constitution of the United Mexican States (as amended), Article 4.
86. Uruguayan Constitution, 1967 (as amended), Article 47.
87. Constitution of the Republic of Uganda (as at 15 February 2006), Articles XIV(b) and XXI.
88. Political Constitution of the Republic of Nicaragua, 1986 (as amended), Article 105.
89. Constitution of the Democratic Republic of the Congo, 2006, Article 48.
90. Constitution of the Republic of the Ecuador 2008, Article 12.
91. Functional Translation of the Constitution of the Republic of Maldives, 2008, Articles 23(a) and 23(f).
92. Constitution of Kenya, 2010, Articles 43.1(b) and 43.1(d).
93. Constitution of the Republic of Niger, 2010, Article 12.
94. Constitution of the Kingdom of Morocco, 2011, Article 31.
95. Provisional Constitution of the Federal Republic of Somalia, 2012, Article 27.1.
96. Constitution of Zimbabwe, Amendment (No. 20) Act, 2013, Section 77(a).
97. Constitution of the Republic of Tunisia, 2014, Article 39.
98. Loi no 2006-1772 du 30 décembre 2006 sur l'eau et les milieux aquatiques, NOR: DEVX0400302L, Version consolidée au 14 juillet 2010, found at: .
99. G. Howard and J. Bartram, Domestic Water Quantity, Service Level and Health (WHO, 2003);
100. WHO and UNICEF, Progress on Sanitation and Drinking-water: 2013 Update (WHO and UNICEF, 2013).
101. E. Kvarnström et al., 'The Sanitation Ladder: A Need for a Revamp?', 1:1 Journal of Water, Sanitation and Hygiene for Development (2011), 3, at 8.
102. WHO, Guidelines for Drinking Water Quality, Volumes 1-3, 2nd edn (WHO, 1993).
103. Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation (UN Doc. A/HRC/12/24, 1 July 2009) ('Report of the Independent Expert'), at paragraph 72.
104. UN-Water Decade Programme on Advocacy and Communication and Water Supply and Sanitation Collaborative Council, 'The Human Right to Water and Sanitation: Media Brief' (UN, 2010) ('Media Brief').
105. C. Fonseca, 'Affordability of WASH Services: Rules of Thumb and Why It's Difficult to Measure' (27 June 2014), found at: .
106. COHRE, WaterAid, Swiss Agency for Development and Cooperation and UN-HABITAT, Sanitation: A Human Rights Imperative (COHRE, 2008).
107. United Nations Development Programme (UNDP), Human Development Report 2006: Beyond Scarcity - Power, Poverty and the Global Water Crisis (UNDP, 2006), at 8.
108. D. Spuhler and R. Gensch, 'Sanitation Systems', found at: .
109. Lagos State of Nigeria, A Law to Provide for the Lagos State Water Sector, Lagos Water Corporation and for Connected Matters (Law No. 14 of 2004) ('Lagos State Water Sector Law'), Section 142.
110. UN Office of the High Commissioner for Human Rights (OHCHR), UN-Habitat and WHO, (The) Right to Water, Fact Sheet No, 35. (UN-Habitat and WHO, 2010).
111. G. Hutton, 'Global Costs and Benefits of Reaching Universal Coverage of Sanitation and Drinking-water Supply', 11:1 Journal of Water and Health (2013), 1;
112. WHO, Global Costs and Benefits of Drinkingwater Supply and Sanitation Interventions to Reach the MDG Target and Universal Coverage (WHO, 2012).
113. C. Bosch et al., 'Water and Sanitation', in: J. Klugman (ed.) Macroeconomic and Sectoral Approaches (World Bank, 2002), 373;
114. UN Office of the Special Adviser on Gender Issues and Advancement of Women, Gender, Water and Sanitation Case Studies on Best Practices (UN, 2006);
115. J. Adams et al. (eds.), Water, Sanitation and Hygiene Standards for Schools in Low-cost Settings (WHO, 2009), at 5;
116. D. Spears, 'The Nutritional Value of Toilets: How Much International Variation in Child Height Can Sanitation Explain?' (Princeton University, 2013).
