CESCR
General Comment No. 15
The right to water (arts. 11 and 12 of the International Covenant
on Economic, Social and Cultural Rights)
Twenty-ninth session 2002
E/1990/23
I. Introduction
1. Water is a limited natural resource and a public good fundamental
for life and health. 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. The Committee has been confronted continually
with the widespread denial of the right to water in developing as
well as developed countries. Over 1 billion persons lack access
to a basic water supply, while several billion do not have access
to adequate sanitation, which is the primary cause of water contamination
and diseases linked to water.[1] The continuing contamination, depletion
and unequal distribution of water is exacerbating existing poverty.
States parties have to adopt effective measures to realize, without
discrimination, the right to water, as set out in this general comment.
The legal bases of the right to water
2. 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.
3. Article 11, paragraph 1, of the Covenant specifies a number of
rights emanating from, and indispensable for, the realization of
the right to an adequate standard of living “including adequate
food, clothing and housing”. The use of the word “including” indicates
that this catalogue of rights was not intended to be exhaustive.
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.
Moreover, the Committee has previously recognized that water is
a human right contained in article 11, paragraph 1, (see general
comment No. 6 (1995)).[2] The right to water is also inextricably
related to the right to the highest attainable standard of health
(art. 12, para. 1)[3] and the rights to adequate housing and adequate
food (art. 11, para. 1).[4] The right should also be seen in conjunction
with other rights enshrined in the International Bill of Human Rights,
foremost amongst them the right to life and human dignity.
4. The right to water has been recognized in a wide range of international
documents, including treaties, declarations and other standards.[5]
For instance, Article 14, paragraph 2, of the Convention on the
Elimination of All Forms of Discrimination Against Women stipulates
that States parties shall ensure to women the right to “enjoy adequate
living conditions, particularly in relation to […] water supply”.
Article 24, paragraph 2, of the Convention on the Rights of the
Child requires States parties to combat disease and malnutrition
“through the provision of adequate nutritious foods and clean drinking
water”.
5. The right to water has been consistently addressed by the Committee
during its consideration of States parties’ reports, in accordance
with its revised general guidelines regarding the form and content
of reports to be submitted by States parties under articles 16 and
17 of the International Covenant on Economic, Social and Cultural
Rights, and its general comments.
6. Water is required for a range of different purposes, besides
personal and domestic uses, to realize many of the Covenant rights.
For instance, water is necessary to produce food (right to adequate
food) and ensure environmental hygiene (right to health). Water
is essential for securing livelihoods (right to gain a living by
work) and enjoying certain cultural practices (right to take part
in cultural life). Nevertheless, priority in the allocation of water
must be given to the right to water for personal and domestic uses.
Priority should also be given to the water resources required to
prevent starvation and disease, as well as water required to meet
the core obligations of each of the Covenant rights.[6]
Water and Covenant rights
7. The Committee notes the importance of ensuring sustainable access
to water resources for agriculture to realize the right to adequate
food (see general comment No. 12 (1999)).[7] Attention should be
given to ensuring that disadvantaged and marginalized farmers, including
women farmers, have equitable access to water and water management
systems, including sustainable rain harvesting and irrigation technology.
Taking note of the duty in article 1, paragraph 2, of the Covenant,
which provides that a people may not “be deprived of its means of
subsistence”, States parties should ensure that there is adequate
access to water for subsistence farming and for securing the livelihoods
of indigenous peoples.[8]
8. Environmental hygiene, as an aspect of the right to health under
article 12, paragraph 2 (b), of the Covenant, encompasses taking
steps on a non-discriminatory basis to prevent threats to health
from unsafe and toxic water conditions.[9] For example, States parties
should ensure that natural water resources are protected from contamination
by harmful substances and pathogenic microbes. Likewise, States
parties should monitor and combat situations where aquatic ecosystems
serve as a habitat for vectors of diseases wherever they pose a
risk to human living environments.[10]
9. With a view to assisting States parties’ implementation of the
Covenant and the fulfilment of their reporting obligations, this
general comment focuses in Part II on the normative content of the
right to water in articles 11, paragraph 1, and 12, on States parties’
obligations (Part III), on violations (Part IV) and on implementation
at the national level (Part V), while the obligations of actors
other than States parties are addressed in Part VI.
II. Normative content of the right to water
10. The right to water contains both freedoms and entitlements.
The freedoms include the right to maintain access to existing water
supplies necessary for the right to water, and the right to be free
from interference, such as the right to be free from arbitrary disconnections
or contamination of water supplies. By contrast, the entitlements
include the right to a system of water supply and management that
provides equality of opportunity for people to enjoy the right to
water.
11. The elements of the right to water must be adequate for human
dignity, life and health, in accordance with articles 11, paragraph
1, and
12. The adequacy of water should not be interpreted narrowly, by
mere reference to volumetric quantities and technologies. Water
should be treated as a social and cultural good, and not primarily
as an economic good. The manner of the realization of the right
to water must also be sustainable, ensuring that the right can be
realized for present and future generations.[11]
12. While the adequacy of water required for the right to water
may vary according to different conditions, the following factors
apply in all circumstances:
(a) Availability.
