The human right to water and sanitation has evolved from soft to hard international law, where it is now considered as a “distinct, composite human right” (Meier et al. 2012, p. 4). In this section we track the emergence of the human right to water and sanitation, paying particular attention to the way in which the right to water is framed and what this framing implies for rural and peri-urban communities. The discussion reveals how international conventions and comments have been prioritizing the human right to safe and clean drinking water, but not at the exclusion of other uses. An examination of these texts shows a broader interpretation of the right to water without limiting prescriptions on its intended use. States are obliged to protect, respect, and fulfill these other rights too.
In 2010, UN General Assembly recognized “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights” (UN 2010b, p. 2). The General Assembly’s Resolution (64/292) brings significant international political weight behind the notion that access to clean and safe drinking water and sanitation is an independent human right.
Access to reliable and clean water and sanitation services is widely accepted as essential for the realization of a healthy and productive life (UNDP 2006; WHO and UNICEF 2011, 2012). Prior to the UN General Assembly’s formal recognition of the right to drinking water and sanitation, access to water and sanitation services was generally considered as a prerequisite for the attainment of other human rights (Gleick 1998). The long road in explicitly recognizing water as a human right has been attributed to a lack of political will and resources in this area when compared to investment in other sectors (UNDP 2006). Since the poor—who suffer the most from a lack of access to improved water and sanitation services—tend to have a limited voice in political arenas, as is often argued, their claims for these services can be more easily ignored if the human right to water and sanitation is not explicit (ibid.). Although progress has been made, this lack of collective action and influence among the poor is one reason for the continuing low level of access to water and sanitation services over the past several decades in developing regions (WHO and UNICEF 2012).
In response to the UN General Assembly’s Resolution (64/292), the UN Human Rights Council (2010, p. 3) called upon states to “develop appropriate tools and mechanisms, which may encompass legislation, comprehensive plans and strategies for the sector, including financial ones, to achieve progressively the full realization of human rights obligations related to access to safe drinking water and sanitation, including in currently unserved and underserved areas.”
Thus, establishing an explicit human right to drinking water and sanitation has created a new mechanism that obliges states to act and target public investments towards the water and sanitation sector.
The following discussion identifies where the focus on drinking water came from and argues that its narrow interpretation can be viewed as necessary to prioritize investments, but that this focus does not ignore other water-related human rights and states’ obligations to meet those rights.
The roots to the 2010 human right to water (for domestic uses) and other water-related rights can be traced to Article 25 of the 1948 Universal Declaration of Human Rights (UDHR) and Articles 11 and 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR). As a group, the UDHR, ICESCR, and the 1966 International Covenant on Civil and Political Rights (ICCPR)—known collectively as the “International Bill of Human Rights”—provide the normative basis from which the human right to water and sanitation and other water-related rights have evolved in international law (Meier et al. 2012; Gupta et al. 2010). These foundational texts also stipulate the obligations for states.
Universal Declaration of Human Rights (UDHR)
Article 25: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services,…” (UN 1948).
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 2 of the ICESCR calls on states to “individually and through international assistance and co-operation” … work towards “achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
Article 11: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions” (UN 1966b).
Article 12: “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. … The steps to be taken … to achieve the full realization of this right shall include those necessary for … (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases” (UN 1966b).
International Covenant on Civil and Political Rights (ICCPR)
The public health link to water is reinforced by the ICCPR. While the ICCPR does not explicitly mention water, it is considered to be a necessary condition for realizing the “inherent right to life” stated in Article 6 of the covenant (UN 1966a).
Both the UDHR and ICESCR use the word “including” prior to listing component elements of the right to an adequate standard of living. The word “including” indicates that the elements listed were not meant to be exhaustive, opening the door for the inclusion of other fundamental elements such as water, sanitation, clean air, and food, needed to achieve an adequate living standard (Langford 2005; Gleick 1998). Article 2 of the ICESCR focuses on all rights within the Covenant and thus, arguably, includes a right to water for productive purposes derived from an integrated view of the rights to water, food, work, and standard of living.
Article 11 positions water as a necessary element in achieving an “adequate standard of living”. In rural and peri-urban settings, the interpretation of this article needs to be broad. Achieving an adequate standard of living is dependent on the availability of both safe and clean drinking water and on the availability of water to support other domestic and productive uses.
The reference to the “continuous improvement of living conditions” in Article 11 and “progressive realization” in Article 2 of the ICESCR is also worth highlighting. This implies that a priority for providing safe and clean drinking water in rural and peri-urban areas cannot be interpreted as denying families in these locations the opportunity to continually improve their circumstances through increasing access to both domestic and productive uses of water. Given the income generating (or expenditure saving), food security, nutritional, and health benefits from productive activities—such as raising animals or growing irrigated crops and vegetables, or aquaculture—an important question is why the right to water has been focused on safe and clean drinking water and what does this imply for other uses? One possible answer lies in Article 12 of the ICESCR, which elevates public health in the human rights dialogue.Footnote 2 The steps taken to attain the highest possible level of physical and mental health include actions that prevent and control diseases, such as the provision of safe and clean drinking water.
