The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization
Aug.
The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization
Sharmila L. Murthy 0
0 Fellow, Harvard Kennedy School of Government: Human Rights to Water & Sanitation Program, Carr Center for Human Rights Policy, and Sustainability Science Program, Mossavar-Rahmani Center for Business & Government; Assistant Professor, Suffolk University Law School (as of
The recognition by the United Nations (U.N.) General Assembly1 and the U.N. Human Rights Council2 in 2010 of a human right to safe drinking water and sanitation has propelled awareness of the global water and sanitation crisis to new heights, while also raising a host of challenging issues. This article surveys the evolution of this right by attempting to place it within a broader historical context and by addressing some of the controversies around privatization.
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Human Rights Council Res. 15/9, U.N. Doc. A/HRC/RES/15/9 (Oct. 6, 2010).
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human right to water and sanitation, which was not explicitly included among
the rights recognized at the founding of the human rights system. The idea of a
human right to water first emerged at international environmental conferences,
in response to water justice struggles around the world. However, it was not
until decades later that the right to water, along with the right to sanitation, was
recognized within the human rights legal framework. In the streets, the human
right to water became a rallying call for political and social anti-privatization
movements that sought to keep water as a public good that would be accessible
to everyone. Although several countries, including the United States and
Canada, had historically been opposed to recognizing the right to water, a
review of the General Assembly minutes during the 2010 vote on the human
right to safe drinking water and sanitation suggests that the politics around
privatization may have influenced the positions of these abstaining countries.
The Human Rights Council resolution several months later clarified several of
these concerns, leading to a consensus decision. While the human right to safe
drinking water is arguably recognized in international law, the legal status of an
independent right to sanitation is less clear, which is why this article is called the
human right(s) to water and sanitation. The debate over the scope of the human
right to water and sanitation is not necessarily over, as the recent dialogue on the
human right to water and sanitation at the Rio+20 conference, discussed infra,
suggests.3
Part II considers the meaning of the human right to water and sanitation
under international law. The human right to water and sanitation entitles
everyone to sufficient, safe, acceptable, physically accessible and affordable
water for personal and domestic uses. 4 The legal obligations under the
International Covenant on Economic, Social and Cultural Rights (ICESCR) are
discussed, with a focus on the concepts of progressive realization and
nondiscrimination. The section also addresses misconceptions that often arise
regarding the enforceability of these rights and the nature of positive and
negative rights.
Part III turns to the topic of privatization. Although human rights are
neutral with respect to the private sectors involvement in the delivery of water
and sanitation services, human rights are not irrelevant to such decisions. From a
human rights perspective, the important question is not whether a private sector
entity is involved in the delivery of services, but how the arrangement is
structured, implemented, and monitored. While this issue has been central to the
debate around the human right to water and sanitation, it is not new from the
perspective of economic and social rights. Given the history of the ICESCR, it
may seem surprising that the human right to water and sanitation has been
perceived to be so at odds with privatization. Three themes highlighting the
tensions between human rights and private sector involvement in the water and
sanitation sectors are explored: financial sustainability, efficiency, and dispute
resolution. In effect, human rights principles can be understood as guideposts for
regulation, monitoring, and oversight, which are critical when the private sector
is involved in the delivery of water and sanitation services.
I.
UNDERSTANDING THE HUMAN RIGHT(S) TO WATER AND SANITATION AS A
SOCIO-LEGAL RESPONSE TO TRENDS IN WATER MANAGEMENT
Communities around the world have invoked the idea of a human right to
water in local struggles to maintain access to traditional sources of water and to
improve access to sufficient quantities of good quality and affordable water and
sanitation services. Their calls for a human right to water have been grounded in
notions of justice5 and have reflected not only a physical dependence on water
for survival, but also a cultural, religious, and spiritual relationship with this
vital natural resource. For many, it is almost axiomatic to describ (...truncated)