The water supply for each person must be sufficient and continuous
for personal and domestic uses.[12] These uses ordinarily include
drinking, personal sanitation, washing of clothes, food preparation,
personal and household hygiene.[13] The quantity of water available
for each person should correspond to World Health Organization
(WHO) guidelines.[14] Some individuals and groups may also require
additional water due to health, climate, and work conditions;
(b) Quality. The water required for each personal or domestic
use must be safe, therefore free from micro-organisms, chemical
substances and radiological hazards that constitute a threat to
a person’s health.[15] Furthermore, water should be of an acceptable
colour, odour and taste for each personal or domestic use.
(c) Accessibility. Water and water facilities and services have
to be accessible to everyone without discrimination, within the
jurisdiction of the State party. Accessibility has four overlapping
dimensions:
(i) Physical
accessibility: water, and adequate water facilities and services,
must be within safe physical reach for all sections of the population.
Sufficient, safe and acceptable water must be accessible within,
or in the immediate vicinity, of each household, educational
institution and workplace.[16] All water facilities and services
must be of sufficient quality, culturally appropriate and sensitive
to gender, life-cycle and privacy requirements. Physical security
should not be threatened during access to water facilities and
services;
(ii) Economic accessibility: Water, and water facilities and
services, must be affordable for all. The direct and indirect
costs and charges associated with securing water must be affordable,
and must not compromise or threaten the realization of other
Covenant rights;
(iii) Non-discrimination: Water and water facilities and services
must be accessible to all, including the most vulnerable or
marginalized sections of the population, in law and in fact,
without discrimination on any of the prohibited grounds; and
(iv) Information accessibility: accessibility includes the right
to seek, receive and impart information concerning water issues.[17]
Notes
[1] In 2000, the World Health Organization estimated that 1.1 billion
persons did not have access to an improved water supply (80 per
cent of them rural dwellers) able to provide at least 20 litres
of safe water per person a day; 2.4 billion persons were estimated
to be without sanitation. (See WHO, The Global Water Supply and
Sanitation Assessment 2000, Geneva, 2000, p. 1.) Further, 2.3 billion
persons each year suffer from diseases linked to water: see United
Nations, Commission on Sustainable Development, Comprehensive Assessment
of the Freshwater Resources of the World, New York, 1997, p. 39.
[2] See paragraphs 5 and 32 of the Committee’s general comment No.
6 (1995) on the economic, social and cultural rights of older persons.
[3] See general comment No. 14 (2000) on the right to the highest
attainable standard of health, paragraphs 11, 12 (a), (b) and (d),
15, 34, 36, 40, 43 and 51.
[4] See paragraph 8 (b) of general comment No. 4 (1991). See also
the report by Commission on Human Rights’ Special Rapporteur on
adequate housing as a component of the right to an adequate standard
of living, Mr. Miloon Kothari (E/CN.4/2002/59), submitted in accordance
with Commission resolution 2001/28 of 20 April 2001. In relation
to the right to adequate food, see the report by the Special Rapporteur
of the Commission on the right to food, Mr. Jean Ziegler (E/CN.4/2002/58),
submitted in accordance with Commission resolution 2001/25 of 20
April 2001.
[5] See article 14, paragraph 2 (h), Convention on the Elimination
of All Forms of Discrimination Against Women; article 24, paragraph
2 (c), Convention on the Rights of the Child; articles 20, 26, 29
and 46 of the Geneva Convention relative to the Treatment of Prisoners
of War, of 1949; articles 85, 89 and 127 of the Geneva Convention
relative to the Treatment of Civilian Persons in Time of War, of
1949; articles 54 and 55 of Additional Protocol I thereto of 1977;
articles 5 and 14 of Additional Protocol II of 1977; preamble, Mar
Del Plata Action Plan of the United Nations Water Conference; see
paragraph 18.47 of Agenda 21, Report of the United Nations Conference
on Environment and Development, Rio de Janeiro, 3-14 June 1992 (A/CONF.151/26/Rev.1
(Vol. I and Vol. I/Corr.1, Vol. II, Vol. III and Vol. III/Corr.1))
(United Nations publication, Sales No. E.93.I.8), vol. I: Resolutions
adopted by the Conference, resolution 1, annex II; Principle No.
3, The Dublin Statement on Water and Sustainable Development, International
Conference on Water and the Environment (A/CONF.151/PC/112); Principle
No. 2, Programme of Action, Report of the United Nations International
Conference on Population and Development, Cairo, 5-13 September
1994 (United Nations publication, Sales No. E.95.XIII.18), chap.
I, resolution 1, annex; paragraphs 5 and 19, Recommendation (2001)
14 of the Committee of Ministers to Member States on the European
Charter on Water Resources; resolution 2002/6 of the United Nations
Sub-Commission on the Promotion and Protection of Human Rights on
the promotion of the realization of the right to drinking water.
See also the report on the relationship between the enjoyment of
economic, social and cultural rights and the promotion of the realization
of the right to drinking water supply and sanitation (E/CN.4/Sub.2/2002/10)
submitted by the Special Rapporteur of the Sub-Commission on the
right to drinking water supply and sanitation, Mr. El Hadji Guissé.
[6] See also World Summit on Sustainable Development, Plan of Implementation
2002, paragraph 25 (c).
