The right to water and sanitation: Legal framework and implications for development cooperation

1. The right to water and sanitation: Legal framework and implications for development cooperation Netherlands Ministry of Foreign Affairs 31 October 2007 Ashfaq Khalfan Coordinator, COHRE Right to Water Programme www.cohre.org

2. Legal Sources and Recognition • Implicit in the ‘right to adequate standard of living’ in the International Covenant on Economic, Social and Cultural Rights (ICESCR) – ratified by 157 States • In Cairo (1994), States recognised that water and sanitation is part of right to adequate standard of living • Council of Europe and Non-Aligned Movement recognised the right to water • Entitlements to water and sanitation in several treaties • National legislative recognition of right to water: From 7 in 2002 to 24 in 2007 • Also grounded in universal shared values of dignity and equality www.cohre.org

3. The water and sanitation situation – acceptable? www.cohre.org

4. Where is the right defined? • General Comment No. 15 by UN CESCR (expert body mandated by UN GA to interpret ICESCR) • UN Sub-Commission on Human Rights (expert body advising UN Human Rights Council) Guidelines on the right to water and sanitation • United Nations High Commissioner for Human Rights 2007 study for UN Human Rights Council on human rights obligations on equitable access to water and sanitation www.cohre.org

5. Substance of the right Progressive realisation of: • sufficient and safe water for essential personal and domestic uses • adequate and culturally acceptable water and sanitation facility accessible in/near each home, school, health institution and workplace, and which is conducive to public health and protection of environment • affordable water and sanitation (taking into account ability to secure all essential goods and services) www.cohre.org

6. Process of realising the right: Human rights principles • Non-discrimination and attention to vulnerable and marginalised groups: equitable allocation of resources, address needs of each group • Genuine participation and access to information: at all levels • Transparency and accountability: redress mechanisms, complaints mechanisms www.cohre.org

7. Types of State obligations in relation to the right • Obligations to Respect: Not interfere with current access to water and sanitation e.g. deprivation of the minimum essential amount • Obligation to Protect: Regulate third parties to ensure they do not interfere with the right e.g. public or private providers • Obligation to Fulfil: Progressively realise the right to water expeditiously and using maximum available resources www.cohre.org

8. Implementation: Political framework • Sufficient financing of the sector • Targets in line with right, broken down to regional and local level (e.g. South Africa) • Particular attention to excluded groups/areas: e.g. informal settlements, semi-arid areas • Ensuring adequate complaints mechanism (regulator, human rights commission) • Ensure that representatives of marginalised groups participate and have an influence on national and local decision-making (Porto Alegre, Quito, Kerala). (Requires significant capacity development) www.cohre.org

9. Implementation: Water supply and sanitation • Service delivery targets for extension of basic access and for provision of assistance for small-scale facilities • Subsidies for connection/construction facilities (e.g. Venezuela) • Re-allocating consumption subsidies to target the poor (systems in Colombia) • Flexible payments schemes – instalment payments, waive or reduce deposit requirements • Process obligations on disconnections www.cohre.org

10. Water resource management in Accra, Ghana www.cohre.org

11. Implementation: Water resource management, quality and hygiene • Priority to essential needs in water resource allocation • Ensure equitable water rationing policies • Prioritise the hygiene awareness and provide assistance to households and providers using small-scale facilities • Prioritise control of pollution of water resources utilised as primary source of water www.cohre.org

12. Contributions of human rights to MDG on water and sanitation • Promotes water and sanitation as a legal entitlement, allowing for all levels of government and others to be held accountable • Requires attention to vulnerable and the marginalised groups – recognises exclusion as a cause of lack of access • Emphasises people’s participation in decision-making and access to information – more effective development • Contributes new national and international accountability institutions The Small Print: Implementation requires politically committed government and/or well organised civil society movement (e.g. Treatment Action Campaign in South Africa). Technocratic approaches to rights might open the door to either of these conditions or achieve incremental progress www.cohre.org

13. Kiosk targeting the poor – no involvement of intended users in decision www.cohre.org

14. Implications for development cooperation • Provision of assistance focused on the realisation of the right. Re-target the focus of assistance to the poor • Refrain from actions that may undermine right e.g. accepting donor-government policy formulation that marginalise civil society • Ensure all aspects of foreign policy are coherent with the right: trade and investment rules, economic sanctions, climate change (mitigation and assistance to affected groups) www.cohre.org

15. Looking forward: Roles for Netherlands government and civil society • Ensure Dutch foreign and development policy consistent with right • Increasing openness to the right in many countries: promote reforms through partner dialogues and capacity building • Emerging national civil society actors promoting the right – requires support as an essential ingredient • Human Rights Council initiative to strengthen the right and implementing mechanisms, e.g. Special Procedure • Growing interest among European development and UN agencies: possibility for partnerships and coalition • Emerging examples of attempts to implement right: identify good practise and lessons and promote these www.cohre.org