The Human Right to Water

Significance, Legal Status and Implications for Water Allocation

Inga Winkler

• Publisher: Hart Publishing
• Year: 2014
• Print ISBN: 9781849466622
• eBook ISBN: 9781847319630
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The United Nations General Assembly and the Human Rights Council recognised the human right to water in 2010. This formal recognition has put the issue high on the international agenda, but by itself leaves many questions unanswered. This book addresses this gap and clarifies the legal status and meaning of the right to water through a detailed analysis of its legal foundations, legal nature, normative content and corresponding State obligations.
The human right to water has wide-ranging implications for the distribution of water. Examining these implications requires putting the right to water into the broader context of different water uses and analysing the linkages and competition with other human rights that depend on water for their realisation. Water allocation is a highly political issue reflecting societal power relations, with current priorities often benefitting the well-off and powerful. Human rights, in contrast, require prioritising the most basic needs of all people. The human right to water has the potential to address these underlying structural causes of the lack of access to water rooted in inequalities and poverty by empowering people to hold the State accountable to live up to its human rights obligations and to demand that their basic needs are met with priority.

1

Introduction

TODAY, AS IN the 1970s¹, nearly one billion people² are deprived on a daily basis of the most fundamental requirement for survival, health and dignity: water. While figures have declined on a relative scale³, the extent of the crisis remains enormous. Basic human needs go unrealised each and every day. The crisis is a silent one that gets less attention than, for instance, wars and natural disasters. It has proven to be a persistent crisis.

The global water crisis not only relates to access to water for household uses, but is multifaceted. It becomes manifest in the shrinking and drying up of major rivers and lakes, the Aral Sea, the Colorado and the Jordan only being some of the most prominent examples⁴. The dramatic state of many water bodies shows in their diminution as well as their pollution. All of India’s 14 major rivers are heavily polluted. For instance, 200 million litres of sewage and 20 million litres of waste are discharged into the Yamuna in Delhi every single day⁵. Both phenomena, shrinking water bodies as well as water pollution, not only relate to public health and the reduction of water available for human usage, but also have an ecological dimension⁶.

Water is a multi-purpose resource that is used not only in households, but to a much greater extent in the agricultural and industrial sectors. Water is thus also essential for food security, economic development and livelihood security. It relates to all these and many more policy areas. The water crisis is therefore a crisis of many dimensions. While some of these issues will be touched upon throughout the book, its focus is specifically on the human dimension of the water crisis – in particular the neglect of basic human needs in the allocation of water resources – seeking to address this issue from a human rights perspective.

I. LACK OF ACCESS TO WATER

Water is an extraordinary resource with unique characteristics. All life depends on water. Access to water is a precondition for survival⁷. Water cannot be substituted by any other resource. It is fundamental for sustaining health and leading a life in dignity⁸. Yet, as mentioned above, according to the latest official figures published by the Joint Monitoring Programme of the World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF), close to a billion people lack access to water⁹. The actual figures can be assumed to be even higher, as these numbers are based on several assumptions: the indicator used for these official figures is access to an improved drinking water source¹⁰, but criteria such as affordability and safety are not explicitly taken into account¹¹. Water services may be unaffordable for indigent people; others may face prohibitive waiting times at the point of collection; some improved drinking water sources may not supply water regularly¹²; water provided by improved sources such as boreholes or protected wells may be contaminated – when these factors are taken into consideration, the extent of the crisis in the lack of access to water is likely to be much greater.

A. Inequalities in Access

Access to water is characterised by huge inequalities. On a global scale, consumption differs greatly between countries of the Global North and the Global South. Whereas a German citizen uses an average 129 litres per day¹³ and a US citizen even up to 300 litres per day¹⁴, many people in developing countries do not have access even to 20 litres per capita per day (l/c/d) to satisfy their most basic needs. But inequality in access also exists within countries, even within the same cities. Whereas well-off neighbourhoods in many cities of the Global South are often provided with unlimited amounts of water – at low prices – people living in informal settlements and other disadvantaged neighbourhoods often have access to less than 20 l/c/d¹⁵. According to the Human Development Report 2006, on average 85 per cent of the wealthiest 20 per cent of the population have access to piped water in the household, whereas only 25 per cent of the poorest 20 per cent of the population enjoy such access¹⁶.

