Human Rights analysis
Right to water in international perspective
Water water everywhere……
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.
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.
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.
Right to water in Bangladesh perspective
The Constitution of Bangladesh does not have any provision on right to water. Article 15 states that it shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens-(a) the provision of the basic necessities of life, including food, clothing, shelter, education and medical care…Broad interpretation of basic necessities of life may include water. However, this provision is part of fundamental principles of state policy of the Constitution and as such is not judicially enforceable (article 8). This means, the State of Bangladesh is not under any Constitutional obligation to ensure right to basic necessities of life including water for its citizens. Thus even if the Government fails to ensure water for its citizens, none can take the Government to court for accountability. Interestingly, if this provision could be included in the Constitution as a human right (Part II of the Constitution), it could be judicially enforceable (under article 44 and 102) and the Government could be brought to court for accountability to ensure water for its citizens.
National water policy 1998: The GOB National Policy for Safe Water Supply and Sanitation 1998 has divided water supply policy broadly for rural and urban areas. The highlight of the rural water supply policy is that communities shall be the focus for all water supply activities but the Department of Public Health Engineering (DPHE) is the lead agency with NGOs and private sector in coordinated role. The policy has given local government bodies the role of planning, implementation and maintenance of rural water supply projects. In practice, it is the DPHE which implements most of the water projects. The approach is top-bottom where local government bodies do not have much role to play. They are rarely consulted. Although communities have been made focus of water policy, in practice, consultation with communities take place as optional and not regularly. The policy has stated that water is increasingly considered to be an economic good and has prescribed community ownership of water machines like hand, shallow and deep tubewells. There is contradiction in this policy. If community ownership of water services (operation, maintenance and bearing costs of facilities) can be ensured, it will bring good to the communities. But treating water as an economic good has potential for commercialisation of water which may become a threat to the collective right of the communities and vulnerable groups. Poor people may not have financial capacity to buy water from companies but have capacity to manage natural water sources in a community based approach. Treating water as only an economic good is against UN General Comment no. 15 which has regarded water an economic as well as a socio-cultural good.
Poverty reduction strategy (PRS): The policy matrix no. 10 of the GOB Poverty Reduction Strategy deals with water resource development and management. The strategic goals in this sector are: expand utilization of surface water, rationalize utilization of ground water, protect flood, improve drainage and reduce vulnerability, enhance access of the poor to water and common property resources, augment surface water retention, protect wetlands including the Sundarbans, institutional development of water sector agencies and control erosion of major rivers to protect large and small towns. The matrix has elaborate actions taken and planned but is silent about water as a right. Of the six goals, enhance access of the poor to water and common property resource can be termed as a right-based one. Because its planned action has included promotion of community participation in multipurpose use of water and other facilities. This goal is a bottom-up one which is key element of right-based approach. The other goals have been developed in top-bottom approach.
Service agencies: The key Government agency for providing water supply and quality control in rural and municipal areas is the Department of Public Health Engineering (DPHE). Local Government Engineering Department (LGED) are also engaged in some small scale water supply projects. Water Supply and Sewerage Authorities are responsible for providing water supply in major metropolitan cities like Dhaka and Chittagong. A good number of local and international NGOs are also working in water sector.
Legal responsibility of local government bodies
Zila Paishads: According to section 27 of the Zila Parishad Act 2000, a zila parishad has two kinds of responsibilities, compulsory and optional. It must perform its compulsory activities subject to availability of funds. But it is not under any legal obligation to perform its optional activities and it will perform its optional activities as per government instruction if it is instructed by the government to do so. These activities have been described in the first schedule to the Act. According to this first schedule, the optional activities of zila parishad have been divided into seven categories of which public works is one category. Public works include four tasks of which the second one is 'to ensure water supply, drainage, preservation of surface water reservoirs and preservation of rain water.' But as has been mentioned, zila parishad is under no legal obligation to perform its optional activities and hence there is no legal responsibility of zila parishad for fulfilling people's right to get water.
Paurashavas: Paurashavas are urban local government bodies outside major city corporations. There are total 293 Paurashavas in Bangladesh. According to section 73 of the Paurashava Ordinance 1977, a Paurashava shall (1) within the limits of the funds of its disposal, provide, or cause to be provided, to the municipality a supply of wholesome water sufficient for public and private purposes; (2) may, if so required by the Prescribed Authority shall, in the prescribed manner, frame and execute a water-supply scheme for the construction and maintenance of such works for the provision, storage and distribution of water as may be necessary; (3) where a piped-water supply is provided, the Paurashava my supply water to private and public premises in such manner and on payment of such charges as the by-laws may provide. Section 74 of the ordinance states that(1) all private sources of water supply within a municipality shall be subject to control, regulation and inspection by the Paurashava; (2) no new well, water-pump or any other source of water for drinking purposes shall be dug, constructed or providedexcept with the sanction of the Paurashava; (3) the Paurashava may by notice require the owner or any person having the control of any private source of water-supply used for drinking purposes-(a) to keep the same in good order and to clear it from time to time of silt, refuse and decaying matter; (b) to protect the same from contamination, in such manner as the Paurashava may direct; and (c) if the water therein is proved to the satisfaction of the Paurashava to be unfit for drinking purposes, to take such measures as may be specified in the notice to prevent the use of such water for drinking purposes.
