THE RIGHT TO WATER AND SANITATION
In the southern Serbian town of Leskovac, skin diseases have plagued a Romani settlement for many years. The immediate cause is unclean water for bathing; many homes in the settlement lack access to running water and electricity. Since the nearby river cannot be utilised in colder weather, the community resorted to installing wells. But the lack of sanitation resulted in the groundwater being polluted by faeces. Poverty then prevented the community from purchasing clean water or seeking medicines.
This scenario is sadly typical: a situation faced by communities all over the world from burgeoning urban settlements to neglected rural areas in the South and, perhaps surprisingly, amongst a range of marginalised groups in the North. The estimates are that 1.1 billion people are without a minimum supply of water for the most basic needs and 2.6 billion people lack access to basic sanitation.
In November 2002, the UN Committee on Economic, Social and Cultural Rights took the bold step of affirming that the right to water was an integral part of international human rights law. Noting that the ‘right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’ (General Comment 15 on Right to Water), the Committee derived the right to water from two provisions of ICESCR. Article 11 recognises the ‘right of everyone to an adequate standard of living, including adequate food, clothing and housing’ (emphasis added) and Article 12 provides for the right to health. The right to water has also been recognised in a number of other international instruments, most notably CEDAW, CRC and the Mar Del Plata Action Plan of the United Nations Water Conference.
The Committee stated that ‘ensuring that everyone has access to adequate sanitation is not only fundamental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources’ (General Comment 15, para. 29). The Human Rights Council adopted a resolution in March 2008 emphasising that international human rights law, including ICESCR, CEDAW and CRC, entail obligations in relation to access to sanitation (Resolution 7/22), based on the 2007 ‘Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments.’ In addition, in March 2008, the Human Rights Council appointed an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation.
The content of the right and the obligations of states were extensively defined by the Committee. This included the right of everyone to sufficient, safe, accessible and affordable water for personal and domestic uses and the corresponding duties of states, within their maximum available resources, to respect, protect and progressively fulfil that right without discrimination for residents in their own jurisdiction and, through international assistance and co-operation, for people everywhere. As far as possible, according to the Committee, remedies are to be provided for violations and an examination of case-law shows that Courts and other bodies can make the right justiciable. (See Malcolm Langford, Ashfaq Khalfan, Carolina Fairstein and Hayley Jones, Legal Resources for the Right to Water: International and National Standards, Centre on Housing Rights & Eviction, 2004).
In the case of the settlement in Leskovac mentioned above, it is clear that the situation is not consistent with the right to water. Despite the presence of a nearby water supply system and offers of foreign assistance, no plans were made by local and national government to supply water and sanitation to the community. The local council in Leskovac claims that the housing was built illegally, but the Committee clearly states in its General Comment that housing status should not be used as a reason to deny people access to water. The challenge for this community, and those advocating for them and the right to water and sanitation, is to take the steps to ensure that this international human right is put into practice. Malcolm Langford
B. Supervision
Like other social and economic rights, the right to an adequate standard of living is difficult to supervise. Traditionally, economic, social and cultural rights have been considered non-justiciable, i.e. not susceptible to invocation before a court of law and unsuitable as a basis on which a judicial review can be conducted. However, litigation of economic, social and cultural rights is gaining momentum and a growing body of case-law at the domestic, regional and international levels clearly illustrates that a wide variety of economic, social and cultural rights are indeed justiciable.
At the UN level, the Committee on the Elimination of Racial Discrimination has found state discrimination against Roma in the provision of low cost social housing, contrary to Article 5(e)(iii) CERD. As a result these individuals continued to live in very poor conditions (L.R. et al. v. Slovakia). Here retrogressive measures with regard to housing rights led to a finding of state violation (for more on retrogressive measures see textbox on ‘progressive realisation’).
The main obstacle at the international level to the realisation of economic, social and cultural rights has been the lack of individual complaints procedures for violations of these rights. At the universal level, the main supervisory mechanisms currently are the reporting systems of the Committee on Economic, Social and Cultural Rights and the Committee of the Rights of the Child. However, the entry into force of the first Optional Protocol to ICESCR (adopted in December 2008) will mark a watershed as it sets out an individual complaints procedure for victims of violations of economic, social and cultural rights. Individual complaints mechanisms are set out in the Optional Protocol to CEDAW which entered into force in 2000, but its impact is limited. In general, the CEDAW establishes the equality between men and women in the exercise of rights. Therefore, is it possible to submit a claim only if some economic, social and cultural rights protected by the Convention are granted only to men and not to women in the same position. Where men are denied economic, social and cultural rights, it can be presumed that women have no recourse under CEDAW, except in the case of rights envisaged just for women (e.g., related to pregnancy and rural women).