[7] This relates to both availability and to accessibility of the
right to adequate food (see general comment No. 12 (1999), paragraphs
12 and 13).
[8] See also the Statement of Understanding accompanying the United
Nations Convention on the Law of Non-Navigational Uses of Watercourses
(A/51/869 of 11 April 1997), which declared that, in determining
vital human needs in the event of conflicts over the use of watercourses
“special attention is to be paid to providing sufficient water to
sustain human life, including both drinking water and water required
for production of food in order to prevent starvation”.
[9] See also paragraph 15, general comment No. 14
[10] According to the WHO definition, vector-borne diseases include
diseases transmitted by insects (malaria, filariasis, dengue, Japanese
encephalitis and yellow fever), diseases for which aquatic snails
serve as intermediate hosts (schistosomiasis) and zoonoses with
vertebrates as reservoir hosts.
[11] For a definition of sustainability, see the Report of the United
Nations Conference on Environment and Development, Rio de Janeiro,
3-14 June 1992, Declaration on Environment and Development, principles
1, 8, 9, 10, 12 and 15; and Agenda 21, in particular principles
5.3, 7.27, 7.28, 7.35, 7.39, 7.41, 18.3, 18.8, 18.35, 18.40, 18.48,
18.50, 18.59 and 18.68.
[12] “Continuous” means that the regularity of the water supply
is sufficient for personal and domestic uses.
[13] In this context, “drinking” means water for consumption through
beverages and foodstuffs. “Personal sanitation” means disposal of
human excreta. Water is necessary for personal sanitation where
water-based means are adopted. “Food preparation” includes food
hygiene and preparation of foodstuffs, whether water is incorporated
into, or comes into contact with, food. “Personal and household
hygiene” means personal cleanliness and hygiene of the household
environment.
[14] See J. Bartram and G. Howard, “Domestic water quantity, service
level and health: what should be the goal for water and health sectors”,
WHO, 2002. See also P.H. Gleick, (1996) “Basic water requirements
for human activities: meeting basic needs”, Water International,
21, pp. 83-92.
[15] The Committee refers States parties to WHO, Guidelines for
drinking water quality, 2nd edition, vols. 1-3 (Geneva, 1993) that
are “intended to be used as a basis for the development of national
standards that, if properly implemented, will ensure the safety
of drinking water supplies through the elimination of, or reduction
to a minimum concentration, of constituents of water that are known
to be hazardous to health”.
[16] See also general comment No. 4 (1991), paragraph 8 (b), general
comment No. 13 (1999), paragraph 6 (a) and general comment No. 14
(2000), paragraphs 8 (a) and (b). Household includes a permanent
or semi-permanent dwelling, or a temporary halting site.
[17] See paragraph 48 of this general comment.
Special topics of broad application
Non-discrimination and equality
13. The obligation of States parties to guarantee that the right
to water is enjoyed without discrimination (art. 2, para. 2), and
equally between men and women (art. 3), pervades all of the Covenant
obligations. The Covenant thus proscribes any discrimination on
the grounds of race, colour, sex, age, language, religion, political
or other opinion, national or social origin, property, birth, physical
or mental disability, health status (including HIV/AIDS), sexual
orientation and civil, political, social or other status, which
has the intention or effect of nullifying or impairing the equal
enjoyment or exercise of the right to water. The Committee recalls
paragraph 12 of general comment No. 3 (1990), which states that
even in times of severe resource constraints, the vulnerable members
of society must be protected by the adoption of relatively low-cost
targeted programmes.
14. States parties should take steps to remove de facto discrimination
on prohibited grounds, where individuals and groups are deprived
of the means or entitlements necessary for achieving the right to
water. States parties should ensure that the allocation of water
resources, and investments in water, facilitate access to water
for all members of society. Inappropriate resource allocation can
lead to discrimination that may not be overt. For example, investments
should not disproportionately favour expensive water supply services
and facilities that are often accessible only to a small, privileged
fraction of the population, rather than investing in services and
facilities that benefit a far larger part of the population.
15. With respect to the right to water, States parties have a special
obligation to provide those who do not have sufficient means with
the necessary water and water facilities and to prevent any discrimination
on internationally prohibited grounds in the provision of water
and water services.
16. Whereas the right to water applies to everyone, States parties
should give special attention to those individuals and groups who
have traditionally faced difficulties in exercising this right,
including women, children, minority groups, indigenous peoples,
refugees, asylum-seekers, internally displaced persons, migrant
workers, prisoners and detainees. In particular, States parties
should take steps to ensure that:
(a) Women
are not excluded from decision-making processes concerning water
resources and entitlements. The disproportionate burden women
bear in the collection of water should be alleviated;
(b) Children are not prevented from enjoying their human rights
due to the lack of adequate water in educational institutions
and households or through the burden of collecting water. Provision
of adequate water to educational institutions currently without
adequate drinking water should be addressed as a matter of urgency;
(c) Rural and deprived urban areas have access to properly maintained
water facilities. Access to traditional water sources in rural
areas should be protected from unlawful encroachment and pollution.
