WATER AS A HUMAN RIGHT:
LEGAL, SOCIAL AND ECONOMIC IMPLICATIONS
A study of the implications of General Comment No.15 of 2002 of the UN Committee on Economic, Social & Cultural Rights
By Ruana Rajepakse
(Conference on Global Ecological Integrity, Human Rights and Human Responsibilities – Urbino, Italy, 27 June – 1 July, 2003)
1.1 On 26 November 2002, at the close of its 29th Session, the United Nations Committee on Economic, Social and Cultural Rights issued General Comment No.15 of 2002 that declared as follows: “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.”
1.2 The Committee went on to define this right as follows: “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.”
1.3 The General Comment is a device that has been used by the United Nations from time to time to amplify the rights set out in its Covenants. This latest General Comment was issued against a background of increasing fear, articulated last year by UN Secretary General Kofi Annan, that scarce water resources may turn out to be a serious source of conflict in the new century .
1.4 Over one billion persons are said to lack access to a basic water supply, while several billion are said to lack access to adequate sanitation. The UN Committee found a “widespread denial of the right to water in developing as well as developed countries”. It cited “continuing contamination, depletion and unequal distribution of water” as exacerbating existing poverty. It called on the 147 States Parties to the Covenant to adopt effective measures to realize the right to water.
1.5 Acknowledging the fact that water is not expressly mentioned in the UN Covenant on Economic, Social and Cultural Rights, the Committee sought to justify its stand as follows: “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 this catalogue 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. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see General Comment No. 6 (1995)). 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 (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.”
2. Summary of the General Comment
2.1 According to the UN Committee, the principal elements of the right to water are availability, quality and accessibility. Supply must be sufficient for regular personal and domestic use including drinking, sanitation, food preparation and personal and household hygiene. Some individuals or groups may require additional supply due to health, climate and work conditions. Water should be made available to deprived urban areas, even to those in temporary dwellings. There should be no arbitrary disconnection, and where disconnection is based on failure to pay for water, a person’s capacity to pay must be taken into account. “Under no circumstances shall an individual be deprived of the minimum essential level of water.”
2.2 Water should be of a quality that is free from harmful substances and of an acceptable color, odor and taste for each type of use. WHO guidelines provide a basis for the development of national standards.
2.3 Accessibility is divided into the physical and economic. Physical accessibility requires that an adequate water supply be within safe reach for all sections of the population. There must be proximity to households, educational institutions and workplaces, and regard must be had to gender, lifestyle and privacy requirements.
2.4 Economic accessibility means that water and water services must be affordable to all, inclusive of direct and indirect costs. The price of water must not compromise the realization of other Covenant rights. Access should also be non-discriminatory, with special care for vulnerable and marginalized groups. Recognizing that the Covenant prohibits communities from being deprived of their means of subsistence, the statement also recognizes the water needs of subsistence farmers and indigenous peoples.
3. Obligations of States Parties to the Covenant
3.1 The UN Committee recognized the constraints operating on States Parties due to limited resources, but declared that certain requirements such as non-discrimination and equitable access were mandatory. Furthermore, any regressive measures in relation to water rights would be prohibited. Inappropriate resource allocation was criticized as leading to covert discrimination. “Investments should not disproportionately favor expensive water supply services and facilities that are often accessible only to a small fraction of the population, rather than investing in services and facilities that benefit a far larger part of the population.”
3.2 The obligation of States was threefold: to respect, protect and fulfil water rights. Respect implies refraining from arbitrary interference in the enjoyment of water rights including traditional systems of water allocation. This includes refraining from causing pollution, and also from destroying civilian water facilities during armed conflict.
3.3 The obligation to protect includes preventing third parties, whether individuals, groups or corporations, from denying access to, or polluting or inequitably extracting from, water resources. Where water services are controlled by third parties, there is an obligation on the State to ensure that safe and acceptable water is made available at an affordable price.
3.4 In order to prevent abuse, the State is required to set up an “effective regulatory system” that will function in accordance with the Covenant and this General Comment. Such a system should include independent monitoring, genuine public participation and the imposition of penalties for non-compliance. Public participation includes “the right to seek, receive and impart information concerning water issues”. Women are expressly required to have a place in the decision making process.
3.5 Fulfillment of a State’s obligations requires legal recognition to be given to the right to water within the national political and legal system, preferably through legislation. Each State is also expected to adopt a national strategy and plan of action for ensuring that water is available and affordable to everyone, and to establish competent institutions to carry out these strategies and plans. The General Comment makes express reference to appropriate pricing policies including free or low-cost water to needy sections of the population. Other measures include reducing depletion of water resources through unsustainable extraction, diversion and damming, and elimination of contamination of watersheds and water-related ecosystems.
3.6 Even where the implementation of the right to water has been delegated to regional or local authorities, the State party retains the responsibility to comply with Covenant obligations. Persons denied their right to water should have access to effective judicial and other appropriate remedies. Institutions such as ombudsmen and human rights commissions should be permitted to address water rights issues.
