Statement by the Special Rapporteur on the human rights to safe drinking water and sanitation, Léo Heller
28 July 2020
Ten years ago, on 28 July 2010, the United Nations General Assembly passed Resolution 64/292, which explicitly recognized water and sanitation as a human right and acknowledged that water and sanitation are essential to the realisation of all human rights. The General Assembly also called upon States to provide financial and technical resources in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.
This recognition undeniably constituted a great milestone, which took several decades of sustained efforts to achieve. Ten years later, this anniversary day offers us the opportunity to reflect on its positive impacts, and also on issues where the commitments have fallen short and challenges need to be overcome.
On the positive side, the resolution has had a remarkable influence in putting in motion further commitments by the international community. In September 2010, the Human Rights Council passed a new resolution (HRC res 15/9) affirming the recognition by the General Assembly and clarifying that the rights to water and sanitation derive from the right to an adequate standard of living, which is considered a binding human right on almost all States.
In May 2011, the World Health Organization also embraced water and sanitation as a human right through its Resolution 64/24, calling Member States "to ensure that national health strategies contribute to the realization of water- and sanitation-related Millennium Development Goals while coming in support to the progressive realization of the human right to water and sanitation".
In December 2015, the General Assembly passed resolution 70/169, acknowledging that the rights to safe drinking water and to sanitation in fact constitute two distinct human rights that warrant separate treatment in order to address the specific challenges in their implementation, and to avoid sanitation being neglected as a secondary human right.
The mandate of an Independent Expert on the human right to water and sanitation existed since 2008, but in order to reflect the two newly recognized rights in the mandate’s title, the Human Rights Council changed it from Independent Expert to “Special Rapporteur on the human rights to water and sanitation”.
In September 2015, 193 States solemnly committed themselves to ensuring access to safe drinking water and to sanitation for all in Goal 6 of the 2030 Agenda for Sustainable Development (SDG), and explicitly reaffirmed its commitment to the human right to water and sanitation in the Agenda’s declaration.
Since 2010, several countries have also updated their legal frameworks to reflect water and sanitation as human rights. Costa Rica, Egypt, Fiji, Kenya,1 Mexico, Morocco, Niger, Slovenia, Somalia, Tunisia, and Zimbabwe have new constitutional provisions recognizing the human right to water, to sanitation or to both since 2010, and Australia, Nepal, and Togo have passed legislation in this regard joining the club of many other countries that already recognized those rights in their national legislation.2 Courts have also issued decisions reflecting UN General Assembly’s decision to recognize water and sanitation as a human right: for example, a court of appeal in Botswana, referring to UN General Assembly resolution 64/292, affirmed that water is a human right strongly linked to the rights to health and life (Mosetlhanyane and others v. Attorney General of Botswana).
The national implementation of the human rights to water and sanitation requires not only adequate legislation and courts willing to reflect it, but also autonomous regulatory bodies ensuring that water and sanitation services are provided in compliance with the human rights framework, both through a monitoring and enforcement role and by promoting policy changes in line with human rights. As examples of new regulators, Bolivia established an Authority for Social Oversight and Supervision of Drinking Water and Basic Sanitation in 20093 , and Poland created an independent regulator in 2018.
Currently, the creation of new independent regulatory bodies is underway, among others, in New Zealand, Qatar and Punjab, India. The expectation is that those institutions will effectively regulate services through the human rights framework.
Another important and clear achievement in this period is the fact that an increasing number of civil society organizations and grassroots movements have adopted the language of the human rights to water and sanitation in their formulations, analyses and, above all, in their struggles on behalf of the most disadvantaged populations. They have increasingly organized themselves to monitor their Governments’ actions in relation to water and sanitation, and to promote public participation in decision-making processes.
Yet another remarkable achievement in the last ten years is the increasing recognition of the multiple links between the human rights to water and sanitation and other human rights. The interdependency of the rights to health, work, education, housing and food, women’s rights and public participation with the rights to water and sanitation are now well known, and there have been notable synergies between experts and organizations working on those rights and those working on water and sanitation. Also, the particular impact and challenges of the human rights to water and sanitation among certain persons and groups has been acknowledged more and more in the last ten years. Menstrual hygiene, accessibility of facilities for persons with disabilities, facilities for persons in homelessness, or the importance of safe, available, and culturally acceptable services, ensuring privacy and dignity for transgender and gender non-conforming persons, are issues that have increasingly enjoyed the necessary attention since 2010.
Despite all of the important efforts and progress achieved since 2010, too many people around the world are still waiting for the promise made by the General Assembly ten years ago to become a reality in their lives. One in three people still lack access to safe drinking water and more than half of the World population (4.2 billion people) lack access to safe sanitation, while three billion people lack basic handwashing facilities with soap and water, and more than 673 million people still practice open defecation. This unacceptable situation causes 432,000 diarrhoeal deaths every year. Those appalling numbers show that progress has been far too slow and that the international community is far from being on track to uphold its commitment to achieve universal and equitable access to safe and affordable drinking water for all by 2030, as per Sustainable Development Goal 6.1 and 6.2.