Deprived urban areas, including informal human settlements, and
homeless persons, should have access to properly maintained water
facilities. No household should be denied the right to water on
the grounds of their housing or land status;
(d) Indigenous peoples’ access to water resources on their ancestral
lands is protected from encroachment and unlawful pollution. States
should provide resources for indigenous peoples to design, deliver
and control their access to water;
(e) Nomadic and traveller communities have access to adequate
water at traditional and designated halting sites;
(f) Refugees, asylum-seekers, internally displaced persons and
returnees have access to adequate water whether they stay in camps
or in urban and rural areas. Refugees and asylum-seekers should
be granted the right to water on the same conditions as granted
to nationals;
(g) Prisoners and detainees are provided with sufficient and safe
water for their daily individual requirements, taking note of
the requirements of international humanitarian law and the United
Nations Standard Minimum Rules for the Treatment of Prisoners;[1]
(h) Groups facing difficulties with physical access to water,
such as older persons, persons with disabilities, victims of natural
disasters, persons living in disaster-prone areas, and those living
in arid and semi-arid areas, or on small islands are provided
with safe and sufficient water.
III. States
parties’ obligations
General legal obligations
17. While the Covenant provides for progressive realization and
acknowledges the constraints due to the limits of available resources,
it also imposes on States parties various obligations which are
of immediate effect. States parties have immediate obligations in
relation to the right to water, such as the guarantee that the right
will be exercised without discrimination of any kind (art. 2, para.
2) and the obligation to take steps (art. 2, para. 1) towards the
full realization of articles 11, paragraph 1, and 12. Such steps
must be deliberate, concrete and targeted towards the full realization
of the right to water.
18. States parties have a constant and continuing duty under the
Covenant to move as expeditiously and effectively as possible towards
the full realization of the right to water. Realization of the right
should be feasible and practicable, since all States parties exercise
control over a broad range of resources, including water, technology,
financial resources and international assistance, as with all other
rights in the Covenant.
19. There is a strong presumption that retrogressive measures taken
in relation to the right to water are prohibited under the Covenant.[2]
If any deliberately retrogressive measures are taken, the State
party has the burden of proving that they have been introduced after
the most careful consideration of all alternatives and that they
are duly justified by reference to the totality of the rights provided
for in the Covenant in the context of the full use of the State
party’s maximum available resources.
Specific legal obligations
20. The right to water, like any human right, imposes three types
of obligations on States parties: obligations to respect, obligations
to protect and obligations to fulfil.
(a) Obligations to respect
21. The obligation to respect requires that States parties refrain
from interfering directly or indirectly with the enjoyment of the
right to water. The obligation includes, inter alia, refraining
from engaging in any practice or activity that denies or limits
equal access to adequate water; arbitrarily interfering with customary
or traditional arrangements for water allocation; unlawfully diminishing
or polluting water, for example through waste from State-owned facilities
or through use and testing of weapons; and limiting access to, or
destroying, water services and infrastructure as a punitive measure,
for example, during armed conflicts in violation of international
humanitarian law.
22. The Committee notes that during armed conflicts, emergency situations
and natural disasters, the right to water embraces those obligations
by which States parties are bound under international humanitarian
law.[3] This includes protection of objects indispensable for survival
of the civilian population, including drinking water installations
and supplies and irrigation works, protection of the natural environment
against widespread, long-term and severe damage and ensuring that
civilians, internees and prisoners have access to adequate water.[4]
(b) Obligations to protect
23. The obligation to protect requires States parties to prevent
third parties from interfering in any way with the enjoyment of
the right to water. Third parties include individuals, groups, corporations
and other entities as well as agents acting under their authority.
The obligation includes, inter alia, adopting the necessary and
effective legislative and other measures to restrain, for example,
third parties from denying equal access to adequate water; and polluting
and inequitably extracting from water resources, including natural
sources, wells and other water distribution systems.
24. Where water services (such as piped water networks, water tankers,
access to rivers and wells) are operated or controlled by third
parties, States parties must prevent them from compromising equal,
affordable, and physical access to sufficient, safe and acceptable
water. To prevent such abuses an effective regulatory system must
be established, in conformity with the Covenant and this general
comment, which includes independent monitoring, genuine public participation
and imposition of penalties for non-compliance.
(c) Obligations to fulfil
25. The obligation to fulfil can be disaggregated into the obligations
to facilitate, promote and provide. The obligation to facilitate
requires the State to take positive measures to assist individuals
and communities to enjoy the right. The obligation to promote obliges
the State party to take steps to ensure that there is appropriate
education concerning the hygienic use of water, protection of water
sources and methods to minimize water wastage. States parties are
also obliged to fulfil (provide) the right when individuals or a
group are unable, for reasons beyond their control, to realize that
right themselves by the means at their disposal.
26. The obligation to fulfil requires States parties to adopt the
necessary measures directed towards the full realization of the
right to water. The obligation includes, inter alia, according sufficient
recognition of this right within the national political and legal
systems, preferably by way of legislative implementation; adopting
a national water strategy and plan of action to realize this right;
ensuring that water is affordable for everyone; and facilitating
improved and sustainable access to water, particularly in rural
and deprived urban areas.