117. This leads to sustainable outcomes. For instance, it was reported in 2010 that following community meetings and recommendations based on human rights standards that were made to the Nairobi City Water and Sewerage Company, the company adopted a policy to extend water supply to informal settlements in Kenya. See OHCHR et al., n. 152 above.
118. Mazibuko and Others v. City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC).
119. Ciudad de Córdoba, Primera Instancia y 8 Nominación en lo Civil y Comercial, Marchisio José Bautista y. Otros, Acción de Amparo (Expte. No. 500003/36).
120. Inter-American Court of Human Rights 29 March 2006, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Merits, reparations and costs, IACHR Series C No 146, IHRL 1530 (IACHR 2006).
121. United Nations Educational, Scientific and Cultural Organization (UNESCO), Outcome of the International Experts Meeting on the Right to Water, Paris, 7 and 8 July 2009 (UNESCO, 2009).
122. WHO and UNICEF, Meeting the MDG Drinking Water and Sanitation Target: The Urban and Rural Challenge of the Decade (WHO and UNICEF, 2006).
123. J. Toubkiss, Costing MDG Target 10 on Water Supply and Sanitation: Comparative Analysis Obstacles and Recommendations (World Water Council, 2006).
124. R.C.G. Varley, 'Financial Services and Environmental Health: Household Credit for Water and Sanitation' (1995), found at: ;
125. P. Mader, 'Attempting the Production of Public Goods through Microfinance: The Case of Water and Sanitation' 25:1 Economic Research (2012), 190.
126. P. Obani and J. Gupta, 'The Human Right to Water and Sanitation: Reflections on Making the System Effective', in: A. Bhaduri et al. (eds.), The Global Water System in the Anthropocene (Springer, 2014), 385.
127. M. Black and B. Fawcett, The Last Taboo: Opening the Door on the Global Sanitation Crisis (Routledge, 2008).
128. IRIN, 'Madagascar: Addressing Toilet Taboos to Improve Sanitation', IRIN (23 March 2012), found at: .
129. Although safe drinking water is necessary for human health, it would appear that poor households are willing to trade off the quality of water for quantity and would therefore prefer to pay less for water even though the quality might be poor. Furthermore, most households have access to inexpensive alternatives to pipe-borne network water, including boreholes, springs, rivers and lakes, which further reduces the motivation to pay more for good quality water. See J. Sy, R. Warner and J. Jamieson, Tapping the Markets: Opportunities for Domestic Investments in Water and Sanitation for the Poor (World Bank, 2014).
130. S. Pappas, 'With 7 Billion People, World has a Poop Problem', LiveScience (25 October 2011), found at: ;
131. A. Patkar and L. Gosling, Equity and Inclusion in Sanitation and Hygiene in Africa: A Regional Synthesis Paper (WSSCC and WaterAid, 2011), at 3.
132. K. Senior, 'In the Market for Proper Sanitation', 88:3 Bulletin of the World Health Organization (2010), 161.
133. This requires a focus on developing affordable and culturally acceptable sanitation solutions, and building informed demand for improved sanitation solutions backed with attitudinal change, rather than building demand for pre-determined sanitation solutions. See DFID Sanitation Reference Group, Sanitation Policy Background Paper: Water is Life, Sanitation is Dignity (DFID, 2007), at 3;
134. S. Pappas, n. 172 above; BBC, 'School Toilets "Bullying Fears" ', BBC News (29 January 2008).
135. United Nations Environment Programme (UNEP), Vital Water Graphics: An Overview of the State of the World's Fresh and Marine Waters (UNEP, 2008);
136. C. de Albuquerque, On the Right Track Back: Good Practices in Realising the Rights to Water and Sanitation (2012).