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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 245
July 8, 2006

This week's issue:
Human Rights Analysis
UN Update
Financial Market Regulation
Law Alter Views
Human Rights Monitor
Rights Corner
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Human Rights analysis

Right to water in international perspective

Water water everywhere……

J. Hasan

This is the first part of the two-part article the second part will be published on July 15, 2006

One of the few relatively successful social sector achievements in Bangladesh has been good coverage in the access to tubewells for drinking water during the 1970 and early 1980s. However, due to arsenic contamination of ground water during the late 1980s and early 1990s, coverage of safe water dropped to a great extent. Arsenic issue was purely a right issue where the victims were not properly informed of arsenic contamination in time, none was made accountable for the disaster, and there was no transparency and people's participation in taking mitigation measures. Since then, development practitioners and human rights activities in Bangladesh started thinking water as a human right.

Major international human rights instruments, except two, did not include right to water as separate human right. Six human rights treaty bodies of the UN periodically publishes General Comments or general recommendations providing guidelines for state parties on interpretation of specific aspects of human rights treaty. General Comment no. 15 is such a comment on right to water which was adopted by the UN Committee on Economic, Social and Cultural Rights in November 2002. This comment defined right to water under Article 11 (right to adequate standard of living) and 12 (right to health) of the International Covenant on Economic Social and Cultural Rights 1966.

Normative framework of right to water
The General Comment affirms that the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use. The elements of right to water are:

Entitlement meaning right to a system of water supply and management that provides equality of opportunity for people to enjoy right to water.

Freedom meaning right to be free from interference such as arbitrary disconnections or contamination of water supply.

The General Comment states that water should be treated as a social and cultural good and not primarily as an economic good. Three factors applicable for enjoying the right to water are:

Availability meaning each person has the right to a water supply that is sufficient and continuous for personal and domestic uses, such as drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene.

Quality meaning not only are people entitled to a sufficient and continuous supply of water, but they are also entitled to water of adequate quality.

Accessibility meaning water and water service facility must be accessible to everyone. Water must be within safe physical accessibility of every individual, must be economically accessible (affordable) to all, there must not be any discrimination in water services and there must be information accessibility on water issues.

General obligation
Article 2 and 3 of the International Covenant on Economic, Social and Cultural Rights has imposed obligation on State Parties for non-discriminatory enjoyment of rights. The same applies to right to water. Article 2 of the Covenant has imposed obligation on State parties to progressively realize the covenant rights. As stated by the General Comment, the obligations are to respect the right to water meaning not to interfere with the enjoyment of right, to protect meaning preventing third party or individual from interfering with the enjoyment of this right and to fulfil meaning allocating sufficient resources for ensuring right to water. States are also obliged to take steps to prevent any kind of discrimination and give special attention to vulnerable groups and people in difficulties in enjoying right to water. The State obligations include to ensure access to minimum essential amount of water, to ensure physical access to water facilities or services, to ensure personal security in getting access to water, to ensure equitable distribution of water and related services, to adopt and implement a national water strategy, to monitor extent of realization or non-realization of right to water and to take measures to prevent, treat and control water-related diseases.

Legislative obligation
General Comment has suggested that states are obliged to utilize all appropriate means, including the adoption of legislative measures in the implementation of their Covenant obligations. The guidelines of the General Comment have suggested three main legislative areas in the implementation of the right to water at the national level:

  • The formulation, implementation and monitoring of legislation, strategies and policies;
  • The identification and application of suitable, sufficiently disaggregated indicators and benchmarks for monitoring States Parties compliance with their obligations and progress towards the full realisation of the right to water;
  • The provision of access to effective judicial or other appropriate remedies at both national and international levels for any persons or groups who have been denied their right to water.

Obligations of non-State actors
Non-State actors like UN agencies, bilateral and multilateral development organizations, international trade or financial organisations and non-governmental organisations have important role to play in promoting right to water. The General Comment outlines following obligations of the non-state actors:

  • Co-operate effectively with States Parties in relation to the implementation of the right to water
  • Incorporate human rights law and principles into both policy and action; for example, the right to water should be taken into account in any lending policies, structural adjustment programmes or development projects
  • Give priority to the most vulnerable or marginalized groups of the population in the provision of aid and the distribution and management of water and water facilities

International treaty obligations
The right to water has been explicitly recognised in two of the core international human rights treaties the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. The Convention on the Elimination of All Forms of Discrimination Against Women, 1979, in its Article 14 (2), obliges States to eliminate discrimination against women in rural areas and ensure to such women the right “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communication”

Under Article 24 (2) of the Convention on the Rights of the Child, 1989, States are obliged to take steps to ensure the realisation of a child's right to health and in particular to take appropriate measures: “c) to combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution”.

National legal regime
Constitutions of a few countries of the world have incorporated right to water as a human right. Section 27(1) of the South African Constitution (1996) has guaranteed citizens right to have access to healthcare which includes food and water. Zambian Constitution (1996) in its Article 112 has imposed responsibility on the Sate to endeavour to provide clean and safe water. Article 14 of the Constitution of Uganda (1995) has imposed similar obligation on the State to endeavour to fulfil fundamental rights of all Ugandans which include clean and safe water. The Constitution of Gambia (1996), in its Article 216(4) has also imposed obligation on the State to endeavour to facilitate equal access to clean and safe water. Article 90(1) of the Constitution of Ethiopia (1998) has guaranteed every Ethiopian's entitlement to country's resources including clean water. Interestingly, of the five Constitutions discussed here, two (South Africa and Ethiopia) have incorporated right to water as human right of citizens while three (Gambia, Uganda and Zambia) have incorporated right to water as imposed obligation on respective States.

Water and WTO
The World Trade Organization attributes progress in economic growth and the development of international trade to the freeing up of world trade through progressive liberalization. The General Agreement on Trade in Services (GATS) of WTO is the multilateral rules governing international trade in services. GATS defines four ways of trading services. These are cross-border supply (mode 1), consumption abroad (mode 2), commercial presence (mode 3) and presence of natural person (mode 4). The key issues on impact of GATS on service sector of developing countries including water are:

  • Opening up water services to GATS will increase levels of private sector involvement (at the expense of public and community-managed services) in spite of growing recognition that private sector involvement does not benefit the poor unless other fundamental issues are addressed.
  • The balance of power between rich and poor nations and the bilateral nature of GATS negotiations means that developing countries are under extreme pressure to commit their water services to GATS without any proof that it is in their interests to do so.
  • GATS will restrict government's ability to regulate in favour of environmental priorities and needs of the poor.

  • The irreversibility of GATS commitments means that countries cannot renegotiate their commitments once entered into.

  • There are no guarantees that private companies can be prevented from ultimately acquiring control or ownership of water resources.

The writer is a human rights activist.

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