1963-2013 - 50 years of Research for Social Change

  • 0
  • 0

Back

Realizing the Human Right to Clean Water: Time to Rethink the Legal Architecture?

20 Nov 2017

  • Author(s): Julie Gjørtz Howden and Claudia Ituarte-Lima

Realizing the Human Right to Clean Water: Time to Rethink the Legal Architecture?
This contribution is published as part of the UNRISD Think Piece Series Linking Resilience Thinking and Transformative Change, launched to coincide with the Resilience 2017 Conference, Resilience Frontiers for Global Sustainability, hosted by the Stockholm Resilience Centre and the Resilience Alliance in Stockholm, Sweden in August 2017. In this series, experts discuss examples of policy reform and their potential to foster transformative change and social-ecological resilience for sustainability. The series contributes to a better understanding of the political processes underlying a range of policy approaches and reforms, and aims to inform global policy debates about the kinds of change processes that promote sustainability and resilience. It complements the UNRISD panel organized at the conference.

Having access to safe drinking water and sanitation, as enshrined in human rights law and SDG 6, is intertwined with the governance of transboundary river basins and other issues connected to water and healthy ecosystems. Yet the laws governing human rights and international water law do not reflect this. This piece argues that a transformation of international water law, guided by human rights principles, is needed to foster the resilience of the legal system and achieve the SDGs related to water and ecosystems.

Claudia Ituarte-Lima is a researcher at Stockholm Resilience Centre (SRC) and adviser at SwedBio at SRC. She specializes in law and governance for sustainability and environmental justice and her research examines the transformation of international law, focusing on biodiversity, climate and human rights law, into new governance forms at the national and local scales.

Julie Gjørtz Howden is a PhD candidate in international water law and international environmental law at the University of Bergen, Norway. Her research focuses on the legal aspects of transboundary water cooperation, and especially on issues of common management of international watercourses.

Interlinked social and environmental challenges


According to the UN’s Human Rights Commission, around 884 million people do not have access to improved sources of drinking water while 2.5 billion people lack access to improved sanitation. The lack of such facilities is not due to an overall shortage of water but to poor governance and distribution that leaves poorer and more marginalized populations without access to basic public services. This can be compounded by two factors: degradation of biodiversity and ecosystems that create additional water stress, but also challenges that arise when water-related ecosystem services have transboundary or global dimensions.

For example, Lake Victoria—the largest lake in Africa, chief reservoir of the Nile and shared by Kenya, Tanzania and Uganda—is affected by the destructive and invasive water hyacinth that was introduced in the 1980s. This invasive species decreases access to fresh water and threatens biodiversity by depleting oxygen in water, which in turn kills native fish species. It also increases the risk of malaria, as it is a breeding ground for mosquitoes and parasites. This example of interlinked social and environmental challenges that cross national boundaries illustrates the need for unprecedented cooperation between States, and also between States and non-State actors, to ensure implementation of SDG 6 and related SDGs (see Special Rapporteur for the Right to Water and Sanitation 2016).

Ensuring cooperation to secure the right to safe drinking water and sanitation presents a legal challenge: As international water law traditionally regulates matters between States, regulating cooperation with non-State actors requires a new legal architecture that alters some of the key characteristics of international water law, such as the principle of State sovereignty and the inter-State level of operation. Applying human rights principles to international water law can help rethink responses to current governance challenges related to water and ecosystems.

In human rights law, universal access to safe drinking water and sanitation is acknowledged as a human right that is essential for the enjoyment of life and all other human rights. As a human right, the right to safe drinking water and sanitation creates corresponding legal obligations to ensure the enjoyment of the right. Primarily, the obligation to provide and ensure clean drinking water and sanitation lies with each State, and includes taking the necessary technical, economic and infrastructural steps to ensure for all of its population:
  • A sufficient and continuous water supply
  • Clean and safe water and hygienically and technically safe sanitation
  • Sanitation facilities that are culturally acceptable
  • Water and sanitation services that are accessible to everyone
  • Water and sanitation facilities that are affordable without compromising the ability to pay for other essential necessities

The scope and extent of the human right to clean drinking water and sanitation differs from that of classic international water law. While the latter is concerned with the rights and interests of sovereign States and their obligations towards each other, the human right to water and sanitation focuses on individuals’ rights and interests, participation by stakeholders, and States’ responsibilities to safeguard people’s rights regardless of their State of residence, and the role of international institutions. The human right to water thus challenges the traditional structure of international water law and reveals a need for transformation of the legal architecture if that right is to be realized.

Rethinking international water law to achieve SDG 6


We argue that the human rights (HR) principles can serve to guide the necessary transformation of international water law. First, although international water law encourages broad participation, there is no universal framework or principle that obligates States to facilitate inclusion of the public in their governance and decision-making procedures. We argue that applying the HR principle of Participation and Inclusion to international water law can guide States as duty bearers
  • on facilitating the ability of individuals and interest groups, including environmental human rights defenders, to exercise their rights to freedom of speech and expression on water governance, and
  • on fostering adequate conditions for human and other non-human beings that depend on healthy ecosystems and clean water to thrive.

