While international mechanisms are increasingly recognizing the human rights to water and sanitation, states must take action too.
Concerns about the human rights to water and sanitation (HRWS) under international law have gained increasing attention in recent years. In Canada, ongoing water advisories within Indigenous communities prompted a 2014 Human Rights Watch report. The report admonished the Canadian government for being “in violation of a range of international human rights obligations toward First Nations peoples and communities”. In response, the federal Liberal Party’s 2015 campaign promised to end these advisories by the end of March 2021. A recent report by the Auditor General Karen Hogan acknowledged the government’s failure to meet this promise. Ms. Hogan stated she was ‘very concerned and honestly disheartened that this longstanding issue is still not resolved’.
South of the border, a water contamination crisis in Flint, Michigan also garnered international attention in 2014. UN experts commented that the ongoing crisis in Flint ‘illustrates the suffering and difficulties that flow from failing to recognize that water is a human right’. The same experts noted the intersection of the HRWS with the advancement of other human rights. As recent evidence shows, abuses to the HRWS disproportionately impact the most vulnerable and marginalized communities, even in the world’s most ‘developed’ countries.
Globally, the lack of access to clean water and sanitation is an equally troubling concern. The World Health Organization (WHO) recently reported that “1 in 3 people globally do not have access to safe drinking water”. The report notes that, as of 2019, 2.2 billion people do not have access to safely managed drinking water services, and 4.2 billion do not have access to safely managed sanitation services. The WHO further emphasized the added challenges of “[c]limate change, increasing water scarcity, population growth, demographic changes and urbanization” and remarked that “[b]y 2025, half of the world’s population will be living in water-stressed areas”.
Clearly the need to advance the HRWS is of ongoing and immediate importance. As discussed below, formal mechanisms of international law (such as international conventions) are increasingly recognizing the HRWS. However, at the same time, countries have legal obligations found within international trade and investment agreements. This article cautions that a country’s (state’s) obligations under these agreements may hinder efforts to advance the HRWS inside its borders.
History of the HRWS under International Law
Several international human rights conventions signed since the 1970s have implicitly referenced the HRWS. The first was the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 14(2)(h) of CEDAW states that women have the right to “enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communication” [emphasis my own].
In 2002, the Committee for Economic, Social, and Cultural Rights (CESCR) further developed the HRWS by adopting General Comment No. 15, which expressly discussed the legal basis of the right to water. The CESCR stated that the “human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses” [emphasis my own].
Eight years later, two landmark Resolutions were adopted. Together they were the first steps taken to explicitly recognize the HRWS as independent and legally binding human rights under international law. On July 28, 2010, the United Nations General Assembly (UNGA) adopted Resolution 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; [and in doing so,]
Calls upon States and international organizations to provide financial resources, capacity-building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.
The second Resolution was adopted by the Human Rights Council (HRC) in September 2010. Resolution 15/9 reaffirmed that the HRWS existed within international human rights law (as part of the right to an ‘adequate standard of living’). The Resolution also confirmed these rights are legally binding upon States. The HRC then called upon States to progressively realize the HRWS in line with existing human rights conventions.
Legal obligations States face within their international trade and investment agreements also contribute to these barriers.
Since the adoption of these two landmark Resolutions, the UNGA and HRC have adopted other Resolutions detailing the HRWS. Taken together, these Resolutions show a global consensus that the HRWS are legally binding and embedded within other existing international human rights instruments. In 2015 and 2016, the UNGA and HRC adopted two more Resolutions of importance. These recognize the ‘human right to water’ and the ‘human right to sanitation’ as distinct but interdependent rights, carrying with them unique responsibilities.
What obligations do States have for advancing the HRWS under International Law?
A State’s obligations for advancing the HRWS fall into three categories:
- the obligation to respect
- the obligation to protect, and
- the obligation to fulfil.
(See the Office of the High Commissioner for Human Rights (OHCHR))
The obligation to respect requires States to “refrain from interfering directly or indirectly with the enjoyment of the right to water”. For example, this obligation requires States to refrain from polluting, arbitrarily disconnecting, destroying, or depleting access to clean water and sanitation for its citizens.
The obligation to protect requires States to “prevent third parties from interfering directly or indirectly with the enjoyment of the right to water”. To meet this obligation, States should adopt legislation (or take other measures) to make sure that actions taken by private actors do not threaten the human right to water and sanitation.