27. To ensure that water is affordable, States parties must adopt
the necessary measures that may include, inter alia: (a) use of
a range of appropriate low-cost techniques and technologies; (b)
appropriate pricing policies such as free or low-cost water; and
(c) income supplements. Any payment for water services has to be
based on the principle of equity, ensuring that these services,
whether privately or publicly provided, are affordable for all,
including socially disadvantaged groups. Equity demands that poorer
households should not be disproportionately burdened with water
expenses as compared to richer households.
28. States parties should adopt comprehensive and integrated strategies
and programmes to ensure that there is sufficient and safe water
for present and future generations.[5] Such strategies and programmes
may include: (a) reducing depletion of water resources through unsustainable
extraction, diversion and damming; (b) reducing and eliminating
contamination of watersheds and water-related ecosystems by substances
such as radiation, harmful chemicals and human excreta; (c) monitoring
water reserves; (d) ensuring that proposed developments do not interfere
with access to adequate water; (e) assessing the impacts of actions
that may impinge upon water availability and natural-ecosystems
watersheds, such as climate changes, desertification and increased
soil salinity, deforestation and loss of biodiversity;[6] (f) increasing
the efficient use of water by end-users; (g) reducing water wastage
in its distribution; (h) response mechanisms for emergency situations;
(i) and establishing competent institutions and appropriate institutional
arrangements to carry out the strategies and programmes.
29. 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.[7] In accordance with the rights to
health and adequate housing (see general comments Nos. 4 (1991)
and 14 (2000)) States parties have an obligation to progressively
extend safe sanitation services, particularly to rural and deprived
urban areas, taking into account the needs of women and children.
International obligations
30. Article 2, paragraph 1, and articles 11, paragraph 1, and 23
of the Covenant require that States parties recognize the essential
role of international cooperation and assistance and take joint
and separate action to achieve the full realization of the right
to water.
31. To comply with their international obligations in relation to
the right to water, States parties have to respect the enjoyment
of the right in other countries. International cooperation requires
States parties to refrain from actions that interfere, directly
or indirectly, with the enjoyment of the right to water in other
countries. Any activities undertaken within the State party’s jurisdiction
should not deprive another country of the ability to realize the
right to water for persons in its jurisdiction.[8]
32. States parties should refrain at all times from imposing embargoes
or similar measures, that prevent the supply of water, as well as
goods and services essential for securing the right to water.[9]
Water should never be used as an instrument of political and economic
pressure. In this regard, the Committee recalls its position, stated
in its general comment No. 8 (1997), on the relationship between
economic sanctions and respect for economic, social and cultural
rights.
33. Steps should be taken by States parties to prevent their own
citizens and companies from violating the right to water of individuals
and communities in other countries. Where States parties can take
steps to influence other third parties to respect the right, through
legal or political means, such steps should be taken in accordance
with the Charter of the United Nations and applicable international
law.
34. Depending on the availability of resources, States should facilitate
realization of the right to water in other countries, for example
through provision of water resources, financial and technical assistance,
and provide the necessary aid when required. In disaster relief
and emergency assistance, including assistance to refugees and displaced
persons, priority should be given to Covenant rights, including
the provision of adequate water. International assistance should
be provided in a manner that is consistent with the Covenant and
other human rights standards, and sustainable and culturally appropriate.
The economically developed States parties have a special responsibility
and interest to assist the poorer developing States in this regard.
35. States parties should ensure that the right to water is given
due attention in international agreements and, to that end, should
consider the development of further legal instruments. With regard
to the conclusion and implementation of other international and
regional agreements, States parties should take steps to ensure
that these instruments do not adversely impact upon the right to
water. Agreements concerning trade liberalization should not curtail
or inhibit a country’s capacity to ensure the full realization of
the right to water.
36. States parties should ensure that their actions as members of
international organizations take due account of the right to water.
Accordingly, States parties that are members of international financial
institutions, notably the International Monetary Fund, the World
Bank, and regional development banks, should take steps to ensure
that the right to water is taken into account in their lending policies,
credit agreements and other international measures.
Core obligations
37. In general comment No. 3 (1990), the Committee confirms that
States parties have a core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights
enunciated in the Covenant. In the Committee’s view, at least a
number of core obligations in relation to the right to water can
be identified, which are of immediate effect:
(a) To ensure
access to the minimum essential amount of water, that is sufficient
and safe for personal and domestic uses to prevent disease;
(b) To ensure the right of access to water and water facilities
and services on a non-discriminatory basis, especially for disadvantaged
or marginalized groups;
(c)
To ensure physical access to water facilities or services that
provide sufficient, safe and regular water; that have a sufficient
number of water outlets to avoid prohibitive waiting times; and
that are at a reasonable distance from the household;
(d) To ensure personal security is not threatened when having
to physically access to water;
(e) To ensure equitable distribution of all available water facilities
and services;
(f) To adopt and implement a national water strategy and plan
of action addressing the whole population; the strategy and plan
of action should be devised, and periodically reviewed, on the
basis of a participatory and transparent process; it should include
methods, such as right to water indicators and benchmarks, by
which progress can be closely monitored; the process by which
the strategy and plan of action are devised, as well as their
content, shall give particular attention to all disadvantaged
or marginalized groups;
(g) To monitor the extent of the realization, or the non-realization,
of the right to water;
(h) To adopt relatively low-cost targeted water programmes to
protect vulnerable and marginalized groups;
(i) To take measures to prevent, treat and control diseases linked
to water, in particular ensuring access to adequate sanitation;
38. For the
avoidance of any doubt, the Committee wishes to emphasize that it
is particularly incumbent on States parties, and other actors in
a position to assist, to provide international assistance and cooperation,
especially economic and technical which enables developing countries
to fulfil their core obligations indicated in paragraph 37 above.
