The Human Right to Water: The Importance of Domestic and Productive Water Rights

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.

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.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.

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.

In the past decade, water professionals’ understanding of how rural and peri-urban people use water has been evolving beyond the fragmented disciplinary backgrounds and organization of the water sector that focuses on single water uses. In the early 1970s, the groundbreaking study on domestic water use in East Africa, entitled Drawers of Water, by White et al. (1972) developed three categories of water use—consumptive (drinking and cooking), hygiene (washing, cleaning, and bathing), and amenities (watering lawns and other non-essential activities). In a follow-up study some 30 years later, Thompson et al. (2001) added productive uses as a fourth category. Productive uses were considered to include “consumption by livestock (e.g., cattle, goats, pigs and sheep), brewing beer, distilling gin, making fruit juice, brick-making and the construction of homes, and irrigating tree and horticultural crops” (Thompson et al. 2001, p. 31).

Water projects typically supply water for a single-use—such as for domestic use or irrigation—while people use water for all their needs. Regulations or policies often try to forbid non-planned uses, or even declare these uses as illegal. It is true that such non-planned uses may cause damage, for example, when cattle trample ditches. On the other hand, these non-planned uses reflect people’s norms and priorities and meet basic livelihood needs. They realize a range of human rights.

Instead of forbidding non-planned uses, such uses should be planned for. This notion led to the new approach of MUS as a whole water approach that responds to the many water needs of rural and peri-urban households (de Vries et al. 2004; Penning de Vries 2006; Renwick et al. 2007; Smits et al. 2010; van Koppen et al. 2006; Restrepo Tarquino 2010; World Bank et al. 2009).

MUS is defined as “a participatory, integrated and poverty-reduction focused approach in poor rural and peri-urban areas, which takes people’s multiple water needs as a starting point for providing integrated services, moving beyond the conventional sectoral barriers of the domestic and productive [irrigation] sectors” (van Koppen et al. 2006, p. v). The participatory (ground-up) nature of MUS means that the services respond to the full range of water needs, including productive activities such as agriculture, gardening, horticulture, livestock-raising, car-washing, arts, ice-making, brick-making, pottery, butchery, and other small-scale commercial activities (van Koppen et al. 2009; Smits et al. 2010). Water-dependent activities provide critical income streams, especially for the rural poor who often lack opportunities for wage and salary work (Smits et al. 2010; Noel et al. 2010). The concept of MUS holds much potential, since between 60 and 70 % of the rural poor are estimated to raise livestock, have access to small cultivable plots, and engage in water-dependent small enterprises (Renwick et al. 2007).

Three service categories have emerged in the past decade that explicitly recognize the need to provide water for domestic and productive uses.³ First, in a “MUS-by-design” service, the multiple water needs of all community members are considered according to their prioritization in the design of the system(s). MUS-by-design is an approach that tries to match the available water sources with the users’ needs in a participatory way. Thus, there is no one blueprint that can be followed. An MUS-by-design water service could consist of one standalone system or several systems that utilize multiple sources supporting various uses.

The second services category is “irrigation-plus.” An irrigation-plus service prioritizes water for irrigation, but also includes add-on system components that enable the communities in the irrigated area or downstream to use the water for domestic and other productive activities.

The third category is “domestic-plus” services. Domestic-plus services prioritize domestic water uses at or around homesteads and provide services to meet other water-related basic needs. By increasing the design flow of the system (or service levels), greater quantities of water are provided to homesteads to enable more uses. Domestic-plus is progressively implemented by ‘climbing the multiple use water ladder’ (Renwick et al. 2007). Further, components can be added such as cattle troughs and water tanks to support productive activities. Thus, the domestic-plus approach aligns with the priority for domestic uses embedded in the current interpretation of the human right to water and simultaneously meets other water-related needs and human rights. Moreover, domestic-plus services can especially benefit women, the landless, and the sick, for whom homesteads are the best or only place to use water productively. The incremental investment costs to move to such higher service levels, for example, from 20 to 50 LPCD, generate high incremental benefits. Renwick et al. (2007) calculated that such incremental costs could be fully repaid within 6 months to 3 years from the income gained from the productive activities.

Domestic-plus recognizes the importance of health benefits from safe and clean drinking water—that remains safe and clean at the point of consumption. However, the focus is on 5–10 LPCD for drinking, cooking, and personal hygiene. For the larger quantities to support other domestic and productive activities, non-potable water could be used, also saving costs. Point of use (POU) technologies can be used to ensure the 5–10 LPCD is fit for consumption. Evidence on the link between water quality interventions (in general) and health, reveals that a 42 % reduction in child diarrhea morbidity can be achieved (Waddington et al. 2009). For POU treatment interventions, this figure increases to 46 %, but declines to 21 % for interventions that only improve the quality of the water source (ibid.).