It should be noted that because of the ‘integrated approach’ in relation to civil and political rights and economic, social and cultural rights, supervisory bodies such as the Human Rights Committee and the European Court have dealt with some components of the right to adequate standard of living when addressing other rights, such as the right to non-discrimination and the right to a fair trial.
At the UN level, the Human Rights Committee has applied an integrated approach when dealing with the right to an adequate standard of living under Article 26 (the right to non-discrimination) and Article 27 (the right to minorities) (see III§12).
In the regional systems, the main supervisory mechanism is the reporting system established in the European Social Charter. The Social Charter does not allow for individual complaints, but a Protocol to the Charter provides for a system of collective complaints. One such complaint was the first case on housing rights to be brought before the European Committee of Social Rights. In order to satisfy Article 16 ESC states parties must respect the differing housing needs of marginalised social groups and provide social housing that does not threaten social inclusion, the overall goal of the Charter. The provision of halting sites for people of Roma origin falls within the ambit of housing rights (European Roma Rights Centre v. Greece). Furthermore, the protection of the right to housing may be achieved through the ECHR, as the European Court has adopted an integrated approach when dealing with different components of this right. For example, in Oneryildiz v. Turkey, the Court recognised that governments have duties to protect persons occupying land without planning permission. Although the Court did not consider the applicant in possession of a formal legal title to the land where he was living, it found, nonetheless, that he was entitled to compensation for the destruction of his house and personal items. In the case of Moldovan v. Romania, police officers participated in the forced eviction of Roma people and the subsequent destruction of their homes. The state was held to be responsible for the applicants’ subsequent inadequate living conditions, and to have violated their Article 8 right to private and family life. The European Court has ruled on the right to housing in more than 100 cases.
In the Inter-American system, the Protocol of San Salvador lays down the right to food (Article 12) but does not include any provision on the right to adequate housing, clothing or water. Moreover, the Protocol limits the individual complaint procedure to the right to form and join trade unions (Article 8a) and the right to education (Article 13). However, in Yakye Axa v. Paraguay, the Inter-American Court interpreted the right to life protection of Article 4 ACHR to encompass the right to food and health standards set forth in the Protocol of San Salvador. The protection of economic, social and cultural rights also falls under the American Declaration of the Rights and Duties of Man and Article 26 ACHR. In several cases, the Inter-American Commission has recognised its competence to hear complaints of violations of economic, social and cultural rights provided for by the Declaration and that are denounced through individual claims (see, e.g., Amilcar Menéndez et al. v. Argentina (Case 11.670)). The Inter-American Court has examined economic, social and cultural rights in Torres Benvento et al. v. Peru, in which it implicitly admitted its competence to apply Article 26 ACHR in its contentious jurisdiction. This opens the possibility for future claims of violations of the right to an adequate standard of living.
In the African system, the African Commission has issued a landmark decision with regard to the right to housing and the right to food. In a case where it was alleged that the Nigerian government had contributed to gross violations of human rights through the actions of its military forces and unsound environmental management related to exploitation of the Niger Delta, the Commission found with regard to the content of the right to shelter that it obliges the state not to destroy the housing of its citizens or obstruct efforts by individuals or communities to rebuild lost homes. The duty to respect this right also requires that the state and its agents refrain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon the freedom of an individual to use available resources to satisfy individual, family, household or community housing needs. The duty to protect, the Commission stated, includes the prevention of violations of this right by any individual or non-state actor such as landlords, property developers and landowners. The right to food was held to bind states to protect and improve existing food sources and to ensure access to adequate food for all citizens. The minimum core of this right obliges the government to desist from destroying or contaminating food sources or from allowing private actors to contaminate food sources or to prevent people’s efforts to feed themselves (see The Social and Economic Rights Action Centre et al. v. Nigeria, Communication 155/96). In World Organisation against Torture et al. v. Zaire, the state, in its failure to provide potable water, was found to have violated its obligation to provide basic services necessary to protect the minimum standard of health under Article 16 AFCHR.