Transforming international water law on this basis can further guide the transfer of power from State to non-State actors such as communities, NGOs, international organisations to further the realization of the right to safe drinking water and sanitation for all. States still remain the duty bearers and are ultimately responsible vis-à-vis their populations, but non-State actors are increasingly granted the opportunity to assist States in the fulfilment of the right to water. On the one hand, non-State actors often have important place-based knowledge about the biodiversity and ecosystem services at stake or access to groups of right holders, which gives them an advantage in comparison to often inaccessible and centralized government agencies. Moreover, non-State actors that operate on an international or interregional scale can facilitate transboundary cooperation over water resources through already established networks and infrastructures. On the other hand, engaging local and regional actors in the process of fulfilling the right to water may also entail risks. For example, it may lead to differening quality of and inequitable access to facilities between regions and groups of people because some actors may have more negotiating power and time to invest in participatory processes. This could in turn result in an underrepresentation of the interests of people in marginalized situations. Overall, when non-State actors are granted responsibilities that otherwise belong to domestic authorities there is a need for a clear mandate and framework, and firm coordination, to ensure that these responsibilities are performed in accordance with HR principles and international law.

Although the State is the primary duty-bearer for its population, the obligation to ensure the right to safe drinking water and sanitation is also a collective obligation addressed to all States. This collective responsibility has two main features: first, a State that finds itself unable to meet its obligations related to the human right to water and sanitation has a responsibility to seek help from other States; second, States that are in a position to help other States in fulfilling their duties have an obligation to do so. An obligation to include participation in this cooperation could thus further the creation of regional, basin-wide management units with responsibilities to govern the waters within a framework built on international water law and HR principles.

Innovation through participation and inclusion


The inclusion of non-State actors in the governance process, guided by the HR principle of Participation and Inclusion, is a transformative element and a clear innovative interpretation of international water law that could help overcome challenges arising from restrictive interpretations of the traditional paradigm of state sovereignty. A possible solution could be to create more transboundary river basin organisations that could be accorded governance responsibilities in the basin. Existing organisations that aim to foster transboundary management of freshwater ecosystems include the International Commission for Protection of the Danube River or the US-Canadian International Joint Commission. Transboundary river basin organisations can also coordinate and supervise participation in the basin in accordance with an agreed framework. Moreover, governments—including local governments—can use innovative means to engage with their citizens in facilitating public participation in water-related matters. For instance, the Local Governments for Sustainability network (ICLEI), with contributions by Swedbio, led the development of the Thrive App. The app offers a step-by-step guide on nature-based solutions and public engagement in cities for sustainably managing urban rivers and improving people’s lives across sub-Saharan Africa. The content of the app is based on needs assessment and input from the process of creating Malawi’s Integrated Catchment Management Guidelines, in which stakeholders throughout the country were involved.

Complementary to State-to-State and State-non-State collaboration, initiatives involving civil society groups in different countries can contribute to strengthening human rights. Coming back to the example of water hyacinth invasion at Lake Victoria, a group of students from the Chalmers University of Technology in Sweden has developed low cost, biodegradable sanitary pads made from the invasive water hyacinth. Such pads can be particularly helpful for girls living in poverty in rural areas of the Global South, who often drop out or miss a significant number of school days each month once they begin menstruating. Through the Empowering Women Period project, these pads are manufactured and distributed by women to women. The project thus aims to improve the living conditions for women and secure the right to education for girls and young women, while at the same time contributing to the health of Lake Victoria by reducing the amount of invasive plants. The sustainability of these kinds of initiative often depends on whether local civil society has been actively engaged from an early phase.

Such innovations, when guided by the HR principles and a clear legal framework, can produce transformative change that tackles the root causes of poverty and inequality, leading to more equitable development by contributing to an enabling context to exercise the right to a clean and healthy environment, and even beyond that, fostering the conditions for girls to exercise their right to education.

How transforming water law can support sustainable solutions


Innovative solutions are needed to address these kinds of challenges associated with biodiversity and water-related ecosystem services that affect people’s ability to exercise a wide range of rights such as the right to a clean and healthy environment, the right to safe drinking water and sanitation, and the right to health. In order to achieve the much needed closer cooperation between States, and between States and non-State actors, classic international water law needs to be transformed. It needs to adopt human rights principles and clarify duties and responsibilities that resonate with the global nature of the SDGs. Adopting the HR principle of Participation and Inclusion into the corpus of international water law would compel States to include this perspective in their transboundary cooperation. An obligation to promote stakeholder participation in international water governance could help coordinate promising innovative solutions in regional and international water management settings. It could also clarify and strengthen the individual and collective State duty to realize the human right to water in transboundary water basins.

In sum, clean freshwater is absolutely decisive for achieving the Sustainable Development Goals, and for exercising a diverse range of human rights. The human rights principles such as Participation and Inclusion can contribute to the needed transformation of international water law and to achieving interrelated SDGs such as clean water and sanitation (SDG 6), sustainable cities and communities (SDG 11), life below water (SDG 14) and life on land (SDG 15).

SOURCES

Report of the Special Rapporteur on the human right to safe drinking water and sanitation A/HRC/33/49 (gender equality). 27 July 2016.

Report of the Special Rapporteur on the human right to safe drinking water and sanitation A/71/302 (development cooperation). 5 August 2016.

UNHCHR Fact Sheet no. 35 on The Right to Water. August 2010.

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment A/HRC/34/49 (conservation and sustainable use of biological diversity). 19 January 2017.

Recommendations for further reading:
  • WaterLex and WASH United. 2014. The Human Rights to Water and Sanitation in Courts Worldwide: A selection of National, Regional and International Case Law. Geneva: WaterLex.
  • Ebbesson, Jonas and Carl Folke. 2014. “Matching scales of law with social-ecological contexts to promote resilience.” In Social-Ecological Resilience and Law, edited by A.S. Garmestani and C.R. Allen, 265-292. Columbia: University Press.

Comment

blog comments powered by Disqus

 

 

This article reflects the views of the author(s) and does not necessarily represent those of the United Nations Research Institute for Social Development.