Section 31 and 32 of the Paurashava Ordinance 1977 have discussed functions of the Paurashavas. Section 31 states, 'Subject to rules and such directions as the government may from time to time give, and within the limits of the funds at its disposal, a Paurashava shall undertake such of functions given in detail in Part IV as are required to be undertaken by Paurashavas, and may undertake-(a) all or any of the functions so given which may be undertaken by Paurashava; and (b) such other functions as are declared by the Government to be appropriate matters for administration by Paurashavagenerally or by any particular Paurashava.' Section 32 of the ordinance states, 'Notwithstanding anything contained in this ordinance or in any other law for the time being in force, the Government may from time to time direct that, subject to such terms and conditions as may be specified in the direction,-(a) any institution or service maintained by a Paurashava shall be transferred to the management and control of the Government; and (b) any institution or service maintained by the Government shall be transferred to the management and control of Pauroshava.
Dissecting the above legal provisions reveals that,
(a) Paurashavas do not need to consult local communities in developing water supply schemes which is against right-based approach.
(b) Paurashavas can supply piped-water on commercial basis and impose charge for that. Water is not an economic good, it is a social good as well. So even if piped-water is supplied by Paurashavas, its price should not be decided commercially but in consultation with communities based on their needs, capacities and consensus.
(c) Paurashavas have some compulsory and some optional functions. They have to depend on the concerned government agency like Department of Public Health Engineering (DPHE) for undertaking water supply projects. Thus even if there is demand for water supply from communities, concerned paurashava may not be able to undertake any such project and have to depend on government agency like DPHE.
Upazila Parishads: According to Upazila Parishad Act 1998, one of the 19 activities that have been reposed on a upazila Parishad is to ensure supply of pure drinking water.
Union Parishads: According to section 30 of the Local Government (Union Parishad) Ordinance, 1983, a union parishad is responsible for functions mentioned in the First Schedule of the Act. This schedule has 38 functions of which number 16, 17 and 18 are related to water. A union parishad is responsible for provision and maintenance of well, water pumps, tanks, ponds and other works for supply of water, adopting measures for preventing contamination of source of water-supply for drinking and prohibition of use of water of wells, ponds and other sources suspected to be dangerous to public health. However, according to section 61 of the Act, the Government may cancel or suspend or prohibit any activity of union parishad if it deems such activity as against law or public interest. Thus a legal discretionary restrictive power has been given to the Government which might be used against a union parishad if it takes a water supply scheme for particular community but which is against interest of Government or other vested groups.
Gram Sarkars: According to section 16 (g) of the Gram Sarkar Act 2003, one of the responsibilities of a gram sarkar is to assist relevant authorities in implementing programmes for ensuring supply of pure drinking water and sanitation. The weakness of this provision is that a Gram Sarkar is only to assist relevant authorities and cannot take any initiative on its own for ensuring supply of drinking water. It has to depend on other local government bodies like union council or a government department like Department of Public Health Engineering for repairing a tubewell or building a reservoir for preserving rain water.
Relevant Bangladeshi laws
Water supply and Sewerage Authority Act, 1996: This law has empowered the GOB to set up water supply and sewerage authorities in metropolitan areas.
The Embankment and Drainage Act, 1952: This law has consolidated the laws relating to embankment and drainage and to make better provision for the construction, maintenance, management, removal and control of embankments and water-courses for better drainage of lands and for their protection from floods, erosion or other damage by surface water.
The Ground Water Manage-ment Ordinance, 1985: This ordinance was promulgated to manage the ground water resources for agricultural production.
Right to water: Individual or group right?
Individual right is what one individual is allowed to enjoy and against which corresponding duties and responsibilities exist to enforce. Traditional human rights discourses have defined first generation of rights (civil and political) and second generation of rights (economic, social and cultural) as individual rights. However, third generation of rights are collective in nature and require group or collective initiative for enjoyment. Although these rights have so far been not recognized as legally binding obligations, increasing number of legal discourses have recognized collective or group right as having legal consequences. Right to self-determination, right to environment, right to natural resources, right to participate in cultural heritage, right to development are examples of group rights.
Right to water can form part of right to natural resources. Natural resources are naturally occurring substances that are considered valuable in their relatively unmodified (natural) form. A commodity is generally considered a natural resource when the primary activities associated with it are extraction and purification, as opposed to creation. Water is one natural resource and like right to natural resource, right to water should be treated as a collective or group right. The reasons are:
- General Comment no. 15 of the UN Committee on Economic, Social and Cultural Rights has treated water as social and cultural good and not mere economic good. Right to economic good may be an individual right, but right to social and cultural good must be collective or group in nature. Social and cultural goods are shared by all members of a society or community. As such, right to water as a social and cultural good should be treated as a collective or group right.
- Group resistance is effective against policy prescriptions of international institutions like World Bank and WTO on commercialisation of water service. Legitimacy of group resistance is ensured if right to water can be treated as a group right.
- To fight aggression of multinational corporations with motive of commercialisation of water as a commodity, it requires collective force. Treating right to water as a group right will strengthen that force.
- In many countries of the world, particularly in middle-east and Africa, water has become an issue of survival of communities. Reality in those situations has created the demand for treating right to water as a collective or group right.
- In the context of Bangladesh, legal responsibilities for supply of water have been reposed mostly on local government bodies which are not individual entities, they are group entities, elected by communities, nearer to communities, better positioned to know the demand of water from the communities and how to source water for them. Here the obligation is group or collective in nature, not individual.
The writer is a human rights activist.