Although the protection of the right to an adequate standard of living through individual complaints is limited until the Optional Protocol to the IESCR enters into force, several resolutions on components of the right to an adequate standard of living have been adopted by UN bodies. Both the UNGA and the ECOSOC have adopted resolutions concerning the realisation of the right to adequate housing and the right to food. Moreover, the former UN Sub-Commission on the Promotion and Protection of Human Rights adopted numerous resolutions concerning issues relating to housing rights. It dealt with topics such as housing and property restitution in the context of the return of refugees and internally displaced persons, women and the right to land, property and adequate housing and the realisation of the human right to adequate housing and children and the right to adequate housing. The Sub-Commission also adopted a number of resolutions concerning the right to food.
In addition, the Human Rights Council assumed the mandates of four Special Procedures established by the UN Commission on Human Rights to address issues concerning the right to an adequate standard of living: the Special Rapporteur on the right to food; the Special Rapporteur on the right to adequate housing, the Independent Expert on the question of extreme poverty and human rights; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. In addition, in March 2008, the Human Rights Council appointed an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation.
The mandate of the Special Rapporteur on the right to food includes monitoring the situation of the right to food throughout the world and identifying general trends related to the right to food. The Rapporteur undertakes country visits and communicates with states and other concerned parties with regard to alleged cases of violations of the right to food and other issues related to his/her mandate, on the basis of, inter alia, individual complaints. The Special Rapporteur, furthermore, promotes the full realisation of the right to food through dialogue with relevant actors by participating in seminars, conferences and expert meetings (see Human Rights Council Resolution 6/2). The express linkages between the rights to water and food have been dealt with in the reports of the Special Rapporteur on the right to food.
The mandate of the Special Rapporteur on the right to adequate housing includes reporting on the status of the realisation of rights relevant to his/her mandate and carrying out country visits. The Rapporteur develops constructive dialogue with governments, civil society and other relevant actors with a view to identify solutions for the implementation of the right to adequate housing and receives individual complaints alleging violations of housing rights in particular countries (see Human Rights Council Resolution 6/27).
The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health monitors, amongst other things, the situation of the right to health throughout the world. The Rapporteur identifies general trends related to the right to health, undertakes country visits and communicates with states and other concerned parties with regard to alleged cases of violations of the right to health. The Special Rapporteur, furthermore, promotes the full realisation of the right to health through dialogue with relevant actors by participating in seminars, conferences and expert meetings (see Human Rights Council Resolution 6/29).
The Independent Expert on the question of extreme poverty and human rights is tasked with identifying approaches for removing all obstacles, including institutional ones, to the full enjoyment of human rights for people living in extreme poverty and to identify efficient measures to promote their rights. The Expert shall make recommendations on how persons living in extreme poverty can participate in the process towards the full enjoyment of their human rights and the sustainable improvement of their quality of life, study the impact of discrimination and pay particular attention to the situation of women, children and other vulnerable groups, including persons with disabilities living in extreme poverty. The Expert shall participate in the assessment of the implementation of the Second UN Decade for the Eradication of Poverty and submit recommendations on the realisation of the Millennium Development Goals, in particular the first goal. Finally, the Expert is to develop co-operation with UN bodies dealing with the same subject and participate in relevant international conferences on extreme poverty (see Human Rights Council Resolution 8/11).
The Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation is tasked with developing a dialogue with governments, the relevant UN bodies, the private sector, local authorities, national human rights institutions, civil society organisations and academic institutions, to identify, promote and exchange views on best practices related to access to safe drinking water and sanitation, and, in that regard, to prepare a compendium of best practices. The Expert is to undertake a study in co-operation with the aforementioned actors, for further clarification on the content of human rights obligations, including non-discrimination obligations, in relation to access to safe drinking water and sanitation and shall make recommendations that could help the realisation of the Millennium Development Goals, in particular Goal 7. The Expert shall apply a gender perspective and work in close coordination with other special procedures and subsidiary organs of the Council, relevant UN bodies and the treaty bodies, and taking into account the views of other stakeholders, including relevant regional human rights mechanisms, national human rights institutions, civil society organisations and academic institutions (see Human Rights Council Resolution 7/22).
Finally, it is important to mention that, at the national level, several countries have Constitutions that refer to the right to an adequate standard of living. These constitutional provisions are key texts in the protection of this right at the national level and they have allowed for an increasing number of cases to be brought before the courts. An example is the South African Constitution and Bill of Rights, in which all economic and social rights have been declared justiciable. A domestic case regarding the protection of the right to an adequate standard of living is Government of the Republic of South Africa v. Grootboom, decided by the Supreme Court of South Africa.