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The right to water and sanitation:Legal framework and implications for
development cooperation
Netherlands Ministry of Foreign Affairs31 October 2007Ashfaq Khalfan
Coordinator, COHRE Right to Water Programme
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Legal Sources and Recognition
• Implicit in the ‘right to adequate standard of living’ in the International Covenant on Economic, Social and Cultural Rights (ICESCR) – ratified by 157 States
• In Cairo (1994), States recognised that water and sanitation is part of right to adequate standard of living
• Council of Europe and Non-Aligned Movement recognised the right to water
• Entitlements to water and sanitation in several treaties• National legislative recognition of right to water: From 7
in 2002 to 24 in 2007• Also grounded in universal shared values of dignity and
equality
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
The water and sanitation situation – acceptable?
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Where is the right defined?
• General Comment No. 15 by UN CESCR (expert body mandated by UN GA to interpret ICESCR)
• UN Sub-Commission on Human Rights (expert body advising UN Human Rights Council) Guidelines on the right to water and sanitation
• United Nations High Commissioner for Human Rights 2007 study for UN Human Rights Council on human rights obligations on equitable access to water and sanitation
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Substance of the right
Progressive realisation of:• sufficient and safe water for essential personal
and domestic uses • adequate and culturally acceptable water and
sanitation facility accessible in/near each home, school, health institution and workplace, and which is conducive to public health and protection of environment
• affordable water and sanitation (taking into account ability to secure all essential goods and services)
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Process of realising the right: Human rights principles
• Non-discrimination and attention to vulnerable and marginalised groups: equitable allocation of resources, address needs of each group
• Genuine participation and access to information: at all levels
• Transparency and accountability: redress mechanisms, complaints mechanisms
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Types of State obligations in relation to the right
• Obligations to Respect: Not interfere with current access to water and sanitation e.g. deprivation of the minimum essential amount
• Obligation to Protect: Regulate third parties to ensure they do not interfere with the right e.g. public or private providers
• Obligation to Fulfil: Progressively realise the right to water expeditiously and using maximum available resources
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Implementation: Political framework
• Sufficient financing of the sector• Targets in line with right, broken down to regional and
local level (e.g. South Africa)• Particular attention to excluded groups/areas: e.g.
informal settlements, semi-arid areas• Ensuring adequate complaints mechanism (regulator,
human rights commission)• Ensure that representatives of marginalised groups
participate and have an influence on national and local decision-making (Porto Alegre, Quito, Kerala). (Requires significant capacity development)
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Implementation: Water supply and sanitation
• Service delivery targets for extension of basic access and for provision of assistance for small-scale facilities
• Subsidies for connection/construction facilities (e.g. Venezuela)
• Re-allocating consumption subsidies to target the poor (systems in Colombia)
• Flexible payments schemes – instalment payments, waive or reduce deposit requirements
• Process obligations on disconnections
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Water resource management in Accra, Ghana
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Implementation: Water resource management, quality and hygiene
• Priority to essential needs in water resource allocation
• Ensure equitable water rationing policies• Prioritise the hygiene awareness and provide
assistance to households and providers using small-scale facilities
• Prioritise control of pollution of water resources utilised as primary source of water
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Contributions of human rights to MDG on water and sanitation
• Promotes water and sanitation as a legal entitlement, allowing for all levels of government and others to be held accountable
• Requires attention to vulnerable and the marginalised groups – recognises exclusion as a cause of lack of access
• Emphasises people’s participation in decision-making and access to information – more effective development
• Contributes new national and international accountability institutions The Small Print: Implementation requires politically committed government and/or well organised civil society movement (e.g. Treatment Action Campaign in South Africa). Technocratic approaches to rights might open the door to either of these conditions or achieve incremental progress
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Kiosk targeting the poor – no involvement of intended users in decision
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Implications for development cooperation
• Provision of assistance focused on the realisation of the right. Re-target the focus of assistance to the poor
• Refrain from actions that may undermine right e.g. accepting donor-government policy formulation that marginalise civil society
• Ensure all aspects of foreign policy are coherent with the right: trade and investment rules, economic sanctions, climate change (mitigation and assistance to affected groups)
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Centre On Housing Rights and Evictions – Housing Rights for Everyone, Everywhere
Looking forward: Roles for Netherlands government and civil society
• Ensure Dutch foreign and development policy consistent with right
• Increasing openness to the right in many countries: promote reforms through partner dialogues and capacity building
• Emerging national civil society actors promoting the right – requires support as an essential ingredient
• Human Rights Council initiative to strengthen the right and implementing mechanisms, e.g. Special Procedure
• Growing interest among European development and UN agencies: possibility for partnerships and coalition
• Emerging examples of attempts to implement right: identify good practise and lessons and promote these