Regarding national legislations, even though the number of countries recognizing water and sanitation as human rights has grown in the last decade, too many still lack such recognition, making it difficult for those rights to be justiciable in national courts. Without protecting those services as human rights, they risk being treated merely as a commodity: families can be cut off the service provision for not being able to pay the bills, tariffs can become unaffordable for those in poverty, and national water and sanitation policies risk leaving behind migrants, minorities or people living in informal settlements or in rural and remote areas.
While other international monitoring mechanisms, such as treaty bodies or my own mandate, do provide the opportunity to assess governments’ efforts to realize the human rights to water and sanitation, the Universal Periodic Review (UPR) has shown that those rights are not always at the forefront of human rights concerns. The first cycle of the UPR (2008-2011) took place mostly before General Assembly Resolution 64/292, and the second one (2012-2016) was conducted after the Resolution, giving an opportunity to assess its impact in the UPR system. The number of recommendations on the rights to water and sanitation certainly increased after 2010, but its place in the UPR continues to be marginal, as it only grew from 1 to 2 percent of all recommendations.4
This year, the COVID-19 pandemic has made evident the critical importance of availability, accessibility and affordability of water, sanitation and hygiene services in the efforts for global health: COVID-19 will not be stopped without access to safe water for people living in vulnerable situations. Despite the general awareness about this, too many of the urban poor living in informal settlements continue lacking access to clean water, and measures taken for emergency provision of water during the pandemic have been blatantly insufficient.
Through more than 290 communications (allegation letters, urgent appeals and other letters) that I have sent to Governments, companies and international organizations since 2014, alone and jointly with other mandate holders, reflect the great diversity of obstacles on the way of the realization of the rights to water and sanitation.5 Often, the lack of resources comes to mind as the main challenge for the fulfillment of economic, social and cultural rights, but there is a myriad of political and legal factors that jeopardize people’s enjoyment of water and sanitation rights, often related to the discrimination of those who do not have a say in public decision-making. In developed countries, undocumented migrants are often excluded from public services, including water and sanitation, due to their irregular status, and live in inhumane conditions unimaginable for citizens of those countries. In many places around the world, human rights defenders working on water and sanitation are persecuted, arrested, and even tortured and executed as a result of their work, especially when it affects big economic interests. I have been especially appalled when people have been criminalized and prosecuted for the simple humanitarian gesture of providing water to migrants in need. Around the world, mining, industrial and agricultural activities continue to gravely harm the environment and contaminate water, with States failing to protect affected communities and instead giving priority to short-term economic considerations. In countries where indigenous peoples, nomadic and pastoral tribes or ethnic minorities exist, those are often excluded from decisions affecting them, and their rights to water and sanitation are systematically ignored in the planning of infrastructure or development projects. Informal settlements continue to grow quickly around the world, and governments too often exclude their inhabitants from water and sanitation services, ignoring the fact that the enjoyment of human rights cannot be conditioned by the legal status of tenure. Unfortunately, women and girls in virtually every country are at a disadvantage in their enjoyment of their rights to water and sanitation, and menstrual hygiene is often systematically ignored in public policies.
Another of the topics that has attracted my attention and concern throughout my mandate as Special Rapporteur has been the lack of a human rights-based approach in international efforts to promote access to water and sanitation. Ten years after the international community explicitly recognized water and sanitation as human rights, actions to promote water and sanitation for all through development cooperation continue operating in a way that fails to fully incorporating a human rights framework. Shortcomings like inadequate participation by communities hosting the projects, lack of accountability or insufficient focus on the most vulnerable groups not only violate the human rights of “beneficiaries” (or, in the human rights language, “right holders”), but ultimately threaten the success and sustainability of any development project.
Therefore, I believe that there are reasons both for hope and concern in the 10th anniversary of General Assembly Resolution 64/292. On the positive side, the international community is well aware that it has the obligation, both moral and legal, to ensure access to safe drinking water and to sanitation for all, without discrimination. Having reached this awareness is a great milestone that took decades of efforts by many outstanding individuals and organizations. However, without a swift and considerable increase in the efforts currently dedicated to water and sanitation, and a better understanding of the legal and policy changes required by a human rights-based approach to water and sanitation, the international community will not fulfill the ambitious promises it has made.
The Kenyan Constitution was published on 6 May 2010, subjected to referendum on 4 August 2010 and promulgated on 27 August 2010.
2 A non-exhaustive list comprises Argentina, Bangladesh, Belgium, Burkina Faso, Colombia, Costa Rica, Dominican Republic, Ghana, Guatemala, Guinea, Indonesia, Namibia, Nigeria, Panama, Peru, Sri Lanka, Ukraine, and Zambia as Member States recognizing the rights to water and sanitation in their national legislation, and Democratic Republic of the Congo, Ecuador, Maldives, Mexico, Nicaragua, Solomon Islands, South Africa, Uganda, United States of America (at state level), and Uruguay having such a provision in their constitutions.
3 Autoridad de Fiscalización y Control Social de Agua Potable y Saneamiento Básico – AAPS.
4 Bueno De Mesquita, J.; The Universal Periodic Review: A Valuable New Procedure for the Right to Health? Health Hum Rights. 2019 Dec; 21(2): 263–277.