4. International obligations of States and obligations of multilateral agencies
4.1 The General Comment calls for international cooperation and assistance to achieve the full realization of the right to water. Action taken within a State’s area of jurisdiction should not deprive another country of the ability to realize the right to water of its people. “Water should never be used as an instrument of political and economic pressure.”
4.2 Steps should be taken by States Parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. International assistance should be provided in a manner that is consistent with the Covenant and other human rights standards, and such assistance should be “sustainable and culturally appropriate”. “Agreements concerning trade liberalization should not curtail or inhibit a country’s capacity to ensure the full realization of the right to water.”
4.3 International financial institutions should take steps to ensure that the right to water is taken into account in their lending policies, credit agreements and other measures.
5. What impact has this General Comment had?
5.1 This statement comes at a time when many countries in Asia, Africa and Latin America are being persuaded to make major changes in their policies relating to water management and distribution. However these changes have little to do with the UN General Comment and much to do with the global trend towards private sector ownership of all commodities on which a material value can be placed.
5.2 The third World Water Summit held in Kyoto and two other Japanese cities last March (2003) conspicuously failed to make any mention of the UN General Comment that had been issued four months previously. Avoiding the term “human right” the conference instead opted to continue to term water as a “basic human need”. The crucial difference in this terminology revolves round the concept of State responsibility. A human need can be left to market forces to fulfill. But if water is a human right, then the State is responsible for the fulfillment of that right even if it allows private intermediaries to play a role.
5.3 It should be mentioned that the UN General Comment did not expressly come out for or against private sector involvement in water supply and distribution, but made it clear that in either event the State remains responsible for ensuring people’s right to water:
“18. States 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. Realization of the right should be feasible and practicable, since all States parties exercise control over a broad range of resources, including water, technology, financial resources and international assistance, as with all other rights in the Covenant.”
5.4 However the World Water Summit in Kyoto was organized by the World Water Council which was initiated by the World’s large water supply and distribution companies. In their view, the issue is not one of human rights but one of “efficiency”. Hence their preference for mega-projects that are often beyond the power of developing countries to finance. This leads to dependence on global financial institutions that in turn work hand in hand with the multinational water companies. Proof of this shared ideology was found by Indian civil rights campaigner Vandana Shiva in the following extract from a “Strategy Report” of Monsanto Corporation to its shareholders in the late 1990s:
“Monsanto plans to earn revenues of $420 million and a net income of $63 million by 2008 from its water business in India and Mexico. By 2010, about 2.5 billion people in the world are projected to lack access to safe drinking water. At least 30 per cent of the population in China, India, Mexico and the U.S. is expected to face severe water stress. By 2025, the supply of water in India will be 700 cubic km per year, while the demand is expected to rise to 1,050 units. Control over this scarce and vital resource will, of course, be a source of guaranteed profits.”
Monsanto’s report also confirmed the link between international lending institutions and the western corporate world in this field:
“We are particularly enthusiastic about the potential of partnering with the International Finance Corporation (IFC) of the World Bank to joint venture projects in developing markets. The IFC is eager to work with Monsanto to commercialize sustainability opportunities and would bring both investment capital and on-the-ground capabilities to our efforts.”
5.5 As against this, the presentation of the NGO panel at the Kyoto Water Summit had this to say:
“We oppose the promotion of the development paradigm exemplified by the commodification of water and the renewed push for large-scale infrastructure projects that undermine local, participatory, decentralized actions. Despite ample and credible evidence of the value of local actions within river basins, they continue to be marginalized and trivialized. It`s time to mainstream these locally rooted strategies, by incorporating them into policies and budgets at all levels.”
6. Subtleties of Language
6.1 Corporate gatherings have tended to adopt the language of the NGOs and it takes a discerning observer to spot the differences. For example, one of the commitments made by the World Water Council at the Kyoto Summit was a program to precisely identify the benefits brought by sound water management and provide governments with appropriate tools and analysis to be considered in priority setting, planning, development, management, and budgeting for the water sector. However, this program will be developed with a consortium of “International financial institutions”, UN agencies, “international non-governmental organizations”, and research institutions. There is no provision in this scheme for local NGOs or public participation, or even for the views of the governments at the receiving end of the “priority setting”.
6.2 In Sri Lanka, a draft Water Resources Act that is still under discussion provided for special rules and rates to govern “bulk water users”. However a closer study of the Act revealed that the definition of bulk water users would include subsistence water users, i.e. small farmers who joined together in groups or even companies, along with factories and hotels. In fact it was part of the “community-based development” to encourage farmers to form companies, little realizing the economic implications for their water rates.
7. What’s wrong with privatization of water services?
7.1 It is necessary to distinguish between private sector involvement in water and sanitation services, and corporate private control of water services. Private sector involvement in the building of water treatment plants, hydro-power plants etc, sometimes on a BOO, BOT or BOOT basis , is materially different from handing over the entire water service system into private corporate hands. In the case of the former, the public water authority remains in control of quality, distribution and pricing. Relating this to the UN General Comment, the State remains responsible for the principal elements of the right to water, namely availability, quality and accessibility (physical and economic).