IV. Violations
39. When the normative content of the right to water (see Part II)
is applied to the obligations of States parties (Part III), a process
is set in motion, which facilitates identification of violations
of the right to water. The following paragraphs provide illustrations
of violations of the right to water.
40. To demonstrate compliance with their general and specific obligations,
States parties must establish that they have taken the necessary
and feasible steps towards the realization of the right to water.
In accordance with international law, a failure to act in good faith
to take such steps amounts to a violation of the right. It should
be stressed that a State party cannot justify its non-compliance
with the core obligations set out in paragraph 37 above, which are
non-derogable.
41. In determining which actions or omissions amount to a violation
of the right to water, it is important to distinguish the inability
from the unwillingness of a State party to comply with its obligations
in relation to the right to water. This follows from articles 11,
paragraph 1, and 12, which speak of the right to an adequate standard
of living and the right to health, as well as from article 2, paragraph
1, of the Covenant, which obliges each State party to take the necessary
steps to the maximum of its available resources. A State which is
unwilling to use the maximum of its available resources for the
realization of the right to water is in violation of its obligations
under the Covenant. If resource constraints render it impossible
for a State party to comply fully with its Covenant obligations,
it has the burden of justifying that every effort has nevertheless
been made to use all available resources at its disposal in order
to satisfy, as a matter of priority, the obligations outlined above.
42. Violations of the right to water can occur through acts of commission,
the direct actions of States parties or other entities insufficiently
regulated by States. Violations include, for example, the adoption
of retrogressive measures incompatible with the core obligations
(outlined in paragraph 37 above), the formal repeal or suspension
of legislation necessary for the continued enjoyment of the right
to water, or the adoption of legislation or policies which are manifestly
incompatible with pre-existing domestic or international legal obligations
in relation to the right to water.
43. Violations through acts of omission include the failure to take
appropriate steps towards the full realization of everyone’s right
to water, the failure to have a national policy on water, and the
failure to enforce relevant laws.
44. While it is not possible to specify a complete list of violations
in advance, a number of typical examples relating to the levels
of obligations, emanating from the Committee’s work, may be identified:
(a) Violations
of the obligation to respect follow from the State party’s interference
with the right to water. This includes, inter alia: (i) arbitrary
or unjustified disconnection or exclusion from water services
or facilities; (ii) discriminatory or unaffordable increases in
the price of water; and (iii) pollution and diminution of water
resources affecting human health;
(b) Violations of the obligation to protect follow from the failure
of a State to take all necessary measures to safeguard persons
within their jurisdiction from infringements of the right to water
by third parties.[10] This includes, inter alia: (i) failure to
enact or enforce laws to prevent the contamination and inequitable
extraction of water; (ii) failure to effectively regulate and
control water services providers; (iii) failure to protect water
distribution systems (e.g., piped networks and wells) from interference,
damage and destruction; and
(c) Violations of the obligation to fulfil occur through the failure
of States parties to take all necessary steps to ensure the realization
of the right to water. Examples include, inter alia: (i) failure
to adopt or implement a national water policy designed to ensure
the right to water for everyone; (ii) insufficient expenditure
or misallocation of public resources which results in the non-enjoyment
of the right to water by individuals or groups, particularly the
vulnerable or marginalized; (iii) failure to monitor the realization
of the right to water at the national level, for example by identifying
right-to-water indicators and benchmarks; (iv) failure to take
measures to reduce the inequitable distribution of water facilities
and services; (v) failure to adopt mechanisms for emergency relief;
(vi) failure to ensure that the minimum essential level of the
right is enjoyed by everyone; (vii) failure of a State to take
into account its international legal obligations regarding the
right to water when entering into agreements with other States
or with international organizations.
V. Implementation
at the national level
45. In accordance with article 2, paragraph 1, of the Covenant,
States parties are required to utilize “all appropriate means, including
particularly the adoption of legislative measures” in the implementation
of their Covenant obligations. Every State party has a margin of
discretion in assessing which measures are most suitable to meet
its specific circumstances. The Covenant, however, clearly imposes
a duty on each State party to take whatever steps are necessary
to ensure that everyone enjoys the right to water, as soon as possible.
Any national measures designed to realize the right to water should
not interfere with the enjoyment of other human rights.
Legislation, strategies and policies
46. Existing legislation, strategies and policies should be reviewed
to ensure that they are compatible with obligations arising from
the right to water, and should be repealed, amended or changed if
inconsistent with Covenant requirements.