Prior to promoting a widespread scaling of domestic-plus services as a cost-effective way to meet a range of human rights, the extent to which domestic water supplies are used for productive activities needs to be understood. The following empirical study of household water use from rural piped water systems in Senegal, Kenya, and Colombia provides some evidence of the extent to which domestic water is repurposed in rural communities across these three countries.

Given the growing interest in MUS, the Water and Sanitation Program (WSP), World Bank, funded a multi-country study to assess the link between the productive use of piped, rural domestic water systems, poverty-reduction, and system sustainability. The study—undertaken during the summers of 2008 and 2009 under the direction of the lead author and two colleagues at Stanford University and the University of Oxford—used a cross-sectional research design and focused on rural communities in Senegal, Kenya, and Columbia.⁴ A typical water system in Colombia used mountain spring sources and had a gravity fed distribution system. In Kenya, a mix of gravity and pumped systems supplied communities. In Senegal, all the systems used groundwater that was pumped to an elevated storage tank and then piped to communal taps and a limited number of yard/compound connections. The systems studied in Senegal can be classified as providing domestic-plus services, whereas the systems in Kenya and Colombia were primarily designed as single-use, domestic water services.

Given the variation that exists in the types of piped water systems studied, the similarity in proportions of households engaged in piped-water-based productive activities in the three countries is even more remarkable. It is also interesting that the systems in Senegal, which were designed to provide water for livestock and small-scale agriculture, and can thus be classified as domestic-plus services, had the same proportion of households engaged in productive activities as in Kenya and Colombia, where the systems were designed for domestic uses only. This consistent pattern implies that rural households use their water as needed and do not limit their engagement in activities due to limitations in the design of services. Further research is required to determine whether the pattern of engagement in productive activities across the three countries is a more universal phenomenon, or is limited to the purposefully-sampled piped systems included in the study.

We note that the amount of water used, the types of activities undertaken, and the amount of income generated from productive activities varies significantly (between countries and between different regions within countries). For example, in Senegal, the regions of St. Louis and Matam can be characterized as the dominant livestock regions, whereas agriculture is more important in Diourbel and Kaffrine. Further, the median water use per capita in Colombia was several times that of the African households. This high level of piped water consumption can be attributed to the fact that virtually all of the households interviewed in Colombia had access to a private tap. In contrast, only around one third of households in Senegal and Kenya had a comparable level of service. In these countries, far more households relied on public taps or a neighbor’s tap.

The data in Table 1 highlight the fact that while there may be a consistent pattern for household engagement in piped-water-related productive activities, the quantity of water used for these activities is dependent on the level of water access and availability. With regards to Senegal and Kenya, households use a median of 23 and 31 LPCD, respectively. This is in sharp contrast to the general global consensus that around 50 LPCD is required to satisfy an individual’s personal and domestic water needs, with 20 LPCD set as a minimum for consumption and hygiene requirements (Gleick 1996; Langford 2005; Howard and Bartram 2003). The WSP study found that even at these minimum levels, people prioritize water uses for a wide range of livelihood-related activities over domestic uses. This finding reinforces the argument that human rights law and water services planning should better align with people’s priorities.

While homestead-based production is generally considered to consist of a ‘kitchen garden’ for family consumption, Table 1 sheds new light on the importance of the income generated. In Senegal, where the systems were designed to support both domestic and productive uses of water, water-based income represented around one half of total household income (for the 49 % of households engaged in water-based income generating activities). Similarly, in Colombia, income from water-based activities represented, on average, 52 % of total household income (for the 51 % of households engaged in water-based income generating activities).

The income generated was particularly relevant for women. Evidence from the women’s focus groups in Senegal shows that after the construction of the domestic-plus water services, women were able to expand their existing livelihood activities and initiate new enterprises. One half of women’s income was linked to productive water use, namely through livestock-raising and gardening (Van Houweling et al. 2012). This confirms that water provided for productive uses gives women opportunities to diversify their livelihood activities, and earn income from activities that they tend to have greater control over (Van Houweling et al. 2012; van Koppen et al. 2009).

The WSP study shows that productive water use occurs across a range of piped water systems and the types of productive activities vary by context. This finding implies that expanding the human right to water should not target (or exclude) certain uses or technologies, and should, instead, explicitly address the right to water to meet the full range of domestic, health, sanitation, and livelihood needs.