The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization

Berkeley Journal of International Law, Oct 2013

By Sharmila L. Murthy JD, MPA, Published on 04/01/13

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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. - Human Rights Council Res. 15/9, U.N. Doc. A/HRC/RES/15/9 (Oct. 6, 2010). 90 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)


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Sharmila L. MPA Murthy JD. The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization, Berkeley Journal of International Law, 2013, Volume 31, Issue 1,