47. The duty to take steps clearly imposes on States parties an
obligation to adopt a national strategy or plan of action to realize
the right to water. The strategy must: (a) be based upon human rights
law and principles; (b) cover all aspects of the right to water
and the corresponding obligations of States parties; (c) define
clear objectives; (d) set targets or goals to be achieved and the
time frame for their achievement; (e) formulate adequate policies
and corresponding benchmarks and indicators. The strategy should
also establish institutional responsibility for the process; identify
resources available to attain the objectives, targets and goals;
allocate resources appropriately according to institutional responsibility;
and establish accountability mechanisms to ensure the implementation
of the strategy. When formulating and implementing their right to
water national strategies, States parties should avail themselves
of technical assistance and cooperation of the United Nations specialized
agencies (see Part VI below).
48. The formulation and implementation of national water strategies
and plans of action should respect, inter alia, the principles of
non-discrimination and people’s participation. The right of individuals
and groups to participate in decision-making processes that may
affect their exercise of the right to water must be an integral
part of any policy, programme or strategy concerning water. Individuals
and groups should be given full and equal access to information
concerning water, water services and the environment, held by public
authorities or third parties.
49. The national water strategy and plan of action should also be
based on the principles of accountability, transparency and independence
of the judiciary, since good governance is essential to the effective
implementation of all human rights, including the realization of
the right to water. In order to create a favourable climate for
the realization of the right, States parties should take appropriate
steps to ensure that the private business sector and civil society
are aware of, and consider the importance of, the right to water
in pursuing their activities.
50. States parties may find it advantageous to adopt framework legislation
to operationalize their right to water strategy. Such legislation
should include: (a) targets or goals to be attained and the time
frame for their achievement; (b) the means by which the purpose
could be achieved; (c) the intended collaboration with civil society,
private sector and international organizations; (d) institutional
responsibility for the process; (e) national mechanisms for its
monitoring; and (f) remedies and recourse procedures.
51. Steps should be taken to ensure there is sufficient coordination
between the national ministries, regional and local authorities
in order to reconcile water-related policies. Where implementation
of the right to water has been delegated to regional or local authorities,
the State party still retains the responsibility to comply with
its Covenant obligations, and therefore should ensure that these
authorities have at their disposal sufficient resources to maintain
and extend the necessary water services and facilities. The States
parties must further ensure that such authorities do not deny access
to services on a discriminatory basis.
52. States parties are obliged to monitor effectively the realization
of the right to water. In monitoring progress towards the realization
of the right to water, States parties should identify the factors
and difficulties affecting implementation of their obligations.
Indicators and benchmarks
53. To assist the monitoring process, right to water indicators
should be identified in the national water strategies or plans of
action. The indicators should be designed to monitor, at the national
and international levels, the State party’s obligations under articles
11, paragraph 1, and 12. Indicators should address the different
components of adequate water (such as sufficiency, safety and acceptability,
affordability and physical accessibility), be disaggregated by the
prohibited grounds of discrimination, and cover all persons residing
in the State party’s territorial jurisdiction or under their control.
States parties may obtain guidance on appropriate indicators from
the ongoing work of WHO, the Food and Agriculture Organization of
the United Nations (FAO), the United Nations Centre for Human Settlements
(Habitat), the International Labour Organization (ILO), the United
Nations Children’s Fund (UNICEF), the United Nations Environment
Programme (UNEP), the United Nations Development Programme (UNDP)
and the United Nations Commission on Human Rights.
54. Having identified appropriate right to water indicators, States
parties are invited to set appropriate national benchmarks in relation
to each indicator.[11] During the periodic reporting procedure,
the Committee will engage in a process of “scoping” with the State
party. Scoping involves the joint consideration by the State party
and the Committee of the indicators and national benchmarks which
will then provide the targets to be achieved during the next reporting
period. In the following five years, the State party will use these
national benchmarks to help monitor its implementation of the right
to water. Thereafter, in the subsequent reporting process, the State
party and the Committee will consider whether or not the benchmarks
have been achieved, and the reasons for any difficulties that may
have been encountered (see general comment No. 14 (2000), paragraph
58). Further, when setting benchmarks and preparing their reports,
States parties should utilize the extensive information and advisory
services of specialized agencies with regard to data collection
and disaggregation.
Remedies and accountability
55. Any persons or groups who have been denied their right to water
should have access to effective judicial or other appropriate remedies
at both national and international levels (see general comment No.
9 (1998), paragraph 4, and Principle 10 of the Rio Declaration on
Environment and Development).[12] The Committee notes that the right
has been constitutionally entrenched by a number of States and has
been subject to litigation before national courts. All victims of
violations of the right to water should be entitled to adequate
reparation, including restitution, compensation, satisfaction or
guarantees of non-repetition. National ombudsmen, human rights commissions,
and similar institutions should be permitted to address violations
of the right.
56. Before any action that interferes with an individual’s right
to water is carried out by the State party, or by any other third
party, the relevant authorities must ensure that such actions are
performed in a manner warranted by law, compatible with the Covenant,
and that comprises: (a) opportunity for genuine consultation with
those affected; (b) timely and full disclosure of information on
the proposed measures; (c) reasonable notice of proposed actions;
(d) legal recourse and remedies for those affected; and (e) legal
assistance for obtaining legal remedies (see also general comments
No. 4 (1991) and No. 7 (1997)). Where such action is based on a
person’s failure to pay for water their capacity to pay must be
taken into account. Under no circumstances shall an individual be
deprived of the minimum essential level of water.