It has been found that the point of access to water has a strong impact on the quantity of water used. Whereas people with a household connection have unhindered physical access to often unlimited amounts of water, the average quantity collected from a point of access 100 metres from the house is around 20 l/c/d. This amount decreases to about 5 l/c/d when the point of access is at a distance of more than 1,000 metres¹⁷. The physical proximity to access to water is therefore an important factor in determining inequalities in access to water.

People living in informal settlements and other low-income urban areas are particularly disadvantaged regarding access to water. It is estimated that informal settlements may account for as much as 30 to 60 per cent of the global urban population. For example, about half of Mumbai’s population lives in squatter areas¹⁸. The improvement of living conditions in these areas is often a low priority in urban policies. In many cases, municipal governments avoid improving water and sanitation services because they do not want to encourage or legitimise informal settlements¹⁹. Not being supplied with water through the public water network, inhabitants of informal settlements are often forced to buy water from private water vendors, or to use water from unsecure sources that is often contaminated²⁰. While the middle- and upper-class areas of cities receive piped water into their homes, it is estimated that 20 to 30 per cent of all urban inhabitants of developing countries are dependent on private water vendors²¹. Their prices are often significantly higher than those for water supplied through the network²². For example, people living in the informal settlements of Jakarta and Nairobi pay 5 to 10 times more per water unit than those living in high-income areas of the same cities²³. In exceptional cases, water bought from water vendors may be priced as much as 100 times the official tariff²⁴. The amount people spend on drinking water then often represents a significant proportion of their income, for example up to 25 per cent in Mexico City²⁵. As with physical access to water, this aspect of economic accessibility also has an enormous impact on the quantity of water consumed and illustrates the extent of inequalities in urban water supply.

Similarly to people living in poverty in urban areas, poor rural settlements are often given low priority in terms of development and resource allocation. In the framework of the Millennium Development Goals (MDGs)²⁶, the proportion of population with access to improved water sources is assessed. According to 2010 figures, 87 per cent of the world’s total population has such access, but only 76 per cent of the rural population in developing regions compared to 94 per cent of the urban population, ie 84 per cent of the population without access to an improved drinking water source is estimated to live in rural areas²⁷. In Sub-Saharan Africa, only 47 per cent of the rural population has access to an improved water source²⁸. The symbolic picture of women and girls walking for miles to collect water from a waterhole or well has been shown, described and reiterated many times. Yet it remains a meaningful illustration of the marginalisation of people living in poverty in rural areas. Not only do women have to walk long distances to collect water, they often also have to wait for a long time, because water availability is low and many people rely on the same points of access. Furthermore, the collected water is in many cases unsafe and contaminated.

B. Impact on Health and Human Development

The lack of access to water has an enormous impact on human health. Water-related diseases are a leading cause of death in the developing world, in particular among children²⁹. Such diseases are associated with the lack of access to safe drinking water, poor hygiene and inadequate sanitation. Nearly 4,000 children die of the consequences every day³⁰.

So-called water-borne diseases, such as diarrhoea, cholera and typhoid, are caused by drinking unsafe water³¹. Water can be contaminated by human, animal or chemical waste due to inadequate sanitation, agricultural or industrial run-off. Also, some naturally occurring elements such as arsenic pose a major threat to human health, resulting in a significant risk of skin lesions and cancer. The high concentration of arsenic in groundwater in Bangladesh, for example, is a major concern³². The most common water-borne disease is diarrhoea. According to estimates, each child in a developing country under the age of 5 suffers on average from three episodes of diarrhoea per year³³. Diarrhoeal diseases sound harmless, but are the leading cause of death among children from water-related diseases. While outbreaks of cholera – as recently occurred in Zimbabwe³⁴ – draw major attention, the day-to-day diarrhoea of small children is responsible for the great majority of deaths³⁵. Overall, diarrhoea accounts for 21 per cent of all deaths of children under the age of 5 in developing countries³⁶, resulting in 1.5 million deaths of children under 5 each year³⁷. It claims the lives of five times as many children as HIV/AIDS³⁸. Other water-related diseases are so-called water-washed diseases³⁹, among them eye infections such as trachoma, that relate to the lack of sufficient water for personal hygiene⁴⁰. Altogether, more people die of water-related diseases than in wars⁴¹. The former UN Secretary General, Kofi Annan, summed up the dependence of good health on access to water and sanitation, stating that ‘[w]e shall not finally defeat AIDS, tuberculosis, malaria, or any of the other infectious diseases that plague the developing world until we have also won the battle for safe drinking water, sanitation and basic health care’⁴².