One of the first explicit references to the human right to water for domestic uses in an international text is found in the conference report from the 1977 United Nations Water Conference in Mar del Plata, which positioned the right to drinking water in the context of basic needs: “all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs” (UN 1977, p. 1). The Mar del Plata conference led to an Action Plan that called for what became the International Drinking Water Supply and Sanitation Decade (1981–1990), which brought international attention and resources to expand access to drinking water supplies and sanitation services in developing regions.
Two years after the Mar del Plata conference, the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) made an explicit reference to the rights of women to water. In the context of rural
development, the Convention called for the elimination of discrimination against women and stated that women have the right to “enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications” (UN 1979, Article 14(2)).
A decade later, the 1989 Convention on the Rights of the Child (CRC) made a clear connection between water and the “highest attainable standard of health” (UN 1989, Article 24(1))—paralleling Article 25 in the UDHR and Article 12 in the ICESCR. To fulfill this right, states are asked, among other measures, to “combat disease and malnutrition … through, inter alia, … the provision of adequate nutritious foods and clean drinking water” (UN 1989, Article 24 (para. 2.c)).
CEDAW and the CRC are particularly relevant to rural and peri-urban communities. These two legally binding treaties establish state obligations and promote the need for monitoring mechanisms to track progress. CEDAW specifically focuses on rural development and references “water supply” in general, rather than focusing only on drinking water and other domestic uses. The CRC explicitly recognizes the right to the “highest attainable standard of health” with nutritious foods and the provision of clean drinking water. While the CRC does not refer to a specific geographic setting, if the rights are considered in a rural and peri-urban context there is a strong case for the operationalization of this right by providing water to grow crops and vegetables, raise poultry, breed livestock, etc. Both CEDAW and the CRC are referenced in Resolution 64/292, and underscore that a priority for domestic uses in operationalizing human rights law still leaves a similar obligation to operationalize rights to water for productive uses.
Turning to the 1990s, the international community began to focus its attention on sustainable development (Ashford and Hall 2011). A year before the Brundtland commission published its classic text on the subject (WCED 1987), the 1986 Declaration on the Right to Development (DRD) was adopted by the UN General Assembly. Article 8 of the Declaration says:
States should undertake … all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process … (UN 1986, Article 8).
Within this development framework, the right to water became oriented towards meeting “basic needs”, continuing the operational focus on drinking water as agreed during the 1977 Mar del Plata conference. While the DRD did not explicitly mention water, the UN later included water as a “basic resource” when interpreting the intent of Article 8 (UN 1995; Gleick 1998). Further, the emphasis on including women in the development process, builds on CEDAW. Given women’s and girl-children’s disproportional obligations for water provision for domestic uses, the provision of water services for domestic uses is particularly important to them (UN 2005; Thompson et al. 2001). Moreover, while much attention during the preceding decade was paid to water technology (the “hardware”), an important outcome was that equal attention needed to be paid to the planning and management (the “software”) of the services provided (Cairncross 1992). This demand responsive approach to water planning found expression in the 1992 Dublin Statement on Water and Sustainable Development, which considered water as both a social and economic good. Principle 4 of the statement recognizes “the basic right of all human beings to have access to clean water and sanitation at an affordable price” (UN 1992a). The emphasis on water being “affordable” indicates that “the conception of water as an economic good must be limited by the concept of water as a human right in order to ensure equitable distribution of water” (Bluemel 2005, p. 964). Principle 3 of the Dublin Statement also recognized the gender dimension of water, stating that:
Women play a central part in the provision, management and safeguarding of water.
This pivotal role of women as providers and users of water and guardians of the living environment has seldom been reflected in institutional arrangements for the development and management of water resources. Acceptance and implementation of this principle requires positive policies to address women’s specific needs and to equip and empower women to participate at all levels in water resources programmes, including decision-making and implementation, in ways defined by them (UN 1992a).
Later that year, the right to development was reaffirmed in the 1992 Rio Declaration. Principle 3 of the Declaration states that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations” (UN 1992b). The action plan for the Rio Declaration—Agenda 21—provided a detailed treatment of the need to protect public health by providing safe drinking water and controlling disease vectors in the aquatic environment. When discussing activities that could be implemented in the area of water supply and sanitation for the unserved rural poor, Agenda 21 asks states to “promote community ownership and rights to water supply and sanitation facilities” (United Nations (UN) 1993, Section 18.76(A) (iv)). Again, in the rural setting, the declaration is about water in general, while its operationalization focuses on safe and clean drinking water.