… the sole responsibility for ensuring compliance and enforcement of the HRWS lies directly with the State …
The obligation to fulfill requires States to “adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures to fully realize the right to water”. Under this obligation, States must adopt national policies that monitor and promote the advancement of the human right to water and sanitation.
Barriers to Advancement: Human Rights vs. Investor Rights
There is no denying the scope and content of the HRWS has been expanding under international human rights law (IHRL) over the past few decades. Because of this expansion, there are now several international mechanisms available to help assess ongoing human rights abuses and to track and incentivize progression. These include complaints procedures, periodic reviews, and reporting mechanisms. Absent these mechanisms, it is difficult to imagine coordinating a collective response to advancing the HRWS across the globe.
Despite these efforts, IHRL is often criticized for difficulties relating to compliance and enforcement. Importantly, the sole responsibility for ensuring compliance and enforcement of the HRWS lies directly with the State and its domestic legal system. To effectively realize the HRWS, States must internalize their IHRL obligations through domestic legislation and policies. Doing so can be especially difficult due to the political and/or economic environment or ongoing disagreements about definition, application, and method of administration (see discussions on privatization vs. public provision), amongst other reasons. Effective enforcement is not possible without States having domestic legislation or policy in place to ensure the HRWS are legally respected, protected, and fulfilled.
Legal obligations States face within their international trade and investment agreements also contribute to these barriers. In a recent LawNow article, Aaida Peerani also talks about the influence of international trade and investment agreements (such as NAFTA and the new CUSMA). She notes they often include legal provisions that can disincentivize (or penalize) a State making policies to preserve or protect access to clean water and sanitation. Essentially, these agreements reframe the legal nature of water from ‘water as a human right’ (or ‘water as life’) into ‘water as an investor right’ (or ‘water as a commodity’). The latter is highly enforceable under international law through investor-state dispute settlement (ISDS, which I have described in detail elsewhere).
To date, there have been several ISDS cases showing the tension between the HRWS and investor rights. Worryingly, these cases often arise during periods of crisis, where the need to take immediate action to protect the HRWS is at its highest. For example, in response to its 1998-2002 economic crisis, the Argentinian government adopted several measures to ensure affordable access to clean water and sanitation. In response to these measures, many investors pursued ISDS claims against the government, seeking millions of dollars in compensation for lost profits. Argentina has faced 62 ISDS cases since 1997, at least 10 of which are about access to clean water and sanitation.
The World Health Organization (WHO) recently reported that “1 in 3 people globally do not have access to safe drinking water”.
In its defence, the Argentinian government noted its obligations to the HRWS under international law. However, ISDS tribunals adopted mixed (and often unfavourable) positions as to how the relevance of the HRWS versus investor rights. In some cases, tribunals simply evaded engaging with the HRWS, focusing entirely on a State’s obligation to investors (see Azurix v. Argentina, Siemens v. Argentina, Vivendi v. Argentina). In other cases, tribunals recognized the HRWS but asserted that States must abide by both human rights and investor rights obligations at the same time. This clearly limits actions a State can take to advance the HRWS (see CMS v. Argentina, EDF v. Argentina, SAUR v. Argentina, Suez v. Argentina). Combined, the experiences in Argentina highlight the possible barriers a State may face in advancing the HRWS when also signing international trade and investment agreements.
A Way Forward
March 22nd is ‘World Water Day’. The purpose of this day is to celebrate water and raise awareness of the global water crisis we now collectively face. Advancing the HRWS are of increasingly important concern. This is especially so as the negative impacts of their abuse often place extra burden on the most vulnerable and marginalized populations of the world. In some avenues, progress is already being made. Mechanisms of international law are advancing the HRWS, and international organizations are increasingly placing the HRWS at the center of policy development. However, States need to do much more to make sure these rights are complied with and enforced at the domestic level.
At the domestic level, States can take several steps to further realize the HRWS through law and policy. These steps range from passing new laws to codify the protection of the HRWS to enhancing direct participation of affected communities in the public management and planning of water systems. Another important step for States is to reassess their legal commitments within international trade and investment agreements to create space to envision more opportunities moving forward.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About David Lark