7.2 Privatization of water supply services has inevitably led to price increases. This is an economic necessity because –
(a) While a public water service, if it is to run efficiently needs to recover its operational costs and make a reasonable profit to enable the periodic upgrading of plant and services;
(b) A private corporate entity doing the same thing needs both the above elements plus an added profit to pay dividends to its shareholders.
According to “Fortune” profits of the global water business are almost one trillion dollars a year, and goes mostly into the hands of about 10 ten multinational companies. Many of these companies were members of the Camdessus panel that issued a report suggesting, amongst other measures, that that governments and multilateral financial institutions provide “guarantees [of profit] and insurance” for private water projects. It was this idea taken to extremes that led to the water crisis and riots at Cochabamba, Bolivia. That story is not over yet, with the affected corporation Bechtel now suing the Bolivian Government before the International Center for the Settlement of Investment Disputes (ICSID), a tribunal administered by the World Bank that holds all of its meetings in secret.
7.3 Perhaps more surprising than the profiteering, is the generally poor record of water quality that has accompanied private sector control of water, largely due to an apparent inability of regulatory agencies to perform their task effectively. For instance the Environmental News Service (ENS) reported earlier this month (June 2003) that the U.S. Environmental Protection Agency (EPA) was doing a poor job of enforcing the Clean Water Act. Apparently an internal study, leaked to the press, had found that 25 percent of the nation`s largest industrial plants and water treatment facilities were in serious violation of pollution standards during the period 1999-2000, but only a fraction of them faced formal enforcement proceedings.
8. Back to the law
8.1 Countries with a strong human rights chapter in their respective Constitutions may not need the UN General Comment in order for their Supreme Courts to come to the conclusion that access to water is a human right, and that inequitable deprivation of water would be a violation of human rights. This would apply not only to countries like South Africa where references to economic and social rights are expressly included, but also to countries like Sri Lanka where they are not.
8.2 The idea that the ownership of water is not transferable and that water is a public good coincides with ancient traditions and with the principles of Roman-Dutch law. The rights of the citizenry over their natural resources and the role of the State as guardian of those resources in the public interest, are well set out in the Sri Lankan Supreme Court decision of Bulankulama v. Secretary, Ministry of Industrial Development and others, 2000 (3) Sri L.R. 243. That case involved a commercial project that would have led to the rapacious exhaustion of natural phosphate resources for the greater profit of a multi-national company, when scientists estimated these same resources could have been used in a sustainable manner to benefit local agriculture for another 200 years. The same principle would apply even more forcefully to unsustainable extraction of water.
8.3 Likewise the Supreme Courts of India and Bangladesh have used the “right to life” clause in their Constitutions to bring in an almost limitless range of environmental safeguards that include the right to clean and safe water. The reasoning followed by these Courts is very similar to the reasoning followed by the UN Committee in finding that water, though not expressly mentioned in Articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights, is essential for the realization of the rights that are expressly mentioned.
8.4 Constitutional clauses guaranteeing equality before the law and the equal protection of the law may also be used for the purpose of striking down legislative or executive measures that have the effect of denying equitable access to water. A useful analogy was provided by a case in Sri Lanka earlier this month (June 2003) when the Supreme Court struck down the patent chapters in a proposed new Intellectual Property Act on the ground that they had the effect of treating unequally placed persons as if they were equals. The new Act was designed to bring Sri Lanka into line with its obligations under the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS). However even the TRIPS Agreement lists a number of exceptions to the exclusivity of patent rights that countries are entitled to make in the interests of public health, and these were further amplified in the “Doha Declaration on the TRIPS Agreement and Public Health” in 2002 that had declared that “the TRIPS Agreement does not and should not prevent members from taking measures to protect public health….” The Sri Lankan Bill was attacked by the petitioners principally on the grounds that by failing to include legal provision for any of the mitigatory measures allowed under TRIPS they were denying the Sri Lankan public the equal protection of the law to which they were entitled. The Court accepted this argument.
8.5 Another relevant development in Sri Lanka has been the increasing willingness of superior courts to interpret constitutional provisions in a way that accords with International Covenants to which the State is a party, such as the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. In the Bulankulama case referred to above, the Court took note of the Stockholm and Rio Declarations on Environment and Sustainable Development when dealing with the requirements of access to information, public participation and the concept of sustainable development. In a ground-breaking statement, the Court declared that such principles could become part of Sri Lankan law either through parliamentary legislation or by adoption by the Superior Courts.
8.6 Against this background the UN General Comment on Water, with its detailed provisions on the practical application of the principles of equitable access, will be a useful tool against which civil society and the law courts can measure the actions of the legislative and executive branches of the government. The General Comment can also provide the impetus, and the contents, for a national water policy in countries that have yet to formulate one.
By Ruana Rajepakse
LL.B. (London), Barrister of the Inner Temple
Attorney-at-Law of the Supreme Court of Sri Lanka
Member, Sri Lanka Law Commission
Member, IUCN Commission on Environmental Law (Sri Lanka)
Executive Director, Citizens’ Trust