In 2002, the UN Committee on Economic, Social, and Cultural Rights (CESCR) adopted General Comment No. 15 (GC15), which considers the legal bases of the right to water through Articles 11 and 12 of the ICESCR. (The earlier CESCR General Comments 12 (1999) and 14 (2000) had focused on the right to food and the right to the highest attainable standard of health, respectively, which address the right to an adequate standard of living under Article 11 of the ICESCR.) GC15 determined that the “human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights” (CESCR 2003, p. 1). GC15 also directly addresses the productive use of water by referencing Article 1 of the ICESCR—which states that “in no case may a people be deprived of its own means of subsistence” (UN 1966b, Article 1, para. 2). The CESCR further states that “parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples” (CESCR 2003, p. 4). In its discussion, the CESCR makes a distinction between the right to water for personal and domestic uses that support the right to health, and adequate access to water for farming and livelihood activities that support the right to food and the right to work. While the CESCR recognized that water is needed for other purposes such as food production, supporting livelihoods, and cultural practices, it concluded that “priority in the allocation of water must be given to the right to water for personal and domestic uses” (CESCR 2003, p. 3).
The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements (CESCR 2003, p. 2).
Thus, GC15 prioritizes water for domestic uses, but simultaneously calls for a more inclusive and progressive interpretation of the human right to water for productive uses (Hellum 2014). The main components of the GC15 were later reinforced in a report by the United Nations High Commissioner for Human Rights (UNHRC 2007) on the scope and content of the obligations related to the human right to water and sanitation.
In 2004, the UN General Assembly adopted Resolution 58/217 to establish the International Decade for Action, “Water for Life” (2005–2015). The emphasis on “action” was intentional and deemed necessary to achieve the internationally agreed water-related goals contained in Agenda 21, the Programme for the Further Implementation of Agenda 21, the United Nations Millennium Declaration, and the Johannesburg Plan of Implementation (UN 2004). These international texts further advocate the right to development and the right to attain an adequate standard of living, making reference to the International Bill of Human Rights and other key international agreements. In establishing development targets in the Millennium Declaration and the subsequent Millennium Development Goals (MDGs), only water for domestic uses was explicitly mentioned, which resulted in international resources being targeted at this narrower development objective. In fact, the MDGs of reducing by 50 percent the number of people without access to improved water and sanitation, is seen as an arbitrary target by those advocating for the human right to water (UN 2010a; de Albuquerque and Roaf 2012). Instead, Albuquerque and Roaf (2012, pp. 32–33) argue, a “progressive realization” approach should be followed that is based on a continual assessment of national priorities and resource constraints. The ultimate objective is to achieve the full realization of the human right to water and sanitation (i.e., universal access) by adopting a fluid approach to the “obligation to fulfill” the right to water and sanitation.
In 2010, the human right to water was declared in the UN Resolution 64/292. This focused exclusively on the priority for domestic uses as stated in GC15, while adding the right to sanitation. However, as we argued above, GC15, which is the basis for Resolution 64/292, also obligates states to respect, protect, and fulfill other human rights that critically depend on water, including the right to an adequate standard of living, dignity, food, and work.
The priority to provide water for drinking is justified from a public health perspective based on the fact that this is clearly a universal need for everyone, especially children. Moreover, there is political support for implementing the services to meet this need. There is also ample documentation of the direct links between safe and clean drinking water and public health improvements. Poor water quality and water shortage is linked to diarrhea, cholera, dysentery, and a variety of other illnesses responsible for high rates of mortality and morbidity in developing countries (Bartram and Cairncross 2010; WHO 2009). Universal access to water for other domestic water needs also contributes to implementing CEDAW because of society’s current gendered division of domestic chores (Hellum 2014).
The question is not about the priority for the human right to water for domestic uses and its progressive realization, but why there is still no operationalization of water for basic productive uses, let alone any effort for its progressive realization, in spite of GC15. Various factors play a role. Water is just one input in productive activities, so benefits are more indirect. Nevertheless, these benefits are important. For example, if water is used for horticulture or animal raising, the products from these activities improve the nutrition of family members and, hence, their health. They often also generate an income that can be used to purchase clothes or send children to school. These various benefits represent a composite group of rights, which fail to match the administrative categories of specific rights. Instead, these multiple interconnected benefits of water for domestic and a range of productive uses underline the importance of recognizing human rights as indivisible (Hellum 2014). Moreover, productive water uses vary and depend on highly diverse hydrological, technical, institutional, and socio-economic contexts. Uptake of water for productive uses depends on factors such as access to land, credit, and markets, and the level of income and education achieved by household members (Van Houweling et al. 2012; Hall et al. 2011). While the diversified livelihood strategies in rural and peri-urban areas depend in many ways on water, the universality of water for productive needs is less straightforward than for drinking. Further, there is less political support and funding for pro-poor agricultural water management.
Lastly, and the focus of the remainder of this paper, water use norms and practices tend to be overlooked in developing and operationalizing human rights law. While the indivisibility of water-related rights is recognized at abstract levels, this tends to be ignored in designing interventions to meet human rights. The following two sections look at how people in rural and peri-urban areas use water and how designing water services to match these uses might advance the realization of water-related human rights.