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A landmark decision to make the right to water and sanitation legally binding

At its latest session, the UN Human Rights Council for the first time, affirmed that the right to water and sanitation is derived from the right to an adequate standard of living. 

Nearly a billion people still do not have access to an improved water source © UN photoAccording to the UN Independent Expert on human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque “this means that for the UN, the right to water and sanitation is contained in existing human rights treaties and is therefore legally binding.”

The decision of the Human Rights Council follows the July resolution of the UN General Assembly which recognized access to water and sanitation as a fundamental right but did not specify that the right entailed legally binding obligations. The resolution tabled at the Human Rights Council by the Governments of Germany and Spain, with support from many others, closes the legal gap by clarifying the foundation for recognition of the rights and the legal standards which apply. 

“It is a landmark decision which has the potential to change the lives of the billions of human beings who still lack access to water and sanitation,” de Albuquerque says.

The Independent Expert notes that nearly a billion people still do not have access to an improved water source and nearly 3 billion do not have a tap in their home. 

With no global system for monitoring water quality in place, the extent of the crisis remains unknown, but it is thought billions of people are drinking unsafe water.

The most recent report of the Independent Expert focuses on the provision of water and sanitation by providers other than government. The recognition of the right by the Human Rights Council is crucial because it sets the standard for all service providers, whether public or private, in relation to human rights.

Contrary to popular belief, the private sector is not solely comprised of large transnational companies, but also includes medium and small scale service providers, as well as informal water vendors, de Albuquerque says. Twenty-five percent of the population in Latin America and 50 percent in Africa obtain their water from small-scale, often informal service providers.

Governments can opt to have the private sector provide water and sanitation. Likewise, they can choose public service provision. In both cases, they must comply with their human rights obligations, de Albuquerque says.

The report identifies the major challenges in private/public partnerships for water and sanitation provision as: guaranteeing transparent and democratic decision-making; ensuring coverage of the poorest and most marginalized; avoiding disconnections in cases of inability to pay; ensuring regulatory capacity and enforcement; and addressing corruption.

Governments must fully implement their obligations to create an enabling environment and to regulate and monitor private providers, she says. They must set up service provision in a manner consistent with human rights standards and aim for universal coverage on a non-discriminatory basis. “Non-State service providers will not extend services to underserved areas unless explicitly mandated to do so in their contracts. It is the Government that has the power and obligation to resist the temptation of investing and prioritizing only neighborhoods where interventions are less expensive and complex.”

The providers, in turn, have to accept their human rights responsibilities. De Albuquerque says: “They must exercise due diligence to become aware of and address potential or actual negative impacts on human rights caused by their activities. Besides complying with national laws and regulations, non-State service providers must take proactive steps to ensure that they do not violate international human rights standards.”

6 October 2010