Lastly, the broader impact of the lack of access to water on human development is enormous: children are unable to attend school because they suffer from water-related diseases or because they are responsible for collecting water, a time-consuming task. Water-related illness results in 443 million school days lost each year⁴³. Similarly, the millions of women who spend several hours each day collecting water cannot engage in any gainful activity⁴⁴. Addressing the lack of access to water would thus not only have direct benefits, it would also play a catalytic role for progress in public health, education and poverty reduction.

II. THE QUESTION OF PRIORITISATION

Addressing the crisis in the lack of access to water requires, of course, water resources. These resources have to be made accessible through infrastructure, which in turn depends on adequate financing as well as sound legal and institutional frameworks. Yet above all, it requires the political will to use these resources in a way to prioritise basic human needs. The question of who gets how much water is not only a management issue, but also a political issue. As Bielefeldt puts it, the ‘seemingly technical questions of water supply, water management or water quality actually reflect societal power relations’⁴⁵.

The lack of access is not a question of water availability. When speaking of water scarcity, it has to be kept in mind that only a small percentage – around 5 to 10 per cent – of the total consumption occurs in households⁴⁶, including non-essential household uses such as car-washing, filling swimming pools or watering lawns. Other sectors, in particular agriculture and industry, are much larger water users. There is sufficient water to meet all people’s basic household needs, even in countries with very low water availability. The Human Development Report 2006 sums this up, stating that ‘the scarcity at the heart of the global water crisis is rooted in power, poverty and inequality, not in physical availability’⁴⁷.

While there is sufficient water to satisfy the basic household requirements of all people, the entire societal demand for water often exceeds availability. Therefore, competition for water arises. To meet basic human needs requires setting priorities in the allocation of water for that purpose. This is often not the case, for example, when golf courses are watered while neighbouring areas of a city are not supplied with water in the dry season⁴⁸. Current priorities in the allocation of water tend to benefit the well-off and the powerful. A saying originating in the American West goes: ‘Water flows uphill . . . toward money.’⁴⁹ Accordingly, addressing the question of prioritisation and allocation is essential.

Realising access to water evidently requires not only water resources, but also building, expanding and investing in infrastructure, as access to water cannot be achieved without provision of services. Yet if political priorities were aligned towards the fulfilment of basic human rights, it seems plausible that financing would be found. There are unprecedented resources and technologies available to solve the crisis in lack of access to water⁵⁰. It has been estimated that an additional $10 billion per year are necessary to achieve the MDG targets on water and sanitation on the basis of low-cost sustainable technology⁵¹. This seems an enormous sum. Put in perspective, however, this is less than global military spending over five days, and less than half of what people in rich countries spend on mineral water each year⁵². Moreover, the long-term benefits of investing in water and sanitation must be considered: fewer...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Acknowledgements
• Summary Contents
• Detailed Contents
• Abbreviations
• Table of Cases
• Table of Instruments
• 1 Introduction
• 2 Background: Water Availability and Competing Demands
• 3 Legal Foundations of the Human Right to Water
• 4 Legal Characteristics of the Human Right to Water
• 5 Human Rights Implications for Water Allocation
• 6 Benefits of Understanding Water as a Human Right
• 7 Conclusion and Outlook
• Bibliography
• Index