What is a Human Right to Water

In 2003, the UN Committee on Economic, Social and Cultural Rights released General Comment No. 15, which states: ".the Committee has previously recognized that water is a human right contained in article 11, paragraph 1 [of the ICESCR]...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]. Thus, the General Comment took a step in the direction of explicit human rights to water. Several other international covenants and agreements have included statements that explicitly protect rights to water for specific marginalized groups. Rights to water have been proclaimed through human rights documents concerning women's rights and children's rights, and through humanitarian law. Article 14 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women requires states to eliminate discrimination against women in rural areas to ensure that they enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity, and water supply [3]. Article 24 of the 1989 Convention of the Rights of the Child requires states to provide the highest standard of attainable health, particularly in the provision of adequate food and clean drinking water [3]. The 1977 Protocols to the Geneva Conventions established humanitarian laws that provide explicit protection for drinking water supplies and installations, as well as for irrigation works [15].

Such right to water assertions naturally lead to the question: if rights to water are protected by other human rights, why should they be defined as separate human rights? It is important to note that the aforementioned human rights protections do not apply to marginalized groups that fall outside of the specific categories covered by those rights. It is also noteworthy that, though several countries have relatively recently adopted constitutions that protect rights to clean, safe drinking water (e.g., Uganda and South Africa), many others have not. Perhaps the best justification for explicit human rights to water is to improve access for those who have little or no access to clean, safe drinking water. Many of the countries in which these needs are not being met have shown negligence in managing water resources, resulting in inequitable distribution and unsustainable management of what little resources are available. Some have turned to private water companies to supply water infrastructure and services, which has presented a conflict of interest for the poor and for conservation measures where regulations have fallen short. Ashfaq Khalfan lists the following additional justifications for legally binding, explicitly defined human rights to water:

■ To create a focus on lack of access to water caused by discrimination and failure to address the needs of marginalized communities;

■ To address process issues and require involvement of relevant communities in the planning process; and

■ To place an emphasis on monitoring and accountability, especially where services are privatized, and implement penalties for non-compliance [13].

Other justifications that have been cited by Peter Gleick include: sharpening the focus on international watershed disputes and resolving conflicts over shared water resources; creating international legal obligations; and setting specific priorities for water policy [1].

Another question that naturally arises is: what are the obligations of States parties? General Comment No. 15 specifically outlines the obligations of parties to the ICESCR to respect, protect, and fulfill the right to water. The obligation to respect includes "refraining from engaging in any practice or activity that denies or limits equal access to adequate water.[and] unlawfully diminishing or polluting water," among many others. The obligation to protect includes "adopting the necessary and effective legislative and other measures" to prevent third parties from denying access; and not polluting or over extracting resources, "including natural sources, wells and other water distribution systems." Also, "[where] water services (such as piped water networks, water tankers, access to rivers and wells) are operated or controlled by third parties, States parties must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established, in conformity with the Covenant and this General Comment, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance" [2]. The obligation to fulfill includes adopting a national water strategy; recognizing rights to water through national legal systems; ensuring that water is affordable for everyone; facilitating improved and sustainable access to water; and providing for the needs of those who cannot provide for themselves. Effectively, General Comment No. 15 has set forth the language of explicit human rights to water by clarifying that such rights were never excluded from the ICESCR in the first place. Nevertheless, there does not seem to be complete agreement as to whether explicit human rights to water are the appropriate solution to the problem of access.

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