57. The incorporation in the domestic legal order of international
instruments recognizing the right to water can significantly enhance
the scope and effectiveness of remedial measures and should be encouraged
in all cases. Incorporation enables courts to adjudicate violations
of the right to water, or at least the core obligations, by direct
reference to the Covenant.
58. Judges, adjudicators and members of the legal profession should
be encouraged by States parties to pay greater attention to violations
of the right to water in the exercise of their functions.
59. States parties should respect, protect, facilitate and promote
the work of human rights advocates and other members of civil society
with a view to assisting vulnerable or marginalized groups in the
realization of their right to water.
VI. Obligations of actors other than States
60. United Nations agencies and other international organizations
concerned with water, such as WHO, FAO, UNICEF, UNEP, UN-Habitat,
ILO, UNDP, the International Fund for Agricultural Development (IFAD),
as well as international organizations concerned with trade such
as the World Trade Organization (WTO), should cooperate effectively
with States parties, building on their respective expertise, in
relation to the implementation of the right to water at the national
level. The international financial institutions, notably the International
Monetary Fund and the World Bank, should take into account the right
to water in their lending policies, credit agreements, structural
adjustment programmes and other development projects (see general
comment No. 2 (1990)), so that the enjoyment of the right to water
is promoted. When examining the reports of States parties and their
ability to meet the obligations to realize the right to water, the
Committee will consider the effects of the assistance provided by
all other actors. The incorporation of human rights law and principles
in the programmes and policies by international organizations will
greatly facilitate implementation of the right to water. The role
of the International Federation of the Red Cross and Red Crescent
Societies, International Committee of the Red Cross, the Office
of the United Nations High Commissioner for Refugees (UNHCR), WHO
and UNICEF, as well as non-governmental organizations and other
associations, is of particular importance in relation to disaster
relief and humanitarian assistance in times of emergencies. Priority
in the provision of aid, distribution and management of water and
water facilities should be given to the most vulnerable or marginalized
groups of the population.
Notes
[1] See articles 20, 26, 29 and 46 of the third Geneva Convention
of 12 August 1949; articles 85, 89 and 127 of the fourth Geneva
Convention of 12 August 1949; articles 15 and 20, paragraph 2, United
Nations Standard Minimum Rules for the Treatment of Prisoners, in
Human Rights: A Compilation of International Instruments (United
Nations publication, Sales No. E.88.XIV.1).
[2] See general comment No. 3 (1990), paragraph 9.
[3] For the interrelationship of human rights law and humanitarian
law, the Committee notes the conclusions of the International Court
of Justice in Legality of the Threat or Use of Nuclear Weapons (Request
by the General Assembly), ICJ Reports (1996) p. 226, paragraph 25.
[4] See articles 54 and 56, Additional Protocol I to the Geneva
Conventions (1977), article 54, Additional Protocol II (1977), articles
20 and 46 of the third Geneva Convention of 12 August 1949, and
common article 3 of the Geneva Conventions of 12 August 1949.
[5] See footnote 5 above, Agenda 21, chapters 5, 7 and 18; and the
World Summit on Sustainable Development, Plan of Implementation
(2002), paragraphs 6 (a), (l) and (m), 7, 36 and 38.
[6] See the Convention on Biological Diversity, the Convention to
Combat Desertification, the United Nations Framework Convention
on Climate Change, and subsequent protocols.
[7] Article 14, paragraph 2, of the Convention on the Elimination
of All Forms of Discrimination Against Women stipulates States parties
shall ensure to women the right to “adequate living conditions,
particularly in relation to […] sanitation”. Article 24, paragraph
2, of the Convention on the Rights of the Child requires States
parties “To ensure that all segments of society […] have access
to education and are supported in the use of basic knowledge of
[…] the advantages of […] hygiene and environmental sanitation.”
[8] The Committee notes that the United Nations Convention on the
Law of Non-Navigational Uses of Watercourses requires that social
and human needs be taken into account in determining the equitable
utilization of watercourses, that States parties take measures to
prevent significant harm being caused, and, in the event of conflict,
special regard must be given to the requirements of vital human
needs: see articles 5, 7 and 10 of the Convention.
[9] In general comment No. 8 (1997), the Committee noted the disruptive
effect of sanctions upon sanitation supplies and clean drinking
water, and that sanctions regimes should provide for repairs to
infrastructure essential to provide clean water.
[10] See paragraph 23 for a definition of “third parties”.
[11] See E. Riedel, “New bearings to the State reporting procedure:
practical ways to operationalize economic social and cultural rights
- The example of the right to health”, in S. von Schorlemer (ed.),
Praxishandbuch UNO, 2002, pp. 345-358. The Committee notes, for
example, the commitment in the 2002 World Summit on Sustainable
Development Plan of Implementation to halve, by the year 2015, the
proportion of people who are unable to reach or to afford safe drinking
water (as outlined in the Millennium Declaration) and the proportion
of people who do not have access to basic sanitation.
[12] Principle 10 of the Rio Declaration on Environment and Development
(Report of the United Nations Conference on Environment and Development,
see footnote 5 above), states with respect to environmental issues
that “effective access to judicial and administrative proceedings,
including remedy and redress, shall be provided”.
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